Kennedy v Police
[2019] NZHC 2644
•16 October 2019
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2019-425-000020
[2019] NZHC 2644
BETWEEN SONNY JAMES KENNEDY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 October 2019 Appearances:
K L McHugh for Appellant
R W Donnelly for Respondent
Judgment:
16 October 2019
JUDGMENT OF GENDALL J
This judgment was delivered by me on 16 October 2019 at 4:00 p.m.
Registrar/Deputy Registrar Date: 16 October 2019
KENNEDY v NEW ZEALAND POLICE [2019] NZHC 2644 [16 October 2019]
Introduction
[1] The appellant, Sonny James Kennedy, was convicted in the District Court at Invercargill with respect to four separate sets of offending: driving whilst suspended (3rd and subsequent), committing an indecent act in a public place, indecent assault and the possession of cannabis. On 14 May 2019, Judge Farnan sentenced the appellant effectively to a total of 25 months’ imprisonment based upon the indecent assault as the lead offence.
[2]Mr Kennedy appeals this sentence.
Facts
[3] On 27 December 2017 the appellant faced his third disqualification from driving due to demerit points. The driving charge arose out of the events of 13 March 2018, when the appellant was the driver of a motor vehicle in rural Southland. His vehicle was stopped due to excessive speed. That constituted the driving while suspended conviction (which was in the aggravated form).
[4] The second set of offending occurred in the early afternoon of 3 July 2018. At that 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 the fence 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 physical education programme. The appellant stood in the bushes watching them. He then pulled down his shorts and started to masturbate. Both of the victims saw his actions and ran to tell their teacher. The appellant quickly walked back to his van and drove out of the carpark. Those actions constituted the indecent act.
[5] The third set of offending involved a 21 year old female university student victim who was also unknown to the appellant. On 30 August 2018, it was a warm autumn day and the Dunedin Botanical Gardens were busy. At around 3.20 pm, the victim was relaxing in the sun, reading, and listening to music in a relatively secluded part of the Gardens, off the main walkway. There is limited visibility to the public from the area where she was positioned. The appellant entered the Gardens wearing
heavy clothing and sunglasses which formed a partial disguise. He stood in nearby bushes watching the victim as she read, leaving briefly when she noticed him watching her. Approximately ten minutes later, the appellant approached the victim from behind and out of her sight. By then, she was lying on the grass and did not hear the appellant approach, due to having headphones on. The appellant lowered his pants and began masturbating. 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 later identified, 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 last set of offending occurred. This involved a charge of possession of cannabis which was located at the appellant’s house. A large quantity of this cannabis was found in a plastic 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 Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.2 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached.”4
1 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 indecent assault as the lead charge. She said that to describe the appellant’s behaviour towards the victim as disgusting would be an understatement.
[9] In setting a starting point, the Judge accepted that there was no direct physicality in relation to the earlier indecent act offending, but there was clearly physical contact in the indecent assault offending. The Judge held the appellant’s behaviour relating to both the indecent act and the indecent assault offending was entirely premeditated – he used a disguise and his actions were planned. The appellant had 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 of the indecent assault was particularly so. This was because of the location she was situated in, the fact that she was wearing headphones and likely unaware of her surroundings, and she was a lone female in a secluded area. The aggravating features of the indecent act offending were the ages of the two teenage victims, the clear effect on them, and the further feature that this offending was also premeditated. So far as the other charges against the appellant are concerned, it is clear they related to separate and distinct offending, involving driving and cannabis possession. The appellant has previous convictions.
[11] In her decision, Judge Farnan held the gravity of the lead indecent assault offending was at least moderate, and that a starting point of imprisonment in the range of two and half to three years would not be out of line. To that she uplifted the three year starting point she had adopted by three months for the indecent act offending involving the two teenagers, and also by a further one month each for the driving charge and the possession of cannabis charge.
