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Kite v R [2018] NZCA 485 (8 November 2018)

Last Updated: 3 December 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA187/2018
[2018] NZCA 485



BETWEEN

JOSHUA MASON KITE
Appellant


AND

THE QUEEN
Respondent

Hearing:

8 October 2018

Court:

Cooper, Venning and Collins JJ

Counsel:

M E Goodwin and N Soondram for Appellant
H D L Steele for Respondent

Judgment:

8 November 2018 at 11 am


JUDGMENT OF THE COURT

  1. The application for an extension of time to appeal is granted.
  2. The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

[1] This is an appeal against sentence. Mr Kite was sentenced in the High Court to an effective term of 11 and a half years’ imprisonment after pleading guilty to a range of charges.[1] This was the result of imposing cumulative sentences in respect of offending that the Judge concluded was different in kind for the purpose of s 84(1) of the Sentencing Act 2002 (the Act).
[2] The appeal was not filed in time. The Crown points to no prejudice and abides the Court’s decision on an extension of time. We will extend time accordingly.
[3] The appellant pleaded guilty to each of the following offences:
[4] The methamphetamine offending arose out of events that occurred in Auckland in June 2016. The other offending occurred in Whangarei and elsewhere in Northland and was addressed at sentencing as the “Whangarei offending”. It arose out of a continuing incident in August 2016 and those offences were appropriately treated as concurrent for sentencing purposes. The methamphetamine offending was not connected to the Whangarei offending, and the Judge found it was different in kind from the Whangarei offending, so as to make cumulative sentences appropriate in terms of s 84(1) of the Act.[2]

Grounds of appeal

[5] The principal ground of the appeal is that the sentence imposed is manifestly excessive, and this because the Judge failed to take into account the totality principle. A second ground of appeal involved the claim that the Judge should have imposed concurrent sentences, an approach taken by the High Court confronted with a similarly broad range of offending in R v Duthie.[3] The fact that the High Court Judge in that case took a different approach, however, does not mean that Hinton J was not able to proceed with cumulative sentences in this case. Section 84(1) of the Act provides that “[c]umulative sentences of imprisonment are generally appropriate if the offences for which the offender is being sentenced are different in kind”. That is so “whether or not they are a connected series of offences”. As the methamphetamine offending was unrelated in time or place and was clearly of a different kind to the other offending, we do not consider the Judge’s decision to impose cumulative sentences can be criticised. We do not need to discuss that issue further.

The offending

The methamphetamine offending

[6] The methamphetamine offending occurred shortly after Mr Kite had been released on parole from Rimutaka Prison where he was serving a sentence of 11 years and eight months’ imprisonment for three offences of aggravated robbery and nine offences of using a document to obtain a pecuniary advantage. In the course of executing a search warrant at Mr Kite’s home address, on 8 June 2016 the police found four snap-lock bags containing methamphetamine weighing a total of 93 grams, and $40,900 in cash. Mr Kite was on parole in respect of the earlier offending. He was recalled to prison as a consequence of what the police found.

