KENNEDY v NEW ZEALAND POLICE [2019] NZHC 2644

KENNEDY v NEW ZEALAND POLICE [2019] NZHC 2644 [16 October 2019]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2019-425-000020[2019] NZHC 2644BETWEEN SONNY JAMES KENNEDYAppellantAND NEW ZEALAND POLICERespondentHearing: 14 October 2019Appearances: K L McHugh for AppellantR W Donnelly for RespondentJudgment: 16 October 2019JUDGMENT OF GENDALL JThis judgment was delivered by me on 16 October 2019 at 4:00 p.m.Registrar/Deputy RegistrarDate: 16 October 2019Introduction[1] The appellant, Sonny James Kennedy, was convicted in the District Court atInvercargill with respect to four separate sets of offending: driving whilst suspended(3rd and subsequent), committing an indecent act in a public place, indecent assaultand the possession of cannabis. On 14 May 2019, Judge Farnan sentenced theappellant effectively to a total of 25 months' imprisonment based upon the indecentassault as the lead offence.[2] Mr Kennedy appeals this sentence.Facts[3] On 27 December 2017 the appellant faced his third disqualification fromdriving due to demerit points. The driving charge arose out of the events of 13 March2018, when the appellant was the driver of a motor vehicle in rural Southland. Hisvehicle was stopped due to excessive speed. That constituted the driving whilesuspended conviction (which was in the aggravated form).[4] The second set of offending occurred in the early afternoon of 3 July 2018. Atthat time the appellant drove to the carpark of a public swimming pool in Invercargill.He parked by the fence at the back of the carpark area and walked to the bushes by thefence that separate the swimming pool and an adjacent rugby park. The two victims,young teenagers, were running around the rugby park as part of their school physicaleducation programme. The appellant stood in the bushes watching them. He thenpulled down his shorts and started to masturbate. Both of the victims saw his actionsand ran to tell their teacher. The appellant quickly walked back to his van and droveout of the carpark. Those actions constituted the indecent act.[5] The third set of offending involved a 21 year old female university studentvictim who was also unknown to the appellant. On 30 August 2018, it was a warmautumn day and the Dunedin Botanical Gardens were busy. At around 3.20 pm, thevictim was relaxing in the sun, reading, and listening to music in a relatively secludedpart of the Gardens, off the main walkway. There is limited visibility to the publicfrom the area where she was positioned. The appellant entered the Gardens wearingheavy clothing and sunglasses which formed a partial disguise. He stood in nearbybushes watching the victim as she read, leaving briefly when she noticed him watchingher. Approximately ten minutes later, the appellant approached the victim from behindand out of her sight. By then, she was lying on the grass and did not hear the appellantapproach, due to having headphones on. The appellant lowered his pants and beganmasturbating. In doing so he approached the victim and ejaculated onto her face, neck,her top and book. She stood up and yelled at the appellant who fled. He was lateridentified, apprehended at his home, and charged with indecent assault.[6] It was during the search that was executed of his home at the time that the lastset of offending occurred. This involved a charge of possession of cannabis whichwas located at the appellant's house. A large quantity of this cannabis was found in aplastic shopping bag hidden within the kitchen/dining room area. Drug utensils,including spotting knives, grinders, and a bong, were also located at the address.Principles on appeal[7] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, "[an appellate] court 'will not intervene where the sentenceis within the range that can properly be justified by accepted sentencing principles'".2It is only appropriate for this Court to intervene and substitute its own views if thesentence being appealed is "manifestly excessive" and not justified by the relevantsentencing principles.3 The focus of an appellate court must "primarily be on theappropriateness of the end sentence, not the means by which that end sentence hasbeen reached."41 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].4 Skipper v R [2011] NZCA 250 at [28].District Court decision[8] In her sentencing decision in the District Court, Judge Farnan took the indecentassault as the lead charge. She said that to describe the appellant's behaviour towardsthe victim as disgusting would be an understatement.[9] In setting a starting point, the Judge accepted that there was no directphysicality in relation to the earlier indecent act offending, but there was clearlyphysical contact in the indecent assault offending. The Judge held the appellant'sbehaviour relating to both the indecent act and the indecent assault offending wasentirely premeditated – he used a disguise and his actions were planned. The appellanthad thus moved from offending in a public place, to offending in a more isolated area.