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Stephens v R [2023] NZCA 663 (18 December 2023)

Last Updated: 23 December 2023

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

The appeal is allowed.
The 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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

[1] 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.
[2] On 21 March 2023 we delivered a result judgment allowing Ms Stephens’ appeal.^[2] These are our reasons.

Relevant background

[3] 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 searching the address the police also located in your room several glass pipes scattered throughout and a glass bong, all of which were used for smoking methamphetamine.

[4] Along with Mr Bush, a Ms Edwards was also connected to the burglary. Ms Edwards pleaded guilty to a charge of receiving stolen property and was sentenced on the basis that the value of the items she received totalled $136,780.^[4]

Sentencing notes

[5] The Judge noted that Ms Stephens had no previous convictions and that she was a person previously of good character, which he took into account to her credit.^[5]
[6] The Judge was not convinced that Ms Stephens was an innocent party taken advantage of by the principal offenders, considering that by reason of her ownership of an item of Trelise Cooper designed clothing she would have recognised the items she received, and been aware of their value and of the high likelihood that they had been obtained dishonestly.^[6]
[7] The Judge identified as the principal aggravating factor the extent of the loss from the offence. While noting that only an amount over $1,000 was adduced in evidence at the trial, the Judge stated that common sense indicated that the total value of the clothing was well over that. He estimated that the figure was likely to have been over $10,000.^[7]
[8] The Judge acknowledged that the pre-sentence report noted Ms Stephens expressed some remorse for what she had described as her naïve actions and how they had impacted the victim, that her lifestyle and peer associations had been identified as offending related factors, and that her risk of reoffending was assessed as low.^[8]
[9] The Judge concluded in this way:

[11] For the charge of receiving, I adopt a starting point of 18 months’ imprisonment. For the methamphetamine utensils charge, I uplift it by two months to 20 months’ imprisonment. For your limited remorse I will allow 2 per cent as a discount. For your previous good character, I will allow 15 per cent, taking it to a total of 17 per cent discount. That reduces your sentence by three and a half months to 14 and a half months.

[12] I then need to consider whether or not a community-based sentence should be imposed. I am of the view that it should. You have not previously been an offender. On the charge of receiving, you are convicted and sentenced to seven months home detention. The conditions will be those set out in the probation report with post-detention conditions for six months. On the charge of possession of utensils, you are sentenced to two months’ home detention to be served concurrently and an order is made for the destruction of those utensils. ...

Grounds of appeal

[10] Ms Stephens contends that the end sentence was manifestly excessive for two reasons:

(a) The starting point was excessive, given the circumstances of the offending and the degree of culpability that could be ascertained from the evidence adduced at trial.
(b) The Judge failed to take account of relevant considerations when selecting home detention as the final sentence, including the need to impose the least restrictive outcome as mandated by s 8(g) of the Sentencing Act 2002.

Counsel’s submissions

[11] There is no guideline judgment for sentencing on charges of receiving because the circumstances of such offending vary so widely that other cases can be of limited assistance.^[9] As French J observed in Allen v Police, in assessing culpability regard is to be had to the value of the goods, the duration of the offending, the number of charges, the existence of a commercial element and the closeness of the relationship between the burglar and the receiver.^[10]

The value of the goods

[12] Counsel for Ms Stephens, Mr Wall, commenced his argument by focussing on the first of those factors, in light of its identification by the Judge as the principal aggravating factor. In particular, Mr Wall submitted that there was an irregularity in the “common sense” finding that the value exceeded $10,000 when the amount adduced at trial was only $1,000. He submitted that that approach was in error and resulted in an excessive starting point.
[13] The respondent’s submissions annexed a copy of a memorandum of Ms Stephens’ trial counsel, dated 21 November 2022, which referred to the value of the property received being “over $10,000”. On behalf of the respondent, Ms McClintock contended that that amounted to a concession as to the value of the property. Mr Wall did not accept that. He pointed out that the purpose of the memorandum was simply to address the issue of parity in light of the sentencing of Ms Stephens’ co-offender, Ms Edwards. He submitted that if the statement in the memorandum had been treated as agreement on value, the Judge would have so noted, and would not have needed to resort to the “common sense” process of reasoning.
[14] Mr Wall submitted that while certain facts may be regarded as implicit in the verdict, and a measure of deference may be afforded to a judge who has assessed the evidence disclosed in a trial from which an inference can be drawn, in the present case there was an absence of evidence as to value, a factor highlighted by the respondent’s submissions. Ms McClintock submitted that the higher figure would have been sustained if the matter had gone to a disputed facts hearing. Nevertheless we consider there is force in Mr Wall’s submission that the process mandated by s 24 of the Sentencing Act was available for the proof of the value of the stolen property, but was not followed.

