KENNETT v POLICE [2019] NZHC 1945

KENNETT v POLICE [2019] NZHC 1945 [12 August 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000078[2019] NZHC 1945BETWEEN NATHAN STUART KENNETTAppellantAND NEW ZEALAND POLICERespondentHearing: 8 August 2019Appearances: P N Allan for the AppellantJ H Whitcombe for the RespondentJudgment: 12 August 2019JUDGMENT OF NATION JIntroduction[1] On 31 May 2019, Judge Couch in the District Court sentenced Nathan Kennettto two years and four months' imprisonment on one charge of receiving property andon another of dishonestly using a document to obtain a pecuniary advantage. MrKennett appeals against his sentence.Facts[2] Between 8.30 am and 12.30 pm on 30 January 2019, a residential address inChristchurch was burgled. At 10.00 am the following day, Mr Kennett went to PapanuiCash Converters and pawned seven rings and one other piece of jewellery. He waspaid $700 for these eight items. In selling the items, he signed a document declaringthat the property he was agreeing to sell was owned by him.[3] At 11.40 am on 2 February 2019, Mr Kennett returned to Papanui CashConverters and attempted to pawn further jewellery items taken in the burglary. Hewas arrested by Police. At the time of his arrest, he was found to be wearing an Oriswatch and a Kathmandu puffer jacket, items also taken in the burglary.[4] A search warrant was executed at Mr Kennett's address and Police located aDunlop sports bag containing a great number of items identified as taken during theburglary including jewellery, mountain bike shoes, medication and wooden jewelleryboxes.[5] The items received by Mr Kennett were valued at a total of $10,000.District Court decision[6] Judge Couch began by stating that he regarded the gravity of the offending asserious, given the large number of items involved, valued at $10,000. This case, hisHonour said, exemplified why receiving is properly regarded as a serious crime. TheJudge said it was people such as Mr Kennett receiving property who incentivisedpeople to steal goods. The Judge adopted a starting point of two years and fourmonths, having regard to the principle of totality.[7] Turning to personal circumstances, the Judge identified relevant aggravatingfeatures. First, Mr Kennett committed the offending whilst he was subject to asentence, namely prison release conditions. For this, the Judge applied an uplift ofthree months, leading to a notional sentence of two years and seven months. Secondly,the Judge noted Mr Kennett's extensive criminal history of convictions for seriousproperty offending, including 15 previous convictions for burglary. This attracted afurther uplift of six months. The provisional sentence adjusted for these aggravatingfeatures of Mr Kennett's personal circumstances was thus three years and one month.[8] Judge Couch rejected that Mr Kennett had shown any credible remorse, andregarded a letter to the Court claiming remorse as "purely self-serving".[9] The Judge applied a full 25 per cent discount of nine months for Mr Kennett'simmediate guilty plea, leading to a final sentence of two years and four months.Principles on appeal[10] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and that a different sentence should beimposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the rangethat can properly be justified by accepted sentencing principles".2 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.3SubmissionsAppellant's submissions[11] On the notice of appeal filed by Mr Kennett's counsel, the grounds for theappeal were that the starting point was too high, excessive uplifts were applied and nocredit was given for remorse when it should have been.[12] In submissions before me, Mr Allan said he could not challenge theappropriateness of the uplift of nine months for previous dishonesty offending. Theemphasis in his submissions was what counsel submitted was an excessively highstarting point sentence for the offending.[13] Mr Allan suggested the value of items taken, particularly the jewellery, shouldnot be a significant factor in engaging the seriousness of the offending, arguing thatthe actual value of the jewellery to a business, like Cash Converters, would be1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].significantly less than the original cost of that jewellery to the owners. He submittedthat Mr Kennett was not in the business of receiving stolen property.[14] Mr Allan for Mr Kennett first cited Proctor v Police where this Court upheld astarting point of 15 months' imprisonment for the receipt of stolen jewellery valued at$5,000.4 Counsel referred to Ellis v R, a case of receiving stolen property also valuedat approximately $5,000, where the Court of Appeal upheld a starting point of 18months.5[15] Further cited was Whittaker v Police where Mander J allowed an appeal againsta sentence that began with a starting point of 12 months.6 His Honour held that aneight month starting point was more appropriate in the circumstances.7 In that case,the defendant had purchased a (stolen) car worth between $10,000 and $13,000 for asum of $5,000. He was sentenced on the basis of the value represented by differencebetween the purchase price and the true value of the car.8 Mr Allan highlightedMander J's reference to Ellis v R and an available range of 12–18 months.