Kerwin v Police [2014] NZHC 3106, 5 December 2014

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Judgment analysis

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Facts

Mr Kerwin was sentenced in the District Court to imprisonment for offending against his employer, which required reparation of $50,000. He appealed the sentence. Since the initial sentencing, Mr Kerwin has paid over $14,000 in reparation, secured new employment with a company called Vent, and has been living with his supportive parents. His offending had caused the cancellation of his wedding and the breakdown of his relationship with his partner, with whom he has two young sons. He has since been restoring these family relationships. He has underlying issues with drug addiction and depression and has expressed a willingness to undertake rehabilitation. The owner of the victim company remains opposed to a non-custodial sentence and is not mollified by the reparation payments, feeling it is more important for Mr Kerwin to serve a custodial sentence.

Held

Significant positive post-sentencing developments, including substantial reparation payments, securing stable employment, and restoring family relationships, can justify an appellate court disturbing a sentence that was correct when imposed and substituting a sentence of home detention for imprisonment.
Steps taken by an offender post-sentencing that evidence true remorse and a willingness to repair damage can justify an increased discount for remorse, in this case from what was originally allowed to 15 per cent.

Orders

The appeal is allowed. The sentence of two years three months imprisonment is quashed. A sentence of one year home detention with special and post-detention conditions is imposed in its place. The order for reparation in the sum of $50,000 stands.

Key passages4

A sentencing starting point of three years' imprisonment was appropriate, as agreed by both counsel.

“In my interim decision, I accepted the advice of both counsel that a starting point of three years or less was appropriate. In this regard I record the acknowledgement of Ms Riddell for the Crown that the correct starting point should have been three years.”

The payment of significant reparation post-sentencing can be taken as a reflection of greater contrition than was apparent at the time of restorative justice, and can justify a greater percentage discount for genuine remorse.

“The payment of reparation already made, of more than $14,000, can be taken as a reflection of greater contrition than appeared to have been the case at the time of the restorative justice meeting and does justify a greater percentage discount to reflect genuine remorse.”

An appellate court may be prepared to disturb a sentence, even if it was neither wrong in principle nor manifestly excessive when imposed, due to the passage of time and positive events that have unfolded since the original sentencing.

“The original sentence imposed by the District Court was neither wrong in principle nor manifestly excessive. ... I would not therefore have been minded to entertain in any respect disturbing that sentence, were it not for the passage of time that has occurred since the sentence was passed and the manner in which events have unfolded since.”

Home detention should not be regarded as a soft option.

“In doing so I reinforce that home detention should not be regarded as a soft option: it is not.”

Legislation mentioned

High Court Rules, r 11.5