[12] The Judge then adopted an uplift for the appellant’s previous record. This was the appellant’s fourth sentencing involving offending of a sexual nature in the last six years, and the ninth and tenth such sexual related offences overall. The Judge referred to what she saw as a clear escalation in the nature of the current offending, moving
from indecent act offending, to an indecent assault offence against a previously unknown victim.
[13] In her view a three-month uplift for the appellant’s record, she said, was not out of line. That left an end starting point of three years and eight months or 44 months. From that the Judge said totality required the offending be reduced to three years and six months or 42 months.
[14] Judge Farnan then considered what relevant mitigating factors applied. The Judge gave a full discount for the appellant’s early guilty plea. She also gave discounts first, for what she described as the appellant’s mental health challenges (the appellant has what has been diagnosed as an adjustment disorder, and depression); secondly, for his genuine remorse and shame; thirdly, for the time he has spent on EM Bail; and lastly, for the steps the appellant has taken to seek help to ensure that he did not reoffend. For all those factors the Judge gave a total 40 per cent discount. That left an 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 period of 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 for committing the indecent act, and one month for the possession of cannabis. The appellant was also disqualified from driving for 12 months and ordered to make emotional harm payments totalling $2,500.
[17]Name suppression was sought but refused by Judge Farnan.
Submissions
Appellant’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’ imprisonment for the lead offence of indecent assault, which was too high and this led to an overall starting point that was excessive in response to the offences before the Court;
(c)the Judge erred in principle, by placing undue emphasis on the appellant attending a Corrections rehabilitative programme, leading to the imposition of a sentence greater than what was otherwise justified.
(d)though the Judge applied a discount of 40 per cent to the overall starting point, and recognised totality, the credit applied to reflect personal mitigating features and the appellant’s guilty pleas was inadequate, and specifically failed to account for the immediate payment of reparation by the appellant.
Respondent submissions
[19] In response, overall, Mr Donnelly for the respondent makes three major submissions:
(a)the uplifts applied for the “other charges” were generous to the appellant. Even if the starting point was a little above the upper end of what was available to Judge Farnan, the effect of this was undone by the limited uplifts applied for the remaining charges and the appellant’s prior convictions;
(b)the 40 per cent discount was applied globally. This gave the appellant a discount greater than what would have been achieved through staggered discounts totalling the same. When looking at the overall discount 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 reached by the trial judge is manifestly excessive.
Starting point and uplifts
[21] The indecent assault clearly should be the lead charge here. That carries a maximum period of imprisonment of seven years.
[22] On this, Judge Farnan took a starting point of three years, or 36 months. The appellant 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 indecent assault 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 the starting point adopted here was clearly out of range.
[24] Ms McHugh referred me to a recent decision, Wild v R, an appeal before the Court of Appeal. This involved two charges of sexual conduct (committing an indecent act) against a young person aged under 16 - 12 years.5 In that case, the Court allowed the appeal, quashed the sentence of two years two months’ imprisonment, and substituted 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 years imprisonment for two charges of indecent assault of a 41 year old woman.6 The assault there involved the appellant lying beside the complainant and her child (who she was holding in her arms), stroking her legs and taking her hand and placing it on the offender’s penis, making the complainant masturbate him before he ejaculated on her lower back. The Court allowed the appeal, quashed the sentence of four years imprisonment and replaced it with a sentence of two years six months’ imprisonment,
5 Wild v R [2019] NZCA 189
6 R v Ngahere CA99/02, 25 September 2002.
with a term of 12 months’ imprisonment to run concurrently regarding the second offence.
[26] Ms McHugh also referred me to a decision of this Court in R v Ismail.7 That case concerned a male offender following the complainant to her home, waiting for 30 to 40 minutes before defecating on a concrete area in front of the house, removing his clothing and entering her home and then her bedroom. Ejaculation was not a feature of offending in that case. However, in Ismail Collins J considered five key features which informed his starting point of two years three months imprisonment. These included 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 strap and 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 premeditation in that the appellant had followed the complainant to her home and waited outside her house for some time, entering her home and bedroom with the hope, no doubt, of having some form of sexual relationship; the offending involved an invasion of the complainant’s home at night; and finally the fact the appellant did not leave the complainant's home when she screamed at him to do so and only left when the complainant got a knife.
