STEPHENS v R [2023] NZCA 663

STEPHENS v R [2023] NZCA 663 [21 March 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA723/2022[2023] NZCA 663BETWEEN KATHY YU-JEN STEPHENSAppellantAND THE KINGRespondentHearing: 20 March 2023Court: Brown, Lang and Palmer JJCounsel: J W Wall for AppellantA M McClintock and V E Squires for RespondentJudgment: 21 March 2023 at 10.30 amReasons: 18 December 2023JUDGMENT OF THE COURTA The appeal is allowed.B The sentences of seven months' home detention on the offence of receivingand two months' home detention on the offence of possession of utensils arequashed. There is substituted a sentence of six months' supervision with thefollowing special conditions:(i) to reside at an address approved by a probation officer and not moveto any new residential address without the prior written approval ofa probation officer; and(ii) to undertake and complete appropriate assessment, treatment orcounselling as directed by and to the satisfaction of a probation officer.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Following a jury trial in the District Court at Auckland, the appellant(Ms Stephens) was found guilty of receiving stolen property. She entered a guilty pleato a charge of possession of methamphetamine utensils. She was sentenced toseven months' home detention for the receiving charge with a concurrent sentence oftwo months' home detention for the utensils charge.1 She appealed her sentence,contending that the sentence of home detention was manifestly excessive.[2] On 21 March 2023 we delivered a result judgment allowing Ms Stephens'appeal.2 These are our reasons.Relevant background[3] The circumstances of the offending were described by Judge N R Dawson inhis sentencing notes as follows:3[1] The background to this matter is that Trelise Cooper is aNew Zealand high-end women's designer clothing brand. At about 5 pm onSaturday 17 October 2020 the head office of Trelise Cooper was left lockedand secured by staff. Between 6 pm on Saturday 17 October 2020 and 8.30 amon Monday 19 October [2020], a Mr Bush broke into the premises byforcing open a service door. Mr Bush took approximately 2,000 items ofclothing from the styling room, the value of which is about $75,000 being thecost of the manufacture of those items.[2] At about 8.30 am on Monday 19 October 2020, workers arrived at thepremises and discovered that the burglary had occurred. Only a portion of thestolen clothing has been recovered by the police.[3] At about 8 am on Tuesday 17 November 2020, the police executed asearch warrant at your address. They located a number of stolenTrelise Cooper branded clothing items throughout the house. Your vehiclewas parked in the garage. In the boot of that vehicle the police located apackage addressed to an overseas address. Inside the package were sixTrelise Cooper branded clothing items. While searching the address the policealso located in your room several glass pipes scattered throughout and a glassbong, all of which were used for smoking methamphetamine.1 R v Stephens [2022] NZDC 23233 [Sentencing notes].2 Stephens v R [2023] NZCA 73.3 Sentencing notes, above n 1.[4] Along with Mr Bush, a Ms Edwards was also connected to the burglary.Ms Edwards pleaded guilty to a charge of receiving stolen property and was sentencedon the basis that the value of the items she received totalled $136,780.4Sentencing notes[5] The Judge noted that Ms Stephens had no previous convictions and that shewas a person previously of good character, which he took into account to her credit.5[6] The Judge was not convinced that Ms Stephens was an innocent party takenadvantage of by the principal offenders, considering that by reason of her ownershipof an item of Trelise Cooper designed clothing she would have recognised the itemsshe received, and been aware of their value and of the high likelihood that they hadbeen obtained dishonestly.6[7] The Judge identified as the principal aggravating factor the extent of the lossfrom the offence. While noting that only an amount over $1,000 was adduced inevidence at the trial, the Judge stated that common sense indicated that the total valueof the clothing was well over that. He estimated that the figure was likely to have beenover $10,000.7[8] The Judge acknowledged that the pre-sentence report noted Ms Stephensexpressed some remorse for what she had described as her naïve actions and how theyhad impacted the victim, that her lifestyle and peer associations had been identified asoffending related factors, and that her risk of reoffending was assessed as low.8[9] The Judge concluded in this way:[11] For the charge of receiving, I adopt a starting point of 18 months'imprisonment. For the methamphetamine utensils charge, I uplift it by twomonths to 20 months' imprisonment. For your limited remorse I will allow2 per cent as a discount. For your previous good character, I will allow15 per cent, taking it to a total of 17 per cent discount. That reduces yoursentence by three and a half months to 14 and a half months.4 R v Edwards [2022] NZDC 13106 at [5].5 Sentencing notes, above n 1, at [4] and [8].6 At [5].7 At [7].8 At [9].