Kennett v Police - [2019] NZHC 1945

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…

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.

Continue reading Kennett v Police

Details

AGLC: Kennett v Police [2019] NZHC 1945
Case: [2019] NZHC 1945
Decision Date: 12 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Nathan Stuart Kennett appealed against his sentence imposed by Judge Couch in the District Court. Mr Kennett was sentenced to two years and four months’ imprisonment for receiving property and dishonestly using a document to obtain a pecuniary advantage. The court considered whether the sentence imposed was manifestly excessive and not justified by relevant sentencing principles.

The appeal hinged on whether the starting point and the uplifts applied were appropriate, and whether credit should have been given for remorse. Mr Allan, counsel for the appellant, argued that the starting point was too high and the value of the items taken should not significantly factor into the seriousness of the offending. He also contended that the Judge failed to recognise the appellant’s remorse. In contrast, counsel for the respondent submitted that the seriousness of the offending warranted a higher starting point due to the value of the property and the additional charge of dishonestly using a document. They also argued that the appellant's remorse was not genuine or substantiated.

The court found that the Judge was justified in not giving credit for remorse, given the appellant’s history of criminal offending and his questionable assertions of remorse. The court held that the seriousness of the offending could not be assessed solely based on the value of the stolen property but must consider other factors such as 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. The court concluded that the sentence imposed was within the range available to the sentencing Judge and was not manifestly excessive.

Ultimately, the appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of focusing on the end sentence rather than re-examining the process by which it was arrived at, in line with the Court of Appeal's approach.

Orders