Kent v Police

[2017] NZHC 1160

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2017-441-12 [2017] NZHC 1160

BETWEEN

CRAIG KENT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	30 May 2017
Appearances:	J S Jefferson for the Appellant C R Stuart for the Respondent
Judgment:	30 May 2017

ORAL JUDGMENT OF MALLON J

Introduction

[1]    Mr Kent was charged with burglary,1  receiving,2  possession of methamphetamine,3  possession of utensils for use of methamphetamine,4  and unlawful possession of an explosive.5    He pleaded guilty and was sentenced in the Napier District Court (Judge Thorburn) to 22 months imprisonment and ordered to pay reparation of $15,000.6

[2]      He appeals  against  his  sentence  on  the basis  that  the starting point  was manifestly excessive and a sentence of home detention should have been imposed.

1      Crimes Act 1961, s 231(1)(a) (maximum penalty 10 years imprisonment).

2      Sections 246 and 247(a) (maximum penalty seven years imprisonment).

3      Misuse of Drugs Act 1975, ss 7(1)(a) and (2) (maximum penalty six months imprisonment or

$1,000 fine).

4      Sections 13(1)(a) and (3) (maximum penalty one year imprisonment or $500 fine).

5      Arms Act 1983, s 45(1) (maximum penalty four years imprisonment or $5,000 fine).

6      R v Kent [2017] NZDC 6410.

KENT v POLICE [2017] NZHC 1160 [30 May 2017]

Circumstances of the offending

[3]      The lead offence was the burglary.  On the night of 25 July 2015 Mr Kent and an associate, Mr Henderson, broke into the Hawke’s  Bay Kart Club.   The pair removed six “intrepid karts” owned by the club, and a kart belonging to a member of the club which had been stored there overnight in anticipation of a kart meeting which was to take place the following day.   The two offenders had planned this burglary by text message and had discussed the best means of removal of the karts.

[4]      Two of the intrepid karts were sold to associates.  They were later recovered but in a damaged state.   The remaining four intrepid karts and the member’s kart were not recovered.  The total value of the items taken was approximately $53,000 (as described in the victim impact statement).   Of this, $41,000 related to the member’s  kart,  $17,750  of  which  was  recovered  through  insurance,  leaving  a shortfall of approximately $23,250. The intrepid karts were valued at $2,000 each.

[5]      The offending impacted on the club and on the owner of the kart and his family.  The teenage boy who raced the kart had been the leading contender for the club championship and was leading the grand prix points.  The offending meant he missed some significant events and valuable track time, a setback he struggled to come back from for the rest of the season.

[6]      The other charges arose when the police executed a search warrant on 1

October 2015 at Mr Kent’s address.   In addition to finding items relating to the burglary (two two-way radios stolen from the club, cellphones with pictures of the stolen karts, and other items linking Mr Kent to the burglary), the police found:

(a)      four small snap lock bags of methamphetamine (with a combined weight  of  0.25g)  and  a  glass  pipe  used  for  smoking methamphetamine;

(b)rounds of shotgun and rifle ammunition (Mr Kent did not have a valid firearms licence); and

(c)       a forklift battery charger valued at $2,000 which had been stolen in another burglary around 20-21 April 2015.

Circumstances of the offender

[7]      Mr Kent is 30 years old. At the time of the offending he was employed on his parents’ farm.  He entered guilty pleas one week before the trial was to begin.  He has previous convictions for driving and drug offending.   His convictions mainly relate to two periods: one in 2009 for which he was sentenced to community work and the other in 2014 for which he was sentenced to nine months supervision.  He has no previous dishonesty offences.

[8]      The pre-sentence report noted Mr Kent did not show any remorse at the time of the interview, he denied some of his offending and said he pleaded guilty “to get it out of the way”.  His previous probation officer considered Mr Kent had not made full use of the resources available to him pursuant to the supervision sentence and denied having an issue with drugs.

[9]      Mr Kent took issue with aspects of the probation report in a letter he provided to the Judge at sentencing.   He said he accepted the offending, he had not been involved in anything like this before and had difficulty in coming to terms with it. He accepted he had difficulties with drugs and wished to address this.  He said he was very sorry and had gathered some money to meet his share of the victims’ loss, which he hoped would go some way to helping them to recover what had happened to them.  He had with him $15,000 to pay reparation.

Mr Henderson’s sentencing

[10]     Mr Henderson was sentenced earlier than Mr Kent.   The sentencing Judge (Judge  Rea)  considered  that  a  two  year  nine  month  starting  point  would  be appropriate for Mr Henderson.7   He then uplifted this by three months for a driving while disqualified charge.   He uplifted this by another six months to reflect Mr Henderson’s numerous previous driving offences, his previous burglary conviction

and four other dishonesty convictions.   He allowed a 20 per cent discount for his

7      R v Henderson [2016] NZDC 6520.

guilty  plea.     This  resulted  in  an  end  sentence  of  two  years  nine  months imprisonment.   The Judge did  not  order reparation  as  he did  not  consider [Mr Henderson] was able to make reparation in the circumstances.

