Kennett v Police
[2019] NZHC 1945
•12 August 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000078
[2019] NZHC 1945
BETWEEN NATHAN STUART KENNETT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 August 2019 Appearances:
P N Allan for the Appellant
J H Whitcombe for the Respondent
Judgment:
12 August 2019
JUDGMENT OF NATION J
Introduction
[1] On 31 May 2019, Judge Couch in the District Court sentenced Nathan Kennett to two years and four months’ imprisonment on one charge of receiving property and on another of dishonestly using a document to obtain a pecuniary advantage. Mr Kennett appeals against his sentence.
Facts
[2] Between 8.30 am and 12.30 pm on 30 January 2019, a residential address in Christchurch was burgled. At 10.00 am the following day, Mr Kennett went to Papanui Cash Converters and pawned seven rings and one other piece of jewellery. He was paid $700 for these eight items. In selling the items, he signed a document declaring that the property he was agreeing to sell was owned by him.
KENNETT v POLICE [2019] NZHC 1945 [12 August 2019]
[3] At 11.40 am on 2 February 2019, Mr Kennett returned to Papanui Cash Converters and attempted to pawn further jewellery items taken in the burglary. He was arrested by Police. At the time of his arrest, he was found to be wearing an Oris watch and a Kathmandu puffer jacket, items also taken in the burglary.
[4] A search warrant was executed at Mr Kennett’s address and Police located a Dunlop sports bag containing a great number of items identified as taken during the burglary including jewellery, mountain bike shoes, medication and wooden jewellery boxes.
[5]The items received by Mr Kennett were valued at a total of $10,000.
District Court decision
[6] Judge Couch began by stating that he regarded the gravity of the offending as serious, given the large number of items involved, valued at $10,000. This case, his Honour said, exemplified why receiving is properly regarded as a serious crime. The Judge said it was people such as Mr Kennett receiving property who incentivised people to steal goods. The Judge adopted a starting point of two years and four months, having regard to the principle of totality.
[7] Turning to personal circumstances, the Judge identified relevant aggravating features. First, Mr Kennett committed the offending whilst he was subject to a sentence, namely prison release conditions. For this, the Judge applied an uplift of three months, leading to a notional sentence of two years and seven months. Secondly, the Judge noted Mr Kennett’s extensive criminal history of convictions for serious property offending, including 15 previous convictions for burglary. This attracted a further uplift of six months. The provisional sentence adjusted for these aggravating features of Mr Kennett’s personal circumstances was thus three years and one month.
[8] Judge Couch rejected that Mr Kennett had shown any credible remorse, and regarded a letter to the Court claiming remorse as “purely self-serving”.
[9] The Judge applied a full 25 per cent discount of nine months for Mr Kennett’s immediate guilty plea, leading to a final sentence of two years and four months.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 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 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, a “…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
Submissions
Appellant’s submissions
[11] On the notice of appeal filed by Mr Kennett’s counsel, the grounds for the appeal were that the starting point was too high, excessive uplifts were applied and no credit was given for remorse when it should have been.
[12] In submissions before me, Mr Allan said he could not challenge the appropriateness of the uplift of nine months for previous dishonesty offending. The emphasis in his submissions was what counsel submitted was an excessively high starting point sentence for the offending.
[13] Mr Allan suggested the value of items taken, particularly the jewellery, should not be a significant factor in engaging the seriousness of the offending, arguing that the actual value of the jewellery to a business, like Cash Converters, would be
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].
significantly less than the original cost of that jewellery to the owners. He submitted that Mr Kennett was not in the business of receiving stolen property.
[14] Mr Allan for Mr Kennett first cited Proctor v Police where this Court upheld a starting point of 15 months’ imprisonment for the receipt of stolen jewellery valued at
$5,000.4 Counsel referred to Ellis v R, a case of receiving stolen property also valued
at approximately $5,000, where the Court of Appeal upheld a starting point of 18 months.5
[15] Further cited was Whittaker v Police where Mander J allowed an appeal against a sentence that began with a starting point of 12 months.6 His Honour held that an eight month starting point was more appropriate in the circumstances.7 In that case, the defendant had purchased a (stolen) car worth between $10,000 and $13,000 for a sum of $5,000. He was sentenced on the basis of the value represented by difference between the purchase price and the true value of the car.8 Mr Allan highlighted Mander J’s reference to Ellis v R and an available range of 12–18 months.