[16] In light of the two cases he cited, Mr Allan submitted that an appropriatestarting point in the present case ought to have been no more than 18 months. Hesuggested Judge Couch's reference to Mr Kennett's 15 previous convictions forburglary, rather than his sole previous conviction for receiving, may indicate hisHonour was sentencing Mr Kennett as if he were the burglar rather than the receiver.[17] Mr Allan submitted the Judge had failed to recognise Mr Kennett's remorse.He said Mr Kennett had "taken practical steps to engage with a counselor [sic], workon his safety plan and make constructive use of his time on remand by way of BibleStudy etc". He noted the Judge had failed to refer to a letter from Mr Kennett's motherto the Court which had recognised Mr Kennett's efforts in this regard.4 Proctor v Police [2018] NZHC 763.5 Ellis v R [2012] NZCA 513 at [9].6 Whittaker v Police [2017] NZHC 2747.7 At [25].8 At [6].Respondent's submissions[18] In his written submissions, Mr Whitcombe for the Police noted that the Courtof Appeal has frequently emphasised that the focus on appeal is whether the endsentence imposed can be considered manifestly excessive rather than re-examining theprocess by which the end sentence was arrived at.9[19] Noting that while there is no guideline judgment on the sentencing forreceiving, Mr Whitcombe cited Allen v Police where French J found as relevant:10the value of the goods, the duration of the offending, the number of charges,the existence of a commercial element and the closeness of the relationshipbetween the burglar and the receiver.[20] In relation to Ellis v R, Mr Whitcombe noted that a starting point of 18 monthsin relation to the receiving of property worth approximately $5,000 was held by theCourt of Appeal to be "withinrangealthough stern".11 The Court said "a startsentencein the 12 to 18 month range was appropriate".12 Counsel submitted that thevalue of the property in the present case, being twice that in Ellis, made the offendingmore grave and therefore it was open to Judge Couch to adopt a starting point in excessof 18 months.[21] Mr Whitcombe cited Sinclair v Police.13 In that case, the defendant receivedproperty valued at "in excess of $10,000" stolen as part of a burglary. Mander J saidof the Judge's starting point of two years and six months that it was "stern and whileat the upper limit I have concluded was available to the sentencing Judge in theexercise of his discretion".14[22] Counsel also noted the additional charge in the present case of dishonestlyusing a document to obtain a pecuniary advantage. While this offending and thereceiving occurred in essentially the same criminal incident and could have constituted"a connected series of offences", the using a document offence itself was different in9 See Ripia, above n 3, at [15].10 Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [22].11 Ellis, above n 5, at [9].12 At [9].13 Sinclair v Police [2014] NZHC 1332.14 At [25].kind. As such, Mr Whitcombe said the Judge was entitled to sentence Mr Kennett ona cumulative basis in relation to the two charges pursuant to ss 83 and 84 SentencingAct 2002. Subject to totality considerations,15 a higher starting point than the receivingalone may have attracted was justified to reflect this additional offending that causedloss to another victim, Papanui Cash Converters.[23] Mr Whitcombe's central submission was that the present case involved moreserious offending than in Ellis: the value of the property received was twice the value;and there was the additional charge of dishonestly using of a document. He arguedthe offending was more similar to that in Sinclair, where the defendant came intopossession of the items shortly after the burglary and the value of the items receivedwere similar.[24] As to the Judge not allowing an additional discount for remorse, counselsubmitted Mr Kennett was not entitled to a discount for remorse merely for professingit. The discount is earned by showing that a tangible acceptance of responsibility bythe defendant has occurred.16 He noted the Supreme Court, in Hessell v R, said thatonly genuine and substantiated remorse may be recognised by a discount separatelyfrom that for a guilty plea.17 In the present case, Mr Whitcombe submitted the Judgeproperly found that Mr Kennett's letter professing remorse was not credible in thecircumstances.Analysis[25] I do not consider there was any error in the Judge not giving credit for remorse.In the letter written to the Court, his mother observed what she considered to beprogress Mr Kennett had made while in prison. She said "he is a wonderful son andhas been in some trouble over the last 10 years, but this is the first time I have actuallyseen a change in my son Nathan". There is a glimmer of hope in the last observationshe made but the validity of her assessment is somewhat in doubt given the way shereferred to his extensive history of criminal offending including numerous convictionsfor burglary and receiving since 2002 as being "in some trouble over the last 10 years".15 Sentencing Act 2002, s 85.16 Whitcombe v Police [2018] NZHC 1409 at [27].17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.