POLICE v STENNING [2023] NZHC 3477

POLICE v STENNING [2023] NZHC 3477 [1 December 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2023-463-000118[2023] NZHC 3477NEW ZEALAND POLICEvJOHN TIMI STENNINGHearing: 29 November 2023Appearances: G Walsh for the AppellantT Afoa for the CrownJudgment: 1 December 2023JUDGMENT OF WALKER JThis judgment was delivered by me on 01 December 2023 at 4.30 pmRegistrar/Deputy RegistrarSolicitors:Gordon Pilditch, Crown Solicitor, RotoruaG Walsh, Barrister, Hamilton[1] John Stenning was sentenced on 14 September 2023 by the District Court to aterm of 14 months' imprisonment.1 The sentence followed his guilty plea toconvictions on three theft charges (one over $1,000;2 one between $500–$1,000;3 onebelow $500)4 and one receiving charge (over $1000).56[2] He appeals that sentence.[3] The charges arose out of four separate incidents:(a) Theft of a Framing Nail Gun on 3 February 2023 from Mitre 10. Theitem is worth $1089.(b) Theft on 10 July 2023 of a male grooming kit valued at $219.99 and aMcLaren F1 Race Car Lego set from a Farmers store. A staff memberconfronted him at which point Mr Stenning gave back almosteverything and left the store. Shortly after, he returned to the store toreturn the rest.(c) Theft of a Hitachi grinder from ToolShed valued at $386 on 11 July2023. He was also confronted on that occasion after an obvious attemptto conceal the item. He became hostile and aggressive to staff, statingthat he was going to come back and burn the building down.(d) Later that day, Mr Stenning was outside a car dealership after a burglaryand received an air compressor through a hole in the fence beforeloading it into his car. The air compressor had a value of $3,000 andhas not been returned.1 New Zealand Police v Stenning [2023] NZDC 20047.2 Crimes Act 1961, ss 219 and 223(b) with a maximum penalty of seven years' imprisonment.3 Crimes Act 1961, ss 219 and 223(c) with a maximum penalty of one year's imprisonment.4 Crimes Act 1961, ss219 and 223(d) with a maximum penalty of three months' imprisonment.5 Crimes Act 1961, ss 219 and 223, with a maximum penalty of seven years' imprisonment.6 Sections 246 and 247(a) with a maximum penalty of seven years' imprisonment.The District Court decision[4] The sentencing Judge's notes are succinct. After recording the facts of theoffending from the summary of facts, the Judge referred to Mr Stenning's history. Thathistory includes 13 convictions for dishonesty.[5] The essence of the Judge's sentencing is encapsulated in paragraph 7 of hisjudgment which reads:The lead charge here is the receiving. The aggravating feature here is that itwas very recently stolen. In fact the receiving seems very closely connectedto the burglary. I take a starting point of nine months' imprisonment there.There will be an uplift of seven months for all the other thefts. The theft fromMitre 10 was over $1,000, another one of the thefts was in the over $500category. I consider a starting point of 16 months' imprisonment is appropriatefor all your offending. There will be an uplift for your history of two months.There is a full discount for guilty plea which results in an end sentence of 14months, or one year and two months' imprisonment.[6] The Judge gave leave for Mr Stenning to apply for home detention, imposedrelease conditions and ordered reparations of $3,000 for the air compressor.[7] Mr Stenning is currently due for automatic release by 20 February 2024 giventhat he received a short-term sentence.Issue on appeal[8] The issue on appeal is whether the starting point was too high and the resultingfinal sentence manifestly excessive. This comprises two elements — the nominalstarting point and adjusted starting point for totality.[9] Mr Walsh for the appellant refers to two cases: Garrett v Police7 and Davies vPolice.8 He submits that the similarity in the factual circumstances in those casessupports a starting point of six months for the lead charge of receiving rather than ninemonths' imprisonment. He contends that uplifts for the other charges of three to fourmonths rather than the seven months imposed are justified. After a two-month upliftfor Mr Stenning's conviction history (which is not challenged) and full guilty plea7 Garrett v Police [2019] NZHC 14118 Davies v Police [2019] NZHC 3081.discount, Mr Walsh contends that the final sentence should be at most nine months'imprisonment in substitution for the 14 months' imprisonment.Approach on appeal[10] To succeed, the appellant must satisfy this Court that there has been an error inthe sentence and that a different sentence should be imposed.9 Otherwise, the Courtmust dismiss the appeal. The Court will only intervene if the sentence is manifestlyexcessive. The focus is on the final sentence imposed rather than the process by whichit is reached.10 The Court will dismiss the appeal if it is "within the range that canproperly be justified by accepted sentencing principles".11Discussion[11] This appeal turns then on two issues:(a) Whether the starting point is too high for the lead charge.