Kuhtz v Police - [2013] NZHC 111

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-73 [2013] NZHC 111

BETWEEN JASON KUHTZ Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 7 February 2013

Counsel: M B J Curran for Appellant
J E Tarrant for Respondent

Judgment: 7 February 2013

(ORAL) JUDGMENT OF KATZ J

Solicitors: Crown Solicitor, Hamilton – jet@almaodouch.co.nz

Copy to:` M B J Curran, Hamilton – mbcurran@xtra.co.nz

KUHTZ V NEW ZEALAND POLICE HC HAM CRI-2012-419-73 [7 February 2013]

Introduction

[1] Jason Kuhtz appeals against a sentence of 23 months imprisonment imposed by Judge Connell in the District Court at Thames following his pleas of guilty to charges of threatening to kill (x2); intentional damage; assault with a weapon and assault with intent to injure.

[2] Mr Kuhtz appeals on the following grounds:

(a) full credit was not given for his guilty pleas;

(b)the totality principle was either not considered or was incorrectly applied; and

(c) his remorse was not taken into account.

Facts

[3] The offending occurred on two separate occasions. The first offending occurred in February 2012 while the second series of offences took place in June
2012.

[4] The facts in relation to the February offending were as follows. Mr Kuhtz and his partner, the complainant, were at their home address. Mr Kuhtz became loud, abusive and aggressive when the complainant tried to pack a bag to leave. He pushed her down on to the bed and retrieved a swordfish sword which he then pushed down on to her throat. Mr Kuhtz’s son went into the bedroom and tried to pull the sword up off the complainant’s neck.

[5] The complainant managed to get away to the kitchen. Mr Kuhtz followed and pushed the complainant down on to the ground. He put his foot on to head and stated: “I’m going to kill you. I could kill you and snap your neck”. Again the complainant managed to get away to the car with her two year old son who was

crying and upset. Mr Kuhtz’s own son was very scared the incident could have turned out worse, had he not intervened.

[6] The subsequent offending occurred in June 2012. In particular on 16 June

2012, Mr Kuhtz was at a hotel in Thames with his partner, who is again the complainant. Both Mr Kuhtz and the complainant had consumed a considerable quantity of alcohol throughout the day.

[7] Mr Kuhtz became angry and left when he was refused service due to his level of intoxication. He then travelled to the complainant’s home. On entering, he kicked and smashed a flat screen television and smashed a glass pane door to the dining room. Mr Kuhtz then left the address, but kicked a Mitsubishi vehicle belonging to the complainant as he departed. This caused dents to two panels.

[8] At approximately 6 a.m, Mr Kuhtz returned to the address, entered through the front door, and found the complainant asleep in bed. He began abusing her, punching her on the leg and buttock several times before dragging…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 111
Decision Date: 7 February 2013

CaseChat Overview and Summary

In this case, Jason Kuhtz appealed against the sentence of 23 months imprisonment imposed by the District Court at Thames following his pleas of guilty to charges of threatening to kill, intentional damage, assault with a weapon, and assault with intent to injure. The court was required to decide whether the sentence was appropriate and whether the District Court Judge erred in his application of the principles of sentencing, including the totality principle and the discount for guilty pleas and remorse. The High Court found that the Judge had erred in sentencing two related February offences on a cumulative basis instead of concurrently, reducing the overall sentence by three months to 20 months imprisonment. The appeal was allowed to that extent.

The court found that while the Judge did not apply the exact same guilty plea discount in relation to each charge, this was ultimately a matter of judicial discretion and the court was not satisfied that the Judge had erred in the exercise of his discretion. The court also found that the Judge correctly applied the totality principle, except in sentencing the two related February offences on a cumulative basis, which should have been treated concurrently. Finally, while the Judge had acknowledged Mr Kuhtz’s remorse, the court found that he did not explicitly provide for such a discount in his sentencing calculations and that any discount for remorse would have to be very much at the lower end of the scale. However, the failure to provide expressly for such a discount did not warrant interference by an appellate court.

Orders