R v Stade
[2015] NZHC 2611
•22 October 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000079 [2015] NZHC 2611
BETWEEN THE QUEEN
Appellant
AND
BEAU DEAN STADE Respondent
Hearing: 20 October 2015 Appearances:
J E Mildenhall for Appellant
C D Eason for RespondentJudgment:
22 October 2015
JUDGMENT OF GENDALL J
Introduction
[1] The appellant, the Solicitor-General appeals against a sentence imposed on
15 July 2015 in the District Court of two years, six months’ imprisonment against the respondent Mr Beau Stade in respect of one charge of aggravated burglary. The appeal is advanced on the basis the sentence was manifestly inadequate and wrong in principle because the learned Judge:
(a) failed to properly assess Mr Stade’s culpability and did not articulate
the starting point for sentencing purposes; and
(b)granted total discounts for mitigating factors which were commensurate with those given to a co-offender, Mr Marvelle Jackson, yet Mr Jackson entered an early guilty plea and provided significant assistance to Police when Mr Stade did neither.
[2] Mr Stade resists the appeal on the bases that:
R v STADE [2015] NZHC 2611 [22 October 2015]
(a) the Judge properly assessed his culpability; (b)
the absence of a starting point is irrelevant as the Judge properly took account of the purposes and principles of sentencing; and
(c)
the Judge took account of the principle of parity of sentence as between all three co-offenders.
Facts
[3] At the relevant time Mr Stade resided with his co-offender, Mr Jesse O’Connell. Mr O’Connell was friends with the third co-offender, Mr Marvelle Jackson.
[4] On the afternoon of Friday, 24 April 2015, Mr Jackson borrowed a vehicle which belonged to his partner. He then went to the address of Messrs Stade and O’Connell. The three men spent the afternoon socialising and consuming alcohol. Mr Jackson was smoking synthetic cannabis while Messrs Stade and O’Connell were smoking cannabis.
[5] At some point during the day, Messrs Jackson and O’Connell were in need of money. Mr Jackson’s partner had sent him a text message stating their daughter required baby formula as they were nearly out. Mr Jackson replied to his partner that him and Mr O’Connell were going to buy baby formula and that they would be using his partner’s car.
[6] That same afternoon, Mr O’Connell sent a text message to his on-again off- again partner saying that he needed money. After a further text, his partner responded that she would give him money “if he wasn’t such an asshole”. The text message exchanges continued until at 4.52 pm there was a reference to a gun. This was followed at 5.29 pm with a text stating that Mr O’Connell was about to hold up a dairy. No dairy was ever robbed. It seems this was a ploy to convince his partner to give him money.
[7] At some later point, Mr O’Connell informed his other two co-offenders about an address known to him to have drugs. As a result of this information, the men decided to rob the occupants of that address. In furtherance of this course, Mr O’Connell obtained a .22 calibre rifle and put it in his car.
[8] Between 6 and 6.30 p.m. that day the three men travelled to the address in question. It was occupied by the four victims in this matter, aged between 17 and 22 years of age. Messrs Jackson and O’Connell got out of the car, while Mr Stade remained as a lookout and getaway driver. Mr O’Connell was armed and wearing a disguise. Mr Jackson was neither armed nor disguised.
[9] As the two men advanced up the pathway towards the house, one of the victims heard the noise of a gate and came to the front door. By the time he opened the front door, Mr O’Connell was standing at the bottom of the steps to the residence, pointing the .22 rifle at the victim, and yelled “have you got any phones, cigarettes and drugs”? Mr O’Connell advanced towards the victim, striking him in the face with the barrel. Mr Jackson then grabbed the victim by the chest and a struggle ensued. The victim managed to extricate himself from the scuffle by ducking out of his hooded shirt. He then ran next door and called police. This occurred at 6.31 pm.
[10] A female victim then went to the front door of the house where she was confronted with Mr O’Connell wielding the rifle. He pointed the rifle at her chest, almost touching her. Mr O’Connell then said, in what it seems was an aggressive tone, “we’re from the fucking mongrel mob”. He demanded drugs and cash.
[11] At that point, Mr O’Connell entered the house, where he encountered the remaining two victims on the couch. Mr Jackson followed him in. Mr O’Connell pointed the rifle at one of the victims, pushing the barrel into his cheek. He then picked up from the table an iPhone, a Samsung cellphone, two packets of tobacco and a cap and placed all these items in his pocket. Both men then ran out of the address into the waiting vehicle. After Mr Jackson called his dog back from a neighbouring property where it had wandered to, the men sped off from the address. They drove to a nearby street where Mr Jackson’s grandmother lived.