The Whangarei offending

[7] The Whangarei offending began after the appellant was observed driving a Subaru Legacy at about 12.45am on 26 August 2016. The appellant pulled over and stopped as directed by the police. He admitted he was disqualified from driving, but when asked to leave the vehicle the appellant drove off, reaching speeds in excess of 140 km per hour in a 50 km per hour zone. Two police vehicles pursued him. At one stage, the appellant lost control of the vehicle, which hit a kerb, became airborne and came to rest in an undriveable condition. The two police vehicles stopped within respectively 15 and three metres of the stationary Subaru.
[8] The appellant exited the Subaru, holding a blanket in his hand which fell away to reveal a rifle which he pointed towards the constables who had exited their vehicles. He told the police to back off and they began to retreat. The appellant pointed the barrel of the rifle directly at Constable Morris who sought to take refuge behind his vehicle but then threw his hands into the air and began to sprint away. As he did so, the appellant took aim and fired at him twice. The shots missed the mark. Constable Morris described himself as being “really scared” and was “fearing for his life”. The incident caused him anxiety on an ongoing basis. The appellant then commandeered the car that Constable Morris had been driving and left the scene.
[9] Shortly afterwards, he encountered a silver Audi A4 and, employing the red and blue flashing lights of the police vehicle, procured the driver to move to the side of the road and stop. He then approached the vehicle clutching the rifle and directed its two occupants to leave the car. He then entered the vehicle and once again drove off. This led to the second high speed police pursuit, but the police were not able to keep up.
[10] At Maungaturoto, the appellant stopped, ran across some farm land and entered through the unlocked door of a dwelling. The sole occupant was an elderly woman who awoke to find the appellant standing over her with the rifle. When he demanded that she drive him to Dargaville, she responded that she did not have a vehicle. The appellant then walked to a second dwelling. Inside were a couple asleep with their 17-month-old son. He woke them up and made a similar demand to be driven to Dargaville. The male member of the household agreed then began to drive the appellant in his car. The fuel light was on and the appellant realised they would not be able to reach Dargaville, so accepted they should turn back. Once there, the appellant attended to some bleeding of his feet. The Armed Offenders Squad were by this stage in the vicinity and they had support from a police helicopter.
[11] The appellant and the couple then got into the car and this time the appellant instructed them to take him to Mangawhai. They encountered a police checkpoint on the way. The officer noted the presence of the appellant but thought he did not meet the description of the offender the police were trying to apprehend.
[12] They drove on to the appellant’s brother’s residence at Mangawhai and later his brother drove him to Auckland. He was arrested on 1 September 2016 after the Armed Offenders Squad cordoned off an area around a property at which he was staying in Manurewa. He made an attempt at escape, but was incapacitated by use of a sponge round and taser. His arrest followed.

The sentence

Methamphetamine offending

[13] The Judge applied R v Fatu,[4] noting that the offending involved 93 grams, placing it within band 2 of the sentencing bands addressed in that judgment.[5] The amount of methamphetamine, its containment in ziplock bags and the amount of cash found were strong indications of commerciality and the intended supply of the drug for personal gain.[6] In the circumstances, the Judge adopted five years as an appropriate starting point.[7] She allowed a deduction of 20 per cent for the appellant’s guilty plea, notwithstanding the fact that the appellant was arrested in September 2016 but did not enter a guilty plea in relation to the drug offending until 6 October 2017. In calculating the reduction for the guilty plea, the Judge allowed credit for the fact that it was only on 20 June 2017 that a Judge held evidence obtained by execution of a surveillance device warrant was admissible.[8] Three and a half months, however, were subsequently to elapse before the guilty plea was entered.
[14] The 20 per cent reduction allowed by the Judge left a sentence of four years’ imprisonment in respect of the methamphetamine offending.[9]

Whangarei offending

[15] In dealing with the Whangarei offending, the Judge took the charge of using a firearm against a constable as the lead charge.[10] After discussing various authorities to which she had been referred, including R v Wells and this Court’s decision in R v Samuels,[11] she adopted a starting point of eight years’ imprisonment.[12]
[16] She then indicated a two year uplift to reflect the remainder of the Whangarei offending, rejecting a defence submission that one year would be sufficient.[13] In that respect she noted that the offending was all committed in a concerted effort to evade the police and had placed both members of the police and the general public at considerable risk.[14] The two years uplift comprised six months for unlawfully taking the police vehicle, four months for impersonating a police officer, 12 months for unlawfully taking the Audi, and two months for the charge of dangerous driving.[15] That took the effective sentence for the Whangarei offending to 10 years.
[17] Counsel were evidently agreed at the sentencing that it would be appropriate to impose an additional uplift of 12 months for aggravating features.[16] These included the appellant’s record, which included four previous convictions for aggravated robbery which the Judge considered showed a propensity to use violence or weapons in in the commission of offences.[17] She uplifted the sentence by nine months for this reason, adding a further three months to reflect the fact the offending was committed while the appellant was released on parole and still subject to a sentence.[18] This brought the sentence to 11 years before taking mitigating considerations into account.
[18] However, the Judge also accepted there were mitigating factors. She allowed 14 months to reflect time spent in custody and a further six months for apparently genuine remorse.[19] The Judge also accepted a discount for the appellant’s guilty pleas was appropriate. This was set at 20 per cent, the Judge noting that the plea had been entered as soon as the Crown withdrew kidnapping charges.[20] The final sentence on the lead offence was therefore seven years and six months’ imprisonment. The Judge imposed a minimum term of imprisonment of three years nine months, calculated as 50 per cent of that sentence.[21] She rejected a Crown submission that preventive detention be ordered.[22] She imposed terms of imprisonment on the other charges consistent with the uplifts already addressed, but directed that those sentences be served concurrently.
[19] However, the sentence of four years for possession of methamphetamine for supply was to be served cumulatively.[23] So, for all of the offending, the effective total term was 11 years and six months.

