Kite v The Queen

[2020] NZHC 427

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-496

[2020] NZHC 427

BETWEEN

CAEZAR PETER KITE

Appellant

AND

THE QUEEN

Respondent

Hearing:	4 February 2020
Counsel:	J W Mackey for appellant M Davie for respondent
Judgment:	6 March 2020

JUDGMENT OF KATZ J

[Appeal against sentence]

This judgment was delivered by me on 6 March 2020 at 4:00 pm

Registrar/Deputy Registrar

Solicitors:           Crown Law Office, Wellington Counsel:       J W Mackey, Barrister, Auckland

KITE v R [2020] NZHC 427 [6 March 2020]

Introduction

[1]Caezar Kite pleaded guilty to:

(a)a representative charge of receiving stolen property; and

(b)a charge for possession of a class C drug for supply.1

[2]        He was sentenced by Judge P J Sinclair to six months’ community detention, 150 hours of community service, and a twelve-month supervision order. He now appeals that sentence. The key issues raised by his appeal are:

(a)whether the Judge’s starting point was excessive, and

(b)whether the Judge intended to give a lower sentence but failed to do so due to an arithmetical error in the sentencing process.

Facts

[3]        Mr Kite’s wife engaged in an extensive fraud which involved her ordering large quantities of stock from NZ Post (to the value of $537,732.55) which she did not pay for. She on-sold those items to third parties.

[4]        The summary of facts does not elaborate on the precise nature of Mr Kite’s involvement, but simply records (following a description of his wife’s offending) that:

Receiving stolen property (Kite only)

As a result of the above, the defendant Caezar Kite received stolen goods from NZ Post to the value of $50,000.

[5]        Mr Kite also arranged to purchase 225 grams of cannabis from someone he had contacted on Facebook for $2,000. During the transaction he discovered that the supposed cannabis plant was actually grass clippings. Mr Kite retrieved his cash after a short struggle and flagged down a passing marked police vehicle. His vehicle was searched and approximately 29 grams of cannabis plant head material was located,

1      R v Haerewa and Kite [2019] NZDC 22427.

divided into nine snap lock bags, together with a small electronic scale. Mr Kite admitted intending to sell that cannabis.

District Court sentencing

[6]        In respect of the receiving offending, the Judge referred to Hurland v Police2 and R v Lasike,3 noting the observation of the Court in Lasike that in cases where receiving involves a low level of sophistication and commerciality, but the receivers have a close relationship with the burglars, specific property is targeted and the amounts received are between $15,000 and $50,000, starting points tend to be between three and four years’ imprisonment.4 Against this background, her Honour stated that:5

Your offending was not particularly sophisticated or commercial in nature and relates to a single charge. However, you did receive a substantial amount of property. It was on-sold for profit, reflecting on element of commerciality, and you had a close relationship with Ms Fraser-Haerewa who had fraudulently obtained the products. You submit you did not get the items and you “effectively passively offended”. You initially queried the amount involved. However, you pleaded guilty to the summary of facts and did not raise the issue of quantum at the time of pleading. Taking all of these factors into account, I set a starting point of 15 months’ imprisonment.

[7]        A six-month uplift was applied to reflect the cannabis offending, bringing the starting point to 21 months’ imprisonment.

[8]        The Judge observed that Mr Kite was assessed as being at low risk of further offending and low risk of harm. Further, despite an apparent lack of remorse, he was only 24 years old with minimal criminal history – “these matters appear to be your first real foray into the criminal justice system”.6 A discount of 15 per cent for personal factors was allowed, together with a full guilty plea discount of 25 per cent.

[9]        Applying these discounts, the  Judge  reached  an  end  sentence  of  around 16 months’ imprisonment. It is common ground that this calculation was incorrect. The Judge appears to have forgotten to subtract the 15 per cent. Correctly calculated,

2      Hurland v Police [2013] NZHC 1531.

3      R v Lasike HC Auckland CRI-2004-004-7103, 7 September 2006.

4      R v Lasike HC Auckland CRI-2004-004-7103, 7 September 2006 at [66].

5      R v Haerewa and Kite [2019] NZDC 22427 at [24].

6      R v Haerewa and Kite [2019] NZDC 22427 at [28].

the discounts should have resulted in an end sentence of 13.4 months’ imprisonment, not 16 months.

[10]      The Judge then noted that, as she had reached a sentence of less than two years, she had the discretion to consider an electronically monitored sentence. Rather than simply reduce 16 months by 50 per cent, however, and impose a sentence of eight months’ home detention, the Judge concluded that:

In my view, a sentence of community detention coupled with community work and supervision would adequately address the purposes and principles of sentencing.

[11]      In reaching this view the Judge had regard to Mr Kite’s youth, his acknowledgement of responsibility (as reflected in his guilty plea), his minimal criminal history,  the rehabilitative benefits of community work, and the fact that   Mr Kite is the primary caregiver for three young children.

[12]      The Judge therefore imposed six months’ community detention (with a curfew from 7.00 pm to 7.00 am) noting that “this needs to be the maximum term given the nature and seriousness of your offending”. In addition, the Judge imposed 150 hours of community work, together with a 12-month supervision order.

Was the starting point excessive?