[12] I then need to consider whether or not a community-based sentenceshould be imposed. I am of the view that it should. You have not previouslybeen an offender. On the charge of receiving, you are convicted and sentencedto seven months home detention. The conditions will be those set out in theprobation report with post-detention conditions for six months. On the chargeof possession of utensils, you are sentenced to two months' home detention tobe served concurrently and an order is made for the destruction of thoseutensils. Grounds of appeal[10] Ms Stephens contends that the end sentence was manifestly excessive for tworeasons:(a) The starting point was excessive, given the circumstances of theoffending and the degree of culpability that could be ascertained fromthe evidence adduced at trial.(b) The Judge failed to take account of relevant considerations whenselecting home detention as the final sentence, including the need toimpose the least restrictive outcome as mandated by s 8(g) of theSentencing Act 2002.Counsel's submissions[11] There is no guideline judgment for sentencing on charges of receiving becausethe circumstances of such offending vary so widely that other cases can be of limitedassistance.9 As French J observed in Allen v Police, in assessing culpability regard isto be had to the value of the goods, the duration of the offending, the number ofcharges, the existence of a commercial element and the closeness of the relationshipbetween the burglar and the receiver.10The value of the goods[12] Counsel for Ms Stephens, Mr Wall, commenced his argument by focussing onthe first of those factors, in light of its identification by the Judge as the principalaggravating factor. In particular, Mr Wall submitted that there was an irregularity in9 Sinclair v Police [2014] NZHC 1332 at [17].10 Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [22].the "common sense" finding that the value exceeded $10,000 when the amountadduced at trial was only $1,000. He submitted that that approach was in error andresulted in an excessive starting point.[13] The respondent's submissions annexed a copy of a memorandum ofMs Stephens' trial counsel, dated 21 November 2022, which referred to the value ofthe property received being "over $10,000". On behalf of the respondent,Ms McClintock contended that that amounted to a concession as to the value of theproperty. Mr Wall did not accept that. He pointed out that the purpose of thememorandum was simply to address the issue of parity in light of the sentencing ofMs Stephens' co-offender, Ms Edwards. He submitted that if the statement in thememorandum had been treated as agreement on value, the Judge would have so noted,and would not have needed to resort to the "common sense" process of reasoning.[14] Mr Wall submitted that while certain facts may be regarded as implicit in theverdict, and a measure of deference may be afforded to a judge who has assessed theevidence disclosed in a trial from which an inference can be drawn, in the present casethere was an absence of evidence as to value, a factor highlighted by the respondent'ssubmissions. Ms McClintock submitted that the higher figure would have beensustained if the matter had gone to a disputed facts hearing. Nevertheless we considerthere is force in Mr Wall's submission that the process mandated by s 24 of theSentencing Act was available for the proof of the value of the stolen property, but wasnot followed.The other Allen factors[15] Mr Wall further submitted that, irrespective of the irregularity in theassessment of value, a starting point of 18 months' imprisonment was excessive giventhe absence of associated aggravating factors. There was only one charge of receiving,associated with a single, albeit significant, burglary. With reference to the final twoAllen factors, Mr Wall noted observations made by this Court in Ellis v R11 and byGendall J in Drake v Police.12 He submitted that Ms Stephens' receipt of the property11 Ellis v R [2012] NZCA 513.12 Drake v Police [2015] NZHC 2252.did not have a close temporal connection to the burglary like that in Ellis, nor (unlikeMs Stephens' co-offender) was there a close connection between Ms Stephens and theprimary offender, Mr Bush.[16] Hence it was submitted that a starting point of no more than 15 months'imprisonment should have been adopted. Indeed Mr Wall suggested that the startingpoint should have been even less, given the "brittle basis" upon which the Judgereached his conclusion as to the value of the stolen property.