[27] Ms McHugh contends that Ismail is more serious on all of its facts than the appellant’s offending here. Despite that, Judge Farnan adopted a starting point in the present case some nine months higher than in Ismail. The appellant submits that in this case, a three year imprisonment starting point was therefore quite out of line and a 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 assault offending here can only be seen as quite unique, unusual and distressing. He says the most noteworthy aspect of this offending was the appellant’s ejaculation on the victim’s face, neck and Icebreaker top. This coupled with the fact the victim did not know the appellant and she was simply in the Dunedin Botanical Gardens in the middle of the day enjoying her surroundings, were pertinent factors relevant to the
7 R v Ismail [2016] NZHC 79
assessment of a proper sentence. The Crown maintains that the ejaculation on the victim was not only invasive but also highly disturbing, thus putting this offending in a 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 appeal in respect of four charges of doing an indecent act with a young person and one charge of doing an indecent act in a public place. The offending involved the male appellant masturbating in the presence of sisters. The indecent act with a young person charges were 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 section
125. But, this Court determined that, as the appeal was one against sentence only, this was not a matter which could be examined.
[30] Before me, Mr Donnelly for the Crown accepted that the starting point of three years adopted in the present matter for the indecent assault was at the upper end of the range 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, Partridge did not involve any actual assault, and there was not the associated degradation and psychological impact to the complainant caused by the appellant’s ejaculation onto the victim’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 or 36 months’ imprisonment adopted here is somewhat out of range. In all the present circumstances, I adopt a starting point of 27 months (two years three months) which I regard as appropriate, given what I agree are the quite unusual and unique aspects of this offending and the nature of the appellant’s physical and emotional acts against what was an entirely unsuspecting young woman.
[32] However, on all of this, Mr Donnelly for the Crown maintains that, in any event, the uplifts Judge Farnan applied here were quite inadequate and mean that ultimately 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 uplifted the starting point by only six months to account for the three additional charges and the appellant's previous convictions. The appellant's conviction for driving while suspended (in the aggravated form) was his sixth for this type of offending (he had five previous convictions for driving while suspended/disqualified).
[34] The appellant contends there were no aggravating features of the driving whilst suspended charge on this occasion, and that he was suspended simply as a result of excess demerit points. While an uplift was appropriate, it was accepted, however, that this could have been up to about four months’ imprisonment, whereas the sentencing Judge had uplifted by only one month’s imprisonment.
[35] In Wiki v New Zealand Police Lang J held that a starting point of approximately ten to 12 months imprisonment was available for the appellant's eighth conviction for driving while disqualified/suspended.9 An important factor was that the appellant had been sentenced for his seventh such offence shortly before the offending. Although the offending was therefore more serious, when regard is had to this, and the fact it was the appellant’s eighth such conviction, the starting point identified in that case suggests an uplift of around five months in the present matter, in my view, would have been justified.
[36] With respect to the indecent act charge, the appellant accepted again that it could warrant an uplift. Three months was the uplift given and the appellant, as I understand it, concedes that up to six months could have been appropriate here. In Pauley v New Zealand Police Thomas J dismissed an appeal against a sentence of 20 months’ imprisonment imposed for one charge of doing an indecent act in a public place.10 The offending involved the appellant parking his car in a public area and masturbating whilst sitting in the driver's seat. The victim and her four-year-old daughter were in the vicinity. She yelled out to the appellant who proceeded to open the door, showing her that he was indeed masturbating. In that case, Thomas J said that 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 by virtue of their age as high school students. The victims thus were vulnerable because of 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 distressing masturbation and had to tell their teacher. Even acknowledging the offending in Pauley might be said to be more serious, the Crown submits and I accept, that an uplift of 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's conviction for possession of cannabis simpliciter. Having regarded to s 7(2)(b) of the Misuse of Drugs Act 1975, it could be said that the one month uplift should not have been applied. However, both the respondent and appellant before me seemed to accept that an uplift of one month's imprisonment was not improper here.
