BETWEEN STEVEN JASON EWENS Appellant AND THE KING Respondent
[2023] NZHC 2159
•11 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000271
CRI-2023-404-000272 [2023] NZHC 2159
BETWEEN STEVEN JASON EWENS
Appellant
AND
THE KING
Respondent
Hearing: 7 August 2023 Appearances:
E P Priest for Appellant J Lee for Respondent
Judgment:
11 August 2023
JUDGMENT OF VAN BOHEMEN J
[appeal against sentence]
This judgment was delivered by me on 11 August 2023 at 3:30 pm.
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors: E P Priest, Auckland
Crown Solicitor, Auckland
EWENS v R [2023] NZHC 2159 [11 August 2023]
[1] On 12 May 2023, Steven Ewens was sentenced by Judge K J Glubb in the Auckland District Court to two years and three months’ imprisonment after pleading guilty to charges for theft, being found unlawfully in an enclosed yard, burglary, receiving property over $1000, presenting a firearm, unlawful possession of a firearm and ammunition, and for a representative charge of discharging a firearm in or near a dwellinghouse.1
[2] Mr Ewens appeals his sentence. He contends that the Judge erred by setting too high a starting point for the firearms offending, too high an uplift for the dishonesty offending, and by not awarding a full 25 per cent discount for his guilty plea. The Crown oppose the appeal.
The offending
[3] Mr Ewens’ firearms offending related to an incident at around 2:15 am on 18 April 2021 after Police were called to Mr Ewens’ home on Cherry Tree Lane in Massey following reports of a neighbourhood disturbance. Two constables went separately around the property to try raise the occupant of the property, calling out and identifying themselves as Police officers. When this was unsuccessful, one of the constables approached the open ranch slider door and called out that Police were present and that any occupant should come to the door. As the constable stood in the doorway, Mr Ewens aimed a loaded .22 centrefire hunting rifle at him, saying, “who the fuck are you?”. The two constables immediately retreated from the house leaving their vehicle parked in the driveway.
[4] Further Police arrived and cordoned off the property. Police contacted Mr Ewens over the phone. Mr Ewens repeatedly demanded that they prove they were who they claimed to be. Mr Ewens refused to come out of his property for three hours, during which time he fired three shots from inside the house in an unknown direction. After considerable negotiation, Mr Ewens came out of the house and surrendered himself without further incident. The firearm was found inside the house. It was loaded. Spent shell casings and live ammunition were also found. Mr Ewens does not have, and has never had, a firearms licence.
1 R v Ewens [2023] NZDC 10465.
[5] Mr Ewens was on electronically monitored (EM) bail at the time of the firearms offending. It is accepted that he had consumed and was under the influence of methamphetamine when the offending occurred.
[6] Mr Ewens was charged initially under the Crimes Act 1961 with using a firearm against a constable acting in the course of their duty and knowing that or being reckless as to whether, the constable was so acting.2 However, that charge was later withdrawn. The remaining firearms charges were brought under the Arms Act 1983.3
[7] Mr Ewens’ dishonesty offending involved three separate incidents. The first occurred in the afternoon of 24 May 2021 when Mr Ewens and a young person stole a weight set valued at $500 stored under the deck of a property on Woodford Drive in Bayview. This led to the charge for theft.4
[8] The second incident occurred in the afternoon of 5 June 2021 when Mr Ewens and a young person walked around a property at Woodlands Crescent in Browns Bay, trying to open door handles and climbing onto the balcony of the address before absconding after an alarm was sounded. This led to the charge of being found unlawfully in an enclosed yard.5
[9] The third incident occurred in 11 July 2021 and involved Mr Ewens entering a property on Flavia Close, Torbay, taking items with an estimated value of over $2,000 and offering for sale on Trademe a pair of Louis Vuitton shoes that had been stolen from the property. This led to the burglary and receiving charges.6
2 Crimes Act 1961, s 198A, maximum penalty 14 years’ imprisonment.
3 Arms Act 1983, s 45(1), unlawful possession of firearm, maximum penalty 4 years’ imprisonment or $5,000 fine or both.
Arms Act, s 45(1), unlawful possession of ammunition, maximum penalty 4 years’ imprisonment or $5,000 fine or both.