[10] All of the victims of the appellant's offending were vulnerable. The victim ofthe indecent assault was particularly so. This was because of the location she wassituated in, the fact that she was wearing headphones and likely unaware of hersurroundings, and she was a lone female in a secluded area. The aggravating featuresof the indecent act offending were the ages of the two teenage victims, the clear effecton them, and the further feature that this offending was also premeditated. So far asthe other charges against the appellant are concerned, it is clear they related to separateand distinct offending, involving driving and cannabis possession. The appellant hasprevious convictions.[11] In her decision, Judge Farnan held the gravity of the lead indecent assaultoffending was at least moderate, and that a starting point of imprisonment in the rangeof two and half to three years would not be out of line. To that she uplifted the threeyear starting point she had adopted by three months for the indecent act offendinginvolving the two teenagers, and also by a further one month each for the drivingcharge and the possession of cannabis charge.[12] The Judge then adopted an uplift for the appellant's previous record. This wasthe appellant's fourth sentencing involving offending of a sexual nature in the last sixyears, and the ninth and tenth such sexual related offences overall. The Judge referredto what she saw as a clear escalation in the nature of the current offending, movingfrom indecent act offending, to an indecent assault offence against a previouslyunknown victim.[13] In her view a three-month uplift for the appellant's record, she said, was notout of line. That left an end starting point of three years and eight months or44 months. From that the Judge said totality required the offending be reduced to threeyears and six months or 42 months.[14] Judge Farnan then considered what relevant mitigating factors applied. TheJudge gave a full discount for the appellant's early guilty plea. She also gave discountsfirst, for what she described as the appellant's mental health challenges (the appellanthas what has been diagnosed as an adjustment disorder, and depression); secondly, forhis genuine remorse and shame; thirdly, for the time he has spent on EM Bail; andlastly, for the steps the appellant has taken to seek help to ensure that he did notreoffend. For all those factors the Judge gave a total 40 per cent discount. That leftan imprisonment period of 25.2 months. The Judge rounded that down to 25 months.[15] Because that was over two years the Judge did not consider home detention.[16] The end sentence for the indecent assault was one of imprisonment for a periodof 25 months or two years one month. The appellant was also to serve concurrently,imprisonment sentences of one month for driving while suspended, three months forcommitting the indecent act, and one month for the possession of cannabis. Theappellant was also disqualified from driving for 12 months and ordered to makeemotional harm payments totalling $2,500.[17] Name suppression was sought but refused by Judge Farnan.SubmissionsAppellant's submissions[18] Before me the appellant submitted generally that:(a) the end sentence arrived at was excessive and a different sentence(namely, home detention) should have been imposed;(b) the Judge erred in adopting a starting point of three years' imprisonmentfor the lead offence of indecent assault, which was too high and this ledto an overall starting point that was excessive in response to theoffences before the Court;(c) the Judge erred in principle, by placing undue emphasis on the appellantattending a Corrections rehabilitative programme, leading to theimposition of a sentence greater than what was otherwise justified.(d) though the Judge applied a discount of 40 per cent to the overall startingpoint, and recognised totality, the credit applied to reflect personalmitigating features and the appellant's guilty pleas was inadequate, andspecifically failed to account for the immediate payment of reparationby the appellant.Respondent submissions[19] In response, overall, Mr Donnelly for the respondent makes three majorsubmissions:(a) the uplifts applied for the "other charges" were generous to theappellant. Even if the starting point was a little above the upper end ofwhat was available to Judge Farnan, the effect of this was undone bythe limited uplifts applied for the remaining charges and the appellant'sprior convictions;(b) the 40 per cent discount was applied globally. This gave the appellanta discount greater than what would have been achieved throughstaggered discounts totalling the same. When looking at the overalldiscount given of 17 months, it cannot be said this was inadequate;(c) the end sentence was not manifestly excessive.Analysis[20] The primary focus of this court on appeal is whether the end sentence reachedby the trial judge is manifestly excessive.Starting point and uplifts[21] The indecent assault clearly should be the lead charge here. That carries amaximum period of imprisonment of seven years.