Smith v The King
[2023] NZHC 952
•27 April 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2023-419-000009
[2023] NZHC 952
BETWEEN KODY JEFFREY SMITH
Appellant
AND
THE KING
Respondent
Hearing: 26 April 2023 Appearances:
S D Taylor for Appellant B So for Crown (by AVL)
Judgment:
27 April 2023
JUDGMENT OF VENNING J
Sentence appeal
This judgment was delivered by me on 27 April 2023 at 3.00 pm, Registrar/Deputy Registrar
Date……………
Solicitors: Crown Law Office, Wellington Counsel: S D Taylor, Hamilton
SMITH v R [2023] NZHC 952 [27 April 2023]
Introduction
[1] Kody Smith pleaded guilty to charges of arson, two charges of burglary, one charge of car conversion, eight charges of intentional damage, and one charge of wilful damage. On 18 January 2023, Judge R L B Spear sentenced Mr Smith to 21 months’ imprisonment and disqualified him from holding a driver’s licence for two years.1 At the same sentence hearing, Judge Spear sentenced Mr Smith’s co-defendant, a Mr Heald, to six months’ community detention, 12 months’ intensive supervision, and community work of 200 hours. Mr Heald was also disqualified for two years.
[2]Mr Smith appeals against his sentence of imprisonment.
Background
[3] I take the summary of the offending from the Judge’s sentencing notes as follows:
[6] On 7 August 2021, at approximately 4 am, the two of you were in Mr Smith's four-wheel drive motor vehicle in the Whatawhata area. Mr Smith was the driver. The vehicle went on to the Te kowhai Golf Course through a fence, causing damage to the fence, and then drove around the fairways and greens doing donuts and other skids causing significant damage to the golf course, estimated at a cost to the golf course of $1,253.50.
[7] Approximately one month later on 3 September 2021, Mr Smith you were alone in your four-wheel drive motor vehicle in the Karamu area. A local resident observed you Mr Smith drive your vehicle through two metal gates at the entrance of an address at 280 Old Mountain Road, Karamu forcing the gates off their hinges and snapping the right-hand post. You were confronted by the resident as you were attempting to free your vehicle from the metal gates. You then drove off. You were followed and the resident was able to obtain your identification particulars. The cost of replacing the gates amounts to some $1,888.58.
[8] Then on the night of 7 September 2021, going through to the early hours of 8 September 2021, the two of you met up again. You went to an address in Ngahinapouri where you took a white Toyota Hilux ute that was parked at an address with the keys in it. You got into that vehicle and left the address. You drove to the entrance of a quarry on Fille1y Road, Waitetuna. That property was secured by a locked metal gate. You drove the converted vehicle through the gate causing the gate to smash open and break the supporting posts. You then drove into the quarry and drove over 15 beehives, completely destroying them. You also rammed open another metal gate allowing cattle to get onto the road.
1 R v Smith [2022] NZDC 639.
[9] The two of you carried on to the Ed Hillary Hope Reserve in Old Mountain Road. This is a property maintained by the Native Forest Restoration Trust. The Hilux was driven through the metal gates, knocking the gates off the posts and damaging them significantly. You then went around the reserve completing donuts and other skids. You drove over a large sign, through another gate and also smashed into a fibreglass styled toilet. The amount of damage caused then was just over $4,400.
[10] You carried on to an address on State Highway 23 at Whatawhata. You drove through another gate then continued to drive across the property destroying a further four gates. They were all wrecked beyond repair, some broken in two places, as were the retaining posts. The damage there amounts to some $2,500.
[11] You carried on through to Waitetuna were you entered a property by smashing your way through a three-metre-long steel deer gate that was locked and secured. You then drove away leaving damage estimated at just over $900.
[12] You continued through to the Waitetuna School. You drove onto the school grounds. You removed the gates from its hinges before driving the vehicle onto the school field. You then did donuts, skids and other manoeuvres with the vehicle on the school field causing significant damage to the turf and also knocked over the metal rugby post standing on the school field. To leave the grounds you drove through a metal fence. The damage caused to the school was just over $1,900.
