R v Kane

[2017] NZHC 340

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-063-731 [2017] NZHC 340

THE QUEEN

v

LIAM JOHN KANE

Charge:

Plea:

Unlawful possession of a firearm

Not Guilty

Counsel:

C H Macklin for Crown
N M Dutch for Prisoner

Sentenced:

3 March 2017

SENTENCING NOTES OF BREWER J

Solicitors/Counsel:

Crown Solicitor, Rotorua. N Dutch, Tauranga.

R v KANE [2017] NZHC 340 [3 March 2017]

[1]      Mr Kane, you are for sentence on one charge of unlawful possession of a firearm. You were found in possession of a shotgun which was under your bed. You had ammunition for it.  You were convicted by the jury of this offence following the trial of you and others on many charges of violence and dishonesty.   You were acquitted of all the other charges against you and I do not consider that background to be relevant to your sentencing.

[2]      The law requires me to first set a starting point for your offending and then to adjust it up or down having regard to your personal circumstances.   The Crown submits that a starting point for your offending should be 12–15 months’ imprisonment.  Your lawyer’s submissions, which were filed yesterday, submit that a starting point of 9–12 months’ imprisonment is available.

[3]      In the absence of a connection to any other offending, I will adopt a starting point of 12 months’ imprisonment.  I do so on the basis that you are a gang member found in possession of a shotgun with ammunition. There is no evidence that you had it for a specific criminal purpose but I reject the suggestion, as the jury must have done, that the rural locality and your comments to the police raise a reasonable possibility that you had it for recreational shooting.

[4]      As to your personal factors, you have 14 previous convictions and you have served short terms of imprisonment in the past; but none of your offending relates to firearms.  Worryingly, on 20 October 2015 while you were on bail on this and the other charges, you assaulted a female.  On 5 April 2016 you were sentenced to nine months’ home detention and I am advised that you have successfully completed that sentence and are now subject to post-release conditions.

[5]      I will not increase your starting point for your record of offending but you cannot claim a discount for good character.  In my view, what I do have to take into account is the restrictions on your liberty since you were charged with this offence and the related offences on which you were acquitted.

[6]      Your lawyer tells me that you  have served remand time as follows:

(a)       March 2015-June 2015;

(b)      October 2015-December 2015; and

(c)       Some six weeks during the course of the trial.

[7]      I will take into account the first and third periods of remand but not the second because that was your doing and was a consequence of the assault on your partner.

[8]      In your lawyer’s submissions I should take that time as sufficient punishment to meet the need to hold you accountable for your offending and to deter others.  I agree  to  the  extent  that  I  find  that  an  end  sentence  of  imprisonment  is  not appropriate.  It seems to me that the least restrictive sentence would be community detention plus community work.  But in fixing community detention I have to take account that you have already spent over four months in prison on remand.

[9]      Please stand Mr Kane.

[10]     Mr Kane I sentence you to a period of three months’ community detention

and to 100 hours’ of community work.

[11]     So far as the community detention is concerned:

(a)       You will reside at 19 Twentythird Avenue, Gate Pa, Tauranga for the duration of the sentence.

(b)      The curfew hours will be 2200 hours until 0600 hours daily. (c)         The date of the first curfew will be 8 March 2017.

[12]     Now Mr Kane I am going to say something to you.  It is pretty much what I said to Mr Dwyer.  I am not naïve enough to think that it is likely to do any good but if there is the faintest possibility that you will pay some attention to what I am going to say then it might do you some good and so I am going to say it.

[13]     I heard quite a lot about you and what you did during the course of the trial.  I am also aware of your criminal record.  You are a big man and it seems to me that you have got a habit of using violence and I am pleased to see that you have recently completed a programme to address this.   But you are still heavily involved in the Head Hunters and this is what I want to say to you.

[14]     Mr Kane, in this case, you have dodged a bullet but you are not bullet proof, and the Head Hunters are about serious drugs and violence when it is necessary. You have got one child by your first partner and your current partner is pregnant again.  If you fall into the Head Hunters’ trap you will end up standing in front of another Judge who will end up saying 10 years or longer.  I do not see you as an evil person. I see you as a person with some real potential.  You have to decide whether or not that is going to be your path or whether you are going to stay in the community and be a father to your children.  That is your choice, Mr Kane.  I hope you make the right one.

[15]     You may stand down.

Brewer J