KELLY-GOODWIN v POLICE [2018] NZHC 1143

KELLY-GOODWIN v POLICE [2018] NZHC 1143 [12 October 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2018-419-32[2018] NZHC 1143BETWEEN NIKAU BRUCE KELLY-GOODWINAppellantAND NEW ZEALAND POLICERespondentHearing: 12 October 2018Counsel: A J Hamblett for AppellantM L Dillon for RespondentJudgment: 12 October 2018JUDGMENT OF BREWER JSolicitors:Joseph Hamblett (Hamilton) for AppellantAlmao Douch (Hamilton) for RespondentIntroduction[1] On 15 June 2018, Judge KBF Saunders sentenced Mr Kelly-Goodwin to twoyears and one month's imprisonment on one charge of burglary and two charges ofunlawful takings of motor vehicles.1[2] The burglary was a ram-raid of a store in Cambridge. Mr Kelly-Goodwin wasthe driver of the car that rammed the store. The car he was driving was one of the twomotor vehicles which had been unlawfully taken. Mr Kelly-Goodwin wasaccompanied by his brother, Mr Hamilton, and by Mr Tamati.[3] Having stolen items from the store, Mr Kelly-Goodwin and his twoaccomplices left in the second of the two cars which had been unlawfully taken.Mr Tamati was driving that vehicle and did so, I am told, recklessly to the point thathe crashed the vehicle and Mr Kelly-Goodwin ran off. He was, however, caught,arrested and charged. He entered pleas of guilty at case review.Appeal against sentence[4] Mr Kelly-Goodwin appeals his sentence.[5] Mr Hamblett argued the matter as fully and as comprehensively as possible.His client feels that his sentence was unfair for two reasons. First, his two co-defendants received sentences of home detention. His brother received a sentence ofnine months' home detention (the equivalent of 18 months' imprisonment) andMr Tamati received a sentence of 11 months' home detention (the equivalent of22 months' imprisonment). Mr Kelly-Goodwin's view is that Mr Tamati's conductwas at least as blameworthy as his own. There is, therefore, an unfair disparity.[6] Secondly, Mr Kelly-Goodwin was sentenced to three-and-a-half years'imprisonment in December 2011. Because of the view taken of him by the ParoleBoard, Mr Kelly-Goodwin served the whole of that sentence. He is concerned thatbecause he did not receive a short term of imprisonment (i.e. two years or less), thenhe might have the experience repeated and have to serve the whole of the 25 months1 Police v Kelly-Goodwin [2018] NZDC 11956.to which he is now subject. However, Mr Hamblett accepts that that is not an issue Ican deal with.[7] Mr Hamblett made submissions as to the way the Judge calculated thesentence. However, Mr Hamblett accepts it is the end result which is to be consideredrather than the process by which it was reached.[8] First, Mr Hamblett accepts the starting point of two years and three months'imprisonment adopted by the Judge. It was the same starting point the Judge adoptedfor sentencing Mr Hamilton and Mr Tamati. The issue for Mr Hamblett is how thatstarting point should have been reduced.[9] The Judge gave Mr Kelly-Goodwin a 20 percent discount for his pleas ofguilty. Mr Hamblett contends that the full 25 percent discount should have been givenin relation to the sentence on the burglary charge. That is because Mr Kelly-Goodwinintimated to the Community Magistrate when he first appeared that he would pleadguilty to that charge. However, I note that he later asked for a sentence indication and,in any event, entered pleas of not guilty to the two charges of unlawful taking of motorvehicles. In the round, I cannot possibly say that an overall discount of 20 percent forthe entry of pleas at the case review hearing is outside the range available to the Judge.[10] The major difference in the way the Judge treated Mr Kelly-Goodwin asopposed to his co-defendants was in her assessment of Mr Kelly-Goodwin's previousrecord.[11] I have looked at the record. The Judge was right to say it is significantly moreserious than Mr Tamati's. Mr Tamati had previously, as an adult, committed twoburglaries and an aggravated robbery. Mr Kelly-Goodwin had committed eightburglaries as well as an aggravated robbery. Therefore, the uplift he received forprevious convictions was six months, which was greater than the uplifts for his co-defendants. I cannot say that that was not available to the Judge. Mr Hamblettresponsibly accepts that this uplift was reasonable in the circumstances.[12] Mr Hamblett also accepts it was available to the Judge to sentence Mr Kelly-Goodwin to a period of imprisonment rather than to home detention. That is anecessary concession given Mr Kelly-Goodwin's criminal history and the role heplayed in the ram-raid burglary.[13] In essence, Mr Hamblett submits that if a 25 percent discount for the plea ofguilty was given for the burglary charge only, and if the other discounts given by theJudge are then deducted, the appropriate end sentence would be one year 11 months'imprisonment. That is to say, two months less than he actually received.[14] Mr Hamblett accepts that the difference between the sentence his clientreceived and the sentence Mr Tamati received is not great. In effect, three months'imprisonment.[15] I make the additional point that Judge Saunders calculated the discount for thepleas of guilty immediately after setting the initial starting point. Had the Judgeadopted the conventional approach of calculating the discount on the final startingpoint, then her end sentence would have been two years and two months'imprisonment – two years and three months' imprisonment.Decision[16] Standing back and looking at the matter in the round, I cannot say that theJudge's end sentence of two years and one month's imprisonment was manifestlyexcessive.[17] I do not see there is an illegitimate disparity between the sentence given toMr Kelly-Goodwin as opposed to the sentences handed out to his co-defendants.Mr Kelly-Goodwin's situation was simply more serious than theirs because of hismore serious criminal record.[18] Accordingly, the appeal against sentence is dismissed.________________________________Brewer J