Knox v Police

Case [2014] NZCA 51


IN THE COURT OF APPEAL OF NEW ZEALAND

CA824/2013
[2014] NZCA 51

BETWEEN

KERRY BRUCE SHANE KNOX
Appellant

AND

NEW ZEALAND POLICE
Respondent

Hearing:

10 February 2014

Court:

White, MacKenzie and Mallon JJ

Counsel:

D A Ewen for Applicant
M H Cooke for Respondent

Judgment:

6 March 2014 at 10.00 am

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

  1. The applicant, Mr Knox, seeks leave to appeal to this Court against his sentence in the High Court of two years and three months’ imprisonment on four methamphetamine supply charges involving at least 26.45 grams.[1]  Mr Knox had pleaded guilty to these charges in the District Court and was sentenced in that Court to 12 months’ home detention and 200 hours’ community work,[2] but an appeal by the

police to the High Court under s 115A of the Summary Proceedings Act 1957 was successful and resulted in the imposition of the sentence of imprisonment.[3]

[1]New Zealand Police v Knox [2013] NZHC 2760 [High Court sentencing decision].

[2]R v Knox DC Wellington CRI 2012-085-1444, 31 July 2013 [District Court sentencing decision].

[3]Section 115A of the Summary Proceedings Act 1957 was repealed on 1 July 2013, by s 7(2) of the Summary Proceedings Amendment Act (No 2) 2011.  The provision is now reproduced in substantially the same terms as s 246 of the Criminal Procedure Act 2011.  Although the District Court sentencing decision was given on 31 July 2013, s 397(1) and (2) of the Criminal Procedure Act provide for the proceeding to continue in accordance with the law as it stood before 1 July 2013. 

  1. Mr Knox is required to obtain special leave to appeal to this Court against the High Court sentence because his application to that Court for leave to appeal “on a question of law” under s 144(1) of the Summary Proceedings Act was declined on the grounds that none of the questions identified by Mr Knox were questions which, by reason of their general or public importance or for any other reason, ought to be submitted to this Court for decision under s 144(2) of the Summary Proceedings Act.[4]

    [4]New Zealand Policev Knox [2013] NZHC 2828 [High Court leave decision].

  2. Mr Knox seeks special leave to appeal on the following four questions:

    (1)On an informant’s appeal against sentence was the [High] Court required to assess the adequacy of the sentence first by reference to the lowest available starting point and assess discounts applied in light of that starting point?

    (2)If the sentencing Judge has applied a discount for a mitigating factor available in law and grounded on existing authority and within the sentencing discretion, was the Court entitled to extinguish the credit allowed on an informant’s appeal?

    (3)In determining the notional end sentence for the purposes of s 15A of the Sentencing Act 2002, was the sentencing Judge entitled to make a discreet [sic] adjustment in the prison term to…

Continue reading Knox v Police

Sign in free to access the full text

Details
AGLC
Knox v Police [2014] NZCA 51
Case
[2014] NZCA 51
Decision Date

CaseChat Overview and Summary

Kerry Bruce Shane Knox sought leave to appeal against the two years and three months’ imprisonment sentence imposed on him by the High Court for methamphetamine supply. The initial sentence of 12 months’ home detention and 200 hours’ community work imposed by the District Court was appealed by the police to the High Court, which substituted a custodial sentence. Mr Knox’s application for leave to appeal to the Court of Appeal was dismissed. The key legal issues were whether the High Court was required to assess the adequacy of the sentence by reference to the lowest available starting point and whether the High Court was entitled to extinguish the credit allowed for certain mitigating factors. Additionally, the court had to determine if the High Court was entitled to make a discreet adjustment in the prison term to account for a cumulative community-based sentence and whether the facts that Mr Knox had spent approximately two months in custody and was subject to a cumulative sentence of community work and judicial monitoring were factors the High Court should have taken into account in determining whether the sentence imposed was clearly inadequate.

The Court of Appeal held that the questions posed by Mr Knox did not meet the criteria under s 144(2) of the Summary Proceedings Act. The Court noted that there was no authority requiring an appellate court to assess manifest inadequacy by reference to the range for the sentence starting point when that is not the issue on appeal. The Court also held that the Crown’s response in relation to the second question confused the application of credit within the sentencing discretion and the reduction of credit outside the sentencing discretion. In relation to the third and fourth questions, the Court held that they were not questions of law of general or public importance as the answers were in the Sentencing Act. The Court held that taking into account a potential community sentence before identifying an appropriate sentence was impermissible and pre-sentence detention could not be taken into account when setting the length of imprisonment. The Court concluded that the answers to the questions would have no practical effect on the end sentence correctly imposed by the High Court. Therefore, the application for special leave to appeal was dismissed.

The final orders of the Court were that the application for special leave to appeal is dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.