[39] I accept the respondent’s submission that, having regard to the three additional charges, an uplift of something approaching 13 months’ imprisonment could properly have been applied to the starting point adopted for the lead offence. That would lead to a start point of 40 months (three years four months). I would reduce that by four months for totality to 36 months (three years).
Personal factors
[40] The appellant has prior relevant convictions, excluding those convictions for driving 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 uplift for 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’ (three years five months) imprisonment as a final starting point.
Credits
[42] Against that, credits or discounts are to be applied. Judge Farnan in her decision applied a global credit of 40 per cent to her final starting point. That was made up of an overall discount for mitigating factors that amounted effectively to 15 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 overall 40 per cent credit in mitigation from the starting point she had arrived at. This included the “full discount” of 25 per cent afforded to the appellant for his early guilty pleas. On these aspects, Judge Farnan considered the appellant’s mental health challenges, his remorse and shame, the significant period he had spent on electronically monitored bail, and the steps he had taken in terms of seeking assistance to ensure this offending would not occur again. She afforded some 15 per cent credit to reflect those last-mentioned features.
[44] I accept the point advanced before me by Mr Donnelly for the Crown that, if one separates the global discount of 40 per cent applied, then that would amount to a total discount of 45 per cent applied in the way suggested by the Supreme Court in Hessell v R.11 The respondent says that an overall discount which results in a reduction from an imprisonment term of 42 months to 25 months cannot be described as inadequate 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 the appellant’s mental health challenges, remorse and shame, the significant period he spent on electronically monitored bail, and the steps taken in terms of assistance to ensure this offending would not occur again would be 15 per cent. An additional five per cent discount for emotional harm reparation is also appropriate here. I would not be minded to go further than that, given the appellant is already receiving a discount for remorse, and the emotional harm payment is the manifestation of that remorse.
[46] The discount for these factors totals 20 per cent and then the full 25 per cent discount 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, is appropriate here, an uplift for other offending of 13 months is to apply. That leaves a notional starting point of 40 months, reduced by four months for totality, with an uplift of five months for prior offending. From the resulting 41 month figure I would allow a discount of 20 per cent for the appellant’s mental health challenges, remorse and shame, the reparation, the significant period spent on electronically monitored bail and the 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 early guilty plea which leaves 24.6 months or a little over two years’ imprisonment. This is virtually the same final result as Judge Farnan reached of 25 months’ or two years one month imprisonment, and any interference with this figure here, as I see it, would purely be tinkering.
[48] On all of this I have also had regard to the submission that Judge Farnan’s sentencing exercise was influenced by an intent to see the appellant undergo the Adult Sex Offender Treatment Programme, delivered by Corrections to sentenced prisoners. In reaching the sentence she imposed of 25 months’ imprisonment, Judge Farnan commented:
What that also means, Mr Kennedy, is that you would then have available to you, attendance at the Adult Sex Offender Treatment Programme, which, in my view, is necessary in this case, to meet the purposes and principles of
sentencing of deterrence and particularly denunciation, which is required in the case of a recidivist offender for such offending.
[49] Ms McHugh for the appellant submits that those remarks reflect an underlying influence here on the overall end sentence (notably just over 24 months' imprisonment) that would see the appellant attend the programme. She points to authorities which suggest that it is wrong in principle for a sentencing judge to impose a much longer sentence than was otherwise justifiable for the apparent purpose of ensuring that an offender receives rehabilitative intervention before being released into the community.12
[50] It is my view, however, that the sentencing process here was not unduly influenced by this. Given my own finding that a sentence of a little under 25 months would have been appropriate anyway, the sentence given in the District Court, as I see it, was entirely within the proper range.
Result
[51]For all these reasons, this appeal is dismissed.
...................................................
Gendall J
Solicitors:
McHugh Law, Invercargill
Preston Russell Law, Invercargill
12 Smith v R [2012] NZCA 419.
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