R v Kerr
[2024] NZHC 1062
•9 May 2024
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 you did the present offending, you were on release conditions for an aggravated robbery, on bail for unrelated offending and subject to a good behaviour bond. There is some important background to this though – you went to live with your relation Kauri Kerr because you were struggling having just been released from prison.
[9] I also have the benefit of a letter from the Grace Foundation. You were placed there for about a year and a half as part of your then EM Bail. While there you showed a strong work ethic and integrity, you participated actively in the Rangatahi program and emerged as a leader. You played a pivotal role in conducting fitness and mindfulness activities and you inspired others. You also completed a 20-week Safeman, Safefamily group anger management programme on 21 December 2022.
[10] It is necessary to add for completeness, while still with the Grace Foundation, you also breached your bail conditions including in a particularly serious way – you absconded in a motor car driving dangerously while fleeing from police. It is for this reason that your bail was revoked and you have been in custody since.
[11] Finally, I note a letter provided to me by your partner, and she says that you have taken significant steps including counselling to improve yourself and to work
towards a better relationship with her, that you are a loving and committed father, and that you genuinely desire to lead a better life.
Sentencing
[12]Dealing with the sentence I must impose on you. It is in three key parts:
(a)First, I must set out what is called a starting point for a sentence of imprisonment. This must reflect the seriousness of your offending.
(b)Second, I must then adjust the starting point for any personal factors that cause me concern, as well as take into account any reasons that justify a more lenient approach to your sentence.
(c)Third, I will then give you a discount for guilty plea before arriving at a final sentence.
[13] Throughout this process I must be guided by the purposes and principles of sentencing, including the need to deter you and others who might offend like you, to denounce your behaviour, to protect the public, and to provide for your rehabilitation.
[14] As to starting point, Mr Goodwin for the Crown submits that a starting point of two years three months to two years six months is appropriate based on the starting points imposed on Mr Levi Tali and on Ms Jodie Kerr. Mr Ridgely submits that your role was peripheral only. He also says that there is no distinction between your offending and Jodie’s offending and that your involvement was if anything recklessness rather than intentional action.
[15] I accept that the sentences handed down for your two co-defendants, Mr Tali, and for Jodie Kerr are relevant.3 The Judges in those cases helpfully reviewed other cases, so they provide a good reference point for your starting point.
3 R v Tali [2022] NZHC 2181; R v Kerr [2023] NZHC 1176; and R v Kerr [2023] NZHC 1175 (Sentencing Indication).
[16] Mr Tali received a starting point of two years six months. Ms Kerr received a starting point of two years. Both were essentially ‘gophers’, and like you, not directly involved in any of the major activities of the criminal group. I also accept the Crown submission that your role in the offending was slightly worse than Jodie who was with you at the Airport but was not present at the Albany mall when the Customs payment was made. Whether you were reckless or intentionally engaged is not in my view a valid distinction in this case. You were clearly involved in serious offending involving the importation of 5.1 kilograms of methamphetamine. On that basis I consider that a two-year three-month starting point is appropriate.
[17] In terms of uplift, the fact you were on release conditions, on bail and subject to a good behaviour bond at the time of your offending is a factor that must be taken into account. The Crown seeks an uplift of six to nine months or 20–30 per cent depending on the starting point, to account for this and your poor prior criminal history. Mr Ridgley contends that there should be no uplift or only a small uplift, noting that the present offending is very different from the kind of offending for which you were serving sentence. He also says your prior convictions are not similar to the present offending.
[18] I consider that an uplift of about 20 per cent or six months is necessary to address the fact you were subject to release conditions and on bail at the time of the offending. This is necessary to deter you and others from any offending while subject to Court imposed release conditions.4 I also consider it to be proportionate to the starting point for what is moderately serious drug offending.5 In this regard I note the Crown has indicated that it will not be pursuing a further sentence for breach of release conditions.
[19] I see no reason to uplift for your prior, largely quite different offending. Insofar as it relates to prior breaches of Court conditions, I consider this is captured in the uplift I have already handed down.
4 See Benson v R [2013] NZCA 39 at [11] for reference to uplifts in other cases.
5 See Taylor v R [2012] NZCA 332.
[20] I come to discounts for personal background factors. Your background presents a complicated picture of childhood trauma, drug abuse, gravitation to gangs, a long history of criminality, the present offending, a lengthy period of positive pro- social behaviour before a major lapse late last year. I see an indirect connection between your upbringing and your criminality, including your present offending. Unfortunately, that connection extended to the present period of offending, because by staying with your whanaunga Kauri Kerr, the leader of your criminal group, you were directly woven into his criminal enterprise. But I also see you have made significant strides to better yourself, for your partner, for your children and for your community and I accept you are remorseful for what you have done.
[21] Given all of this, I consider a discount of 15 per cent is warranted to reflect these factors but most importantly, because I consider there is real potential for you to rehabilitate, Mr Kerr.6
[22] I must also afford you a discount to reflect your time on EM bail. I understand you spent about one year five months on EM bail involving a 24/7 curfew. But I must moderate this discount because of the multiple breaches of EM bail including; three instances for a tracker being flat; two instances of change of address without approval; an instance of failure to appear in court, and of course the incident late last year. Overall, therefore, having regard to those factors I consider that a four month discount is warranted.
[23] Finally, I agree with the Crown that you should have a 12.5 per cent discount for your guilty plea. This accords with the discounts handed down for other co- defendants who were part of the criminal group, who also pleaded guilty on withdrawal of serious charges.7
[24] In the result, from a starting point of 27 months, I apply a discount of seven months for personal circumstances and guilty plea to arrive at a starting point of 20 months. I then deduct four months to reflect the time spent on EM bail. This arrives
6 For discounts of this scale see Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
7 See R v Kilgour [2024] NZHC 610; and R v Hokai [2023] NZHC 2113.
at a revised starting point of 16 months. To this I add six months for offending while subject to release conditions. On that basis, I arrive at an end sentence of 22 months.
[25] Based on this, Mr Kerr please stand; I sentence you to 22 months imprisonment on the charge of participation in a criminal group. On the charge of failing to carry out an obligation in relation to computer systems search I impose a sentence of one month to be served concurrently.
You may stand down.
[26] After sentencing, I was recalled to Court. Mr Goodwin requested that I impose special conditions, without objection from Counsel for Mr Kerr. The following exchange took place.
[27] Mr Kerr, on the issue of special conditions. The PAC report has recommended special conditions. I have heard from both your counsel and the Crown, and they both agree that they should be imposed. Given your commitment to bettering yourself they are appropriate, therefore I am going to add to your sentence the imposition of the special conditions as set out in the PAC report.
Whata J
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