[12] At around this time, police were responding to the emergency call placed by the first victim. They noticed the distinctive car the three men were driving in a cul- de-sac outside Mr Jackson’s grandmother’s house. A constable observed three males running from the car into the address. The vehicle was duly searched and the .22 rifle located. No fingerprints were found on it. All the offenders were subsequently arrested.
Disputed facts
[13] Reference is made in submissions advanced by Mr Eason before me on behalf of Mr Stade, to some dispute over the summary of facts. In particular, Mr Eason submitted:
9.It was clear that although Mr Stade did not fully accept all of the material contained in the statement of facts that he still ran some risk of being found guilty.
[14] To the extent that this accurately reflects the position, in my view, it is quite clearly unsatisfactory. In cases involving disputed facts, the procedure to be followed by counsel is clearly set out in the 2014 Practice Note on Sentencing:1
Facts where guilty plea
1.When the defendant pleads guilty, the prosecution must have a summary of facts for the Court on which it says the defendant should be sentenced.
2.At the time of a guilty plea, counsel for the defendant must specify whether the summary of facts is accepted.
3.If the summary of facts is disputed, defence counsel and the prosecution must try to resolve the matter. If resolved, an amended summary of facts must be filed by the prosecution with their sentencing memorandum.
4.If a dispute over the summary of facts cannot be resolved, prosecution and defence counsel must notify the Court within
14 days of the guilty plea and seek an indication in accordance with s 24(2) of the Sentencing Act 2002.
[15] If there were disputed facts here, the procedure provided for in the
Sentencing Act 2002 was the appropriate way to address those issues. Given that
1 2014 Practice Note: Sentencing in the High and District Court [HCPN 2014/1 (crim)/DCPN
2014/1].
this process does not appear to have been followed, sentencing did proceed in accordance with the summary of facts. This was the only course open to Judge Saunders in the circumstances. While somewhat unsatisfactory, as I see it, that too is the basis upon which this appeal must be disposed of.
District Court Sentencing
Mr Jackson
[16] Mr Jackson was sentenced in the District Court on 25 June 2014 by Judge Callaghan.2 A starting point of seven years was taken. This was uplifted by six months for previous convictions. A three month discount was afforded for steps taken towards rehabilitation. A discount of 60 per cent was then afforded to account for the early guilty plea, co-operation with police (scheduled to give evidence at trial) and remorse. This led to an end sentence of two years, ten months’
imprisonment.
Mr O’Connell
[17] Mr O’Connell pleaded guilty on 23 March 2015 after receiving a sentence indication on 4 March 2015.3 The indication was for five years, nine months’ imprisonment. He was sentenced on 15 April 2015.4 Judge Saunders took a starting point of eight years’ imprisonment on the basis he was the principal offender. This was reduced by 12 months for time spent on EM bail, offers to engage in restorative
justice, and to pay reparation. A further discount of 15 months was afforded for a guilty plea (amounting to some 18 per cent). This left an end sentence indication of five years, nine months’ imprisonment and, on 15 April 2015, Judge Saunders sentenced Mr O’Connell to five years, six months’ imprisonment giving him an
additional three months’ credit for having paid reparation.
2 R v Jackson DC Christchurch CRI-2014-009-3730, 25 June 2014 [Jackson Sentencing].
3 R v O’Connell DC Christchurch CRI-2014-009-3730, 4 March 2014 [O’Connell Sentence
Indication].
4 R v O’Connell [2015] NZDC 6298 [O’Connell Sentencing].
Mr Stade
[18] Mr Stade received a sentence indication on 28 April 2015.5 In the indication, Judge Saunders stated, as the driver of the vehicle, that Mr Stade had some knowledge of what was occurring in the house and was aware there was a firearm in the vehicle. On the other hand, he did not enter the house, did not inflict any injuries, and was “certainly not a ring leader in relation to this particular offending”.6
Judge Saunders expressed some regret that the indication was sought a mere three
weeks out from trial, which meant he could not extend the full credit for a guilty plea to Mr Stade.7
[19] In terms of culpability, his Honour considered Mr Stade to be the “least blameworthy of the three”.8 This was on the basis that he did not enter the house, did not inflict injuries, and has no criminal record which would indicate he was the ring leader. In terms of a starting point, it was said that it would have to “at least bear some resemblance to that Mr Jackson faced at the time he pleaded nearly a year ago”.9 Some credits were said to be able to be extended to Mr Stade.
