Kura v Police - [2014] NZHC 2730

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000263 [2014] NZHC 2730

BETWEEN
ROBERT KURA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 November 2014

Appearances:

C Wright for Appellant
S Navott for Respondent

Judgment:

3 November 2014

ORAL JUDGMENT OF VENNING J

Solicitors: Public Defence Service, Auckland
Meredith Connell, Auckland

KURA v NEW ZEALAND POLICE [2014] NZHC 2730 [3 November 2014]

[1] The appellant Mr Kura pleaded guilty to six charges of burglary, 13 charges of unlawfully taking a motor vehicle, other charges in relation to unlawful interference with motor vehicles, breach of community work, breach of release conditions, a charge of obtaining a document for a pecuniary advantage and a charge of failing to answer District Court bail.

[2] On 25 July 2014 in the District Court at Auckland Judge David Sharp sentenced Mr Kura to an end sentence of three years imprisonment on the burglary charges and 12 months on the unlawful interfering with motor vehicles charges, sentences to be concurrent. Mr Kura was sentenced to three months concurrent on the charge of obtaining a document for pecuniary advantage. On all other matters he was either simply convicted or convicted and discharged.

[3] The Judge structured the sentence in the following way. He took a starting point for the more serious offending of four years imprisonment and then uplifted that by three months to take account the offending occurred whilst Mr Kura was on bail whilst still subject to a sentence. He then provided a reduction of 30 per cent to take account of the two mitigating factors in this case, the early guilty plea and youth. That led to the end sentence of three years imprisonment from which Mr Kura appeals.

[4] In his helpful and full submissions Mr Wright has identified the principal grounds for appeal are that the allowance for youth was insufficient and that a more appropriate allowance for youth, taken in conjunction with the early guilty plea would have led to a reduction in sentence of between about 30 and 40 per cent, which he quantified as allowing a reduction of up to nine months for the youth factor before taking account of the guilty plea. That would have led to an end sentence in the region of 30 to 32 months imprisonment.

[5] In his full sentence notes Judge Sharp noted the extent of the offending, that the pre-sentence report recorded Mr Kura being a high risk of offending, that Mr Kura apparently did not like being told what to do by the supervisor at Community Work and had not complied with his release conditions. The Judge observed that sadly imprisonment was the only realistic sentence.

[6] The Judge correctly identified the purposes and principles of sentencing appropriate to this particular case and the relevant authorities relating to burglary, noting that some $91,000 worth of property was involved in the burglary and unlawful taking. For those reasons the starting point of four years was fixed. As noted Mr Wright responsibly…

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: [2014] NZHC 2730
Decision Date: 3 November 2014

CaseChat Overview and Summary

The case of Kura v Police involves an appeal by the appellant, Mr Robert Kura, against his sentence imposed by the District Court at Auckland. Mr Kura was convicted on various charges including burglary, unlawfully taking motor vehicles, breach of community work, and other related offences. The District Court sentenced Mr Kura to three years imprisonment on the burglary charges and 12 months on the unlawful interfering with motor vehicles charges, with sentences to be concurrent. The appellant's primary contention on appeal is that the discount for youth was insufficient and that a more appropriate discount for youth, taken in conjunction with the early guilty plea, should have resulted in a sentence reduction of between 30 and 40 per cent, equating to an end sentence of around 30 to 32 months imprisonment.

The legal issues the Court was required to address included whether the sentence imposed was manifestly excessive, whether the discount for the appellant's youth was appropriate, and whether the sentence adequately reflected the principles of sentencing. The Court considered the appellant's age at the time of offending, his prior criminal history, and the nature and extent of his offending. The Court also examined the appropriate weight to give to the mitigating factors of the early guilty plea and youth.

The Court found that while age could be a relevant mitigating factor in sentencing, it was not a presumption in favour of a discount for youth. Each case must be assessed based on the circumstances of the offending and the particular circumstances of the offender. The Court noted that the appellant was aged 18 when most of the offending occurred, but also considered his extensive prior criminal history and the extent and persistence of his offending. The Court concluded that the sentence imposed by the District Court was appropriate and not manifestly excessive, and therefore dismissed the appeal. The reasoning was that the starting point of four years imprisonment was reasonable, the uplift for offending while on bail and in breach of release conditions was modest, and the discount for the guilty plea was appropriate given the strength of the Crown case.

Orders