[16] In light of the two cases he cited, Mr Allan submitted that an appropriate starting point in the present case ought to have been no more than 18 months. He suggested Judge Couch’s reference to Mr Kennett’s 15 previous convictions for burglary, rather than his sole previous conviction for receiving, may indicate his Honour was sentencing Mr Kennett as if he were the burglar rather than the receiver.
[17] Mr Allan submitted the Judge had failed to recognise Mr Kennett’s remorse. He said Mr Kennett had “taken practical steps to engage with a counselor [sic], work on his safety plan and make constructive use of his time on remand by way of Bible Study etc”. He noted the Judge had failed to refer to a letter from Mr Kennett’s mother to the Court which had recognised Mr Kennett’s efforts in this regard.
4 Proctor v Police [2018] NZHC 763.
5 Ellis v R [2012] NZCA 513 at [9].
6 Whittaker v Police [2017] NZHC 2747.
7 At [25].
8 At [6].
Respondent’s submissions
[18] In his written submissions, Mr Whitcombe for the Police noted that the Court of Appeal has frequently emphasised that the focus on appeal is whether the end sentence imposed can be considered manifestly excessive rather than re-examining the process by which the end sentence was arrived at.9
[19] Noting that while there is no guideline judgment on the sentencing for receiving, Mr Whitcombe cited Allen v Police where French J found as relevant:10
…the value of the goods, the duration of the offending, the number of charges, the existence of a commercial element and the closeness of the relationship between the burglar and the receiver.
[20] In relation to Ellis v R, Mr Whitcombe noted that a starting point of 18 months in relation to the receiving of property worth approximately $5,000 was held by the Court of Appeal to be “within…range…although stern”.11 The Court said “…a start sentence…in the 12 to 18 month range was appropriate”.12 Counsel submitted that the value of the property in the present case, being twice that in Ellis, made the offending more grave and therefore it was open to Judge Couch to adopt a starting point in excess of 18 months.
[21] Mr Whitcombe cited Sinclair v Police.13 In that case, the defendant received property valued at “in excess of $10,000” stolen as part of a burglary. Mander J said of the Judge’s starting point of two years and six months that it was “stern and while at the upper limit I have concluded was available to the sentencing Judge in the exercise of his discretion”.14
[22] Counsel also noted the additional charge in the present case of dishonestly using a document to obtain a pecuniary advantage. While this offending and the receiving occurred in essentially the same criminal incident and could have constituted “a connected series of offences”, the using a document offence itself was different in
9 See Ripia, above n 3, at [15].
10 Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [22].
11 Ellis, above n 5, at [9].
12 At [9].
13 Sinclair v Police [2014] NZHC 1332.
14 At [25].
kind. As such, Mr Whitcombe said the Judge was entitled to sentence Mr Kennett on a cumulative basis in relation to the two charges pursuant to ss 83 and 84 Sentencing Act 2002. Subject to totality considerations,15 a higher starting point than the receiving alone may have attracted was justified to reflect this additional offending that caused loss to another victim, Papanui Cash Converters.
[23] Mr Whitcombe’s central submission was that the present case involved more serious offending than in Ellis: the value of the property received was twice the value; and there was the additional charge of dishonestly using of a document. He argued the offending was more similar to that in Sinclair, where the defendant came into possession of the items shortly after the burglary and the value of the items received were similar.
[24] As to the Judge not allowing an additional discount for remorse, counsel submitted Mr Kennett was not entitled to a discount for remorse merely for professing it. The discount is earned by showing that a tangible acceptance of responsibility by the defendant has occurred.16 He noted the Supreme Court, in Hessell v R, said that only genuine and substantiated remorse may be recognised by a discount separately from that for a guilty plea.17 In the present case, Mr Whitcombe submitted the Judge properly found that Mr Kennett’s letter professing remorse was not credible in the circumstances.