Mr Kent’s sentence

[11]     In sentencing Mr Kent, Judge Thorburn took the burglary as the lead offence. He referred to Mr Henderson’s sentencing, noting that Judge Rea had set a starting point of two years nine months imprisonment before uplifting the sentence by six months for his previous dishonesty offences.  In line with Mr Henderson’s starting point, Judge Thorburn took a two year nine month starting point for Mr Kent.  He applied an uplift of three months for the other three charges.  No uplift was applied for previous offending.   The Judge allowed a 10 per cent reduction for the guilty plea.  He then reduced the sentence by 10 months to recognise the reparation that Mr Kent had made. This meant an end sentence of 22 months, or one year 10 months.

[12]     The Judge declined to impose home detention saying:

The issue is whether or not I ought to go down the path now of home detention and I am going to say no.   The sentence will be a term of imprisonment and the reason for this is because the nature of the offending and its traits that I began by explaining are of such that a significant and serious message of denunciation must be vested in the Court sentencing and the  amelioration  for  personal  circumstances  from  a  justifiable  prison sentence to home detention does not exist in this case enough to rebut what I consider to be the compelling requirement in a case of this nature to express the community’s utter repugnance in denunciation.

[13]     Reparation of $15,000 was ordered: $4,000 to the Club and $11,000 to the member of the Club whose kart was stolen.

The starting point

[14]     The first appeal ground is on the basis that the same starting point as that for Mr Henderson should not have been taken as Mr Henderson was a recidivist burglar. However, as Judge Thorburn correctly identified, Judge Rea’s starting point was prior to consideration of Mr Henderson’s burglary and dishonesty offending.   The

starting point was an appropriate one for the burglary before any consideration of that history.8   It was an appropriate starting point for Mr Kent also.

Home detention

[15]     Mr  Kent  submits  that  the  sentencing  Judge  erred  in  determining  that  a sentence of home detention was not appropriate to provide a “serious message of denunciation”.  The respondent points out this ground of appeal can only succeed if Mr Kent can point to an error in the sentencing judge’s decision.  The respondent submits the seriousness of the offence entitled the Judge to set aside home detention as an option, quite apart from his personal circumstances, and in any event his personal circumstances did not favour home detention.

[16]     In my view the Judge was in error.  That is because he approached the home detention discretion with the view that the serious nature of the offending precluded home detention in the absence of sufficiently compelling personal circumstances. However as William Young P in Vhavha pointed out, Judges should be cautious about declining home detention because it “would not give the right message or simply would not look right”.9    There is no presumption under the Sentencing Act for  or  against  home  detention  for  particular  types  of  offences,  and  holding  an offender to account and denouncing the conduct are already taken into account when setting  the  starting  point.10    Whether  a  sentence  of  imprisonment  should  be commuted to home detention requires a consideration of all the purposes and principles  of  sentencing  relevant  to  the  case.11      Home  detention  is  potentially

available for burglary offending depending on all the circumstances.12

8      See for example Kaihau v R [2015] NZCA 40; Kennett v Police [2014] NZHC 231; and Gage v

R [2014] NZCA 140 (comparable cases relied on by the Crown at Mr Henderson’s sentencing).

9      R v Vhavha [2009] NZCA 588 at [36]. See also Manikpersadh v R [2011] NZCA 452 at [10] and [14], which discusses Vhavha, and finds the sentencing judge had erred by focussing “solely on deterrence when considering whether he could impose a sentence of home detention instead of imprisonment.” – at [8].

10     R v Vhavha above n 9 at [29] and [37].

11     Manikpersadh v R above n 9 at [14].

12     See, for example, Byrne v R [2014] NZCA 32. See also Johnstone v Police [2013] NZHC 306 and Miller v Police [2012] NZHC 3237. Home detention was regarded as potentially available, although not imposed in R v Columbus [2008] NZCA 192. It was discounted in Adams v R [2012] NZCA 515 because of the offender’s history.

[17]     In Mr Kent’s case there were personal circumstances which favoured home detention.    This  was  his  first  dishonesty offending.    His  offending  history was consistent with a problem with drugs, particularly methamphetamine.   Mr Kent’s pre-sentence report was not particularly favourable to him.  However at sentencing he had accepted his offending and that it arose from his drug issues.   He also expressed remorse.  Most significantly he had $15,000 to offer for reparation.  That was a tangible expression of an acceptance of his offending and a wish to account for it.  This counted strongly in his favour, even though in 2014 he had not taken full advantage of the help available to him under the supervision sentence.  There were no issues about his ability to comply with a sentence of home detention or the availability of a suitable address.

Result

[18]     The appeal is allowed.  The sentence of 22 months is quashed.  Taking into account the time spent in custody, it is now replaced with a sentence of 10 months home detention.   The conditions of home detention are as per the pre-sentence report.

Mallon J

Addendum

[19]     This result is to take effect as soon as the home detention arrangements reasonably can be made.

Mallon J