Kennedy v Police

[2013] NZHC 714

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-007 [2013] NZHC 714

BETWEEN  CHRISTOPHER     JOHN     FRANCIS KENNEDY

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:         10 April 2013

Counsel:         L Drummond for Appellant

N M Robson for Respondent

Judgment:      10 April 2013

JUDGMENT OF MILLER J

[1]    Mr Kennedy appeals his sentence of nine months imprisonment on 6 charges of theft.  All of the offences were described as shoplifting; they involved items of modest value stolen from retail premises.

[2]    Mr Kennedy is an alcoholic, and that has led to what the Judge described as a very unstable and sometimes chaotic lifestyle, and recurrent contact with the justice system.  Shoplifting and trespass feature prominently in his conviction history, as do liquor ban breaches.  His conviction history exceeds 10 pages in length.  It includes several short sentences of imprisonment.

[3]    For very similar offending Mr Kennedy was sentenced to a year’s intensive supervision in November 2011.   The idea was that with benefit of supervision he could address his addiction.  He did make the attempt, but he did not stop drinking. As at 16 December 2012 he had earned 12 more convictions; six for shoplifting, four

for liquor ban breaches, and two for trespass.

KENNEDY v N Z POLICE HC CHCH CRI-2013-409-007 [10 April 2013]

[4]    At that time Mr Kennedy lived in Wellington.   On 16 December 2012 he arrived in Christchurch, hoping for work with a building firm.  It did not eventuate. Between his arrival and 21 January 2013 he committed the present offences. Understandably taking the view that enough was enough, the Judge denied him bail when he appeared on 29 January.

[5]    He was sentenced on 5 February.  The Judge had the benefit of a presentence report dated 31 January.  It noted that his work had fallen through, opined that he presented a medium to high risk of reoffending, and recorded that he was transient, with no fixed address.  This left the Judge with no alternative to imprisonment.  She took a starting point of two months imprisonment for each offence, a total of 12 months.  She deducted 25 per cent for the guilty pleas, calculating incorrectly that the  resulting  sentence  was  10  months.     A  further  month  was  deducted  for Mr Kennedy’s anxiety condition, resulting in the end sentence of nine months.  Since the maximum for each offence was three months, this necessitated cumulative sentences.   A special condition was imposed relating to alcohol abuse, the Judge indicating that what she had in mind was residential treatment.

[6]    On appeal, Ms Drummond submits that the most valuable item stolen was worth only $69.99, which is at the bottom of the scale of seriousness.  As a result the starting point was too high.  The Judge also failed to apply the totality principle.  She accepts that imprisonment was available, but asks that the sentence be shortened.

[7]    There is no tariff case for this offence, but imprisonment is plainly available for a recidivist who remains at high risk of reoffending, and cumulative sentences are available, subject to totality.   I agree with the Judge that the community is entitled to protection from Mr Kennedy, and that can be achieved only by taking him out of circulation.   I inquired of counsel what residential treatment is available at short notice, but it appears that a place cannot be sought for him until he is released.

[8]    I accept Ms Drummond’s submission that the Judge’s arithmetical error must be corrected in Mr Kennedy’s favour.  The appeal must be allowed to that extent.

[9]    I also accept that the Judge made no express allowance for totality, although the offences are of a similar kind and were committed over a short period.  However, neither did she add anything for his previous convictions, which I am told number 36 for shoplifting alone.  In any event, the precise methodology used does not matter. What matters is whether the end result was plainly excessive.

[10]  As to that, I accept Ms Drummond’s submission that each offence may be described as minor, but I also accept Ms Robson’s submission that a substantial allowance must be made for personal aggravating factors.  Mr Kennedy has many convictions, and he cannot be deterred.   He will continue to offend more or less incessantly.  In these circumstances, I am not persuaded that any further reduction in the sentence ought to be made.

[11]  Accordingly, the appeal  is allowed to the extent that the sentence for the offence of theft on 19 January 2013, CRN 13009000801, is reduced to one month. All other sentences are undisturbed.   The result is an effective sentence of eight months imprisonment.

Miller J

Solicitors:

Crown Solicitor’s Office, Christchurch for Respondent