[13] You carried on to Karamu and drove onto a property on Quarry Road ramming a roller door of a shearing shed located on the property with the Hilux ute. You did so with such force that the roller door was bent off its runners. You then searched the shed and took a black and red carry bag containing sheep shearing equipment. The cost of the property taken amounted some $1,500. That is the burglary charge to which Mr Heald you pleaded guilty today.
[14] Just after midnight you drove onto a property at 280 Old Mountain Road in Karamu, the second time you had been to that property. You deliberately reversed into the entrance gate which was locked causing the gate to be knocked of its hinges and severely damaged it to a repair cost of some
$1,400.
[15] You then drove around the Te Pahu area driving over various letter boxes causing them to be smashed and damaged and even drove into a Give Way sign at the corner of Te Pahu Road and Limeworks Loop Road snapping that off at its base. The letterboxes were completely destroyed. There has been no assessment of the damaged letter boxes but the cost to replace the Give Way sign was just over $70.
[16] That appears to have brought an end to your festivities of that evening except for the fact that you drove the Hilux to Te Pahu where you Mr Smith set the vehicle on fire causing it to be completely destroyed. Mr Smith, you told the probation officer that you did so to destroy evidence - no doubt, evidence that you had been in the vehicle. You had left a vehicle there earlier and drove away in that. The loss of that Toyota Hilux is noted in the summary of facts to be $1,600 but that is just the insurance excess. The pre-arson value of the vehicle is $18,500. The owner of the vehicle, because of the particular
nature of the insurance policy that she had, was only able to recover $11,000 from the insurance company so she has lost some $7,500 by your actions and the insurance company lost some $11,000.
[17] I then turn to the final burglary charge that relates only to you Mr Smith. You had previously been on 29 August 2021 at a property on Te Kawa Road, Otorohanga with another person who was in the process of purchasing a Mitsubishi Ute from the owner of that property. While you were there you happened to notice in the garage a yellow Suzuki trail bike and a blue Yamaha 50cc kids trail bike. After your friend completed the purchase of the Mitsubishi Ute, you left the property.
[18] However, on the night of 21 September 2021 you went back to that address during the night, entered the garage by removing a glass pane at the rear of the building and took the two trail bikes. Together, the two motorbikes amounted to a value of some $9,500. You subsequently returned the Suzuki trail bike notwithstanding that you had attempting to conceal its appearance but the 50cc children’s trail bike remains outstanding and results in a loss of some $1,500 to those complainants.
The District Court sentence
[4] In arriving at Mr Smith’s sentence of 21 months the Judge, consistent with the sentence indication which Mr Smith had accepted, took a starting point of two years for the arson.2 He uplifted that by 12 months for the burglary charges and the conversion of the motor vehicle, and a further 12 months for all the incidents of damage. The Judge then rounded that start point of four years down to three years’ imprisonment for totality. The Judge then allowed a 15 per cent reduction because of Mr Smith’s age at the time of the offending (19 years) and limited conviction history. The Judge also allowed a full 25 per cent for the guilty pleas. That led to the adjusted end sentence of 21 months’ imprisonment.
[5] In his sentence indication the Judge had also indicated that for a full commitment to restorative justice and genuine remorse a further 15 per cent would be allowed. Further, if there was full reparation then up to a further 15 per cent might be appropriate with a lesser amount (of reparation) supporting a lesser deduction. That would have reduced the adjusted end sentence to a range between 11 and 21 months’ imprisonment.