[17] Ms McClintock submitted that, while value was the principal aggravatingfactor, the amount does not of itself dictate the starting point. She argued that thecontext of the offending is key to the assessment of culpability. While there was notas close a relationship as that between Mr Bush and Ms Edwards, she submitted thatMs Stephens was still an associate of Mr Bush and provided him an address to bringthe stolen property to and use for his purposes before his arrest.Parity[18] Ms Edwards was sentenced on 8 June 2022 to 12 months' supervision and300 hours' community work, and was ordered to pay $2,500 as reparation foremotional harm. Her involvement is recorded in the sentencing notes ofJudge K Maxwell as follows:13[3] Turning to your particular involvement. On 2 November 2020, astorage unit was booked in your name. That was located in Cook Street inAuckland. On 6 November you called a taxi to collect you and Mr Bush.You and Mr Bush loaded a large number of suitcases into the boot of a taxiand asked the driver to turn off the meter, that he would be paid in cash to takeyou to that storage unit. After all of the suitcases were unloaded, you askedthe taxi driver to return you to a hotel.[19] On 11 November 2022 an adjournment of sentencing was granted in order toenable counsel for Ms Stephens in the District Court to canvas parity betweenMs Stephens and Ms Edwards. This was the subject of the memorandum of21 November 2022 referred to above.14 That memorandum drew attention to thefollowing matters:13 R v Edwards, above n 4.14 At [13].(a) Both Ms Edwards and Ms Stephens were sentenced in respect of onecharge of receiving property worth over $1,000.15(b) The value of the property received by Ms Edwards was $136,780,substantially more than that received by Ms Stephens.(c) The starting point adopted by Judge Maxwell when sentencingMs Edwards was 24 months' imprisonment, but a 15 per cent discountwas allowed for her guilty plea and another 15 per cent for previousgood character.16(d) Ms Edwards was provided a discount of 10 per cent for personalcircumstances (namely a toxic relationship and violence which sheexperienced following the offending).17 It was submitted thatMs Stephens, who was also in a toxic relationship as outlined in thepre-sentence report of 1 August 2022, should likewise receive a10 per cent discount for personal circumstances.(e) Ms Edwards did not have an address available for home detention orany electronically monitored sentence. The Judge stated that a sentenceless than home detention could be imposed taking into account the lackof a criminal history, prospects of rehabilitation and challengingpersonal circumstances.18 The submission was made that all threefactors were likewise relevant to Ms Stephens.(f) It was submitted that Ms Stephens like Ms Edwards had suffered a verypublic downfall, with the media continuing to report on her offending.[20] In the case of Ms Edwards, the various discounts resulted in an end sentenceof what the Judge described as "something in the order of 14 months' imprisonment".19However, taking into account the lack of a criminal history, prospects of rehabilitation15 Crimes Act 1961, ss 246 and 247(a) (maximum penalty of seven years' imprisonment).16 R v Edwards, above n 4, at [12] and [15]–[16].17 At [17]–[18].18 At [23]–[24] and [29]–[31].19 At [20]. It was in fact 14.4 months.and challenging personal circumstances, an end sentence of supervision andcommunity work was imposed. While recognising that Ms Stephens was not entitledto a discount for a guilty plea, counsel in the District Court submitted that she shouldreceive discounts for previous good character, remorse and personal circumstanceswhich would result in reaching an end sentence which was also within the range ofcommunity work and supervision.[21] The Judge addressed the issue of parity in these terms:20[10] I have had referred to me the case of R v Edwards, the sentencing ofanother person, with a view to ensuring there was parity with your sentenceand that person. In Edwards, that person was allowed a discount for a toxicrelationship with a co-offender. It is submitted that you too had been in a toxicrelationship prior to this offending but I note that your relationship was notwith a co-offender and also it appears to have ended at least five years prior tothe offending for which you are being sentenced today. In my view, there isno causal connection to that relationship you had previous to this offending.[22] Ms McClintock submitted there was parity between the co-defendants.Describing their offending as similar in form but varied in nature, she acknowledgedthat Ms Edwards assisted Mr Bush in storing a larger amount of clothing and thereforea commercial element could be inferred. There can be no doubt on that latter point.The value of the stolen items which Ms Edwards was charged with receiving was inexcess of $136,000, and hence the damage and harm to the victim was significantlygreater.[23] Ms McClintock submitted that a community-based sentence was selected forMs Edwards in the absence of an address suitable for electronic monitoring, with thesentencing Judge accounting for Ms Edwards leaving an abusive relationship andgoing through emergency housing. She described the form of the sentence imposedas a therapeutic response which was supported by the material before thesentencing Judge. In her submission, Ms Stephens' circumstances did not justifysimilar treatment.