KALWYN GEORGE KERSHAW v NEW ZEALAND POLICE [2019] NZHC 379

KALWYN GEORGE KERSHAW v NEW ZEALAND POLICE [2019] NZHC 379 [8 March 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2018-463-000117[2019] NZHC 379BETWEEN KALWYN GEORGE KERSHAWAppellantAND NEW ZEALAND POLICERespondentHearing: 19 February 2019Appearances: W Nabney for the AppellantE Collis for the RespondentJudgment: 8 March 2019JUDGMENT OF HINTON JThis judgment was delivered by me on 8 March 2019 at 11.00 ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarCounsel/Solicitors:William Nabney, Barrister, TaurangaPollett Legal Ltd, TaurangaIntroduction[1] Mr Kershaw was sentenced to four years, nine months' imprisonment in theTauranga District Court on 19 October 2018 in respect of the following charges:(a) wounding with intent to injure (x 2);1(b) unlawful possession of ammunition;2(c) unlawful possession of a firearm;3(d) possession of methamphetamine;4(e) possession of methamphetamine utensils;5(f) possession of a knife in a public place;6(g) breach of Court release conditions;7(h) common assault;8 and(i) assaulting a prison officer.9[2] Mr Kershaw now appeals his sentence to this Court.1 Crimes Act 1961, s 188(2). Maximum penalty 7 years' imprisonment.2 Arms Act 1981, s 51. Maximum penalty 3 years' imprisonment or a fine not exceeding $4,000.3 Arms Act 1981, s 51. Maximum penalty 3 years' imprisonment or a fine not exceeding $4,000.4 Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty 6 months' imprisonment or a finenot exceeding $1,000.5 Misuse of Drugs Act 1975, 13(1)(a) and (3). Maximum penalty 1 year's imprisonment or a finenot exceeding $500.6 Summary Offences Act 1981, s 13A. Maximum penalty 3 months' imprisonment or a fine notexceeding $2,000.7 Sentencing Act 2002, s 96(1). Maximum penalty 1 year's imprisonment or a fine not exceeding$1,000.8 Crimes Act 1961, s 196. Maximum penalty 1 year's imprisonment.9 Summary Offences Act 1981, s 10. Maximum penalty 6 months' imprisonment or a fine notexceeding $4,000.[3] The grounds of appeal were that Judge Ingram adopted too high a starting pointon the wounding charges and applied an excessive uplift on the assault charges, andas a result, the end sentence arrived at is manifestly excessive.[4] In oral submissions, the second point has been abandoned, in my viewcorrectly. Mr Nabney accepts that on a proper reading of the judgment, the start pointon the assault charges is overall appropriate.Background[5] Mr Kershaw was released from Auckland Prison on 1 May 2018. He had beensentenced to 13-and-a-half months' imprisonment on several charges, includingmethamphetamine offences. Included in his special conditions of release was an ordernot to possess or consume controlled drugs. These conditions were to expire on20 May 2019.[6] In the early morning of 20 May 2018, Mr Kershaw was in a parking lot inTauranga, together with an associate. The men began yelling gang slogans andconfronted two victims, inciting them to fight. Mr Kershaw slashed one victim's facewith a knife, causing a cut on the victim's jaw line that required seven stitches. Hethen stabbed the other victim's left bicep twice, causing two wounds requiringtwo stitches each.[7] Mr Kershaw walked away from the carpark and got into a taxi. As he waswalking away, he brandished a revolver he pulled from his pocket. He was arrested inthe taxi shortly thereafter.[8] When the Police searched Mr Kershaw pursuant to the arrest, they recovered2.25 grams of methamphetamine, a glass pipe used to smoke the drug, and 33 roundsof .32 ammunition. The charge of breaching Court release conditions stems from hispossession of the methamphetamine.[9] The revolver was later recovered from the taxi. It was found to have been fullyloaded, cocked, and readied to fire.[10] The drugs, arms, weapons, and wounding with intent charges relate to the20 May 2018 incident.[11] The other charges stem from Mr Kershaw's conduct while subsequently incustody at Waikeria Prison.[12] The first incident in custody occurred on 31 July 2018. While being escortedto a hearing with a Visiting Judge, Mr Kershaw threatened the prison staff responsiblefor the transfer, and refused to enter a holding cell. When prison officers attempted torestrain Mr Kershaw, he gouged at an officer's eye. The attack caused a ruptured bloodvessel in that eye and light bleeding from a gash to the officer's cheek. This incidentgave rise to the charge of common assault.[13] The second incident in custody occurred on 27 September 2018. Mr Kershawwas involved in a matter that required him to be transferred within the prison. Whileundergoing a strip search as part of the transfer, Mr Kershaw suddenly struck one ofthe prison officers involved in the search in the face with a closed fist. The blowconcussed the officer. The charge of assaulting a prison officer relates to this incident.District Court decision[14] Judge Ingram fixed the wounding with intent charges as the lead charges, andcited R v Nuku as the applicable tariff case.10[15] The Judge identified the attacks on the head, the use of a weapon, and thisbeing gang-related offending as relevant aggravating factors.11 The level of harminvolved was substantial, but the Judge accepted that the injuries were notlife-threatening – despite Mr Kershaw's use of a knife.