Police v Stenning - [2023] NZHC 3477

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-000118

[2023] NZHC 3477

NEW ZEALAND POLICE

v

JOHN TIMI STENNING

Hearing: 29 November 2023

Appearances:

G Walsh for the Appellant T Afoa for the Crown

Judgment:

1 December 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 01 December 2023 at 4.30 pm Registrar/Deputy Registrar

Solicitors:

Gordon Pilditch, Crown Solicitor, Rotorua G Walsh, Barrister, Hamilton

POLICE v STENNING [2023] NZHC 3477 [1 December 2023]

[1] John Stenning was sentenced on 14 September 2023 by the District Court to a term of 14 months’ imprisonment.1 The sentence followed his guilty plea to convictions on three theft charges (one over $1,000;2 one between $500–$1,000;3 one below $500)4 and one receiving charge (over $1000).56

[2]He appeals that sentence.

[3]The charges arose out of four separate incidents:

(a)Theft of a Framing Nail Gun on 3 February 2023 from Mitre 10. The item is worth $1089.

(b)Theft on 10 July 2023 of a male grooming kit valued at $219.99 and a McLaren F1 Race Car Lego set from a Farmers store. A staff member confronted him at which point Mr Stenning gave back almost everything and left the store. Shortly after, he returned to the store to return the rest.

(c)Theft of a Hitachi grinder from ToolShed valued at $386 on 11 July 2023. He was also confronted on that occasion after an obvious attempt to conceal the item. He became hostile and aggressive to staff, stating that he was going to come back and burn the building down.

(d)Later that day, Mr Stenning was outside a car dealership after a burglary and received an air compressor through a hole in the fence before loading it into his car. The air compressor had a value of $3,000 and has not been returned.

1      New Zealand Police v Stenning [2023] NZDC 20047.
2      Crimes Act 1961, ss 219 and 223(b) with a maximum penalty of seven years’ imprisonment.
3      Crimes Act 1961, ss 219 and 223(c) with a maximum penalty of one year’s imprisonment.
4      Crimes Act 1961, ss219 and 223(d) with a maximum penalty of three months’ imprisonment.
5      Crimes Act 1961, ss 219 and 223, with a maximum penalty of seven years’ imprisonment.
6      Sections 246 and 247(a) with a maximum penalty of seven years’ imprisonment.

The District Court decision

[4] The sentencing Judge’s notes are succinct. After recording the facts of the offending from the summary of facts, the Judge referred to Mr Stenning’s history. That history includes 13 convictions for dishonesty.

[5] The essence of the Judge’s sentencing is encapsulated in paragraph 7 of his judgment which reads:

The lead charge here is the receiving. The aggravating feature here is that it was very recently stolen. In fact the receiving seems very closely connected to the burglary. I take a starting point of nine months’ imprisonment there. There will be an uplift of seven months for all the other thefts.…

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 Police v Stenning

Details

AGLC: Police v Stenning [2023] NZHC 3477
Case: [2023] NZHC 3477
Decision Date: 1 December 2023

CaseChat Overview and Summary

The case of Police v Stenning, heard in the High Court of New Zealand at Rotorua, involved an appeal by John Timi Stenning against a sentence of 14 months’ imprisonment imposed by the District Court. Stenning had pleaded guilty to three theft charges and one receiving charge, which stemmed from four separate incidents. The appeal centred on whether the starting point for the sentence and the total sentence were excessively high.

The legal issues before the court were whether the starting point for the lead charge of receiving, which was set at nine months, was appropriate, and if the uplifts for the other charges of theft were justified. The appellant's counsel argued that a starting point of six months for the lead charge and a lower uplift for the other thefts were more appropriate, citing comparable cases where similar factual circumstances resulted in lesser sentences.

The court considered the value of the stolen items, the non-opportunistic nature of the lead charge, and the totality principle in assessing the appropriate sentence. The court concluded that while the starting point for the lead charge was appropriate, the uplifts for the other charges were too high. The court found that a four-month uplift was more appropriate, leading to a substituted sentence of 12 months’ imprisonment, which was rounded up from 11.75 months. The court also maintained the order for reparations, release conditions, and leave to apply for home detention as originally imposed.

The final orders of the court allowed the appeal, quashed the original sentence, and substituted it with a sentence of 12 months’ imprisonment, with specific terms for each charge, to run concurrently.

Orders