Stephens v The King - [2023] NZCA 663

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA723/2022
[2023] NZCA 663

BETWEEN	KATHY YU-JEN STEPHENS Appellant
AND	THE KING Respondent

Hearing:	20 March 2023
Court:	Brown, Lang and Palmer JJ
Counsel:	J W Wall for Appellant A M McClintock and V E Squires for Respondent
Judgment:	21 March 2023 at 10.30 am
Reasons:	18 December 2023

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentences of seven months’ home detention on the offence of receiving and two months’ home detention on the offence of possession of utensils are quashed. There is substituted a sentence of six months’ supervision with the following special conditions:
(i)to reside at an address approved by a probation officer and not move to any new residential address without the prior written approval of a probation officer; and
(ii)to undertake and complete appropriate assessment, treatment or counselling as directed by and to the satisfaction of a probation officer.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

Following a jury trial in the District Court at Auckland, the appellant (Ms Stephens) was found guilty of receiving stolen property. She entered a guilty plea to a charge of possession of methamphetamine utensils. She was sentenced to seven months’ home detention for the receiving charge with a concurrent sentence of two months’ home detention for the utensils charge.[1] She appealed her sentence, contending that the sentence of home detention was manifestly excessive.
[1]R v Stephens [2022] NZDC 23233 [Sentencing notes].
On 21 March 2023 we delivered a result judgment allowing Ms Stephens’ appeal.[2] These are our reasons.

Relevant background

[2]Stephens v R [2023] NZCA 73.

The circumstances of the offending were described by Judge N R Dawson in his sentencing notes as follows:[3]
[1]       … The background to this matter is that Trelise Cooper is a New Zealand high-end women’s designer clothing brand. At about 5 pm on Saturday 17 October 2020 the head office of Trelise Cooper was left locked and secured by staff. Between 6 pm on Saturday 17 October 2020 and 8.30 am on Monday 19 October [2020], a Mr Bush … broke into the premises by forcing open a service door. Mr Bush took approximately 2,000 items of clothing from the styling room, the value of which is about $75,000 being the cost of the manufacture of those items.
[2]       At about 8.30 am on Monday 19 October 2020, workers arrived at the premises and discovered that the burglary had occurred. Only a portion of the stolen clothing has been recovered by the police.
[3]       At about 8 am on Tuesday 17 November 2020, the police executed a search warrant at your address. They located a number of stolen Trelise Cooper branded clothing items throughout the house. Your vehicle was parked in the garage. In the boot of that vehicle the police located a package addressed to an overseas address. Inside the package were six Trelise Cooper branded clothing items. While…

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 Stephens v The King

Details

AGLC: Stephens v The King [2023] NZCA 663
Case: [2023] NZCA 663
Decision Date: 21 March 2023 at 10.30 am

CaseChat Overview and Summary

In Stephens v The King, Kathy Yu-Jen Stephens appealed her sentence for receiving stolen property and possessing methamphetamine utensils. The District Court had sentenced her to seven months’ home detention for receiving and two months’ home detention for the possession charge, to be served concurrently. Stephens argued that the sentence was manifestly excessive. The Court of Appeal of New Zealand allowed the appeal, finding that the sentence was indeed excessive due to several errors in the sentencing process.

The Court identified two primary errors in the sentencing process. Firstly, the starting point of 18 months’ imprisonment was considered excessive. The sentencing judge had based this on a "common sense" finding that the value of the stolen property exceeded $10,000, even though only $1,000 was adduced in evidence. The Court found that this process was flawed and led to an excessive starting point. The Court noted that the value of the stolen goods was not adequately proven and should have followed the process mandated by the Sentencing Act. Additionally, the Court found that the presence of aggravating factors, such as the commercial element and close relationship to the burglar, were not as pronounced in Stephens’ case as in her co-offender’s, Ms. Edwards, who received a significantly lighter sentence.

Secondly, the Court found that the judge had not properly considered the requirement to impose the least restrictive outcome, as mandated by the Sentencing Act. The judge had imposed home detention as the sentence, which the Court found to be inappropriate given the circumstances. The Court concluded that a sentence of around nine months’ imprisonment would have been appropriate, reduced to seven and a half months considering mitigating factors. However, considering the disparity in sentences between Stephens and her co-offender, the Court decided to substitute the home detention with a six-month supervision sentence with special conditions.

The appeal was allowed, and the sentences of seven months’ home detention for receiving and two months’ home detention for possession of utensils were quashed. In their place, the Court imposed a sentence of six months’ supervision with conditions to reside at an approved address and to undertake appropriate assessment, treatment, or counselling as directed by a probation officer.

Orders