[16] His Honour also noted that the offending took place within three weeks ofMr Kershaw's release from prison.10 R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.11 See R v Taueki [2005] 3 NZLR 372 (CA) at [31] for the relevant aggravating factors.[17] Judge Ingram observed that Mr Kershaw has a substantial record of prioroffending, while noting that serious violence has not featured in that record in recentyears. This, together with the other factors, led the Judge to consider promoting asense of accountability, general and specific deterrence, rehabilitation, reintegration,and public protection to be the relevant principles and purposes of sentencing in thiscase.[18] On this basis, Judge Ingram assessed imprisonment as being the onlyappropriate penalty.[19] His Honour set the starting point for the wounding involving the slashing ofthe face as two-and-a-half-years, with an uplift for the stabbing (including an upliftfor Mr Kershaw's prior record) of twelve months, so the final starting point for thelead offending was three years, six months' imprisonment. He then subtracted 25 percent for the defendant's guilty plea, coming to two years and eight months. He alsoordered the defendant to pay $1,000 in reparation to the victims.[20] As noted earlier, Mr Kershaw challenges the sentence for the woundingcharges. The balance of the sentence now is not, but I set it out briefly below.[21] Judge Ingram adopted a starting point of two years' imprisonment in relationto the arms offences. With the 25 per cent discount, this came to 18 months.His Honour imposed this cumulatively on the wounding charges. Mr Kershaw doesnot take issue with this sentence.[22] In relation to the assault and assault on a prison officer charges, Judge Ingramset starting points of six and three months respectively. He considered that, together,they were worth nine months cumulative on the other charges. He then deductedtwo months for the guilty plea. That came to seven months cumulative on the othercharges. Mr Nabney now accepts that sentence.[23] Judge Ingram considered that the remaining charges paled in significance tothose above. So, he imposed various sentences on those other charges to be servedconcurrently with those above. Neither side takes issue with these sentences, so I donot discuss them further.[24] The Judge considered the totality of the sentence overall, but found that nototality adjustment was necessary.[25] The final custodial sentence was four years and nine months' imprisonment.Approach on appeal[26] Under the Criminal Procedure Act 2011, the Court must allow the appeal ifsatisfied that, for any reason, there is an error in the sentence imposed on conviction,and that a different sentence should be imposed.12[27] In deciding whether to impose a different sentence, the Court does not simplysubstitute its own view for that of the original sentencing Judge.13 Rather, it must beshown that the sentence is manifestly excessive or wrong in principle.14[28] The Court will not, ordinarily, intervene when the sentence is within the rangethat can be properly justified by accepted sentencing principles.15 The focus is on theend result rather than the process by which the sentence was reached.16[29] In exceptional cases, it may nonetheless be necessary to correct a sentence thatis within range (for example, where there has been an arithmetical error).17 In anyother case, the Court must dismiss the appeal.18Analysis[30] Counsel for the appellant, Mr Nabney, submits that the starting point for thetwo charges of wounding with intent to injure was too high.12 Criminal Procedure Act 2011, s 250(2).13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].14 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].15 Tutakangahau v R, at [36].16 At [36].17 At [36].18 Criminal Procedure Act 2011, s 250(3).[31] He argues that this offending falls within band two of Nuku, which providesfor a starting point of up to three years' imprisonment.[32] The Court of Appeal in Nuku defined bands two and three as follows:19Band two: a starting point of up to three years' imprisonment will beappropriate where three or fewer of the aggravating factors listed at [31] ofTaueki are present.Band three: a starting point of two years up to the statutory maximum (eitherfive or seven years, depending on the offence) will apply where three or moreof the aggravating features set out in Taueki are present and the combinationof those features is particularly serious. The presence of a high level of orprolonged violence is an aggravating factor of such gravity that it willgenerally require a starting point within band three, even if there are few otheraggravating features.[33] Mr Nabney submits there are two aggravating factors present for the woundingcharges: use of a weapon and attacking the head.