(b) The appropriate uplift for the other thefts.[12] Comparable case law is useful in this type of offending as there is no tariff casebut gravity and culpability varies greatly in these cases. The statute has a staggeredapproach in terms of maximum penalties driven by value of the stolen items. Thissuggests that value of the items is important.12[13] The sentencing judge adopted the orthodox approach of identifying a leadcharge, uplifted to reflect the totality of the offending.[14] I do not find any error in the Judge's selection of 9 months' imprisonment onthe lead charge given the value of the item and the non-opportunistic nature of theoffending. It is within range of comparable cases such as Davies. The lower value of9 Criminal Procedure Act 2011, s 250.10 Ripia v R [2011] NZCA 101 at [15].11 Campbell v R [2022] NZCA 579 at [14]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR482 at [36].12 R v Duncan [2009] NZCA 408 at ]7].items at issue in Garrett distinguishes that offending despite the fact that there werefive theft charges and a single receiving charge faced by Mr Garrett.[15] The case of Davies v Police is closer on the facts (recognising that no two casesare completely alike). In Davies, the defendant received a starting point of eightmonths' imprisonment on the lead charge of theft over $1,000 with the remaining theftcharges warranting an uplift of four months and another two months' uplift foroffending whilst on bail.13Were the uplifts of seven months too high on the totality principle?[16] Counsel's arguments on the totality principle have more heft. Ms Afoa for theCrown submitted that the theft of the power tool from Mitre 10 could have warranteda starting point of 8 months' imprisonment on its own on the basis of value. I acceptthat this stands out in the overall scheme. But the other shoplifting offences are ofmuch lower values. There is also the issue of Mr Stenning having returned low valueitems to Farmers.14 On the flip side of the coin there is the aggressive behaviour whenconfronted which is an aggravating factor. Such behaviour cannot be countenanced.[17] Standing back and looking at all the offending against the backdrop of thetotality principle, I accept that the uplift was too high based on similar cases. I notetoo the order for reparation, a factor which can lead to a reduction in sentence. Theuplift warranted (when combined with a nominal starting point on the lead charge ofnine months) is four months. The remainder of the sentence imposed including theuplift for prior convictions and discount for guilty plea is not in issue.13 I also had regard to Wilson v Police [2021] NZHC 198. The appellant in that case wasoriginally sentenced to a term of 16 months' imprisonment in respect of one charge of theftover $1,000; 10 charges of obtaining by deception (under $500); three charges of theft (under$500); and three charges of unlawfully being in an enclosed yard. On appeal, the appellatecourt determined that the starting point of 18 months' imprisonment appeared out of step withcomparable authority to an extent justifying appellate intervention. It was replaced with astarting point of 12 months' imprisonment (uplifted by four months to reflect other dishonestyoffending).14 I note that the charge in relation to shoplifting at Farmers is under s 219 and 223(c) althoughthe summary of facts only refers to the value of the multi-grooming kit at $219.99. No valueis attributed to the McLaren F1 Racer Lego set.[18] I have considered whether this reduction is merely tinkering with the sentence(which is not the role of an appellate court.) I am satisfied that it is not when a shortsentence is at issue.15Result[19] I allow the appeal.[20] I quash the sentence of 14 months' imprisonment and substitute one of 12months' imprisonment calculated as follows:(a) Starting point 9 months(b) Uplift for other dishonesty offending 4 months(c) Uplift for prior offending 2 months(d) 25 per cent guilty plea discount 3.25 months16(e) Final sentence 12 months (rounded up)[21] I have rounded the final sentence up. I impose that sentence of 12 months onthe charge of receiving (over $1,000). In respect of the terms imposed in respect ofthe other charges I impose two months on the CRN ending 3143; six months on CRNending 3142; and 12 months on CRN ending 2708. These are concurrent terms.[22] I further confirm the other aspects of the original sentence, including the orderfor reparations, release conditions and leave to apply for home detention.............................................................Walker J15 See Milne v Police [2020] NZHC 358; Mason v Police [2022] NZHC 1845; and Snell v R [222]NZHC 1627.16 See Mo'Unga v R [2023] NZHC 1967 as to application of discounts on adjusted starting pointbefore the addition of personal aggravating factors.