[22] On this, Judge Farnan took a starting point of three years, or 36 months. Theappellant submits 20.5 to 22.5 months would be a more appropriate starting point.[23] The appellant and respondent both accept there is no tariff decision for indecentassault offending. This is so given the wide variation in such types of offending.However, on review of the authorities Ms McHugh for the appellant contends that thestarting point adopted here was clearly out of range.[24] Ms McHugh referred me to a recent decision, Wild v R, an appeal before theCourt of Appeal. This involved two charges of sexual conduct (committing anindecent act) against a young person aged under 16 - 12 years.5 In that case, the Courtallowed the appeal, quashed the sentence of two years two months' imprisonment, andsubstituted a sentence of 18 months' imprisonment.[25] Similarly, Ms McHugh pointed to another Court of Appeal decision,R v Ngahere, where the Court considered an appeal against a sentence of four yearsimprisonment for two charges of indecent assault of a 41 year old woman.6 The assaultthere involved the appellant lying beside the complainant and her child (who she washolding in her arms), stroking her legs and taking her hand and placing it on theoffender's penis, making the complainant masturbate him before he ejaculated on herlower back. The Court allowed the appeal, quashed the sentence of four yearsimprisonment and replaced it with a sentence of two years six months' imprisonment,5 Wild v R [2019] NZCA 1896 R v Ngahere CA99/02, 25 September 2002.with a term of 12 months' imprisonment to run concurrently regarding the secondoffence.[26] Ms McHugh also referred me to a decision of this Court in R v Ismail.7 Thatcase concerned a male offender following the complainant to her home, waiting for 30to 40 minutes before defecating on a concrete area in front of the house, removing hisclothing and entering her home and then her bedroom. Ejaculation was not a featureof offending in that case. However, in Ismail Collins J considered five key featureswhich informed his starting point of two years three months imprisonment. Theseincluded factors such as the appellant being naked from the waist down at the time;that whilst the appellant used sufficient force to both rip the complainant's dress strapand grab her shoulders aggressively, the assault was at the lower end of the spectrum,and there was no indecent touching; there was, however, a high level of premeditationin that the appellant had followed the complainant to her home and waited outside herhouse for some time, entering her home and bedroom with the hope, no doubt, ofhaving some form of sexual relationship; the offending involved an invasion of thecomplainant's home at night; and finally the fact the appellant did not leave thecomplainant's home when she screamed at him to do so and only left when thecomplainant got a knife.[27] Ms McHugh contends that Ismail is more serious on all of its facts than theappellant's offending here. Despite that, Judge Farnan adopted a starting point in thepresent case some nine months higher than in Ismail. The appellant submits that inthis case, a three year imprisonment starting point was therefore quite out of line anda lead starting point of no more than two years imprisonment could be justified.[28] In response, Mr Donnelly for the Crown maintains that the indecent assaultoffending here can only be seen as quite unique, unusual and distressing. He says themost noteworthy aspect of this offending was the appellant's ejaculation on thevictim's face, neck and Icebreaker top. This coupled with the fact the victim did notknow the appellant and she was simply in the Dunedin Botanical Gardens in themiddle of the day enjoying her surroundings, were pertinent factors relevant to the7 R v Ismail [2016] NZHC 79assessment of a proper sentence. The Crown maintains that the ejaculation on thevictim was not only invasive but also highly disturbing, thus putting this offending ina different category, even compared with cases such as Partridge v R.8[29] In Partridge a starting point of 20 months' imprisonment was upheld on appealin respect of four charges of doing an indecent act with a young person and one chargeof doing an indecent act in a public place. The offending involved the male appellantmasturbating in the presence of sisters. The indecent act with a young person chargeswere based on the appellant masturbating in the presence of the victims whilst in a car.It was emphasised on appeal that these charges more appropriately sat under section125. But, this Court determined that, as the appeal was one against sentence only, thiswas not a matter which could be examined.[30] Before me, Mr Donnelly for the Crown accepted that the starting point of threeyears adopted in the present matter for the indecent assault was at the upper end of therange available, and if looked at in isolation considering decisions such as Partridge,it might be said to be on the high side. But clearly, as I have noted above, Partridgedid not involve any actual assault, and there was not the associated degradation andpsychological impact to the complainant caused by the appellant's ejaculation onto thevictim's person, as occurred in the present situation.