Analysis
[25] I do not consider there was any error in the Judge not giving credit for remorse. In the letter written to the Court, his mother observed what she considered to be progress Mr Kennett had made while in prison. She said “he is a wonderful son and has been in some trouble over the last 10 years, but this is the first time I have actually seen a change in my son Nathan”. There is a glimmer of hope in the last observation she made but the validity of her assessment is somewhat in doubt given the way she referred to his extensive history of criminal offending including numerous convictions for burglary and receiving since 2002 as being “in some trouble over the last 10 years”.
15 Sentencing Act 2002, s 85.
16 Whitcombe v Police [2018] NZHC 1409 at [27].
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[26] Mr Kennett’s letter to the sentencing Judge of 12 April 2019 does refer to the assistance he was obtaining from his counsellor and his involvement in bible study groups but again the genuineness of his remorse and acceptance of responsibility for what he had done is questionable given his assertion in that letter that “I honestly had no idea that these items I had in my possession were items of a burglary in my local Burnside area”. The charge he pleaded guilty to was that he received property valued at $10,000 knowing the property had been obtained by an imprisonable offence.
[27] Mr Kennett had told the pre-sentence report writer that he “had an idea” his conduct was illegal.
[28] The pre-sentence report also recognised that Mr Kennett’s offending might have been driven by an attitude of entitlement and the fact he had made no effort to manage his behaviour. It went on to say he had “not managed to complete any intervention”.
[29] The Judge also had reason to be sceptical as to the genuineness of Mr Kennett’s stated intentions and commitment as expressed in his letter to the Court, given his numerous recent convictions for obtaining by deception and other dishonesty.
[30] I do not consider that the offending should be considered less serious because Mr Kennett may not have been able to obtain $10,000 or cash close to that for the items he had received. The items he received had clearly come from someone’s residence. Mr Kennett must have known that the jewellery would have been of significant emotional as well as cash value to its owner.
[31] Mr Kennett was arrested on 2 February 2019, just three days after the burglary, wearing a jacket and a watch, items also of a personal nature that Mr Kennett must have known had come from someone’s home. A burglary will be regarded as more serious where it is of a domestic residence. Because of the way such offending is promoted through the willingness of others to receive property that is stolen in such a burglary, the dishonest receiving of such items stole in such circumstances must also be more serious.
[32] Because Mr Kennett was found in possession of items stolen in the burglary so close to the time of that burglary, on sentencing, the Judge was entitled to sentence Mr Kennett on the basis there was a close connection between the burglary and the commission of the receiving offence by Mr Kennett. Mr Allan said that the Police had to rely on the principle of recent possession to prove the initial charge of burglary against Mr Kennett but ultimately accepted that this may not have been sufficient, thus their acceptance of a charge of guilty to receiving.
[33] There was also evidence of a close association between the burglary and Mr Kennett through the nature of the items found at Mr Kennett’s home. Mr Kennett did not just have items which could readily have been converted into cash. At his home, there was a Dunlop sports bag containing items including jewellery, mountain bike shoes, medication and wooden jewellery boxes, all identified as being taken in a burglary from a short distance away from where he was residing.
[34] There were also two distinct offences here. The first was the receiving of stolen property. In obtaining possession of the stolen property, Mr Kennett was seeking to obtain for himself the benefit of having belongings which were not his. That was true of the clothes, including the puffer jacket he was wearing. It was also true of the watch he was wearing when he was apprehended.
[35] Separate from that, Mr Kennett had attempted to convert the property received into cash by selling some jewellery to Cash Converters on 31 January 2019, the day after the burglary, and in attempting to do so again on 2 February 2019. In that way, he demonstrated he was a person who would be prepared to obtain a cash value for stolen items. He was thus the sort of person whose readiness to profit from stolen property encourages others to steal or commit burglaries.
[36] The issue is however whether the starting point of three years and one month for the offending was within the range available to the sentencing Judge.
[37] I do not consider that the seriousness of the offending can be assessed on an arithmetical basis simply as to the value of the property stolen.