[26] Mr Kennett's letter to the sentencing Judge of 12 April 2019 does refer to theassistance he was obtaining from his counsellor and his involvement in bible studygroups but again the genuineness of his remorse and acceptance of responsibility forwhat he had done is questionable given his assertion in that letter that "I honestly hadno idea that these items I had in my possession were items of a burglary in my localBurnside area". The charge he pleaded guilty to was that he received property valuedat $10,000 knowing the property had been obtained by an imprisonable offence.[27] Mr Kennett had told the pre-sentence report writer that he "had an idea" hisconduct was illegal.[28] The pre-sentence report also recognised that Mr Kennett's offending mighthave been driven by an attitude of entitlement and the fact he had made no effort tomanage his behaviour. It went on to say he had "not managed to complete anyintervention".[29] The Judge also had reason to be sceptical as to the genuineness of Mr Kennett'sstated intentions and commitment as expressed in his letter to the Court, given hisnumerous recent convictions for obtaining by deception and other dishonesty.[30] I do not consider that the offending should be considered less serious becauseMr Kennett may not have been able to obtain $10,000 or cash close to that for theitems he had received. The items he received had clearly come from someone'sresidence. Mr Kennett must have known that the jewellery would have been ofsignificant emotional as well as cash value to its owner.[31] Mr Kennett was arrested on 2 February 2019, just three days after the burglary,wearing a jacket and a watch, items also of a personal nature that Mr Kennett musthave known had come from someone's home. A burglary will be regarded as moreserious where it is of a domestic residence. Because of the way such offending ispromoted through the willingness of others to receive property that is stolen in such aburglary, the dishonest receiving of such items stole in such circumstances must alsobe more serious.[32] Because Mr Kennett was found in possession of items stolen in the burglary soclose to the time of that burglary, on sentencing, the Judge was entitled to sentence MrKennett on the basis there was a close connection between the burglary and thecommission of the receiving offence by Mr Kennett. Mr Allan said that the Police hadto rely on the principle of recent possession to prove the initial charge of burglaryagainst Mr Kennett but ultimately accepted that this may not have been sufficient, thustheir acceptance of a charge of guilty to receiving.[33] There was also evidence of a close association between the burglary and MrKennett through the nature of the items found at Mr Kennett's home. Mr Kennett didnot just have items which could readily have been converted into cash. At his home,there was a Dunlop sports bag containing items including jewellery, mountain bikeshoes, medication and wooden jewellery boxes, all identified as being taken in aburglary from a short distance away from where he was residing.[34] There were also two distinct offences here. The first was the receiving of stolenproperty. In obtaining possession of the stolen property, Mr Kennett was seeking toobtain for himself the benefit of having belongings which were not his. That was trueof the clothes, including the puffer jacket he was wearing. It was also true of the watchhe was wearing when he was apprehended.[35] Separate from that, Mr Kennett had attempted to convert the property receivedinto cash by selling some jewellery to Cash Converters on 31 January 2019, the dayafter the burglary, and in attempting to do so again on 2 February 2019. In that way,he demonstrated he was a person who would be prepared to obtain a cash value forstolen items. He was thus the sort of person whose readiness to profit from stolenproperty encourages others to steal or commit burglaries.[36] The issue is however whether the starting point of three years and one monthfor the offending was within the range available to the sentencing Judge.[37] I do not consider that the seriousness of the offending can be assessed on anarithmetical basis simply as to the value of the property stolen.