[24] By contrast Mr Wall submitted that, like Ms Edwards, Ms Stephens was afirst-time offender and exhibited a low risk of reoffending. He contended that, as20 Sentencing notes, above n 1 (footnote omitted).Ms Stephens had never previously been sentenced, and thus had never breacheda community-based sentence, the Judge was not obligated to impose home detentionto ensure specific deterrence or compliance. As with Ms Edwards, he submitted thatbroader sentencing purposes did not dictate that home detention was the default settingfor this offending. He suggested, however, that it appeared that Ms Stephens' sentencewas arrived at by default, contending that the Judge did not assess the information inthe pre-sentence reports or consider the requirement to impose the least restrictiveoutcome. As the sentence of Ms Edwards demonstrated, the least restrictive outcomefor similar offending (but less culpable in the case of Ms Stephens) was a combinationof community-based sentences.Analysis[25] We consider there was a considerable difference between the culpability ofMs Stephens' offending and that of her co-offender, Ms Edwards. Ms Edwards wasfound to have received stolen goods having a value in excess of $136,000. The factthat she was in possession of such a considerable quantity of the items stolen in theburglary suggests there was a level of commerciality in her offending that is simplynot present in Ms Stephens' case. Ms Edwards was also considerably more proximateto the individual who stole the items than was Ms Stephens.[26] We do not consider there is any evidential basis on which we can make arealistic finding as to the value of the items found in Ms Stephens' possession.The available material records only that several items of clothing were found indifferent areas of her house whilst six items of clothing were found in the boot ofher car. Having regard to the high-end nature of the Trelise Cooper brand, these itemswould obviously have had a value in excess of $1,000, but there is no basis on whichwe can say they would have had a value exceeding $10,000.[27] Even if they had that value, we consider a starting point of 18 months'imprisonment to be well beyond the available range having regard to the starting pointof 24 months' imprisonment adopted for Ms Edwards. We consider a starting point ofaround eight months' imprisonment to be appropriate in Ms Stephens' case, takingaccount of the (assumed) value of the goods, the fact that there was a single occasionof offending giving rise to a single charge, the absence of any commercial element,and the relative lack of coordination between Ms Stephens and Mr Bush.[28] We also consider an uplift of two months to reflect the presence ofmethamphetamine pipes at Ms Stephens' address to be excessive having regard tototality principles. We consider an uplift of no more than one month was appropriateto reflect those charges.[29] We therefore consider a sentence of no more than nine months' imprisonmentwas appropriate before taking into account mitigating factors. Applying the samediscount as the Judge to reflect these, the sentence reduces to seven and a half months'imprisonment. Having regard to Ms Stephens' circumstances and the purposes andprinciples of the Sentencing Act, it would be appropriate to convert this sentence ofimprisonment to approximately four months' home detention.21 By the time the appealwas heard, however, Ms Stephens had already served four months of her sentence ofhome detention. This means she had already served the punitive aspect of the sentencewe would ordinarily have imposed.[30] Ordinarily we would set aside the sentence of seven months' home detentionand impose a sentence of four months' home detention in its place, even thoughMs Stephens would already have served the sentence. However, having regard to theapproach taken by the Judge who sentenced Ms Edwards, we concluded this wouldnot be appropriate. As we have already recorded, Ms Edwards had a sentence of14 months' imprisonment which was reduced to 12 months' supervision, 300 hours ofcommunity work, and reparation in the sum of $2,500. We consider the disparitybetween the two sentences brings into play the principles discussed in authorities suchas R v Rameka22 and R v Lawson.23[31] For these reasons we considered it appropriate to quash the sentence ofseven months' home detention and not to impose a lesser sentence of home detention21 R v Bisschop [2008] NZCA 229 at [18]–[19].22 R v Rameka [1973] 2 NZLR 592 (CA) at 593–594.23 R v Lawson [1982] 2 NZLR 219 (CA) at 223.in its place. Instead we imposed the rehabilitative sentence of supervision subject tospecial conditions.Result[32] The appeal is allowed.[33] The sentences of seven months' home detention on the offence of receivingand two months' home detention on the offence of possession of utensils are quashed.There is substituted a sentence of six months' supervision with the following specialconditions:(i) to reside at an address approved by a probation officer and not move to anynew residential address without the prior written approval of a probationofficer; and(ii) to undertake and complete appropriate assessment, treatment or counselling asdirected by and to the satisfaction of a probation officer.Solicitors:Crown Solicitor, Auckland for Respondent