[38] In Ellis, the Court of Appeal said a sentence in the 12 to 18 month range was appropriate where the property stolen was worth approximately $5,000. It does not follow that the receiving of property worth $10,000 would necessarily justify a sentence well beyond that range. Nevertheless, the increased value was properly a matter to be taken into account.
[39] In Ellis, the Court of Appeal considered a start sentence in the range of 12 to 18 months was appropriate where a few hours after the burglary Mr Ellis had been found with the $5,000 worth of property stolen in a burglary. Significantly, the Court of Appeal however also held that, in that case, an uplift on the start sentence by 12 months on account of Mr Ellis’ previous convictions for dishonesty was appropriate, as also was a discount of only 15 per cent for Mr Ellis’ guilty plea. The Court of Appeal upheld an end sentence of two years and one month imprisonment as, while stern, within the range available.
[40] In Whittaker v Police, Mander J held a starting point sentence of 12 months was too high but this was in the context of him concluding this would have been more consistent with the “relatively unusual features of Mr Whittaker’s offending”. He had paid (and lost) $5,000 for a stolen vehicle worth between $10,000 and $13,000, stolen a day or two prior to the purchase. He had been convicted expressly on the basis he had been reckless as to whether or not the vehicle had been stolen and had taken insufficient steps to ensure that it was not. Mander J referred to a number of cases in reaching that decision but pointed out “inevitably, each case turns on its own particular facts and circumstances”. He also observed that “taken together, the case law reveals there to be a moderately wide sentencing range for offending of this type”.
[41] In Proctor v Police, Davison J referred to the Court of Appeal’s suggestion in Ellis to a range of 12 to 18 months for receiving.18 In approving the adopted starting point of 15 months for the receiving there, Davison J noted that Mr Proctor had received items valued at $5,000 and he had sold them the same day as the burglary, suggesting a close connection between burglar and receiver.
18 Proctor v Police, above n 4.
[42] In Sinclair v Police, Mander J upheld a sentence of two and a half years’ imprisonment.19 This was in circumstances where a home had been burgled between
2.00 am and 7.00 am on 2 November 2013. Two laptops, a nail gum and a battery drill were taken from the premises. A car parked in the driveway containing clothing and builders’ tools was also stolen. The value of the car and property taken was valued in excess of $10,000. At 9.40 am that same morning, Mr Sinclair began attempting to sell items taken. The sentencing Judge adopted a two and a half year starting point, increased it by six months to take into account previous convictions for dishonesty. He reduced the provisional sentence of three years by six months, about 17 per cent, to recognise Mr Sinclair’s plea of guilty, resulting in an end sentence of two and a half years.
[43] Mander J considered a starting point of two and a half years was stern and at the upper limit but available to the sentencing Judge. He noted that counsel had acknowledged the six month uplift for previous offending could have been greater. He considered there was no error in the extent of the discount for an early guilty plea. Mander J referred to the way the Supreme Court in Hessell v R had said the extent of the discount for a guilty plea is a matter for evaluation by the sentencing Judge, and must reflect all the circumstances in which the plea is entered, including the strength of the prosecution case.20
[44] Mr Kennett has an extensive list of convictions for burglary, obtaining by deception and receiving. This offending occurred when he was subject to release conditions after a sentence of imprisonment imposed on 14 September 2018 for two separate offences of obtaining by deception and for burglary committed on 27 May 2018. He was found in possession of numerous items stolen in a burglary with proof that he had received others. Given the strength of the prosecution case, in accordance with Hessell, the discount for a guilty plea could have been less.
19 Sinclair v Police, above n 13.
20 Hessell v R, above n 17.
[45] On this appeal, it is, as always, necessary to focus on the end sentence. That sentence was two years and four months’ imprisonment for two separate offences. In Ellis v R, the Court of Appeal upheld an end sentence of two years and one month for just one offence of receiving property of significantly less value than Mr Kennett obtained.
[46] In all these circumstances, I have not been persuaded that the sentence imposed was manifestly excessive. The appeal is dismissed.
Solicitors:
P N Allen, Barrister, Christchurch Raymond Donnelly & Co., Christchurch.
This judgment was delivered by me on 12 August 2019 at 11.00 am. Registrar/Deputy Registrar
Date: 12 August 2019.
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