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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 714
Decision Date: 10 April 2013

CaseChat Overview and Summary

Kennedy appeals his sentence of nine months imprisonment on six charges of shoplifting, which the Court of Appeal reduced to eight months. The respondent, New Zealand Police, did not oppose the appeal. The appellant's counsel submitted that the starting point for sentencing was too high and that the totality principle was not applied. The court found that while the starting point may have been too high due to the relatively low value of the stolen items, the cumulative sentence was not excessive, taking into account the appellant's history of shoplifting and other offenses. The court also found that the totality principle was not explicitly applied, but the end result was not plainly excessive. The court accepted the appellant's submissions in part and reduced the sentence for one of the offences to one month, resulting in an effective sentence of eight months imprisonment.

The legal issues in this case were whether the starting point for sentencing was appropriate, whether the totality principle was applied, and whether the cumulative sentence was excessive. The court found that while the starting point may have been too high, the cumulative sentence was not excessive, taking into account the appellant's history of shoplifting and other offenses. The court also found that the totality principle was not explicitly applied, but the end result was not plainly excessive.

In reaching its decision, the court considered the appellant's history of shoplifting and other offenses, as well as the value of the stolen items. The court found that the appellant's history of offending and his inability to deter from shoplifting justified a cumulative sentence. The court also found that the totality principle was not explicitly applied, but the end result was not plainly excessive. The court reduced the sentence for one of the offences to one month, resulting in an effective sentence of eight months imprisonment.

The final orders of the court were that the appeal be 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.

Orders