[38] In Ellis, the Court of Appeal said a sentence in the 12 to 18 month range wasappropriate where the property stolen was worth approximately $5,000. It does notfollow that the receiving of property worth $10,000 would necessarily justify asentence well beyond that range. Nevertheless, the increased value was properly amatter to be taken into account.[39] In Ellis, the Court of Appeal considered a start sentence in the range of 12 to18 months was appropriate where a few hours after the burglary Mr Ellis had beenfound with the $5,000 worth of property stolen in a burglary. Significantly, the Courtof Appeal however also held that, in that case, an uplift on the start sentence by 12months on account of Mr Ellis' previous convictions for dishonesty was appropriate,as also was a discount of only 15 per cent for Mr Ellis' guilty plea. The Court ofAppeal upheld an end sentence of two years and one month imprisonment as, whilestern, within the range available.[40] In Whittaker v Police, Mander J held a starting point sentence of 12 monthswas too high but this was in the context of him concluding this would have been moreconsistent with the "relatively unusual features of Mr Whittaker's offending". He hadpaid (and lost) $5,000 for a stolen vehicle worth between $10,000 and $13,000, stolena day or two prior to the purchase. He had been convicted expressly on the basis hehad been reckless as to whether or not the vehicle had been stolen and had takeninsufficient steps to ensure that it was not. Mander J referred to a number of cases inreaching that decision but pointed out "inevitably, each case turns on its own particularfacts and circumstances". He also observed that "taken together, the case law revealsthere to be a moderately wide sentencing range for offending of this type".[41] In Proctor v Police, Davison J referred to the Court of Appeal's suggestion inEllis to a range of 12 to 18 months for receiving.18 In approving the adopted startingpoint of 15 months for the receiving there, Davison J noted that Mr Proctor hadreceived items valued at $5,000 and he had sold them the same day as the burglary,suggesting a close connection between burglar and receiver.18 Proctor v Police, above n 4.[42] In Sinclair v Police, Mander J upheld a sentence of two and a half years'imprisonment.19 This was in circumstances where a home had been burgled between2.00 am and 7.00 am on 2 November 2013. Two laptops, a nail gum and a battery drillwere taken from the premises. A car parked in the driveway containing clothing andbuilders' tools was also stolen. The value of the car and property taken was valued inexcess of $10,000. At 9.40 am that same morning, Mr Sinclair began attempting tosell items taken. The sentencing Judge adopted a two and a half year starting point,increased it by six months to take into account previous convictions for dishonesty.He reduced the provisional sentence of three years by six months, about 17 per cent,to recognise Mr Sinclair's plea of guilty, resulting in an end sentence of two and a halfyears.[43] Mander J considered a starting point of two and a half years was stern and atthe upper limit but available to the sentencing Judge. He noted that counsel hadacknowledged the six month uplift for previous offending could have been greater. Heconsidered there was no error in the extent of the discount for an early guilty plea.Mander J referred to the way the Supreme Court in Hessell v R had said the extent ofthe discount for a guilty plea is a matter for evaluation by the sentencing Judge, andmust reflect all the circumstances in which the plea is entered, including the strengthof the prosecution case.20[44] Mr Kennett has an extensive list of convictions for burglary, obtaining bydeception and receiving. This offending occurred when he was subject to releaseconditions after a sentence of imprisonment imposed on 14 September 2018 for twoseparate offences of obtaining by deception and for burglary committed on 27 May2018. He was found in possession of numerous items stolen in a burglary with proofthat he had received others. Given the strength of the prosecution case, in accordancewith Hessell, the discount for a guilty plea could have been less.19 Sinclair v Police, above n 13.20 Hessell v R, above n 17.[45] On this appeal, it is, as always, necessary to focus on the end sentence. Thatsentence was two years and four months' imprisonment for two separate offences. InEllis v R, the Court of Appeal upheld an end sentence of two years and one month forjust one offence of receiving property of significantly less value than Mr Kennettobtained.[46] In all these circumstances, I have not been persuaded that the sentence imposedwas manifestly excessive. The appeal is dismissed.Solicitors:P N Allen, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.This judgment was delivered by me on 12 August 2019 at 11.00 am.Registrar/Deputy RegistrarDate: 12 August 2019.