The other Allen factors

[15] Mr Wall further submitted that, irrespective of the irregularity in the assessment of value, a starting point of 18 months’ imprisonment was excessive given the absence of associated aggravating factors. There was only one charge of receiving, associated with a single, albeit significant, burglary. With reference to the final two Allen factors, Mr Wall noted observations made by this Court in Ellis v R^[11] and by Gendall J in Drake v Police.^[12] He submitted that Ms Stephens’ receipt of the property did not have a close temporal connection to the burglary like that in Ellis, nor (unlike Ms Stephens’ co‑offender) was there a close connection between Ms Stephens and the primary offender, Mr Bush.
[16] Hence it was submitted that a starting point of no more than 15 months’ imprisonment should have been adopted. Indeed Mr Wall suggested that the starting point should have been even less, given the “brittle basis” upon which the Judge reached his conclusion as to the value of the stolen property.
[17] Ms McClintock submitted that, while value was the principal aggravating factor, the amount does not of itself dictate the starting point. She argued that the context of the offending is key to the assessment of culpability. While there was not as close a relationship as that between Mr Bush and Ms Edwards, she submitted that Ms Stephens was still an associate of Mr Bush and provided him an address to bring the stolen property to and use for his purposes before his arrest.

Parity

[18] Ms Edwards was sentenced on 8 June 2022 to 12 months’ supervision and 300 hours’ community work, and was ordered to pay $2,500 as reparation for emotional harm. Her involvement is recorded in the sentencing notes of Judge K Maxwell as follows:^[13]

[3] Turning to your particular involvement. On 2 November 2020, a storage unit was booked in your name. That was located in Cook Street in Auckland. On 6 November you called a taxi to collect you and Mr Bush. You and Mr Bush loaded a large number of suitcases into the boot of a taxi and asked the driver to turn off the meter, that he would be paid in cash to take you to that storage unit. After all of the suitcases were unloaded, you asked the taxi driver to return you to a hotel.

[19] On 11 November 2022 an adjournment of sentencing was granted in order to enable counsel for Ms Stephens in the District Court to canvas parity between Ms Stephens and Ms Edwards. This was the subject of the memorandum of 21 November 2022 referred to above.^[14] That memorandum drew attention to the following matters:

(a) Both Ms Edwards and Ms Stephens were sentenced in respect of one charge of receiving property worth over $1,000.^[15]
(b) The value of the property received by Ms Edwards was $136,780, substantially more than that received by Ms Stephens.
(c) The starting point adopted by Judge Maxwell when sentencing Ms Edwards was 24 months’ imprisonment, but a 15 per cent discount was allowed for her guilty plea and another 15 per cent for previous good character.^[16]
(d) Ms Edwards was provided a discount of 10 per cent for personal circumstances (namely a toxic relationship and violence which she experienced following the offending).^[17] It was submitted that Ms Stephens, who was also in a toxic relationship as outlined in the pre-sentence report of 1 August 2022, should likewise receive a 10 per cent discount for personal circumstances.
(e) Ms Edwards did not have an address available for home detention or any electronically monitored sentence. The Judge stated that a sentence less than home detention could be imposed taking into account the lack of a criminal history, prospects of rehabilitation and challenging personal circumstances.^[18] The submission was made that all three factors were likewise relevant to Ms Stephens.
(f) It was submitted that Ms Stephens like Ms Edwards had suffered a very public downfall, with the media continuing to report on her offending.

[20] In the case of Ms Edwards, the various discounts resulted in an end sentence of what the Judge described as “something in the order of 14 months’ imprisonment”.^[19] However, taking into account the lack of a criminal history, prospects of rehabilitation and challenging personal circumstances, an end sentence of supervision and community work was imposed. While recognising that Ms Stephens was not entitled to a discount for a guilty plea, counsel in the District Court submitted that she should receive discounts for previous good character, remorse and personal circumstances which would result in reaching an end sentence which was also within the range of community work and supervision.
[21] The Judge addressed the issue of parity in these terms:^[20]

[10] I have had referred to me the case of R v Edwards, the sentencing of another person, with a view to ensuring there was parity with your sentence and that person. In Edwards, that person was allowed a discount for a toxic relationship with a co-offender. It is submitted that you too had been in a toxic relationship prior to this offending but I note that your relationship was not with a co-offender and also it appears to have ended at least five years prior to the offending for which you are being sentenced today. In my view, there is no causal connection to that relationship you had previous to this offending.