Arms Act, s 48, discharging firearm in a dwelling house, maximum penalty 6 months’ imprisonment or fine of $10,000.
Arms Act, s 52(1), presenting a firearm at any other person, maximum penalty 6 months’ imprisonment or fine of $10,000.
4 Crimes Act, ss 219 and 223(c), maximum penalty 1 year’s imprisonment.
5 Summary Offences Act 1981, s 29(1)(b), maximum penalty 3 months’ imprisonment or fine of
$2000.
6 Crimes Act, s 231(a), maximum penalty 10 years’ imprisonment.
Crimes Act, ss 246 and 247(a), maximum penalty 7 years’ imprisonment.
Sentencing decision
[10] The Judge set the starting point for Mr Ewens’ sentence by reference first to the firearms offending and then to the dishonesty offending, in respect of which the most serious charge was the burglary at Flavia Close, Torbay.
[11] The Judge considered there was a degree of planning and premeditation in the firearms offending. Mr Ewens had possession of a loaded weapon. The fact that the victims were Police officers in the execution of their duty was an aggravating factor. The presentation of the firearm had had a considerable impact on the constable confronted with it. In respect of Mr Ewens’ personal aggravating factors, the Judge noted Mr Ewens’ previous criminal history of 38 convictions, which included six for burglary, Mr Ewens’ poor track record in adhering to Court ordered sentences, such as his seven breaches of home detention, and the fact that Mr Ewens was on EM bail at the time of the firearms offending.7
[12] The Judge considered the aggravating factors of Mr Ewens’ dishonesty offending to be the degree of planning and premeditation that went into it and the impact on the victims, some of whom had provided victim impact statements, and the “destabilising situation for people to have others on their property”.
[13] The Judge noted that the Crown had asked the Court to adopt a starting point of two years and six months for the firearms offending. The Judge referred to the Court of Appeal’s decisions in R v Richardson, where the Court had upheld a starting point of two years for the possession of two weapons, and Campbell v R¸ where the Court considered that a starting point of two years and six months for the possession of five firearms was within the available range.8 The Judge noted that, in Campbell, the Court had considered the starting point could have been higher and also observed that a starting point of three years had been adopted in R v Kahu where the defendant had presented a shotgun at Police.9 The Judge considered that High Court authorities
7 At [8]—[15].
8 R v Richardson CA450/02, 25 March 2003 at [32] – [36] and Campbell v R [2022] NZCA 579 at [17].
9 R v Kahu [2010] NZCA 120.
were of lesser value in the light of the Court of Appeal’s decisions and adopted a starting point of three years’ imprisonment.10
[14] In respect of the dishonesty offending, the Judge referred to Gorgus v R and Arahanga v R where starting points of 18 months and 18 to 30 months had been referred to approvingly in relation to relatively minor burglaries.11 The Judge observed that, in his view, the burglary charge could have justified a starting point of two years and six months by itself but that on the basis of totality, adopted an uplift of 18 months for the entirety of the dishonesty offending.12
[15] The Judge then applied an uplift of two months each for Mr Ewens’ offending while on bail and previous conviction history. The Judge noted that Mr Ewens’ counsel had submitted that Mr Ewen should get the full discount of 25 per cent for his guilty plea on the basis that there had been a significant change in the firearms charges. However, the Judge noted that the summary of facts had not changed and granted a discount of 20 per cent.13
[16]The Judge then made further discounts of:14
(a)20 per cent for Mr Ewens’ addiction issues and other personal factors;
(b)10 per cent for Mr Ewens’ remorsefulness and rehabilitative efforts; and
(c)two months for time on EM bail.
