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. The theft from Mitre 10 was over $1,000, another one of the thefts was in the over $500 category. I consider a starting point of 16 months’ imprisonment is appropriate for all your offending. There will be an uplift for your history of two months. There is a full discount for guilty plea which results in an end sentence of 14 months, or one year and two months’ imprisonment.

[6]                 The Judge gave leave for Mr Stenning to apply for home detention, imposed release conditions and ordered reparations of $3,000 for the air compressor.

[7]                 Mr Stenning is currently due for automatic release by 20 February 2024 given that he received a short-term sentence.

Issue on appeal

[8]                 The issue on appeal is whether the starting point was too high and the resulting final sentence manifestly excessive. This comprises two elements — the nominal starting point and adjusted starting point for totality.

[9]                 Mr Walsh for the appellant refers to two cases: Garrett v Police7 and Davies v Police.8 He submits that the similarity in the factual circumstances in those cases supports a starting point of six months for the lead charge of receiving rather than nine months’ imprisonment. He contends that uplifts for the other charges of three to four months rather than the seven months imposed are justified. After a two-month uplift for Mr Stenning’s conviction history (which is not challenged) and full guilty plea

7      Garrett v Police [2019] NZHC 1411

8      Davies v Police [2019] NZHC 3081.

discount, Mr Walsh contends that the final sentence should be at most nine months’ imprisonment in substitution for the 14 months’ imprisonment.

Approach on appeal

[10]              To succeed, the appellant must satisfy this Court that there has been an error in the sentence and that a different sentence should be imposed.9 Otherwise, the Court must dismiss the appeal. The Court will only intervene if the sentence is manifestly excessive. The focus is on the final sentence imposed rather than the process by which it is reached.10 The Court will dismiss the appeal if it is “within the range that can properly be justified by accepted sentencing principles”.11

Discussion

[11]This appeal turns then on two issues:

(a)Whether the starting point is too high for the lead charge.

(b)The appropriate uplift for the other thefts.

[12]              Comparable case law is useful in this type of offending as there is no tariff case but gravity and culpability varies greatly in these cases. The statute has a staggered approach in terms of maximum penalties driven by value of the stolen items. This suggests that value of the items is important.12

[13]              The sentencing judge adopted the orthodox approach of identifying a lead charge, uplifted to reflect the totality of the offending.

[14]              I do not find any error in the Judge’s selection of 9 months’ imprisonment on the lead charge given the value of the item and the non-opportunistic nature of the offending. It is within range of comparable cases such as Davies. The lower value of

9      Criminal Procedure Act 2011, s 250.

10     Ripia v R  [2011] NZCA 101 at [15].

11     Campbell v R [2022] NZCA 579 at [14]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

12     R v Duncan [2009] NZCA 408 at ]7].

items at issue in Garrett distinguishes that offending despite the fact that there were five theft charges and a single receiving charge faced by Mr Garrett.

[15]              The case of Davies v Police is closer on the facts (recognising that no two cases are completely alike). In Davies, the defendant received a starting point of eight months’ imprisonment on the lead charge of theft over $1,000 with the remaining theft charges warranting an uplift of four months and another two months’ uplift for offending whilst on bail.13

Were the uplifts of seven months too high on the totality principle?

[16]              Counsel’s arguments on the totality principle have more heft. Ms Afoa for the Crown submitted that the theft of the power tool from Mitre 10 could have warranted a starting point of 8 months’ imprisonment on its own on the basis of value. I accept that this stands out in the overall scheme. But the other shoplifting offences are of much lower values. There is also the issue of Mr Stenning having returned low value items to Farmers.14 On the flip side of the coin there is the aggressive behaviour when confronted which is an aggravating factor. Such behaviour cannot be countenanced.

[17]                Standing back and looking at all the offending against the backdrop of the totality principle, I accept that the uplift was too high based on similar cases. I note too the order for reparation, a factor which can lead to a reduction in sentence. The uplift warranted (when combined with a nominal starting point on the lead charge of nine months) is four months. The remainder of the sentence imposed including the uplift for prior convictions and discount for guilty plea is not in issue.

13I also had regard to Wilson v Police [2021] NZHC 198. The appellant in that case was originally sentenced to a term of 16 months’ imprisonment in respect of one charge of theft over $1,000; 10 charges of obtaining by deception (under $500); three charges of theft (under

$500); and three charges of unlawfully being in an enclosed yard. On appeal, the appellate court determined that the starting point of 18 months’ imprisonment appeared out of step with comparable authority to an extent justifying appellate intervention. It was replaced with a starting point of 12 months’ imprisonment (uplifted by four months to reflect other dishonesty offending).

14I note that the charge in relation to shoplifting at Farmers is under s 219 and 223(c) although the summary of facts only refers to the value of the multi-grooming kit at $219.99. No value is attributed to the McLaren F1 Racer Lego set.

[18]              I have considered whether this reduction is merely tinkering with the sentence (which is not the role of an appellate court.) I am satisfied that it is not when a short sentence is at issue.15

Result

[19]I allow the appeal.

[20]              I quash the sentence of 14 months’ imprisonment and substitute one of 12 months’ imprisonment calculated as follows:

(a)Starting point  9 months

(b)Uplift for other dishonesty offending            4 months

(c)Uplift for prior offending  2 months

(d)25 per cent guilty plea discount  3.25 months16

(e)Final sentence  12 months (rounded up)

[21]              I have rounded the final sentence up. I impose that sentence of 12 months on the charge of receiving (over $1,000). In respect of the terms imposed in respect of the other charges I impose two months on the CRN ending 3143; six months on CRN ending 3142; and 12 months on CRN ending 2708. These are concurrent terms.

[22]              I further confirm the other aspects of the original sentence, including the order for reparations, release conditions and leave to apply for home detention.

............................................................

Walker J

15     See Milne v Police [2020] NZHC 358; Mason v Police [2022] NZHC 1845; and Snell v R [222] NZHC 1627.

16     See Mo’Unga v R [2023] NZHC 1967 as to application of discounts on adjusted starting point before the addition of personal aggravating factors.