[1] On 12 June 2012 Mr Kushell was sentenced to two years and four months’ imprisonment for his involvement in taking two cars from where they were parked in Pukekohe and driving them to Rotorua.

[2] Mr Kushell appeals against this sentence on the basis that:

(1)the sentencing Judge applied an uplift for his previous convictions that was manifestly excessive and resulted in an end sentence which
was totally inappropriate; and

KUSHELL V NEW ZEALAND POLICE HC DUN CRI-2012-412-000034 [14 September 2012]

(2)that his co-accused appears to have been sentenced to just 100 hours of community work.

[3] Mr Kushell submits that the disparity between his sentence and that imposed on his co-accused renders the sentence he received as one that was manifestly excessive.

Summary of facts

[4] On the evening of 29 March 2012, Mr Kushell and his co-accused were in Pukekohe. They approached a parked car and gained entry using a fork in the shape of a key. Mr Kushell used the same fork to start the car. He and his co-accused drove to another address where a Ford Laser was parked. The co-accused got out of the first car and gained entry to the Ford Laser, starting it using a fork in the same manner as was used on the first vehicle. The two offenders drove to Rotorua in the stolen cars, completing some “burn outs” en route before parking the cars in Rotorua. They were then apprehended by police. Mr Kushell explained he stole the car in order to get back to Dunedin where he had been living since his release on parole in 2011.

District Court Judge’s decision

[5] The District Court Judge described the offending as an opportunistic attempt to steal low value cars and drive a good distance from Auckland. He then stated the primary purpose of sentencing would be to hold Mr Kushell to account for a long record of offending. Mr Kushell’s prior convictions for the same kind of offending have attracted every sentence possible, ranging from corrective training to five years’ imprisonment. The most serious offence was committed in 2000 when Mr Kushell was sent to prison for five years for burglary and unlawfully taking a motor vehicle. After his release from prison Mr Kushell was convicted of aggravated robbery and unlawfully taking a motor vehicle which attracted a sentence of three and a half years’ imprisonment. The District Court Judge noted serious concerns about this previous offending and the fact that Mr Kushell has not responded to prior sentences.

[6] The District Court Judge imposed a starting…

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 2380
Case: [2012] NZHC 2380
Decision Date: 14 September 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Michael William Kushell appeals against his sentence of two years and four months' imprisonment for stealing two cars and driving them from Pukekohe to Rotorua. The appellant argues that the uplift for his previous convictions was excessively high and that the disparity between his sentence and that of his co-accused renders his sentence manifestly excessive. The court must determine if the sentencing judge appropriately considered the appellant's criminal history and the disparity between his sentence and that of his co-accused.

The court considers the number, seriousness, date, relevance, and nature of the appellant's previous convictions, which are mandatory aggravating features. The District Court Judge based the 18-month uplift on the appellant's pattern of offending for the same types of offences and his inability to respond to the sentences imposed. However, the court finds that a 100 per cent uplift of the starting point is very unusual and reduces the uplift to 12 months' imprisonment. The court also considers the disparity between the appellant's sentence and that of his co-accused, noting that reducing a proper sentence to bring it in line with a lenient sentence imposed on a co-offender can undermine public confidence in the administration of justice.

The appeal is allowed, and the court imposes a sentence based on a starting point of 18 months, to which an uplift of 12 months' imprisonment is applied to reflect the appellant's previous convictions. The court then provides the same 20 per cent discount applied by the District Court to reflect the appellant's guilty pleas, producing an end result of two years' imprisonment.

Orders