The appeal

[20] Mr Goodwin drew our attention to the fact that the Judge had not referred to the totality principle. He submitted that the effective term of 11 years and six months was out of proportion to the gravity of the overall offending. In this respect, s 85(2) of the Act provides:

If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[21] The sole question presented by the appeal is whether that total period of imprisonment was, to use the language of s 85(2) of the Act, “wholly out of proportion to the gravity of the overall offending”. It is axiomatic that the failure of the Judge to mention the totality principle is of no moment if the sentence imposed was not out of proportion to gravity of the offending.
[22] Mr Goodwin took no issue with the sentence imposed on the methamphetamine offending. But he claimed the Judge’s starting point for the use of the firearm against a constable was too high because it failed to take into account the principle of totality. That is an unusual way of expressing a totality argument; the normal process is to look at the overall sentence imposed and ask, having regard to all of the offending, whether it is wholly disproportionate. We accept however a starting point might be the root cause of the disproportionality in a case where the Judge did not make the required overall judgment at the end of the process and we assume this is what Mr Goodwin was intending to argue.
[23] However, we have not been persuaded that the starting point was too high. As this Court explained in R v Taylor, s 198A, enacted in 1986, shows a “firm legislative intention that those using firearms against law enforcement officers should be dealt with severely”.[24] In R v Samuels, a starting point of 12 years was upheld in respect of offending described as “near to the most serious of its type”.[25] In that case, after the burglary of a private home, the appellant and an accomplice were pursued in an extended police chase which lasted over half an hour and covered a distance of between 50 and 60 km.[26] During the pursuit, Mr Samuels aimed the rifle at the pursuing vehicles, firing shots on four occasions.[27] When Mr Samuels stopped and left the car, he walked towards the police, raised the rifle and aimed it directly at a constable.[28] He was then shot in the chest and seriously wounded.[29] At sentencing, he was confined to a wheelchair.[30]
[24] The Judge took a starting point of 12 years, to which he added three further years to reflect the number and seriousness of the charges.[31] This Court rejected arguments on appeal that the starting point of 12 years (and the uplift of three to reflect the overall offending) was too high.
[25] The Judge accepted that the offending in this case was not as serious as in Samuels.[32] This was reflected in the eightyear starting point that she adopted and the twoyear uplift that she allowed for the balance of the offending. But this was very serious offending, understandably causing the constable at whom the shots were fired to fear for his life. It is fortunate it did not have more serious consequences. Firing at the police as occurred in this case requires a stern response. We do not accept the starting point was too high.
[26] Mr Goodwin relied principally on two High Court authorities, R v Rajgopaul and R v Duthie.[33] In the former the lead charge was attempted murder. The defendant fired at a police officer using a semi-automatic pistol, hitting him in the left elbow, left leg, right leg and abdomen.[34] Three further shots fired at the constable missed.[35] The defendant also fired at a member of the public, but missed.[36] Keane J noted that the police constable could have died.[37] He said that the offence was “amongst the most serious offences of attempted murder” and adopted a starting point of 14 years.[38]
[27] A separate cumulative sentence of four years’ imprisonment was imposed on a charge of discharging a firearm with intent to cause grievous bodily harm, laid in respect of the shot fired against a member of the public.[39] Concurrent terms were imposed in respect of charges of possession of methamphetamine for supply (three years),[40] assaults with weapons, unlawful possession of firearms and receiving stolen property (18 months in each case).[41] The effective term imposed was 18 years.
[28] Mr Goodwin submits that the offending in the present case was less serious, and we accept that is so. But the sentence imposed was also significantly lower. We note also that the four year sentence for discharging a firearm at a member of the public, without hitting him, was not the offence charged here where the Crown proceeded under s 198A. The four year sentence imposed was significantly lighter than cases where the sentencing has involved offending against s 198A, as reflected in cases discussed by Hinton J when sentencing the appellant.[42]
[29] We accept Mr Steele’s submission for the Crown that there is nothing about the outcome in Rajgopaul that suggests the sentence imposed in this case was wholly out of proportion to the overall offending.
[30] In Duthie, the other case relied on by Mr Goodwin, an overall starting point of 13 years’ imprisonment was adopted for offending that mainly involved possession of drugs for supply, as well as using a firearm against a police officer.[43] In that case, Mr Duthie had 56 grams of methamphetamine, $21,000 in cash and in addition 768 LSD tablets worth between $11,500 and $30,000.[44] Mr Duthie’s use of a firearm was confined to a single incident in which two shots were fired at the police.[45] The Judge took a charge of possession of LSD for supply as the lead offence, and weighted the starting point to reflect other offending under the Misuse of Drugs Act, to arrive at a starting point of eight years’ imprisonment.[46] He then added five years in respect of the charge of using a firearm against a constable.[47] He noted that was a suitable overall starting point bearing in mind the totality of the offending and its overall seriousness.[48] Mr Goodwin submitted that the current case was more analogous to Duthie than to Rajgopaul, emphasising that in both cases the defendants had fired their firearms twice without hitting the intending targets.
[31] However, the facts of Duthie did not include ongoing incidents of the kind that arise in the present case in which, although he did not fire the gun, the appellant interacted with members of the public, including entering their homes at night holding the weapon, in what must have been a frightening way.
[32] We have not been persuaded that the approach taken by the Judge which led to the overall sentence of 11 and a half years resulted in a sentence wholly out of proportion to the gravity of the overall offending.