[20] Ultimately what was indicated to Mr Stade was a term of imprisonment of somewhere between two and three years.
[21] A guilty plea was subsequently entered. Mr Stade then came before Judge
Saunders for sentence on 15 July 2015.10 His Honour said in sentencing Mr Stade:
[24] Given your family support, the lesser amount of involvement in the offending, your young age at the time, I can certainly find grounds to bring your sentence down into the range that I indicated to you at the time of the sentence indication.
[25] The end sentence in this case will be one of two years and six months. You will be eligible for parole at one-third of that sentence and I wish you well in terms of being able to demonstrate to the Board that you have reduced your risk of re-offending.
5 R v Stade DC Christchurch CRI-2014-009-3730, 28 April 2015 [Stade Sentence Indication].
6 At [3].
7 At [4].
8 At [5].
9 At [6].
10 R v Stade [2015] NZDC 13550.
Jurisdiction
[22] The Crown has a right of appeal against sentence by s 246 of the Criminal Procedure Act 2011. The appeal must be allowed only if the court is satisfied that there is both an error in the sentence imposed and that a different sentence should be imposed. This Court is therefore concerned with the propriety of the end sentence, not of the process adopted in reaching that end sentence.
Submissions
Crown submissions
[23] The Crown asserts here that “the sentencing process has seriously miscarried as a result of the Judge’s failure to follow proper sentencing practice”.11 In particular, it is contended that Judge Saunders neither identified a starting point nor properly adjusted the sentence to account for aggravating and mitigating personal factors. As a result of these failings, the end sentence imposed was manifestly inadequate. As a result of the lacunae in the sentencing process, this Court is invited to undertake the sentencing exercise afresh and form its own assessment.12
[24] It is the Crown’s case that the starting point for Mr Stade’s offending can be no less than six years’ imprisonment. From there the maximum possible discount for the guilty plea would be 18 per cent. The maximum possible discount for other personal mitigating features the Crown says would be a further 18 per cent. The Crown says that this would result in a maximum discount of 36 per cent. This would bring the end sentence to one of three years, ten months’ imprisonment. The Crown’s case is that this would be the most lenient sentence possible to remove the manifest inadequacy.
[25] This approach, of course, is not strictly correct. The accepted approach to sentencing is as follows:
(a) a starting point is set;
11 The Court of Appeal has repeatedly commented that a sentencing Judge must clearly articulate the process by which a sentence is reached: R v S (CA64/06) [2007] NZCA 243 at [79].
12 For this approach see R v Morgan [2009] NZCA 341; R v Watson CA224/03,24 October 2003.
(b) adjustment is made for personal features; and
(c) at the final stage a credit is allowed for guilty plea.
[26] Thus, the discount for personal features and guilty plea should not be amalgamated. They must be applied discretely at the different stages. When the correct approach is applied a proper calculation of the end sentence proposed by the Crown is one of four years’ imprisonment.
Defence submissions
[27] The defence submissions are brief. They can be summarised in this way:
(a) Judge Saunders appropriately assessed Mr Stade’s culpability and
considered him substantially less involved than the other offenders;
(b)the fact that no starting point was articulated is of little moment as Judge Saunders properly accounted for the purposes and principles of sentencing;
(c) the sentence gave vent to the principle of parity between offenders.
[28] The overarching submission is that the end sentence was within the range available to Judge Saunders. Further, that the guilty plea was entered in reliance on the sentence indication, which provided certainty. If the sentence were to be substantially increased, Mr Stade would want to seek leave to vacate his guilty plea and proceed to trial before a jury.
Resolution
[29] I am satisfied that Judge Saunders fell into error by neither fixing a starting point nor clearly adjusting for personal features. The sentencing process adopted by the Judge, as I see it, was a product of the circumstances that prevailed at the time, but the result was flawed and involved mistaken reasoning. In these circumstances, I agree with the Crown that the proper course is to approach the sentencing exercise afresh, which I now do.