[17] This resulted in an end sentence of two years and three months (27 months) imprisonment. The Judge observed that this did not entitle Mr Ewens to consideration for home detention and said that, in any event, he would not have been inclined to convert the sentence to a community based one in light of the firearms offending.15
10 R v Ewens, above n 1, at [28] – [30]
11 Gorgus v R [2016] NZCA 508 at [10] and Arahanga v R 2012] NZCA 480 at [[78].
12 R v Ewens, above n 1, at [29] – [30].
13 At [31] – [32].
14 At [33] – [34].
15 At [34].
Approach on appeal
[18] An appeal against a sentence is an appeal against a discretion. Section 250(2) of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow an appeal against sentence if it is satisfied that, for any reason, there was an error in the sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.16 Section 251 of the CPA provides that, if a Court allows an appeal against sentence, it must either set it aside and impose another sentence as appropriate, vary the sentence or any part of it, or remit the sentence back to the Court which originally imposed it.
[19] It is well-established that an appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion.17 Unless there is a material error in the end sentence, the Court will not intervene.18 There will be a material error if the end sentence is manifestly excessive or wrong in principle.19 In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.20 Accordingly, mere tinkering is not permitted.21 However, there may be cases where there has been an error that requires correction, even if the sentence imposed is within range.22
Submissions for Mr Ewens
[20] Mr Ewens challenges only the starting points adopted for firearms offending and the dishonesty offending and the discount for his guilty plea. No issue is taken with the other uplifts and discounts made by the Judge.
16 Criminal Procedure Act 2011, s 250(3).
17 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA 169 at [14] and [29]–[30] .
18 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 17, at [14].
19 Tamihana v R, above n 17, at [14].
20 Tutakangahau v R , above n 17, at [36]; Tamihana v R , above n 17, at [14].
21 Maihi v R [2013] NZCA 69 at [21].
22 Tutakangahau v R, above n 17, at [36].
[21] Ms Priest, counsel for Mr Ewens, submits that the three years starting point for Mr Ewens’ firearms offending was too high when taking into account that starting points of two to two and a half years are usually adopted for where a firearm is carried with an apparent intention to inflict violence. She says that in this case, the lead firearms offending was actually for possession of a firearm as opposed to the discharging of a firearm near a dwellinghouse, and that the latter carries only a maximum penalty of six months’ imprisonment. The Court erred, she says, because it found that Mr Ewens deliberately shot at Police when it is clear and accepted from the summary of facts that he did not know who he was shooting at and that he rang 111 asking for Police to help him as he was going through the effects of methamphetamine consumption at the time. Ms Priest says that the Court’s reliance on R v Kahu was misplaced, given the defendant in that case was sentenced for using a firearm to resist arrest, which carries a significantly greater maximum penalty, than that chosen as Mr Ewens’ lead offence. Instead, Ms Priest says that the charge for possession of a single loaded firearm should have been considered as the lead offence.
[22] Ms Priest refers to R v Richardson and four High Court decisions – Gunbie v Police,23 Moore v Police,24 Smith v Police25 and Long v Police26 – all involving unlawful possession of firearms and ammunition. On the basis of these decisions, Ms Priest submits that the index offending of possession of one loaded firearm should have warranted a starting point of no higher than two years, and that, given the discharge was logically linked to this, no uplift should have been necessary. Ms Priest submits that the Court of Appeal’s decision in Campbell is of lesser relevance because the offending in that case and the offending in the decisions discussed by the Court of Appeal, was more serious than Mr Ewen’s offending. Ms Priest submits that, at its highest, a starting point of two years and six months would have been more appropriate to reflect the totality of the firearms offending and the uplift for the discharge offence.
[23] Ms Priest submits that the Judge’s uplift for Mr Ewens’ dishonesty offending was excessive in light of relevant authorities – Borthwick v Police,27 Sherlock v
23 Gunbie v Police [2019] NZHC 250.
24 Moore v Police [2015] NZHC 3113.
25 Smith v Police [2014] NZHC 2196.
26 Long v Police HC Palmerston North CRI-2009-454-39, 8 October 2009.
27 Borthwick v Police [2014] NZHC 2772.
Police28 and R v Columbus29 – and what she says was the Judge’s disproportionate weight on Gorgus v R. Ms Priest notes that the burglary, which was the most serious of the dishonest offences, was opportunistic and involved no element of breaking and entering. For that reason, the guidance of the Court of Appeal in Columbus, where the Court had considered a burglary at the minor end of the scale to warrant a starting point of one year’s imprisonment,30 is apposite. Even taking into account the other dishonesty offending, Ms Priest says that an overall uplift of six to 12 months on a totality basis was warranted for all the dishonesty offending.
[24] Ms Priest submits that the Judge should have given Mr Ewens a full 25 per cent discount for his guilty plea. Ms Priest says that, given changes of counsel and the limitations of communication while Mr Ewens was on remand at Rimutaka Prison, the guilty plea had been entered as soon as reasonably practicable after the Police had accepted that, on the basis of the 111 audio calls, that Mr Ewens genuinely did not know the officers were Police officers, and had withdrawn the Crimes Act charge. Ms Priest refers to the Supreme Court’s observations in Hessell v R,31 and the Court of Appeal’s decision in Heta v R,32 where the defendant in that case had been given a full discount after pleading guilty at the first reasonable opportunity to the Crown’s amended charges. Ms Priest explains that Mr Ewens entered a guilty plea to the reduced charge at the trial callover stage following negotiations with the Crown and that such negotiations should not reduce the guilty plea discount.
[25] For all these reasons, Ms Priest submits that the end sentence was manifestly excessive. She contends that the proper starting point for all the offending should have been between three years to three and a half years (two and a half years for the firearms charges and a half to one year for the dishonesty charges). Applying the unchallenged four months uplift for previous convictions and offending while on bail, the unchallenged discounts for addiction and background (20 per cent), rehabilitation and remorse (10 per cent) and time on EM bail (two months) and a full 25 per cent discount for Mr Ewens’ guilty plea, Ms Priest submits that the end sentence should have
28 Sherlock v Police [2021] NZHC 110.
29 R v Columbus [2008] NZCA 192.
30 At [16].
31 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
32 Heta v R [2012] NZCA 267.
properly been between one year and four months’ imprisonment (16 months) and one year and ten months (22 months).
Submissions for the Crown
[26] Ms Lee, for the Crown, submits that the Judge did not err in his starting point for the firearms offending. She says that the Judge’s reliance on Campbell v R was well placed and that in the circumstances, an even higher starting point might well have been available. Ms Lee says that, contrary to Ms Priest’s submissions, it is not apparent that the Judge formed the wrongful view that Mr Ewens fired at the Police. She points instead to the Judge’s special mention of the fact that one of the discharge charges had been lessened to presenting a firearm over using one against an enforcement officer. In any event however, she says that the fact that the victim was a Police officer was a relevant part of the factual basis for sentencing and that Mr Ewens’ subjective unawareness that the victim was a Police officer is reflected in the reduced charge. She says that it does not preclude the Court from taking that factor into account when considering the impact on the victim.
[27] On the uplift adopted by the Judge for dishonesty offending, Ms Lee submits that it was entirely appropriate for the Judge to have relied on Arahanga v R and Gorgus v R. She says that given a stand-alone starting point of 18 months would have been justified for the burglary charge, the 18 month starting point adopted overall cannot be said to be manifestly excessive.
[28] Ms Lee submits that the discount of 20 per cent for the guilty plea was appropriate because Mr Ewens cannot properly be regarded as having pleaded guilty at the earliest reasonable opportunity. Ms Lee says that following being originally charged for firearms offences on 18 April 2022, Mr Ewens pleaded guilty to the bulk of the firearms charges on 10 August 2022 with the exception of the presenting firearms charge. She says that it was only on 23 February 2023 that he then pleaded guilty to the remaining charge, after seeking and then applying to vacate a sentence indication hearing. She submits that, regardless of however reasonable delaying a guilty plea for tactical reasons might be from a defendant’s perspective, such a plea is still a delayed plea.
