R v Kite

Case [2007] NZCA 385 31 August 2007

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA210/07
[2007] NZCA 385
THE QUEEN
v
JOSHUA MASON KITE
Hearing:21 August 2007

Court:Chambers, Randerson and John Hansen JJ
Counsel:W M Ryan for Appellant

S B Edwards for Crown

Judgment:31 August 2007 at 12 pm

JUDGMENT OF THE COURT

AAn extension of time for appealing is granted.
BThe appeal against the order fixing a minimum period of imprisonment is allowed, that order is quashed, and, in substitution therefor, an order is made that the appellant serve a minimum period of imprisonment of six years eight months in relation to the sentences for the aggravated robberies.
CThe balance of the appeal is dismissed.

REASONS OF THE COURT
(Given by John Hansen J)
[1]       Between September and November of 2006, Mr Kite was responsible for the planning and execution of three major armed robberies in Auckland. In each case the method was the same. Mr Kite would carry out a reconnaissance of the relevant area and the movements of security personnel. He would arrange for the placement of stolen motor vehicles to be utilised in the robberies, and recruit associates to carry out the robberies armed with firearms. Mr Kite remained nearby in another vehicle equipped with a police scanner. As soon as that revealed the robberies had taken place, he would drive off and meet his associates at a predetermined point. The money was then divided between them and the stolen vehicles disposed of. In each case the robberies were carried out in busy commercial areas at times when significant numbers of people could be expected to be present. In each case the victim impact reports reveal that the security guards suffered significant, and understandable, psychological trauma.
[2]       On 1 September $43,928 was taken from two Chubb security guards who were delivering money to an ASB outlet in Epsom. On 14 September a total of $50,549.25 was taken from two ADT guards delivering money to a BNZ branch in Panmure. On 13 November $140,000 was taken from two ADT security officers replenishing an ATM machine in Otara. Only $4,161.45 was recovered. (Given Mr Kite’s associates have pleaded not guilty, it can be inferred that no other funds will be recovered.)
[3]       In July of 2006, using two separate stolen credit cards, the appellant obtained, or attempted to obtain, cash and goods. He succeeded in purchasing items to the value of $4,622.36.
[4]       On 17 January 2007 the appellant successfully persuaded Court staff he was another person who had been granted bail. He then escaped from custody. He had persuaded the person he was impersonating to provide sufficient details to allow the impersonation.
[5]       The appellant pleaded guilty to three aggravated robberies; six charges of using, and four of attempting to use, a document to obtain a pecuniary advantage; and one of escaping from lawful custody. The appellant was aged 24, with a small number of previous convictions for violence, but significantly including one conviction for aggravated robbery using a firearm.
[6]       The sentencing…

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 Kite

Details

AGLC: R v Kite [2007] NZCA 385
Case: [2007] NZCA 385
Decision Date: 31 August 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Joshua Mason Kite, sought to appeal against his sentence for multiple aggravated robberies, fraud, and escaping lawful custody. The appeal was lodged out of time, but with no opposition from the Crown, the court granted an extension to allow the appeal. The appellant argued three grounds for appeal: the starting point for the aggravated robberies was too high, the sentences for fraud and escaping should not have been cumulative, and there was an error in setting the minimum non-parole period.

The Court of Appeal disagreed with the appellant's first two grounds, affirming that the starting point was within the appropriate range and that the cumulative sentences were correctly imposed under the Sentencing Act 2002. However, the Court found merit in the third ground, acknowledging an error in the minimum non-parole period. The sentencing judge had overlooked the statutory provision that allows for a minimum non-parole period only in relation to a particular sentence, not the total term. Therefore, the minimum non-parole period should have been applied only to the ten-year sentence for the aggravated robberies, not the total eleven years and eight months. The Court reduced the minimum non-parole period to six years and eight months for the aggravated robberies.

Consequently, the appeal against the order fixing the minimum period of imprisonment was allowed, and the order was quashed, substituting it with a new order of a minimum period of imprisonment of six years and eight months for the aggravated robberies. The balance of the appeal was dismissed. The Court noted that the appellant's counsel had presented all possible arguments on his behalf.

Orders