THE QUEEN v VONRICK KERR [1999] NZCA 160 (26 August 1999)

IN THE court of appeal of new zealand

ca195/99

THE QUEEN

V

VONRICK KERR

Hearing:	23 August 1999
Coram:	Henry J
	Doogue J Panckhurst J
Appearances:	R M Lithgow for Appellant
	S P France for Crown
Judgment:	26 August 1999

judgment OF THE COURT DELIVERED BY panckhurst j

Introduction:

[1]On 7 May the appellant was sentenced to two years imprisonment for breaking and entering the home of his wife and eighteen months imprisonment, concurrent, for breaching a protection order in favour of his wife and two young children.Such sentence is challenged as being either manifestly excessive or inappropriate, in the particular circumstances of the case.

Background:

[2]The appellant is aged 36 years.He came to New Zealand from London in 1992 in the company of his New Zealand partner.They were married the following year.There are two children of the marriage aged 4 and 3 years. The appellant and his wife separated in 1997 and in March 1998 a protection order was made.Between then and June 1998 no less than four breaches of the order occurred, as a result of which the longest and last sentence imposed was five months imprisonment.On 4 November 1998 the appellant was released from that prison term.After 8 pm that evening he travelled to his wife's home. She was aware of the appellant's release and had arranged for a friend to be in the house with her.The two noticed the appellant peering into a rear window of the house.An alarm to the police station was activated and the police were also telephoned.The appellant broke and entered the house using a stone to shatter a ranch slider door.The trial Judge described what followed in these terms:

You entered the lounge and you confronted first your wife's friend, and then your wife.As you entered the lounge you picked up the rock, and while you were confronting them you held the rock in a shotput hold away from your face. You challenged the friend as to why she was there, and you challenged your wife about a lack of access to the children while you were in prison.When you challenged your wife, her friend went to check the children who were sleeping in a nearby bedroom.At some point, too, you began to move in that direction. You said to your wife, or, as she says, you yelled at her, `How would you feel if I took the kids off you?'.Your daughter had then awakened and begun crying.Police sirens could be heard close by.You stopped, raised the rock above your head, and threw it down between your wife and yourself;on the friend's evidence, it might have been away from your wife.You left swiftly, you were not apprehended, and you surrendered to the police the following day.

The appellant volunteered the comment to the police he found it impossible to stay away.After arrest, inevitably, a remand in custody followed.

[3] On 15 January 1999 the appellant entered a plea of guilty to breaching the protection order.The Crown also charged him indictably with aggravated burglary, burglary as an alternative, a further burglary and theft of a police sensor.The latter two charges arose from events at about 2 am on the morning of 5 November.The police returned to the address to find that the ranch slider door had again been broken, but that there was no-one inside.A police sensor device, provided to the appellant's wife because of concerns about the appellant, was missing.

[4] The appellant's trial commenced in the District Court on 25 March 1999.On arraignment he pleaded not guilty to all charges.The following day the jury was discharged on account of an irregularity in relation to a jury member.A retrial began the following Monday 29 March.At the end of the Crown case a discharge was sought in relation to the aggravated burglary charge, on the basis that the rock with which the appellant was armed was not a weapon.The Judge upheld the submission.At this point the appellant changed his plea with reference to the alternative charge of burglary.Finally the jury returned not guilty verdicts in relation to the early morning burglary and the theft charge.

[5] On 7 May the appellant was sentenced.In imposing the effective term of two years imprisonment, the learned Judge noted : the need for a deterrent sentence to demonstrate that protection orders had integrity and would be enforced by the Courts, the deliberate and considered nature of the offending, the breach of the protection order was a fifth offence within a short time span and committed on the day of the appellant's release from prison, and the profound effect of the offending upon the appellant's wife.

Grounds of Appeal:

[6] Four main grounds of appeal were advanced.First was the argument that two years imprisonment was out of line with sentences imposed in other comparable cases.We have considered the two High Court decisions relied upon. In both sentences of imprisonment somewhat less than the present were at issue on appeal, where there had been previous breaches of a protection order.In Robson v Police High Court Invercargill, AP 40/98, 14 October 1998, a sentence of eighteen months imprisonment, being nine months for breach of a protection order and nine months cumulative for threatening to kill, was upheld.The case has some similarities with the present.However, in the end the facts of this case are unique.The appellant's persistence of offending and its timing, on the very evening of his release, mark the case apart from others.We were also referred to decisions of this Court which involved sentences for violent offending following entry into private homes.We do not find these of assistance, since they lack the domestic background which is so much a feature of this case.

[7] The second argument was that the criminality involved in the appellant's conduct was adequately captured by the breach of the protection order, so that the burglary conviction added little.This submission was also made to the sentencing Judge in support of the suggestion that the maximum sentence for breach of a protection order, two years, ought to be the point of reference for sentencing rather than the ten year maximum for burglary.We disagree.The circumstances of this case provide a classic example of the appropriateness of a breaking and entering charge, albeit that the crime intended was breach of a protection order.The close relationship between the two charges was recognised by the imposition of concurrent terms.

[8] Third was the argument that the learned Judge was wrong not to suspend the sentence of imprisonment and impose supervision on appropriate terms.In this context considerable store was placed on the fact the appellant had spent six months in remand custody before sentence.Further, that a psychological report and a psychiatric report obtained by the Court, were positive to the extent that they expressed the common opinion the appellant's preoccupation with obtaining access to his children was the principal motivation for his conduct. If that issue was addressed, the report writers considered, the risk of further offending would be considerably reduced.It was submitted the learned Judge failed to have regard to these factors.We do not so read the comprehensive sentencing remarks.The experienced Judge obviously concluded that the offending could not be characterised as moderately serious and suitable for a suspended term : R v Petersen [1994] 2 NZLR 533 (CA).Given the circumstances of the case we think this conclusion was inevitable.

[9] The final ground of appeal was that the appellant was not given credit for his pleas of guilty to the two charges.His plea to the breach of the protection order was entered quite early, 15 January 1999.The plea to the burglary immediately followed the trial ruling favourable to the appellant in relation to the aggravated burglary.Counsel therefore argued that the delay in entry of this plea was attributable to the Crown which preferred the aggravated count, when the appellant was always prepared to plead guilty to the alternative of burglary.The Judge considered the question of a discount.He determined that in the circumstances none should be given.We are not persuaded that discretionary judgment was wrong.Conviction of at least burglary simpliciter and breach of the protection order was inevitable from the outset.Yet, as the case was run, the appellant's wife was not "spared the ordeal of a trial and a retrial", to adopt the Judge's words.In that regard R v W CA 352/97, 19 November 1997, is distinguishable.Whilst the pleas in that case were significantly delayed, such was against the background of an assurance that the complainants would not be required to testify, albeit that the appropriateness of the charges preferred was in dispute.In relation to an issue of this kind the trial Judge is best placed to make the required assessment.We are not prepared to intervene in relation to his reasoned decision.

Conclusion:

[10] The appeal is accordingly dismissed.

Solicitors

Crown Law Office, Wellington