Analysis
Starting point for firearms offending
[29] As Ms Priest says, Campbell and the decisions discussed in Campbell all involved more serious offending than Mr Ewens’ offending. Campbell involved possession of five shot guns five firearms, one of which was linked to other criminal offending. Rawiri v R also involved possession of five firearms. It also involved three separate incidents and a lot of ammunition. A starting point of three years and six months was adopted.33 Police v Cranch involved possession of 22 firearms; a starting point of three years and six months to four years was considered appropriate.34 R v Cochrane involved four firearms; a starting point of two years was adopted.35 While Cochrane may seem to be something of an outlier, as the Court of Appeal observed in Campbell, the starting point in Cochrane could have been higher but was considered only briefly in the course of sentencing the offender to life imprisonment for murder.36
[30] Importantly, in its consideration of whether the District Court had erred in adopting a starting point of two years and six months, the Court of Appeal in Campbell observed that possession of a single firearm with no mitigating circumstances generally called for a starting point in the vicinity of two to three years’ imprisonment.37 I take that as the most recent authoritative guidance from the Court of Appeal, despite the two years starting point adopted in Richardson.
[31] While Mr Ewens was in possession of only one firearm, it is apparent that there were a number of aggravating features. First, he presented the gun at a Police Officer. While it is accepted that, because of his methamphetamine-affected state, Mr Ewens did not appreciate that the officer was a Police officer – which was why the Crimes Act charge was withdrawn – it is still the case that Mr Ewens pleaded guilty on the basis of a Summary of Facts that, at the very least, confirms that he pointed the gun at someone and that someone was a Police Officer. Having regard to s 9(3) of the
33 Rawiri v R [2021] NZHC 1573 at [37].
34 Police v Cranch [2022] NZHC 461 at [51].
35 R v Cochrane [2020] NZHC 1485 at [93].
36 Campbell v R, above n 8, at [22].
37 At [18].
Sentencing Act, I do not believe that Mr Ewens should be given any credit for the fact that he was too meth-addled to appreciate it was a Police officer.38 Moreover, the offending occurred while he was on EM bail and subject to a condition not to take any illicit drugs. Those factors, plus the fact he kept the Police at bay for three hours and discharged the firearm three times while inside the house, persuade me that a starting point at the bottom of the range indicated in Campbell would not be appropriate.
[32] At the same time, it is also important to take into account that Mr Ewens was in possession of a single weapon, the maximum sentence is four years’ imprisonment and the higher starting points adopted in Rawiri and Cranch for much more serious offending. Having regard to those considerations, I agree with Ms Priest that the starting point of three years adopted by the Judge for Mr Ewens’ offending was too high. I consider that the starting point should have been two years and six months.
Starting point for dishonesty offending
[33] As for the dishonesty offending, I agree with Ms Priest that the offending in Gorgus v Police and Arahanga v R bears little comparison with that of Mr Ewens. However, in Arahanga, as in Campbell, the Court of Appeal began its assessment of the sentence imposed in that case with some general observations. It stated:39
[78] This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months' to two years and six months' imprisonment.
[34] I accept that Mr Ewens’ burglary is at the lowest end of dwelling house burglaries and is of a similarly minor nature to the offending in R v Columbus, in respect of which the Court of Appeal said the circumstances would not justify a starting point of more than one year’s imprisonment.40 However, having regard to the
38 Sentencing Act 2002, s 9(3) provides that, despite s 9(2)(e) (which identifies diminished intellectual capacity or understanding at the time of the offending as a mitigating factor), the Court must not take into account by way of mitigation that the offender was, at the time of committing the offence, affected by the voluntary consumption of any drug.
39 Arahanga v R, above n 11.
40 R v Columbus, above n 29, at [16].
guidance in Arahanga, I consider that a starting point of 12 months would be too low, particularly when account is taken of Mr Ewens’ other dishonesty offending. While that other offending is relatively trivial, it is repetitive and that fact alone warrants it being taken into account.