[13]      No issue is taken with the six-month uplift to reflect the cannabis offending. Rather, the challenge is to the 15-month starting point adopted in respect of the receiving charge which Mr Mackey submitted, on behalf of Mr Kite, resulted in the overall starting point being excessive.

[14]      Mr Mackey argued that Mr Kite’s offending was low-level and warranted a lower starting point for several reasons, namely:

(a)his offending was passive (apart from loading goods into a van on one occasion);

(b)he was not a principal offender, but only a party to his wife’s offending;

(c)the relevant quantum for sentencing purposes should be treated as being only $25,000, because the $50,000 was his estimate and should have been divided between Mr Kite and his wife;

(d)he would not even have been charged had he not confessed, in an attempt to protect his wife;

(e)his sentence was excessively harsh because his wife’s offending contaminated the Judge’s reasoning.

[15]      I reject the submission that the relevant quantum for sentencing purposes should be treated as only $25,000, not $50,000. As Judge Sinclair noted, Mr Kite pleaded guilty to a summary of facts that stated he had received goods of $50,000. Further, in respect of the receiving charge, he was the principal offender, not a party. It follows from his guilty plea that he has admitted all of the elements of the charge of receiving.7 Hence, he has admitted receiving property to the value of $50,000, stolen by his wife, knowing that that property had been stolen (or being reckless as to that fact). He has also admitted that (either exclusively or jointly with his wife) he had possession or control over that property or helped in concealing or disposing of it.8

[16]      It is apparent from the summary of facts that Mr Kite’s wife was the primary offender in terms of the overall fraudulent scheme (as opposed to simply the receiving charge). The Judge clearly recognised this differential, however, as reflected in the fact that Mr Kite’s wife was sentenced to 32 months’ imprisonment and ordered to pay

$10,000 reparation.

[17]      There is no tariff case for receiving offending. The charge carries a maximum sentence of seven years’ imprisonment.9 Counsel could not identify any cases directly analogous to this one. The Crown did, however, refer to several cases involving more

7      Crimes Act 1961, s 246.

8      Crimes Act 1961, s 246(3).

9      Crimes Act 1961, s 247(a).

active offending, but a smaller amount of goods, where a similar starting point was adopted and a custodial sentence ultimately imposed.10

[18]      With regard to the facts I have outlined, and the various cases referred to by counsel, it is my view that the starting point adopted by the Judge was well within range (and was arguably towards the lower end of the appropriate range).

Did the Judge intend a lower sentence?

[19] As I have noted at [9] above, the Judge made an arithmetical error in her sentencing notes. The consequence of that error was that the starting point was reduced to 16 months’ imprisonment rather than 13.4 months’ imprisonment. Mr Mackey submitted that this error must have flowed through in some way to the end sentence, which should therefore be reduced. He submitted that the term of community detention should be halved, to three months’ community detention.

[20]      The emphasis on appeal is whether the end sentence is within range.11 However, if there is an arithmetical error in the sentencing process, the Court will allow the appeal if the end result was more punitive than the sentencing Judge intended.12 This will arise most commonly where both the sentence starting point and end point involve terms of imprisonment, as any arithmetical errors in such circumstances will almost invariably result in a sentence different to that actually intended by the Judge. For example, if a Judge intended to give a defendant a 25 per cent guilty plea discount from a starting point of ten years’ imprisonment, but only deducted one year, then an appellate court would increase the deduction to two years and six months.

[21]      In this case, however, it is apparent that the Judge intended the final sentence of six months community detention, and that this was not impacted by the arithmetical error earlier in the process. In essence, having reached an end sentence of less than two years’ imprisonment (which meant that community-based sentencing options

10     R v Holden CA329/04, 14 December 2004; Ellis v R [2012] NZCA 513; Aldersley v R CA158/05, 17 October 2005.

11     Tutakangahau v R [2014] NZCA at [34].

12     Ferris-Bromley v R [2017] NZCA 115 at [15].

were available) the Judge then stood back and considered what community-based sentence would be appropriate in the circumstances. As she explained in the final sentence in her judgment, “it [six months] needs to be the maximum term given the nature and seriousness of [the] offending”.13

[22]      The sentence of six months’ community detention was not arrived at mechanically by discounting the nominal imprisonment period, but rather by taking a holistic approach to sentencing, having regard to Mr Kite’s youth, lack of criminal history, and rehabilitative prospects. By way of cross-check, if the Judge had not made an arithmetical error, and had then decided to convert the nominal sentence of

13.4 months’ imprisonment to one of home detention, this would have likely resulted in a sentence of 6.7 months’ home detention.14 The actual sentence imposed, however, was more lenient than that.

[23]      Taking these various matters into account it is clear that Judge Sinclair did not impose a harsher sentence than she had intended as a result of the arithmetical error made earlier in the sentencing process. On the contrary, the sentence she imposed appears to have been a fairly lenient and compassionate one, reflecting Mr Kite’s youth, lack of criminal history, rehabilitative prospects, and parenting responsibilities.

Result

[24]The appeal is dismissed.

Katz J

13     R v Haerewa and Kite [2019] NZDC 22427 at [31].

14     Applying the 50 per cent reduction in term usually applied when converting a sentence of imprisonment to one of home detention.