Kelly-Goodwin v Police

[2018] NZHC 1143

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-32

[2018] NZHC 1143

BETWEEN

NIKAU BRUCE KELLY-GOODWIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 October 2018
Counsel:	A J Hamblett for Appellant M L Dillon for Respondent
Judgment:	12 October 2018

JUDGMENT OF BREWER J

Solicitors:

Joseph Hamblett (Hamilton) for Appellant Almao Douch (Hamilton) for Respondent

KELLY-GOODWIN v POLICE [2018] NZHC 1143 [12 October 2018]

Introduction

[1]                 On 15 June 2018, Judge KBF Saunders sentenced Mr Kelly-Goodwin to two years and one month’s imprisonment on one charge of burglary and two charges of unlawful takings of motor vehicles.1

[2]                 The burglary was a ram-raid of a store in Cambridge. Mr Kelly-Goodwin was the driver of the car that rammed the store. The car he was driving was one of the two motor vehicles which had been unlawfully taken. Mr Kelly-Goodwin was accompanied by his brother, Mr Hamilton, and by Mr Tamati.

[3]                 Having stolen items from the store, Mr Kelly-Goodwin and his two accomplices 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 that he 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 of nine months’ home detention (the equivalent  of  18 months’  imprisonment)  and  Mr Tamati received a sentence of 11  months’ home  detention  (the equivalent  of  22 months’ imprisonment). Mr Kelly-Goodwin’s view is that Mr Tamati’s conduct was 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 Parole Board, Mr Kelly-Goodwin served the whole of that sentence. He is concerned that because he did not receive a short term of imprisonment (i.e. two years or less), then he might have the experience repeated and have to serve the whole of the 25 months

1      Police v Kelly-Goodwin [2018] NZDC 11956.

to which he is now subject. However, Mr Hamblett accepts that that is not an issue I can deal with.

[7]                 Mr Hamblett made submissions as to the way the Judge calculated the sentence. However, Mr Hamblett accepts it is the end result which is to be considered rather 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 adopted for sentencing Mr Hamilton and Mr Tamati. The issue for Mr Hamblett is how that starting point should have been reduced.

[9]                 The Judge gave Mr Kelly-Goodwin a 20 percent discount for his pleas of guilty. Mr Hamblett contends that the full 25 percent discount should have been given in relation to the sentence on the burglary charge. That is because Mr Kelly-Goodwin intimated to the Community Magistrate when he first appeared that he would plead guilty 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 motor vehicles. In the round, I cannot possibly say that an overall discount of 20 percent for the 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 as opposed to his co-defendants was in her assessment of Mr Kelly-Goodwin’s previous record.

[11]              I have looked at the record. The Judge was right to say it is significantly more serious than Mr Tamati’s. Mr Tamati had previously, as an adult, committed two burglaries and an aggravated robbery. Mr Kelly-Goodwin had committed eight burglaries as well as an aggravated robbery. Therefore, the uplift he received for previous 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 Hamblett responsibly 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 a necessary concession given Mr Kelly-Goodwin’s criminal history and the role he played in the ram-raid burglary.

[13]              In essence, Mr Hamblett submits that if a 25 percent discount for the plea of guilty was given for the burglary charge only, and if the other discounts given by the Judge 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 client received 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 the pleas of guilty immediately after setting the initial starting point. Had the Judge adopted the conventional approach of calculating the discount on the final starting point, 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 the Judge’s end sentence of two years and one month’s imprisonment was manifestly excessive.

[17]              I do not see there is an illegitimate disparity between the sentence given to Mr 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 his more serious criminal record.

[18]Accordingly, the appeal against sentence is dismissed.

Brewer J