THE QUEEN v RICHARD ALISTER KINGSTON [2001] NZCA 170 (24 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca477/00

THE QUEEN

V

RICHARD ALISTER KINGSTON

Hearing:	22 May 2001
Coram:	Keith J Goddard J Chambers J
Appearances:	A G V Rogers for the Appellant D Johnstone for the Crown
Judgment:	24 May 2001

judgment of the court BY KEITH J

[1] The appellant was found guilty by a jury on six (of nine) charges of theft. Those charges related to his employment in 1997 and 1998 and were in substance theft as a servant.Before he was sentenced on those charges, he pleaded guilty to a further three charges of theft as a servant from his next employer in 1999.He was sentenced to sixteen months imprisonment in respect of the first set of charges and to a cumulative period of a six months on the second set, leading to a total sentence of 22 months.He was denied leave to apply for home detention.On appeal, he contends that the sentence is manifestly excessive and that he should have been granted leave to apply for home detention.

[2] All the thefts were committed by essentially the same method.The appellant purchased and charged the employer for items which he took home for his own personal use.The cost of the items in the first set of charges was almost $13,000 and for those in the second about $800.The sentencing Judge referred to the method as involving an abuse of the considerable trust placed in him by his employers.

[3] The Judge in her sentencing remarks acknowledged that the probation officer had recommended a community based sentence.She considered, however, that the prisoner's history and modus operandi took these offences outside the scope of s6 of the Criminal Justice Act 1985 with the result that imprisonment was the only appropriate sentence.On appeal Mr Rogers did not challenge the position that imprisonment was justified.Rather, as noted, he challenged the length of the sentence and the refusal to grant leave to apply for home detention.

[4] The appellant had a long history of offending of a similar nature in New Zealand and in the United States.In New Zealand, the convictions from 1979 to 1984 were for false pretences and social security fraud.They resulted in fines, probation and periodic detention.The convictions in California were for cheque offences and fraud.In 1990, he had received two years gaol sentence suspended, plus 16 months probation and a number of other gaol sentences during the same year, all of which appear to have been suspended, except for one in July 1990, when he received six months gaol.In May 1995 he was sentenced to 16 months imprisonment.The appellant's own evidence was that he served the gaol sentence, or a good portion of it, in an immigration detention centre in California before being finally deported to New Zealand.

[5] Because of the nature of the offending, the breach of trust and the previous convictions, the Judge did not consider that this was a case for suspending the sentence.(Mr Rogers accepted that view on appeal.)The likelihood of the prisoner reoffending was extremely high and there were no rehabilitative aspects to which she could refer, even although he now had a partner and child.The nature of the offending and his history was such that the likelihood of reoffending was certain unless extensive psychological treatment was undertaken.

[6] On the question of home detention, she considered the nature of the offending in two consecutive jobs in which he took advantage of his employer, abused the trust placed in him by his employers and the long history of such offending.To grant the appellant home detention would be putting him back into the very same situation where he could take advantage of other employers. She accordingly refused leave to apply for home detention.She recommended to the prison authorities that urgent action be taken to ensure that extensive therapeutic psychological intervention be undertaken to address the appellant's problems.That recommendation has been acted on, with what appears to be satisfactory results.

[7] Mr Rogers gives two reasons for his contention that the sentence was manifestly excessive.The first was that the appellant was twice offered a suspended sentence if he pleaded guilty.Although the appellant could claim no credit for pleas of guilty at the trial, he submits that the disparity between a suspended prison sentence and an effective sentence of 22 months is such as to mean that the sentence imposed is manifestly excessive.As Mr Rogers rightly accepted, following correspondence between him and the Crown Solicitor, there were two occasions where a Judge gave an indication pretrial that if the appellant were to plead guilty the Judge would "look at a suspended sentence".

[8] This case does not present the difficulties addressed by this Court in R v Gemmell [2000] 1 NZLR 695.We can see no problem arising from an indication that, on a guilty plea, a suspended sentence would "be looked at" when considered against what happened on sentencing following the trial.One critical additional piece of information not available until after the trial was the list of repeated substantial fraud convictions in the United States (para [4] above).The Judges who gave the indication that a suspended sentence would be "looked at" would have known only of convictions up to 1984 and an apparently clean record from there up to the current alleged offending.But once the United States record is included, the record of continued fraud and related offending, the extent and seriousness of the current offending and the lack of motivation to change apparent in the pre-sentence report would lead immediately to a prison term in the order of that imposed.We see no reason to interfere with the length of the sentence on the ground of "the indication". It could have had no significance for a Judge fully informed of the facts.

[9] The second ground for reducing the term was that the Judge made no reference to the fact that all the property was recovered and no orders for reparation were necessary.But that fact was plainly before the Court.It was referred to again in the pre-sentence report and would no doubt have been referred to by counsel at sentencing.We do not see as significant the omission to mention this factor, in sentencing notes which we might note have been reconstructed, with the cooperation of counsel, because mechanical failure meant that the original sentencing remarks are not available.

[10] There is no standard tariff for thefts such as these.Given especially the particular circumstances of this offending, the appellant's record and his attitude to his offending, the sentence is an entirely appropriate one.

[11] The appeal relating to home detention was based on three matters.The first was that the Crown, when asked, formally adopted no position on home detention.That was not however referred to by the sentencing Judge. Secondly, the Judge placed insufficient weight on the situation of the appellant's wife and their daughter born early in 1999.The focus of the sentencing Judge was on the appellant having a wife and child, but she did not refer to the possibility of home detention enabling the appellant to meet his family obligations.Thirdly, the sentencing Judge failed to place weight on the fact that during the two and a half years that the appellant had been on remand, he had maintained himself in employment and there had been no charges arising out of that period of employment.

[12] In all the circumstances, Mr Rogers submitted that home detention was not clearly inappropriate, referring to R v Barton (2000) 17 CRNZ 402 and R v Husband CA262/00, CA263/00 9 October 2000.We see no significance in the omission of the sentencing Judge to refer to the Crown's position.The fact that the Crown did not take a position has no consequence for the grant of leave : that remains for the Judge to decide.The Judge does mention the appellant's family situation and must be understood to have taken it into account.Mr Rogers provided us with further information about the child's health problems which sadly date back to her birth (and actually overlap the second set of offending).It is an almost inevitable consequence of offending of this type that close members of the offender's family will be affected. That cannot, however, stand in the way of an appropriate sentence being imposed.

[13] So far as the appellant's subsequent employment is concerned, the Judge quite rightly, we consider, gave appropriate weight to the serious and consistent breaches of trust over a lengthy period by the appellant.We consider, in terms of the matters specified in s21D(3) of the Criminal Justice Act and R v Barton (paras 8-11), including the offender's work and family circumstances, rehabilitation prospects, criminal history, age and the nature of the offending in this case, that this was an entirely appropriate exercise of the wide discretion conferred by that provision.

[14] Accordingly, the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington