Kushell v Police - [2012] NZHC 2574

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000223 [2012] NZHC 2574

BETWEEN BERTHA WIWANA KUSHELL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 10 September 2012

Appearances: J W Mackey for Appellant
S S McMullan for Respondent

Judgment: 4 October 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 4 October 2012 at 3:30 pm
pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date………………………..

Solicitors: Meredith Connell, P O Box 2213, Auckland 1141
Fax: (09) 336-7629 – K Snelgar

Counsel: J W Mackey, P O Box 15522, New Lynn, Waitakere 0640
Fax: (09) 828-4156

KUSHELL V NZ POLICE HC AK CRI-2012-404-000223 [4 October 2012]

Introduction

[1] The appellant, Bertha Kushell, appeals the sentence of three years imprisonment imposed by Judge Gibson in the District Court at Waitakere on one charge of burglary pursuant to s 231(1)(a) of the Crimes Act 1961. Ms Kushell was on parole at the time of the offending, having served 18 months of a four-and-a-half year term of imprisonment for multiple dishonesty offences. Following her arrest she was recalled to serve the rest of that sentence.

[2] Judge Gibson took a starting point of two years’ imprisonment and uplifted that by one year on account of Ms Kushell’s previous convictions and a further six months for offending while on parole. The Judge then gave a 20 per cent discount for Ms Kushell’s guilty plea. The end sentence of three years’ imprisonment was to be served cumulatively upon the previous sentence, which Ms Kushell was still serving as a result of being recalled.

[3] Ms Kushell’s ground of appeal is that the sentence is manifestly excessive as a result of various errors by the sentencing Judge which may be summarised as follows:

(a) The starting point was too high;

(b) The uplift of one years’ imprisonment for previous convictions was

excessive and amounted to double punishment;

(c) The uplift of six months’ imprisonment for offending on parole was

excessive and amounted to double punishment;

(d)The Judge failed to take into account the fact that Ms Kushell had been recalled to serve the remainder of her sentence, leading to a sentence that was out of proportion to the gravity of the overall offending;

(e) Ms Kushell should have been allowed the full 25 per cent discount for her guilty plea; and

(f) There are arithmetical errors in the Judge’s calculations and the end sentence should have been 33-and-a-half months rather than 36 months.

Was the starting point too high?

[4] Because of the range of circumstances in which burglary is committed there is no tariff case for this offence. However, the Court of Appeal has identified the relevant factors in assessing culpability in R v Nguyen:1

… the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending…

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.

Continue reading Kushell v Police

Details

AGLC: Kushell v Police [2012] NZHC 2574
Case: [2012] NZHC 2574
Decision Date: 4 October 2012

CaseChat Overview and Summary

Bertha Wiwana Kushell appeals against the sentence of three years' imprisonment imposed by Judge Gibson in the District Court at Waitakere on one charge of burglary, pursuant to s 231(1)(a) of the Crimes Act 1961. Ms Kushell was on parole at the time of the offending, having served 18 months of a four-and-a-half year term of imprisonment for multiple dishonesty offences. Following her arrest, she was recalled to serve the remainder of that sentence. Judge Gibson took a starting point of two years' imprisonment and uplifted that by one year on account of Ms Kushell's previous convictions and a further six months for offending while on parole. The Judge then gave a 20 per cent discount for Ms Kushell's guilty plea. The end sentence of three years' imprisonment was to be served cumulatively upon the previous sentence, which Ms Kushell was still serving as a result of being recalled.

The legal issues that the court had to decide were whether the starting point was too high, whether the uplifts for previous convictions and for offending on parole were excessive, whether the Judge failed to take into account that Ms Kushell had been recalled to serve the remainder of her sentence, whether Ms Kushell should have been allowed the full 25 per cent discount for her guilty plea, and whether there were arithmetical errors in the Judge's calculations. The court held that the starting point was not too high, that the uplifts were not excessive, that the Judge's failure to expressly consider the effect of recall from parole did not result in unfairness, that the Judge was not obliged to give the full 25 per cent discount for the guilty plea, and that the arithmetical error did not justify interfering with the sentence.

The court dismissed the appeal, and the sentence of three years' imprisonment stood. The court held that the sentence ultimately imposed was not manifestly excessive notwithstanding the apparent error in reaching that figure. The court accepted that there was an arithmetical error in the Judge's analysis, but this did not justify interfering with the sentence. The Crown maintained its submission in relation to earlier grounds of appeal that the end sentence was not manifestly excessive and the end sentence of three years imposed by the Judge should stand, notwithstanding the apparent error in reaching that figure. The court accepted this and reiterated that the sentence ultimately imposed was not manifestly excessive notwithstanding the apparent error.

Orders