[31] With all this in mind, it is my view that the starting point of three years or36 months' imprisonment adopted here is somewhat out of range. In all the presentcircumstances, I adopt a starting point of 27 months (two years three months) which Iregard as appropriate, given what I agree are the quite unusual and unique aspects ofthis offending and the nature of the appellant's physical and emotional acts againstwhat was an entirely unsuspecting young woman.[32] However, on all of this, Mr Donnelly for the Crown maintains that, in anyevent, the uplifts Judge Farnan applied here were quite inadequate and mean thatultimately the end sentence reached was well within range.8 Partridge v R [2017] NZHC 2440[33] As to this, and given the reduction she made for totality, Judge Farnan upliftedthe starting point by only six months to account for the three additional charges andthe appellant's previous convictions. The appellant's conviction for driving whilesuspended (in the aggravated form) was his sixth for this type of offending (he hadfive previous convictions for driving while suspended/disqualified).[34] The appellant contends there were no aggravating features of the driving whilstsuspended charge on this occasion, and that he was suspended simply as a result ofexcess demerit points. While an uplift was appropriate, it was accepted, however, thatthis could have been up to about four months' imprisonment, whereas the sentencingJudge had uplifted by only one month's imprisonment.[35] In Wiki v New Zealand Police Lang J held that a starting point of approximatelyten to 12 months imprisonment was available for the appellant's eighth conviction fordriving while disqualified/suspended.9 An important factor was that the appellant hadbeen sentenced for his seventh such offence shortly before the offending. Althoughthe offending was therefore more serious, when regard is had to this, and the fact itwas the appellant's eighth such conviction, the starting point identified in that casesuggests an uplift of around five months in the present matter, in my view, would havebeen justified.[36] With respect to the indecent act charge, the appellant accepted again that itcould warrant an uplift. Three months was the uplift given and the appellant, as Iunderstand it, concedes that up to six months could have been appropriate here. InPauley v New Zealand Police Thomas J dismissed an appeal against a sentence of 20months' imprisonment imposed for one charge of doing an indecent act in a publicplace.10 The offending involved the appellant parking his car in a public area andmasturbating whilst sitting in the driver's seat. The victim and her four-year-olddaughter were in the vicinity. She yelled out to the appellant who proceeded to openthe door, showing her that he was indeed masturbating. In that case, Thomas J saidthat a starting point of around 14 months' imprisonment was appropriate.9 Wiki v New Zealand Police [2018] NZHC 885.10 Pauley v New Zealand Police [2014] NZHC 2409.[37] In the present case, the victims were not as young but were still vulnerable byvirtue of their age as high school students. The victims thus were vulnerable becauseof their relative youth and also the fact they were in public and taking part in a school-based activity running around a rugby park. They became aware of the distressingmasturbation and had to tell their teacher. Even acknowledging the offending inPauley might be said to be more serious, the Crown submits and I accept, that an upliftof seven months to account for this offending could have been safely applied.[38] Judge Farnan uplifted the offending by one month to account for the appellant'sconviction for possession of cannabis simpliciter. Having regarded to s 7(2)(b) of theMisuse of Drugs Act 1975, it could be said that the one month uplift should not havebeen applied. However, both the respondent and appellant before me seemed to acceptthat an uplift of one month's imprisonment was not improper here.[39] I accept the respondent's submission that, having regard to the three additionalcharges, an uplift of something approaching 13 months' imprisonment could properlyhave been applied to the starting point adopted for the lead offence. That would leadto a start point of 40 months (three years four months). I would reduce that byfour months for totality to 36 months (three years).Personal factors[40] The appellant has prior relevant convictions, excluding those convictions fordriving while suspended/disqualified, which include:(a) Indecent act (x2) – 2015 offending,(b) Obscene exposure to a person in public – 2013 offending.(c) Indecent act with intent to assault — 2013 offending.(d) Indecent act with intent to assault – 2013 offending.(e) Indecent act with intent to assault — 2013 offending.(f) Indecent act – 2013 offending.(g) Indecent act – 2013 offending.