Result

[33] The application for an extension of time to appeal is granted.
[34] The appeal is dismissed.






Solicitors:
Crown Solicitor, Auckland for Respondent

[1] R v Kite [2018] NZHC 409.

[2] At [69].

[3] R v Duthie HC Rotorua CRI-2006-070-5847, 28 August 2008.

[4] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

[5] R v Kite, above n 1, at [70].

[6] At [71].

[7] At [71].

[8] At [72].

[9] At [76].

[10] At [79].

[11] R v Samuels [2009] NZCA 153; and R v Wells HC Auckland CRI-2003-092-26964, 30 April 2004.

[12] R v Kite, above n 1, at [82]–[88].

[13] At [89]–[90].

[14] At [90].

[15] At [91]–[94].

[16] At [98].

[17] At [98].

[18] At [98].

[19] At [102] and [107].

[20] At [108]–[109].

[21] At [111].

[22] At [134].

[23] At [139].

[24] R v Taylor CA407/88, 9 May 1989 at 6.

[25] R v Samuels, above n 11, at [15].

[26] At [3]–[4].

[27] At [4].

[28] At [4].

[29] At [4].

[30] At [4].

[31] At [7]–[8].

[32] R v Kite, above n 1, at [87].

[33] R v Rajgopaul HC Auckland CRI 2010-092-20927, 20 April 2011; and R v Duthie, above n 3.

[34] R v Rajgopaul, above n 33, at [9]–[10].

[35] At [11].

[36] At [13].

[37] At [40].

[38] At [47].

[39] At [51].

[40] At [53].

[41] At [54].

[42] R v Samuels, above n 11; R v Eddington [2016] NZHC 434; and R v Smith HC Christchurch CRI2010-009-10435, 4 November 2011.

[43] R v Duthie, above n 3, at [42].

[44] At [7]–[11].

[45] At [10].

[46] At [41]–[42].

[47] At [42].

[48] At [42].

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