[22] Ms McClintock submitted there was parity between the co-defendants. Describing their offending as similar in form but varied in nature, she acknowledged that Ms Edwards assisted Mr Bush in storing a larger amount of clothing and therefore a commercial element could be inferred. There can be no doubt on that latter point. The value of the stolen items which Ms Edwards was charged with receiving was in excess of $136,000, and hence the damage and harm to the victim was significantly greater.
[23] Ms McClintock submitted that a community-based sentence was selected for Ms Edwards in the absence of an address suitable for electronic monitoring, with the sentencing Judge accounting for Ms Edwards leaving an abusive relationship and going through emergency housing. She described the form of the sentence imposed as a therapeutic response which was supported by the material before the sentencing Judge. In her submission, Ms Stephens’ circumstances did not justify similar treatment.
[24] By contrast Mr Wall submitted that, like Ms Edwards, Ms Stephens was a first‑time offender and exhibited a low risk of reoffending. He contended that, as Ms Stephens had never previously been sentenced, and thus had never breached a community-based sentence, the Judge was not obligated to impose home detention to ensure specific deterrence or compliance. As with Ms Edwards, he submitted that broader sentencing purposes did not dictate that home detention was the default setting for this offending. He suggested, however, that it appeared that Ms Stephens’ sentence was arrived at by default, contending that the Judge did not assess the information in the pre‑sentence reports or consider the requirement to impose the least restrictive outcome. As the sentence of Ms Edwards demonstrated, the least restrictive outcome for similar offending (but less culpable in the case of Ms Stephens) was a combination of community-based sentences.

Analysis

[25] We consider there was a considerable difference between the culpability of Ms Stephens’ offending and that of her co-offender, Ms Edwards. Ms Edwards was found to have received stolen goods having a value in excess of $136,000. The fact that she was in possession of such a considerable quantity of the items stolen in the burglary suggests there was a level of commerciality in her offending that is simply not present in Ms Stephens’ case. Ms Edwards was also considerably more proximate to the individual who stole the items than was Ms Stephens.
[26] We do not consider there is any evidential basis on which we can make a realistic finding as to the value of the items found in Ms Stephens’ possession. The available material records only that several items of clothing were found in different areas of her house whilst six items of clothing were found in the boot of her car. Having regard to the high-end nature of the Trelise Cooper brand, these items would obviously have had a value in excess of $1,000, but there is no basis on which we can say they would have had a value exceeding $10,000.
[27] Even if they had that value, we consider a starting point of 18 months’ imprisonment to be well beyond the available range having regard to the starting point of 24 months’ imprisonment adopted for Ms Edwards. We consider a starting point of around eight months’ imprisonment to be appropriate in Ms Stephens’ case, taking account of the (assumed) value of the goods, the fact that there was a single occasion of offending giving rise to a single charge, the absence of any commercial element, and the relative lack of coordination between Ms Stephens and Mr Bush.
[28] We also consider an uplift of two months to reflect the presence of methamphetamine pipes at Ms Stephens’ address to be excessive having regard to totality principles. We consider an uplift of no more than one month was appropriate to reflect those charges.
[29] We therefore consider a sentence of no more than nine months’ imprisonment was appropriate before taking into account mitigating factors. Applying the same discount as the Judge to reflect these, the sentence reduces to seven and a half months’ imprisonment. Having regard to Ms Stephens’ circumstances and the purposes and principles of the Sentencing Act, it would be appropriate to convert this sentence of imprisonment to approximately four months’ home detention.^[21] By the time the appeal was heard, however, Ms Stephens had already served four months of her sentence of home detention. This means she had already served the punitive aspect of the sentence we would ordinarily have imposed.
[30] Ordinarily we would set aside the sentence of seven months’ home detention and impose a sentence of four months’ home detention in its place, even though Ms Stephens would already have served the sentence. However, having regard to the approach taken by the Judge who sentenced Ms Edwards, we concluded this would not be appropriate. As we have already recorded, Ms Edwards had a sentence of 14 months’ imprisonment which was reduced to 12 months’ supervision, 300 hours of community work, and reparation in the sum of $2,500. We consider the disparity between the two sentences brings into play the principles discussed in authorities such as R v Rameka^[22] and R v Lawson.^[23]
[31] For these reasons we considered it appropriate to quash the sentence of seven months’ home detention and not to impose a lesser sentence of home detention in its place. Instead we imposed the rehabilitative sentence of supervision subject to special conditions.

Result

[32] The appeal is allowed.
[33] The 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.

Solicitors:
Crown Solicitor, Auckland for Respondent

^[1] R v Stephens [2022] NZDC 23233 [Sentencing notes].

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

^[3] Sentencing notes, above n 1.

^[4] R v Edwards [2022] NZDC 13106 at [5].

^[5] Sentencing notes, above n 1, at [4] and [8].
^[6] At [5].

^[7] At [7].

^[8] At [9].

^[9] Sinclair v Police [2014] NZHC 1332 at [17].

^[10] Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [22].

^[11] Ellis v R [2012] NZCA 513.

^[12] Drake v Police [2015] NZHC 2252.