Starting point
[30] There is no tariff decision for aggravated burglary offending. The Court of Appeal has acknowledged, however, that guidance may be found in R v Mako, its guideline judgment for aggravated robbery.13 It has been held that R v Mako will have particular application for cases involving home invasion and actual violence.
[31] In terms of the Mako guidance, it is clear that the starting points of seven and eight years’ imprisonment adopted here for Messrs Jackson and O’Connell respectively were well within the range available. Given the actual violence, the use of a firearm, the fact they were seeking drugs, tobacco and phones, that it was a private dwelling house and was at least approaching night, the starting point of eight
years for Mr O’Connell, in my view, is unimpeachable.14
[32] The Crown acknowledges that Judge Saunders was entitled to adopt a lesser starting point for Mr Stade given he was not actively involved in inflicting violence or taking property. He was nonetheless involved heavily in the offence. He was the getaway driver, he knew there was a firearm, and he provided mental support to the two primary offenders when committing the offence. It has been held that there “is no justification for treating the assigned roles other than of confronting the victims as
less culpable unless they are truly less than full participants”.15
[33] In this case, I am satisfied it was open to Judge Saunders to distinguish Mr Stade’s culpability from that of his co-offenders on the basis he was less than a full participant. A range of cases cited to me by the Crown establish that a discount of one to two years from the lead offender’s starting point will be justified on the basis
of such diminished involvement.16 Thus, with eight years imposed on Mr O’Connell
as the standard against which the other sentences are to be measured, I am in agreement with the Crown that the most lenient starting point for Mr Stade here
would be six years’ imprisonment (72 months).
13 R v Mako [2000] 2 NZLR 170 (CA).
14 See for example Hay v R [2015] NZCA 329, [2015] NZAR 1426;
15 At [64].
16 Edwards v R [2013] NZCA 349; Jones v R [2015] NZCA 312; R v Royal [2009] NZCA 65.
[34] For completeness, bearing in mind the parity principle, I would consider the
range of available starting points to be between six and seven years’ imprisonment.
Adjustment for personal features
[35] Mr Stade provided no assistance to authorities and is not, therefore, eligible for a discount on this basis. The mitigating features requiring consideration are his relative youth, rehabilitative prospects, and remorse.
[36] In terms of youth and rehabilitative prospects, Mr Stade was 21 at the time of the offending and was not a first time offender. In the ordinary course, previous acquaintance with the criminal justice system tends to diminish if not, at times, to abrogate the credit to be extended for youth. This is ordinarily on the basis that such acquaintance sheets home to offenders that actions have consequences. An offender cannot therefore complain of ignorance or naïveté when either offending or coming once more before the courts.
[37] The more compelling factor in this case is rehabilitative prospects. Mr Stade clearly has substantial family support. His family, it appears, are willing to stand by him notwithstanding his recent actions. It also seems that Mr Stade himself is beginning to appreciate the folly of his actions and the necessity for change. Indeed, he has cut all ties from his co-offenders, he has been an apprentice builder for some years and he needs only to sit the theoretical component of his course, and he has a job waiting for him upon release from prison. These are all factors that provide some basis for providing a discount.
[38] I consider a discount of 18 per cent for personal mitigating features I have identified to be perhaps somewhat generous in these circumstances. Nonetheless, I am prepared to accede to the Crown’s concession that it is not so overly generous as to make it an unavailable discount. Indeed, for relative youth, rehabilitative prospects, and remorse, to the extent it exists, I am prepared to go further and to extend to Mr Stade an increased discount of 20 per cent, which I consider to be the most generous discount possible in all the circumstances.
[39] For absolute clarity, the primary component in this discount is Mr Stade’s rehabilitative prospects. This is a purpose of sentencing I consider Judge Saunders was trying to give full effect to. To the extent possible I have left it intact.
[40] There is no uplift for personal aggravating features.
[41] From the starting point of six years, the adjustment 20 per cent for personal features brings that starting point down to four years, nine months’ imprisonment (57 months).
Guilty plea discount
[42] I struggle substantially with the idea that a guilty plea entered three weeks out from trial, in the face of an extremely strong Crown case, can attract a discount of
18 per cent, as was conceded by the Crown. The Supreme Court in Hessell v R made it abundantly clear that all circumstances must be brought to account in assessing “the true mitigatory effect of the plea”.17
[43] While the credit to be extended for a guilty plea is a matter for the sentencing Judge’s discretion, it must nonetheless be exercised in a principled way. Even in the lead up to a trial, there is some benefit flowing from the entry of a plea (such as freeing up limited judicial resources and not requiring witnesses to attend court, along with the stress occasioned by this). But this must be tempered here against the lateness of the plea and the strength of the prosecution case, particularly in light of the assistance to authorities offered by Mr Stade’s co-offender, Mr Jackson.
