R v Kerr - [2024] NZHC 1062

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-088-002754

[2024] NZHC 1062

THE KING

v

TUPAEA KERR

Hearing: 9 May 2024

Appearances:

A J Goodwin for the Crown

A B Fairley and M Ridgley for Tupaea Kerr

Judgment:

9 May 2024

SENTENCING NOTES OF WHATA J

Solicitors:
MWIS (Solicitor’s office for the Crown), Whangarei, Thomson Wilson, Whangarei

R v TUPAEA KERR [2024] NZHC 1062 [9 May 2024]

[1]Mr Tupaea Kerr you have pleaded guilty to the following charges:

(a)Participation in an organised criminal group.1

(b)Failing to carry out obligations in relation to a computer system search.2

[2]I now sentence you for this offending.

Facts of the offending

[3] Mr Kerr, you were one of several members of a criminal group involved in the importation, manufacture and selling of methamphetamine. The members of this group included family relations, including Kauri Kerr, your cousin and Jodie Kerr your sister. There were several other members of the group who were not well known to you.

[4] On 9 June 2021, you and three of your co-defendants, Kauri Kerr, Taioma Gillet and Marcella Griffen were at a mall in Albany where a customs duty payment was made for a parcel. This parcel was intercepted by Customs on 14 June 2021. The freight fees were subsequently paid. Then on 25 June 2021, you were involved with Mr Gillet in collecting that parcel from the Airport. I understand Jodie was there with you at that time as well. The parcel had contained five kilograms of methamphetamine, but the methamphetamine had been removed by Customs by this stage.

[5] The summary of facts to which you pleaded guilty also records that you, along with Jodie, Levi Tali and Jordan Hokai were at the bottom of the group’s hierarchy and it is unlikely you received any significant profits from the group’s activities, but that you enabled the manufacture of methamphetamine and the supply of drugs by other members of the group.

1 Crimes Act 1961, s 98A. Maximum penalty: 10 years imprisonment.
2 Search and Surveillance Act 2012, s 178. Maximum penalty: 3 months imprisonment.

[6] On 12 November 2021, you were located and arrested by the Police. You refused to provide the passcode for your cell phone when a Detective Bigwood requested it from you in accordance with s 130(1) of the Search and Surveillance Act 2012.

Personal circumstances

[7] I now turn to your personal circumstances. This account is largely based on the submissions of your counsel. You are 33 years old. You had a tough upbringing. You were exposed to drug abuse as a child and developed a drug habit from the age of
15. You gravitated to gangs from a young age and started prospecting from about 20 years old.

[8] You have been imprisoned on 33 occasions and have convictions for a wide variety of offences ranging from violent offending, dishonesty, property damage, traffic offending and non-compliance with Court imposed sanctions. In addition, when…

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 R v Kerr

Details

AGLC: R v Kerr [2024] NZHC 1062
Case: [2024] NZHC 1062
Decision Date: 9 May 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Whata J presided over the case of R v Kerr, in which Tupaea Kerr was convicted of participating in an organised criminal group involved in the importation, manufacture, and sale of methamphetamine, as well as failing to comply with a computer system search obligation. Kerr was a peripheral member of the criminal group, which included family members and other associates. His role primarily involved enabling the group's drug-related activities, and he was less likely to have benefited financially from the group's operations. Kerr's criminal history was extensive, with numerous prior convictions for various offences, and he had been involved in criminal activities since a young age. Despite this, the court acknowledged Kerr's efforts to improve himself, including participation in rehabilitation programs and displaying leadership qualities while on electronic monitoring bail.

The primary legal issues revolved around determining an appropriate starting point for Kerr's sentence, adjusting it for personal circumstances and factors, and applying a discount for his guilty plea. The court considered the nature and seriousness of Kerr's involvement in the criminal group and his prior criminal history, balanced against his demonstrated potential for rehabilitation and positive personal developments. Whata J applied a starting point of 27 months, adjusted this by 7 months to account for personal factors and a guilty plea, and then added 6 months for offending while on bail, resulting in a final sentence of 22 months imprisonment for the participation charge, with an additional concurrent one-month sentence for the search obligation charge.

The court's reasoning was grounded in the principles of sentencing, aiming to achieve deterrence, denunciation, public protection, and rehabilitation. By imposing special conditions as recommended in the Pre-sentence Assessment Centre (PAC) report, the court sought to further support Kerr's rehabilitation and commitment to personal improvement.

Orders