2 R v Smith DC Te Awamutu CRI-2022-072-000136, 27 June 2022.
[6] However, in light of the information before the Judge at sentencing the Judge recorded that Mr Smith had not made any commitment to restorative justice, was unable to make any reparation, and was not at all remorseful. The end sentence the Judge was left with was 21 months’ imprisonment. Having regard to the lack of remorse, lack of any empathy at all for the victims of the offending, Mr Smith’s sense of entitlement, an offending supporting attitude, and to take into account the interests of the victims of the offending, (who had lost some $35,933), the Judge considered imprisonment was required. He declined to impose home detention which had been recommended (largely because of Mr Smith’s age) in the pre-sentence report.
Appeal
[7] In support of the appeal Mr Taylor confirmed that no issue was taken with the adjusted start point and the base discounts for youth and the early guilty plea. The appeal was focused on the type of sentence imposed, imprisonment rather than what he submitted was the previously indicated home detention sentence. While Mr Taylor submitted some credit could have been provided for remorse and rehabilitation, he suggested those factors should properly be accounted for in the type of end sentence. In short, the appellant’s submission is that home detention was the least restrictive appropriate sentence for Mr Smith and the Judge erred in not imposing that.
[8] Mr Taylor noted that the Judge had concluded that given Mr Smith’s attitude he would breach any electronic sentence. He submitted that assessment was an error and had resulted in an inappropriate sentence being imposed. He submitted that, contrary to the Judge’s assessment, Mr Smith was remorseful and understood the gravity of the offending. Mr Taylor emphasised Mr Smith’s young age and submitted the offending was effectively reflective of “young men wanting to partake in adrenalin raising activities without much thought as to the consequences”. In the circumstances he argued that sending Mr Smith to prison must be purely for the purposes of deterrence and denunciation, which could have been met by home detention, which was in this case the least restrictive outcome.
[9] Mr Taylor supported his argument for home detention with the following points:
(a)in the sentence indication the Judge had indicated he would impose an electronic sentence and indeed had adjourned sentencing on a number of occasions to ascertain an appropriate address;
(b)Mr Smith’s young age and lack of any relevant previous convictions;
(c)the effect of prison on a young offender;
(d)Mr Smith’s need for rehabilitation having regard to s 16 of the Sentencing Act 2000; and
(e)parity with the sentence imposed on Mr Heald, the co-offender.
Approach to the appeal
[10] As a sentence appeal this Court must allow the appeal if satisfied that if, for any reason, there was an error in the sentence imposed and a different sentence should be imposed. In Tutakangahau v R3 the Court of Appeal confirmed that the previous approach taken to sentence appeals still applied. It is for the appellant to identify an error, and the appeal court must be satisfied a different sentence should be imposed. While the Criminal Procedure Act 2011 (CPA) makes no express reference to the concept of manifestly excessive or inadequate sentences the concepts are longstanding, consistent with the statutory language in the CPA and should continue to be applied.
New factors
[11] Mr Taylor raised a number of factors that were not before the sentencing Judge. He produced a letter with an offer of employment. He also said Mr Smith’s instructions were that he could make reparation of $1,000 and finally, he noted that Mr Smith’s family (particularly his father and stepmother) were supportive. Only in limited situations will this Court accept fresh evidence on a sentence appeal. The issue before the Court is whether there was an error in the sentence imposed. However, in this case, the suggested new evidence does not advance Mr Smith’s case. The offer of
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 2014 NZCA 279.
employment is for a yardsman/small truck delivery driver. Mr Smith has been disqualified from holding a driver’s licence for two years. That would seem to be an issue. The offer of $1,000 reparation is too little, too late. I note in any event that as at 3 September 2022 he was recorded as having outstanding fines of $3,940.00.
What was the sentence indication?
[12] While Mr Taylor’s focus was on the appropriate sentence being one of home detention, it is necessary to consider if the sentence imposed was consistent with the sentence indication.