[44] While it is clear that Mr Jackson was given an indication of a discount of
18 per cent for a guilty plea, even this seems to be at least at the very limits, of an acceptable discount for a guilty plea simpliciter. Further, it must be remembered that a further six weeks had elapsed before Mr Stade indicated intent to plead. As it transpired, this was only three weeks out from trial. By this time, the Crown case had been substantially strengthened following Mr Jackson’s plea and his offer to
assist the authorities and give evidence.
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [65] and [74].
[45] When viewed in this light, I consider the Crown concession to be unrealistic, albeit well-intentioned. If I were sentencing Mr Stade afresh, the range of credit for a guilty plea would be in the vicinity of 10-15 per cent, and perhaps towards the lower end of that range. In these circumstances, the most generous discount that I think can be afforded to Mr Stade is 15 per cent.
[46] Applying this discount to the present case, this brings the end sentence down
to four years’ imprisonment (48 months).
End sentence
[47] Taking the most favourable approach to Mr Stade in this appeal, the most lenient sentence that can be imposed to remove the manifest inadequacy from this sentence would be one of four years’ imprisonment (48 months). The appeal will be allowed to this extent.
[48] This reflects the lowest possible starting point, the most generous discount for personal mitigating features, and the greatest discount for guilty plea which can be warranted in these circumstances.
[49] The sentence imposed has diverged from that advocated by the Crown for two reasons. First, the Crown amalgamated the discount for guilty plea and other personal mitigating features. It is clear that the discount for guilty plea is to be applied after all other discounts have been accounted for.
[50] Secondly, I have found the Crown’s concession as to the quantum of guilty plea discount to be untenable. By the time Mr Stade had entered his plea, the trial was very much impending and the Crown case was substantially strengthened by Mr Jackson offering to assist the Crown. I consider a discount of 15 per cent to be the greatest possible for Mr Stade’s very late guilty plea in the face of a very strong Crown case.
[51] I do not see any need to impose a minimum period of imprisonment.
General
[52] The approach taken by Judge Saunders was understandable. By all accounts, Mr Stade seems to be a promising young man with good prospects, if he is able to turn his life around following this unfortunate, but very serious offending.
[53] Courses are available in prison, and his family has unequivocally offered their support to Mr Stade both whilst in prison and upon release. His employer equally appears to be extending an olive branch by offering a job upon release. In prison and upon release, Mr Stade will have an opportunity to alter his life for the better. With the support of family and friends I have little doubt he is capable of such an aspiration.
[54] But sympathy for an offender is not a basis which can justify departure from approaching sentencing in a principled manner. When undertaking this sentencing exercise afresh, it becomes apparent that the sentence imposed was manifestly inadequate. There is only so much room to accommodate the personal features of an offender in the wake of a serious crime. This has, perhaps unfortunately, resulted in a more stern sentence being imposed on appeal. The integrity of criminal justice in New Zealand demands no less.
Vacation of plea
[55] The Criminal Procedure Act 2011 is clear. The fact a person has received a sentence indication does not in any way stifle the ability of an appellate Court to impose a more severe sentence on appeal. A defendant is only entitled to vacate their guilty plea with leave, where the appeal court considers it is in the interests of justice to grant leave to vacate.
[56] The end sentence I have reached is substantially different from that indicated to Mr Stade by Judge Saunders, and that to which he was ultimately sentenced. To the extent the indication provided induced a plea of guilty, it seems to me to be the just course that Mr Stade is now afforded an opportunity to vacate his plea. This is particularly so in light of the reference in Mr Eason’s submissions to disputed facts.
[57] If Mr Stade wishes to do so, leave is granted for his plea to be vacated. In the event the plea is vacated, bail will be a matter for the District Court.
Orders
[58] The appeal is allowed. The sentence imposed in the District Court is quashed. It is replaced with a sentence of four years’ imprisonment. There is no minimum period of imprisonment.
...................................................
Gendall J
Solicitors:
Crown Law Office, Wellington
Copy to Colin Eason, Christchurch
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