[35] For these reasons, I consider a starting point of 18 months is appropriate for all the dishonesty offending, and before consideration is given to the firearms offending. I am satisfied, therefore that the Judge erred in his assessment that the dishonesty offending, taken together, would have justified a starting point of 30 months. I am also satisfied that the Judge erred in setting an adjusted starting point of 18 months for the dishonesty offending, once totality considerations were taken into account. Having regard to totality, I consider the adjusted starting point for the dishonesty offending should be 12 months.
Combined starting point
[36] The above conclusions result in a combined starting point of three years and six months or 42 months.
Guilty plea
[37] It is well established that a defendant is entitled to the maximum guilty plea they would have received if they had pleaded guilty at the earliest reasonable opportunity if they indicate early to the prosecution that they would plead guilty to a lesser specified offence.41 However, timing and communication matters: a prompt plea to a reduced charge may not justify a full discount if no earlier steps to express a willingness to plead in that way were communicated, as happened in Aupouri v R.42 A full discount was given in Heta v R,43 but Aupouri offers more recent guidance.
[38] Ultimately, the discount depends on the range of relevant considerations which include the timing of the plea but also include the scale and complexity of the trial, the justification for a delay, the inevitability or otherwise of conviction, the benefits of not
41 R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [41]
42 Aupouri v R [2019] NZCA 216 at [16].
43 Heta v R, above n 32, at [27] – [31] and [38].
giving evidence for victims and witnesses and the victim/victims’ experience of atonement following the offender’s acceptance of responsibility.44
[39] Taking such of those matters as are relevant into account, I am satisfied that Mr Ewens should have been given full credit for his guilty pleas.
[40] As Ms Lee acknowledges, Mr Ewens pleaded guilty to the majority of the firearms charges within four months of his arrest and well before trial. While he disputed the Crimes Act charge, after reviewing the evidence the Crown accepted that, because of Mr Ewens’ methamphetamine-affected state, he did not understand that the people outside his house were Police officers. If that evidence had been adduced and accepted at trial, Mr Ewens could not have been convicted of the Crimes Act charge. One of the elements that would have had to have been proved is that he knew or was reckless as to whether the Police were acting in the course of their duty. I do not accept, therefore, that Mr Ewens’ refusal to plead to that charge can be attributed to defence tactics. The withdrawal of the Crimes Act charge was to the advantage of the Crown as well as to Mr Ewens.
Final sentence
[41] Taking into account the above reasoning and the unchallenged uplifts and discounts made by the District Court Judge, I am satisfied that Mr Ewens’ end sentence should have been a term of one year and six months imprisonment, calculated as follows:
(a)End starting point adjusted for totality – 42 months;
(b)Plus uplifts for offending on bail and conviction history – 46 months;
(c)Less discount of 55 per cent for guilty plea (25 per cent), addiction issues and other personal factors (20 per cent), remorsefulness and rehabilitative efforts (10 per cent) – 20.7 months, rounded down to 20 months;
44 Moses v R [2020] NZCA 296 at [23].
(d)Less discount for time on EM bail (2 months) – 18 months.
[42] It follows that I am satisfied that the sentence of two years and three months’ imprisonment imposed by the District Court Judge was manifestly excessive and should be set aside and substituted with a sentence of one year and six months’ imprisonment.
[43] While Mr Ewens’ substituted sentence is a short-term sentence, given that the primary offending occurred while Mr Ewens was on EM bail and involved a flagrant breach of the conditions of bail, I am satisfied that it would not be appropriate to convert the sentence to one of home detention. Nor has his counsel so sought.
Result
[44]I allow Mr Ewens’ appeal.
[45] I quash the sentence of two years and three months’ imprisonment imposed by the District Court.
[46] In substitution, I sentence Mr Ewens to a term of imprisonment of one year and six months.
G J van Bohemen J
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