[13] A sentence indication can be of a particular type or of a particular type within a range or of a particular type and of a particular quantum.4
[14] In the course of the sentence indication which Mr Smith accepted the Judge said:5
[8] I consider that Ms Tarrant’s approach is one that the Court should adopt and that is to take the arson as the lead charge. I consider that two years’ imprisonment is the appropriate starting point to take for that offending. For the burglary and the conversion of a motor vehicle I consider that that warrants an uplift of 12 months by itself, and for all the instances of damage I lift that by a further 12 months to a calculation point of four years’ imprisonment, which for totality I round off at three years. As I have said I would allow 15 per cent for the fact that the defendant was only 19 years of age and had limited previous conviction. For a full commitment to restorative justice and for the Court accepting genuine remorse I would allow up to 15 per cent and if there was full reparation, I would allow 15 per cent, with a lesser amount of course requiring a lesser deduction, and for guilty pleas I accept 25 per cent as appropriate.
[9] So how does that translate to a sentence indication for the defendant? So, if there was full credit given for his youth as mentioned, there was full credit of 15 per cent given for remorse, participation in restorative justice another 15 per cent, full credit given for full reparation and for guilty pleas bring a total of 70 per cent available for credit and that would bring the sentence down to 11 months’ imprisonment. If it was just youth and guilty pleas then that would mean that the credit would only be 40 per cent and that would bring the sentence to 21 months’ imprisonment. Given his limited previous convictions and his youth clearly the defendant would be in line for an electronically monitored sentence, most likely home detention. There would also be an extensive disqualification period imposed because of the damage caused through use of a motor vehicle.
4 Criminal Procedure Act 2011, s 60.
5 R v Smith, above n 2 (emphasis added).
[15] The Judge’s indication was of a starting point of imprisonment between 11 and 21 months. The term of imprisonment (if that was the end sentence) or the possibility of home detention were plainly to depend on further information relating to the factors the Judge identified, namely remorse, participation in restorative justice programme, and reparation. It should have been clear to Mr Smith and counsel that the ultimate sentence both as to type and as to quantum would depend on those additional factors.
[16] Mr Smith’s sentencing was adjourned on a number of occasions. Three Provision of Advice for the Courts (PAC) reports were prepared. The first PAC report of 6 September 2022, noted that efforts to contact Mr Smith had been unsuccessful. Contact had been attempted at different times of the day and night, including text messages, all resulting in no response. In the PAC report of 19 October 2022, Mr Smith purported to minimise his involvement in the offending but claimed to be remorseful. The report writer noted that the remorse was viewed as superficial and likely due to the fact Mr Smith had been caught. He lacked empathy or insight into his offending and showed no genuine concern for the numerous victims. Mr Smith described the offending as “a bit of a fun” with total disregard for the damage caused and the impact on the multiple victims. While Mr Smith was directed to participate in restorative justice he declined to do so.
[17] Mr Taylor noted that adjournments had been granted to enable counsel to provide proposed addresses for home detention. But on 31 October 2021 the Crown opposed the adjournment. The Judge granted the adjournment in part because the differing views apparently taken in the pre-sentence report by Mr Smith and that of his co-offender, Mr Heald. The Judge considered that it was important there be some co-ordination of the prosecution outcomes to ensure that they were not sentenced as though they had each played a secondary role.
[18] When Judge Spear adjourned the sentencing on 31 October 2022, he noted the comments in the pre-sentence report.6 In the minute he issued the Judge noted:
The reports I have are that the defendant has declined to offer himself up to a restorative justice conference which is indeed most unfortunate and may well have significant impact on the sentencing decision. …
6 Minute of Judge Spear, dated 31 October 2022.
[19] Mr Smith was again on notice of the importance of this factor on his ultimate sentence.
[20] While some of the victims expressed an interest in attending a restorative justice meeting repeated attempts to contact Mr Smith were unsuccessful and when he was ultimately spoken to he declined to participate in a restorative justice process.