[41] Given the nature of these offences, Mr Donnelly for the Crown says an upliftfor the appellant's previous convictions is necessary and the uplift of three months'imprisonment imposed by Judge Farnan was on the light side. I agree and, as I see it,an increased uplift of five months is warranted here. That leaves 41 months' (threeyears five months) imprisonment as a final starting point.Credits[42] Against that, credits or discounts are to be applied. Judge Farnan in herdecision applied a global credit of 40 per cent to her final starting point. That wasmade up of an overall discount for mitigating factors that amounted effectively to15 percent, followed by a discount of 25 percent applied for the guilty pleas.[43] Both parties here accept that Judge Farnan simply applied the full overall40 per cent credit in mitigation from the starting point she had arrived at. Thisincluded the "full discount" of 25 per cent afforded to the appellant for his early guiltypleas. On these aspects, Judge Farnan considered the appellant's mental healthchallenges, his remorse and shame, the significant period he had spent onelectronically monitored bail, and the steps he had taken in terms of seeking assistanceto ensure this offending would not occur again. She afforded some 15 per cent creditto reflect those last-mentioned features.[44] I accept the point advanced before me by Mr Donnelly for the Crown that, ifone separates the global discount of 40 per cent applied, then that would amount to atotal discount of 45 per cent applied in the way suggested by the Supreme Court inHessell v R.11 The respondent says that an overall discount which results in a reductionfrom an imprisonment term of 42 months to 25 months cannot be described asinadequate in this matter.11 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.[45] In all the circumstances here, in my view an appropriate discount for theappellant's mental health challenges, remorse and shame, the significant period hespent on electronically monitored bail, and the steps taken in terms of assistance toensure this offending would not occur again would be 15 per cent. An additionalfive per cent discount for emotional harm reparation is also appropriate here. I wouldnot be minded to go further than that, given the appellant is already receiving adiscount for remorse, and the emotional harm payment is the manifestation of thatremorse.[46] The discount for these factors totals 20 per cent and then the full 25 per centdiscount for the appellant's guilty pleas needs to be taken into account.Conclusion[47] From the starting point of 27 months' imprisonment which, in my view, isappropriate here, an uplift for other offending of 13 months is to apply. That leaves anotional starting point of 40 months, reduced by four months for totality, with an upliftof five months for prior offending. From the resulting 41 month figure I would allowa discount of 20 per cent for the appellant's mental health challenges, remorse andshame, the reparation, the significant period spent on electronically monitored bail andthe steps taken in terms of assistance to ensure this offending would not occur again.That leaves 32.8 months. From that I would deduct a further 25 per cent for the earlyguilty plea which leaves 24.6 months or a little over two years' imprisonment. This isvirtually the same final result as Judge Farnan reached of 25 months' or two years onemonth imprisonment, and any interference with this figure here, as I see it, wouldpurely be tinkering.[48] On all of this I have also had regard to the submission that Judge Farnan'ssentencing exercise was influenced by an intent to see the appellant undergo the AdultSex Offender Treatment Programme, delivered by Corrections to sentenced prisoners.In reaching the sentence she imposed of 25 months' imprisonment, Judge Farnancommented:What that also means, Mr Kennedy, is that you would then have available toyou, attendance at the Adult Sex Offender Treatment Programme, which, inmy view, is necessary in this case, to meet the purposes and principles ofsentencing of deterrence and particularly denunciation, which is required inthe case of a recidivist offender for such offending.[49] Ms McHugh for the appellant submits that those remarks reflect an underlyinginfluence here on the overall end sentence (notably just over 24 months' imprisonment)that would see the appellant attend the programme. She points to authorities whichsuggest that it is wrong in principle for a sentencing judge to impose a much longersentence than was otherwise justifiable for the apparent purpose of ensuring that anoffender receives rehabilitative intervention before being released into thecommunity.12[50] It is my view, however, that the sentencing process here was not undulyinfluenced by this. Given my own finding that a sentence of a little under 25 monthswould have been appropriate anyway, the sentence given in the District Court, as I seeit, was entirely within the proper range.Result[51] For all these reasons, this appeal is dismissed....................................................Gendall JSolicitors:McHugh Law, InvercargillPreston Russell Law, Invercargill12 Smith v R [2012] NZCA 419.