[34] The respondent argues the starting point of three-and-a-half years was correct.Ms Collis points to two additional aggravating factors, the first being that thisoffending was gang-related. This was accepted by Judge Ingram. I also accept this isan additional aggravating factor.[35] The respondent submits that there is another aggravating factor, being thepresence of an associate of Mr Kershaw, meaning this offending involved multipleattackers. Judge Ingram did not mention this as an aggravating factor. While thesummary of facts does note there was another person present, it does not say the personwas involved in the attack itself. Because of a lack of anything further, I do not acceptthis as an aggravating factor.[36] Mr Nabney also argued that I should take note of the Court of Appeal's havingadopted a starting point of two years, eight months' imprisonment in Grimshaw-Jonesv R.20 In that case, the defendant attacked two victims with a knife. He caused severalsevere lacerations on both victims, requiring numerous stitches which left severescarring.19 R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39 at [38].20 Grimshaw-Jones v R [2010] NZCA 490.[37] Mr Nabney submits the offending in the present case is less serious thanGrimshaw-Jones because the injuries are less serious, and thus the present startingpoint of three years, six months is too high. He suggests a starting point of two yearsand six months is more appropriate in this case.[38] The respondent argues the current offending is more serious than inGrimshaw-Jones because Grimshaw-Jones involved an element of provocation,(the victims had previously allegedly assaulted the defendant's girlfriend) and also theoffending was not gang-related.[39] The respondent also says, in oral submissions, (no point was made of this inwritten submissions) that Grimshaw-Jones cannot be relied upon as that decisionpreceded Nuku. They argue it would be decided differently post-Nuku.[40] Both cases involved an attack with a knife, against two victims, causing severecuts.[41] To describe Grimshaw-Jones as involving provocation is a stretch, but I agreewith the Crown this case is gang-related offending where Grimshaw-Jones was not.Mr Kershaw is a member of the Head Hunters. The two victims were not gangmembers, but Mr Kershaw believed they were. He was shouting gang slogans.[42] I disagree with Mr Nabney's submission that this offending falls withinband two of Nuku. I consider it is, as the Crown submits, at the bottom end ofband three, because of the combination of aggravating factors.[43] However, I do consider the particular offending is analogous to that inGrimshaw-Jones. The injuries in that case were more serious, but the gang-elementin this case puts the two more or less on par, in my view.[44] Neither counsel submitted any other cases by way of comparison, nor did theJudge refer to any, other than Nuku.[45] I cannot see that Grimshaw-Jones would have been differently decidedpost-Nuku. The analysis applied by the Court of Appeal in Grimshaw-Jones isconsistent with Nuku, in my view. Given my conclusion below, it does not matterwhether Ms Collis point in this regard is correct, in any event.[46] In the interests of consistency with previous sentences, I consider, therefore,that an appropriate starting point for the lead offending is two years and eight months,being the start point adopted in Grimshaw-Jones.[47] However, as was discussed in the course of the hearing, although not in writtensubmissions, when Judge Ingram uplifted for the stabbing to reach the starting pointof three years, six months, he expressly said that he included an uplift forMr Kershaw's prior record. Although an unusual and abbreviated approach tosentencing, in order to properly compare the starting point to that applied inGrimshaw-Jones, I have to add such uplift as I would assess for prior offending.Mr Kershaw's record, as the Judge noted, is substantial. I agree with the Crown thatsuch an uplift could be anywhere between five and 10 months, and I agree it wasproperly applied by the Judge, albeit that the quantum he assessed was not mentioned.I consider an appropriate uplift would be at least six months. Such an uplift would bestandard and I do not consider that totality principles preclude it, as Mr Nabneysuggested.[48] That brings me to a sentence for the wounding charges of three years,two months.[49] With 25 per cent off, I come to a sentence of two years, four-and-a-half months'imprisonment for the lead offending. Adding the cumulative sentences, which are notchallenged, I come to a total sentence of four years, five-and-a-half months'imprisonment.[50] I do not regard this as materially different to Judge Ingram's total sentence offour years, nine months' imprisonment. I therefore do not consider the sentenceimposed by Judge Ingram was manifestly excessive.[51] For completeness, I note that in terms of the totality of the sentence, I considerit is proportionate to the overall gravity of the offending.Conclusion[52] The appeal is dismissed.------------------------------------------------Hinton J