[21] Despite that recent indication from the Judge in late October when the final PAC report was prepared for sentencing on 5 December 2022, there was no change to the previous matters in the pre-sentence reports. The PAC report of 5 December 2022 noted that:
Mr Smith displayed a huge sense of entitlement and an offending supportive attitude. Mr Smith appears to have no remorse for his offending. Mr Smith’s only concern appears to be the fact that he will not be able to remain with his partner …
As noted, despite that, the report recommended home detention, mainly because of Mr Smith’s young age.
[22] When the sentence indication is considered in context, in sentencing Mr Smith to imprisonment the Judge did not depart from the sentence indication. The Court did look at an electronically monitored sentence. In other words the Judge did consider the possibility of that sentence. However instead of the PAC reports on remorse, restorative justice and reparation being positive they were negative. While counsel for Mr Smith submits he is remorseful, the Judge was quite entitled to take the view he was not. The text messages on his phone are damning and give a clear indication of his attitude. The Judge also had the two substantive PAC reports before him which confirmed Mr Smith was not remorseful, the record of restorative justice was he was not prepared to take part, and that he was in no position to offer reparation (indeed as noted he had outstanding fines which he could not pay).
Mr Smith’s age/lack of previous convictions
[23] The Judge gave an appropriate discount of 15 per cent for Mr Smith’s age and lack of previous convictions. He was not required to go further and reduce the
appropriate type of sentence from imprisonment to home detention for those factors. The offending was sustained and serious.
The effect of prison/rehabilitation
[24] In all the circumstances, while I accept that the Judge may have gone too far in taking the view that Mr Smith would not comply with a sentence of home detention, a sentence of imprisonment in this case was required and justified under s 16 of the Sentencing Act 2002 in order to hold Mr Smith accountable for the harm done to the victims and the community by his offending, to promote in him a sense of responsibility for and an acknowledgement of that harm, and to provide for the interests of the victims of the offending. Given Mr Smith’s attitude, which was entirely self-interested, without any empathy whatsoever, and without any appreciation of the harm he had caused, those requirements could not be addressed by any lesser sentence. While denunciation and deterrence were also relevant factors, they were not the dominant factors in the end sentence.
[25]In Aupouri v R the Court of Appeal observed:7
[18] The Sentencing Act neither presumes for nor against commutation of imprisonment to home detention. The margin of appreciation given by this Court to sentencing Judges will be substantial, because of the array of considerations requiring evaluation and the advantage the Judge has in having conducted the trial and formed an educated appreciation of the character of the defendant.
[26]While Mr Smith had not gone to trial, the Judge was very familiar with the file.
[27] In the circumstances a sentence of home detention would not have been consistent with the principles of s 8, in particular, the seriousness of the offending, and the effect of the offending on the victims.
[28] Mr Taylor emphasised the need for Mr Smith’s rehabilitation. As Ms So observed, that can be provided for in his release conditions.
7 Aupouri v R [2019] NZCA 216 (footnote omitted).
[29] In the particular circumstances of Mr Smith’s case, the sentence of 21 months’ imprisonment cannot be described as manifestly excessive. The term is not challenged. The sentence of imprisonment itself was consistent with the purposes and principles of the Sentencing Act 2002.
Disparity
[30] The last issue is the disparity with Mr Heald’s sentence. Mr Heald was sentenced on less charges than Mr Smith. Notably he did not face the arson charge. Further, he only faced one, rather than two, burglary charges. The Judge was entitled to take the view that Mr Smith played a more significant role in the offending than Mr Heald on the versions of the summary of facts before him. Next, Mr Heald, unlike Mr Smith, had a number of personal mitigating factors. Mr Heald had demonstrated genuine remorse and insight, which was confirmed by a psychologist’s report. Unlike Mr Smith, at the time, Mr Heald was employed, had family support, and was in a position to pay $7,000 for reparation. The Judge was entitled to conclude Mr Heald was likely to learn from his situation and to sentence him accordingly.
Result
[31] Mr Smith fails to satisfy the Court that the sentence imposed on him, 21 months’ imprisonment, was manifestly excessive.
[32]The appeal against sentence is dismissed.
Venning J