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Solicitor-General v Cross

Solicitor-General v Cross

Case [2024] NZHC 3490 21 November 2024

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IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2024-483-11

[2024] NZHC 3490

BETWEEN
SOLICITOR-GENERAL

Appellant

AND

KEVIN JOHN CROSS

Respondent

Hearing: 19 November 2024

Counsel:

S C Baker and T Zhang for Appellant D M Goodlet for Respondent

Judgment:

21 November 2024

JUDGMENT OF RADICH J

[1] Kevin Cross pleaded guilty to a charge of causing grievous bodily harm with intent to do so,1 and a charge of reckless driving causing injury.2 He was sentenced in the District Court at Taihape to 12 months’ home detention on 26 August 2024.3

[2] The Crown brings an appeal from the sentencing decision on the grounds that a full custodial term was the least restrictive outcome available given the nature and circumstances of the offending. It says that the starting point was inadequate, the discounts applied were excessive, and the end sentence of home detention is manifestly inadequate.

1      Crimes Act 1961, s 188(1) — maximum penalty 14 years’ imprisonment.
2      Land Transport Act 1998, s 36(1)(a) — maximum penalty five years’ imprisonment, or $20,000 fine; and mandatory disqualification from holding or obtaining a driver licence for 1 year or more.
3      R v Cross [2024] NZDC 20911 [sentencing notes].

SOLICITOR-GENERAL v CROSS [2024] NZHC 3490 [21 November 2024]

Background

Summary of the offending

[3] Mr Cross and the victim both lived and worked on farms in Rangiwahia. They were known to each other within that community.

[4] On 1 May 2024, Mr Cross was driving his vehicle on the same road as the victim. They passed each other, travelling in opposite directions. Mr Cross slowed his vehicle and performed a U-turn, so that he was travelling in the same direction as the victim.

[5] Concerned about Mr Cross’s possible actions, the victim pulled into a driveway of one of his paddocks. He got out of his vehicle and opened the gate so that he could drive into the paddock. As the victim was getting back into his vehicle, Mr Cross drove into the back of the victim’s vehicle at speed. The collision caused the victim’s head to hit the windscreen. And it caused substantial damage to the front of Mr Cross’s own vehicle, including to the bull bar. This conduct gave rise to the charge of reckless driving causing injury.

[6] While the victim was lying on the ground, after having been struck by the vehicle, Mr Cross approached him carrying an object believed to be a wooden post or pipe. Mr Cross struck the victim a number of times to his face and head using the object, and left him lying face down in a stream. Mr Cross then drove back to his farm and parked his vehicle in a shed that was not visible from the road. This conduct gave rise to the charge of causing grievous bodily harm with intent.

[7] The victim sustained fractures to his left femur, right forearm, and left eye socket, and he sustained three deep…

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 Solicitor-General v Cross

Details

AGLC: Solicitor-General v Cross [2024] NZHC 3490
Case: [2024] NZHC 3490
Decision Date: 21 November 2024

CaseChat Overview and Summary

The appeal concerns the sentence imposed on Kevin John Cross following his convictions for causing grievous bodily harm with intent and reckless driving causing injury. The Crown argues that a full custodial term was the least restrictive outcome given the nature and circumstances of the offending. The appeal was heard on 19 November 2024 and judgment was handed down on 21 November 2024. The Court dismissed the appeal in all but one respect. The starting point of six years' imprisonment was within the range available to the Judge, but the Crown submitted that the offending fell within the middle of band two. The Court found that while the starting point was generous, it was within the available range. The Crown further argued that the discounts applied by the Judge were excessive. The Court found that the discounts were at the upper end but did not result in a sentence that failed to account for the gravity of the offending. The end sentence of 12 months’ home detention was not manifestly inadequate. The Crown argued that the overall sentence was not proportionate with Mr Cross’s culpability and the seriousness of his offending. The Court found that the Judge’s approach was in error in principle and departed from accepted sentencing principles, but concluded that the sentence did remain within the available range and was not manifestly inadequate. The Court did, however, allow the appeal to the extent that the Judge had failed to make an order disqualifying Mr Cross from holding or obtaining a driver’s licence for one year.

Orders