IN THE Court of appeal OF new Zealand
	
CA219/2014
[2015] NZCA 257

BETWEEN	
PETER JOHN KENNEDY
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
9 June 2015	

Court:	
White, Venning and Williams JJ	

Counsel:	
C P Brosnahan for Appellant
M J Lillico for Respondent	

Judgment:	
18 June 2015 at 2.30 pm	

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by White J)
[1]	The appellant, Mr Kennedy, was convicted after a jury trial in the New Plymouth District Court on one count of threatening to cause grievous bodily harm and sentenced by Judge Roberts to 180 hours community work.
[2]	Mr Kennedy initially appealed against both his conviction and his sentence, 

but he subsequently abandoned the conviction appeal and pursued only the sentence appeal.
[3]	For Mr Kennedy, Mr Brosnahan submitted that the sentence was manifestly excessive because the Judge failed to consider Mr Kennedy’s personal situation, which would have shown that he faced a three hour round trip to attend community work.  Mr Brosnahan pointed out that the sentence was imposed immediately after the conviction was entered following the jury’s verdict and without the benefit of a probation report or a remand for restorative justice.  Mr Brosnahan also suggested that no consideration had been given to a monetary penalty by way of fine or emotional harm reparation.
[4]	Some support for Mr Brosnahan’s submissions is provided by the Judge’s sentencing notes which read in full:
[1]	You have heard what I have to say, Kennedy.  Your mouth is filthy.  It is like an open sewer.  For you to talk to a woman like that is nothing short of disgraceful. I deal with you on the basis of the singular verdict of guilty.
[2]	I have indicated to you my feelings.  This was a campaign that you waged against those people, deliberately engineered I suspect to make their stay as unpleasant as possible. You were successful.
[3]	Taking all matters into account I have sentenced you to 180 hours’ community work.  I am told that your convictions are dated and that nothing is relevant.  That is the sentence.  Stand down.
[5]	Mr Brosnahan, who was not Mr Kennedy’s trial counsel, made his submissions without the benefit of the transcript of the exchange between the Judge and trial counsel before sentencing.  We have obtained the transcript since the hearing of the appeal.  It reads in full:
THE COURT:
What would you have me do?
MS LAIRD:
Sir, I wonder if a report is appropriate?
THE COURT:  
Mrs Marriner is shaking her head, but…
MS MARRINER:
Sir –
THE COURT:  
Mrs Marriner – yeah?
MS MARRINER:
I don’t believe it is, his history, Sir, it does not have anything similar in nature and there's no appearance since '95 so we have somebody who is…
MS LAIRD:
They're historical, Sir, and not recent.
THE COURT:  
As Mrs Marriner says.
MS LAIRD:
Yes Sir.
THE COURT:  
What would you have me do?
MS MARRINER:
Can I approach him, Sir?  Sir, I’m just thinking about the practicalities of his remote location and his ability, Sir, to be able to meet monetary penalties.  He can offer, Sir, emotional harm reparation.
THE COURT:  
I’m thinking of community work.  You know, this was a significant battle he waged with these people, that’s the take I take on the evidence.  
MS MARRINER:
He’s physically able to do that, Sir.  It will have an impact on his running of his farm, having to –
THE COURT:
Well that’s something he should have addressed before he started behaving as he did.  The indication, counsel, I am going to impose community work.  Is there anything you wish to say?
MS LAIRD:
No Sir, thank you.
[6]	With the benefit of the transcript, it is apparent that before Mr Kennedy was sentenced, his trial counsel, Ms Marriner:
(a)	indicated that a probation report was not necessary;
(b)	raised the practical difficulties of Mr Kennedy’s remote location and the impact of community work on the running of his farm; and 
(c)	suggested consideration of monetary penalties, including emotional harm reparation.
[7]	When the Judge’s sentencing notes are read in the context of the preceding exchange with counsel, it is apparent that, as required by s 9(h) of the Sentencing Act 2002, the Judge did take Mr Kennedy’s personal situation into account in imposing the community work sentence.  It is also apparent that the decision not to obtain a probation report was made with Ms Marriner’s support and that the alternative of a monetary penalty was raised.  An adjournment for restorative justice was not requested by the prosecutor or trial counsel and the Judge was not obliged to grant one for that purpose.
[8]	In these circumstances none of Mr Brosnahan’s submissions is substantiated.  As the sentence of community work was clearly within the available range for Mr Kennedy’s offending, it cannot be described as manifestly excessive.
[9]	While we would not wish to encourage the giving of such brief reasons in other similar cases, in the circumstances of this case and in light of the exchange with counsel, we are not prepared to say that the Judge failed to comply with the general requirement to give reasons imposed by s 31 of the Sentencing Act or the specific requirements of s 44(2) relating to community-based sentences.

[10]	The appeal against sentence is therefore dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent