R v Stephens HC Auckland CRI 2010-004-1971

[2010] NZHC 2127

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-001971

CRI-2010-004-002752

THE QUEEN

v

QUENTIN STEPHENS AYMEE OPETAIA

Appearances: C M Ryan for Crown

L Freyer for Prisoner (Stephens) G W Wells for Prisoner (Opetaia)

Judgment:      2 November 2010 at 9:15 am

SENTENCING NOTES OF COURTNEY J

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – C Ryan

Counsel:             L Freyer, P O Box 6069, Wellesley Street, Auckland 1141

Fax: [phone]

R V STEPHENS & ANOR HC AK CRI-2010-004-001971  2 November 2010

Introduction

[1]      Quentin  Stephens  and  Aymee  Opetaia  appear  for  sentence  today  having pleaded guilty to a number of offences committed by the two of them over a period of three days in February 2010.  At the time of the offending both had been using methamphetamine, which is undoubtedly a factor in the offending.   The offences committed  jointly  included  two  instances  of  aggravated  robbery,  kidnapping, burglary and a number of other, less serious, offences.  Mr Stephens has also pleaded guilty to two instances of aggravated injury committed during this crime spree.  In addition Ms Opetaia has pleaded guilty to one charge of aggravated burglary arising from an incident in October 2009 in which Mr Stephens was not involved.  Later I will come to talk about Mr Stephens and Ms Opetaia separately but for now I just mention briefly their personal situation.

[2]      Mr Stephens is now 34 years old.   He has had an unstable and deprived childhood.   His teenage years were marked by drug and alcohol abuse.   He has a depressingly long criminal history dating back to 1991.  Mr Stephens has been in a relationship with Ms Opetaia for about a year.  She is much younger, only 20 years old.   She has also had an unstable life, has drug problems and a large number of convictions.

[3]      The  2010  offences  arose  from  seven  specific  incidents  which  I describe briefly.  The first occurred on the morning of 1 February 2010 and was the burglary of items from a home of victim M together with the theft of a Nissan Pulsar, which was used over the next three days to commit other crimes.

[4]      The second incident occurred on the morning of 2 February 2010 and was the theft of a phone and cash from a shop owned by victim H.

[5]      The third offence occurred on the afternoon of 3 February 2010 and was the theft of a handbag belonging to victim Q.  Mr Stephens wrenched the handbag from her grip as she walked along the street while Ms Opetaia distracted her.

[6]      The fourth incident occurred at 7 pm at a residential house in Mount Roskill occupied by victims T and H.   They were not home at the time.   The offenders entered  the  property  by  smashing  a  glass  window  panel  and  took  personal

belongings.  While they were still there victims B and S arrived at the property to ask about renting it.  Mr Stephens threatened victim B with a hammer and demanded that he hand over his wallet, which he did.   Ms Opetaia demanded that victim S hand over her rings, punching her in the neck.

[7]      The  fifth  incident  occurred  shortly  after  7:45  pm  on  the  same  evening,

3 February 2010.  Victim G was walking to his flat in Upper Queen Street and on entering the block of flats was confronted by Mr Stephens, still carrying the hammer used in the previous robbery.   He forced victim G into the front footwell of the Nissan Pulsar.   Ms Opetaia drove to an ATM machine on Symonds Street, where victim G was forced to withdraw money from his bank account.  Victim G gave him cash from the ATM machine.   In the meantime Ms Opetaia had removed his cellphone from the victim’s backpack.  They then drove off, leaving the victim at the ATM machine.

[8]      The sixth incident occurred at a café in Point Chevalier at 8:15 pm on the same  night.    Victim  R  was  sitting  at  a  table  outside  the  café  using  his  iPod. Mr Stephens wrenched the iPod from his hand.  A struggle ensued during which the victim fell to the ground sustaining minor injury.  Mr Stephens then tried to take his backpack at which point members of the public intervened.  A staff member, victim MS, was manhandled to the ground.   A customer, victim RH, was punched and kicked several times as he lay on the ground causing bruising and grazing to his face and a fractured foot.  Victim MS was then punched in the face and sustained severe bruising to her face and bruising to her arms.  Mr Stephens got in the Nissan Pulsar with Ms Opetaia and drove away.

[9]      Finally, later the same night the police located the Nissan Pulsar off Great North Road.   Mr Stephens and Ms Opetaia were found hiding in gardens nearby. Their apprehension at that point resulted in the charges of possession of needles and syringe for drugs and unlawfully being on the property.

[10]     In  the  October  2009  incident  Ms  Opetaia  and  a  male  associate  (not Mr Stephens) who was brandishing a screwdriver, entered an apartment and took money and belongings from the occupants.   Although Ms Opetaia initially waited outside the apartment, she later went in and while her associate stood over the

occupants with the screwdriver she rifled through the apartment collecting items to take.  As she left she punched one of the victims in the face.

[11]   As one might expect these various offences have caused the victims considerable distress.  The victim impact reports disclose feelings of shock, ongoing fear, distress at losing personal possessions, and in two cases, quite serious injuries which have had ongoing effects.   It is apparent that the fear engendered in the victims  as  a  result  of  these  attacks  has  been  significant,  with  several  reporting ongoing fear about their safety at home and nervousness about safety in their workplace.

[12]    The primary objective in sentencing on charges like this are to achieve accountability for the harm done to the victims and to the community, to obtain responsibility for and acknowledgement of harm, provide for the victims’ interests, denounce and deter this kind of offending, protect the community and facilitate

rehabilitation and reintegration into the community.[1]

[1] s 7 Sentencing Act 2002

[13]     In achieving these objectives I am bound to apply the principles set out in s 8 of the Sentencing Act 2002.  Relevant in this case are the gravity of the offending, the seriousness of the type of offence, consistency with other similar cases and the effect of the offending on the victim.

[14]     Because all of the February 2010 offences occurred within a relatively short period and were effectively part of a single crime spree it is my intention to impose concurrent sentences in respect of those offences.   The October 2009 incident, however, was quite separate and I intend to impose a cumulative sentence on that charge.

Aymee Opetaia

[15]     I begin by considering Ms Opetaia’s position.  She is being sentenced jointly with Mr Stephens on the charges of aggravated robbery (other weapon), kidnapping, aggravated robbery, robbery, burglary, unlawful taking of a motor vehicle, theft, possession of needle or syringe for drugs, theft, shoplifting.  She appears alone on the charge of aggravated burglary relating to the incident on 24 October 2009.

[16]     Mr  Wells,  for  Ms  Opetaia,  had  initially  submitted  that  the  aggravated burglary should be treated as the lead offence for all the offending.  But given my intention to impose a cumulative sentence in respect of that charge that is not an option.  I therefore begin with the October 2009 offence.  This was serious offending because it involved Ms Opetaia’s associate entering the victims’ apartment brandishing a screwdriver with Ms Opetaia following a little later.   While her associate kept the victims under control in the lounge, Ms Opetaia went through their apartment including clothes drawers in their bedrooms, rifling through them and collecting items to take and on leaving she punched one of the victims in the face. The value of the goods taken in that burglary was about $8,000.

[17]     In considering an appropriate starting point I have had regard to previous cases that have some similarity with the present case.[2]    Although Ms Ryan, for the Crown, submitted that I should be guided by the Court of Appeal’s decision in Mako which involved sentencing on aggravated robbery charges, I intend to look at the cases involving aggravated burglary as being more specifically similar to the present case.  Of these, R v Patrick is probably the closest though the present offending was

worse because of the actual violence inflicted on one of the victims and the fact that there were two offenders.   In Patrick the Court of Appeal considered that the available range for a starting point was three-and-a-half to four years and took a starting  point  of  three  years  nine  months.     Given  my  conclusion  as  to  the comparative seriousness of the offending, I take as a starting point in this case five years.  That starting point is to be adjusted for Ms Opetaia’s previous convictions. Although only 20 years old Ms Opetaia has a poor record.   Since 2008 she has offended consistently accumulating 19 convictions including receiving stolen property and burglary.  I therefore adjust the starting point by a year for the previous convictions bringing the final term before a discount for the guilty plea to six years. Ms Opetaia pleaded guilty at an early stage and is entitled to a full one-third discount for that plea.  This results in a final sentence of four years.

[2] R v Patrick [2008] NZCA 115; R v Drewett [2007] NZCA 48; R v Gore CA414/05, 2 March 2006

[18]     I turn then to the 2010 offending.  I take as the lead offence the aggravated robbery of victim G and start by fixing an appropriate starting point.  I am assisted in

this by the Court of Appeal’s decision Mako[3], and by later similar cases.  In Mako the Court of Appeal identified a number of factors relevant to assessing the seriousness of this type of offending and indicated ranges of sentences.   Factors identified as relevant and which are present in this case are that there was a degree of planning or premeditation.   There were two offenders involved which inevitably increased the level of intimidation and fear for the victim.  A weapon was used to intimidate the victim, being the hammer brandished by Mr Stephens.   There was actual violence with the victim being forced into the footwell of the car.   Finally, although the amount taken may not be large, it did, in fact, represent almost all the money in the victim’s bank account.  I consider that an initial starting point of six years fairly reflects this offending.

[3] [2000] 2 NZLR 170

[19]     This starting point is then to be subject to an uplift to reflect the totality of the offending in February 2010.  Ms Opetaia has sought to minimise her involvement in the  offending  but  it  is  clear  that  she  is  fully  involved  in  the  three  aggravated robberies and in the other offending, except for the aggravated injury of victims MS and RH at the café for which she has not been charged.  Her offending was serious and I consider that an uplift of two years fairly reflects her involvement, bringing the starting point to eight years.

[20]     Usually I would then adjust for the aggravating feature of Ms Opetaia’s previous convictions which I have already discussed.   However, given that I have already made that adjustment I do not intend to make a further adjustment in respect of the 2010 offending.   This leaves eight  years as the final  figure from which Ms Opetaia is entitled to a discount of one-third which would reduce the sentence to five years three months.  With some little hesitation I allow a very slight reduction to recognise her age and immaturity.  This is not a significant factor for me and I have already indicated to her counsel that I consider her to be well old enough to know right from wrong.  However, I make a reduction of three months to bring the final sentence to five years which is to be served cumulatively with the sentence for aggravated burglary.

[21]     On the remaining charges I impose the following sentences:

•         18 months on the burglary charge

•         One year on the unlawful taking of a motor vehicle

•         Six months for the theft/shoplifting charge

•         Three months for the theft of a person charge

•         18 months on the second burglary charge

•         Five-and-a-half years on the aggravated robbery of victim B

•         Five-and-a-half years for the aggravated robbery of victim S

•         Three years for the kidnapping of victim G

•         18 months for the robbery of victim R

•         Three months for the possession of needle and syringe for drugs

•         One month for being unlawfully in an enclosed yard.

[22]     These sentences will all be served concurrently with the sentence imposed for the aggravated robbery of victim G.

[23]     The Crown contends for a minimum period of imprisonment under s 86 which permits a minimum period of imprisonment longer than that otherwise applicable under the Parole Act 2002 if that period is insufficient to hold the offender accountable for the harm done by the offending, denounce the conduct, deter the offender and others and protect the community.

[24]     Mr Wells submitted that as an incentive for working towards early release it would  be  preferable  not  to  impose  a  minimum  period  of  imprisonment,  that Ms Opetaia knows she needs help and ought to be given the opportunity to work towards an early release.   However, I intend to impose a minimum period of imprisonment because of the serious nature of the offending and, in particular, because of my grave concern at the escalation between the October 2009 offending and that in 2010 when she and Mr Stephens embarked on this serious crime spree.  I

have no doubt that Ms Opetaia’s drug use is a significant factor and consider that a minimum period of imprisonment is needed to ensure that the purposes identified in s 86(2) are achieved.  I impose a minimum period of imprisonment of two-thirds of her final sentence, being three years three months.

Quentin Stephens

[25]     I turn then to consider Mr Stephens’ position.  The Crown has submitted that a  sentence  of  preventive  detention  should  be  imposed  in  this  case  and  that submission requires careful consideration of the factors identified by s 87 of the Sentencing Act 2002.  But I am going to start by considering what finite sentence would be appropriate for the 2010 offending, if a finite sentence were to be imposed.

[26]     I take as the lead offence the aggravated robbery of victim G, for the reasons I have already discussed and a starting point of six years.  That starting point would, however, be increased for the totality of the offending which included the aggravated injury of victims MS and RH.  When looked at in totality the picture is very serious indeed.   Although the aggravated robbery against victim G was the most serious offence there were others that were close.   Victim B’s wallet was obtained under threat of violence with a hammer.  The theft of his wife’s wedding and engagement rings was effected with actual violence with Ms Opetaia punching her in the neck. The first burglary was effected with the occupants of the house inside asleep.  The incident at the Point Chevalier café involved actual and quite serious violence. Looking at the nature of the offending and the effect on the victims and taking into

account the outcomes in other similar cases[4] I consider that an uplift of three years is

warranted, resulting in a starting point for the offending of nine years’ imprisonment.

[4] R v Keremete CA411/03, 8 July 2004; Police v Moala HC Auckland CRI-2006-404-000389, 2 March 2007; R v You [2009] NZCA 534; Ormandy v R HC Christchurch CRI-2009-409-000099, 20 August 2009

[27]     This  starting  point  is  adjusted  further  to  take  account  of  Mr  Stephens’ criminal history.  Apart from Youth Court convictions he has 56 convictions ranging from dishonesty (theft and fraud), drug-related convictions, a conviction for possession of weapons, 19 breach-related offences and 19 convictions for violent offences.    The  early  criminal  history  comprises  relatively  minor  offences  and although  it  is  a  factor  to  consider  I do  not  place  great  weight  on  these  minor

offences.  But in 1996 Mr Stephens was imprisoned on two charges of aggravated robbery and one of aggravated wounding.   Following release from prison he was convicted of more offences, relatively minor, and then in 2006 imprisoned again on two further charges of aggravated robbery.  I consider the significance of this history in more detail later.  But for present purposes I regard this history as warranting an uplift of two years, which would bring the finite sentence to 11 years if it were to be imposed.  From that there would, of course, be a discount of one-third to reflect Mr Stephens’ guilty plea.

[28]     At this point, however, I am going to turn to the issue of preventive detention and I am going to indicate now that I intend to impose a sentence of preventive detention.  This sentence is provided for by s 87.  It is available only in respect of a person who has been convicted of a qualifying offence and was 18 years or over at the time of the offence and where the Court is satisfied that the person is likely to commit another qualifying offence if released at the sentence expiry date of any finite sentence.

[29]     The aggravated robberies against victims G, B and S, the robbery of victim R, the kidnapping of victim G, and the aggravated injury offences in respect of victims  MS  and  RH  are  all  qualifying  offences.    The  underlying  purpose  of preventive detention under s 87 is the protection of the community from further offending.   I have carefully considered cases with some similarity to the present where finite sentences have been imposed, as well as those in which preventive

detention has been imposed.[5]    In R v Edwards for example the Judge dealt with an

offender with a long history of violent offending who had pleaded guilty to nine charges, two of which were aggravated robbery.  The Judge did not accept that the spree of offending was an aberration.  He was not confident that the offender was prepared to deal with his drug abuse which was a significant contributing factor and did not consider that the community would be sufficiently protected by a lengthy finite sentence.    That  conclusion  was  affirmed  on  appeal.    I am  facing similar considerations in this case.

[5] R v Keremete CA411/03, 8 July 2004; R v Edwards CA223/04, 17 November 2004; R v Collett

CA83/04, 30 August 2004

[30]     When considering whether to impose a sentence of preventive detention I am required by s 87(4) to take into account five particular factors.  These are any pattern of serious offending disclosed by the offender’s history, the seriousness of harm to the  community  caused  by  the  offending,  information  indicating  a  tendency  to commit serious offences in the future, the absence of or failure of efforts to address the cause of the offending, and the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society.

[31]     I have received reports from Kim Bradley, a registered clinical psychologist, and Dr Ian Goodwin, a consultant psychiatrist, which I have considered carefully for the purposes of today’s sentencing.  They both refer to Mr Stephen’s history, which I need to comment on.   I have aready mentioned the fact that, now in his mid-30s, Mr Stephens has been offending fairly consistently since he was 14 and apart from Youth Court convictions has 56 convictions ranging from dishonesty to violence, 19 of the convictions are for violent offences.  Notable among them is the conviction for aggravated robbery causing grievous bodily harm in 1996, for which he was sentenced to six years’ imprisonment.   Ten years later he was convicted on two charges of aggravated robbery involving the robberies of banks using a device that he and his co-offender claimed was a bomb.   He admits that this modus operandi was his idea.  Those offences attracted terms of four years’ imprisonment.  I have to conclude that there is a pattern of serious offending in Mr Stephens’ past.

[32]     The second consideration is the seriousness of the harm to the community as a result of the offending.  Given the nature of it, it is in fact fortunate that none of the victims were seriously hurt.  Two, however, suffered moderate injuries that required hospital treatment and time off work.   I have referred to the the victim impact statements which show the fear engendered in the victims as a result of the offending and the ongoing feelings of not being safe.   The offending was persistent and, worryingly, escalated in seriousness over the three days before the offenders were caught.  I accept Ms Freyer’s submission for Mr Stephens that the violence was not as serious in other cases in which preventive detention has been imposed.  But it was nonetheless serious offending which targeted innocent members of the public going about their lawful business.

[33]     I come now to the question of information indicating a tendency to commit serious offences in the future.   This is a very important consideration because the purpose of preventive detention is prevention, not punishment.   It is aimed at protecting the community and integral to this issue is the likelihood of future offending.  Both Ms Bradley and Dr Goodwin consider this issue in some detail.  I have already referred to Mr Stephens’ deprived upbringing.  He has had no contact with his father.  His mother was neglectful and sometimes abusive, and he spent long periods in foster care.  He was the subject of care and protection orders from the age of nine and recalls about 20 short-term placements.   By his early teens he was rebellious, running away and involved in persistent minor offending.   He reports behavioural difficulties at school and consistently being in trouble.   Mr Stephens’ mother has written to this Court in support of her son today.  She describes her own life as being one of neglect and abuse which goes in large part to explain her own failings as a mother and Mr Stephens’ offending.   It is impossible not to have sympathy with  families  in  which  this  kind  of  deprivation  and  abuse  carries  on through generations.  But I do emphasise that my focus at this point is on the safety of the community.

[34]     Mr Stephens has no formal qualifications, though to his credit he has used previous terms of imprisonment to undertake adult literacy courses.   Apart from a brief period of employment he has had either little or no employment throughout his life.

[35]     He has a history of drug and alcohol abuse dating back to his childhood.  He has abused alcohol, been a heavy user of cannabis and in recent years used methamphetamine.  At the time of this offending he claims to have been awake for several days as a result of methamphetamine use.   He has gang associations and described  the majority of  his  associates  whether  gang-affiliated  or  not  as  being supportive of an anti-social lifestyle and of substance abuse.  This, I also think, is a significant factor where offenders do not have the benefit of friends and associates who are prepared to set their moral compass and tell them what they are doing is wrong.

[36]     Mr Stephens’ domestic life has also been unstable.   He has three children with one partner whom he does not really see.  He acknowledges the possibility of

five other children.  He has been in a relationship with Ms Opetaia for about a year leading up to this offending but that has been tumultuous and unstable and the couple has had no fixed abode.

[37]     Against this background the psychologist, Ms Bradley, assessed Mr Stephens on the ROC*ROL actuarial risk measure and reported a high score estimating a high likelihood of serious recidivism within five years of release.  A further assessment undertaken by reference to the psychopathy checklist: screening version (PCL:SV) also produced a high score indicating a high probability of serious re-offending following release into the community.  Ms Bradley particularly noted that one of the scores (a sub-scale indicating deceitfulness, lack of empathy and remorse) was high, reflecting a higher risk of re-imprisonment within a shorter time.  I note at this point that Mr Stephens strongly resists the suggestion that he is not remorseful.  He has written to me on this point and I do accept that however he may have expressed himself in the past, today he is genuinely remorseful.

[38]     Some   of   the   particular   factors   identified   as   being   associated   with Mr Stephens’ risk of violent recidivism were his history of violence from a young age, his violent lifestyle, negative and anti-social attitudes, difficulty with emotional control, a history of using weapons, a tendency to minimise or shift responsibility for his offending, substance abuse and poor compliance with previous supervision and mediation attempts.

[39]     Ms Bradley’s conclusion was that, while the long-term prediction of risk is inherently problematic, the current assessment estimates a high likelihood of violent re-offending by Mr Stephens in the future.   She recommended that he undertake intensive   specialist   rehabilitative   treatment   designed   to   address   his   needs, particularly alcohol issues and violent propensities.

[40]    This latter recommendation raises the question of whether Mr Stephens’ previous attempts to overcome causes of his offending has any significance.  During previous terms of imprisonment Mr Stephens reported beginning courses relating to drug and alcohol and anger management but never completed them.  During his most recent treatment in prison he did complete a medium intensity rehabilitation programme  aimed  at  teaching  offenders  to  change  their  thoughts,  attitudes  and

behaviours that led to offending.  Regrettably, however, as Ms Bradley observes, his quick lapse into re-offending after being released in January 2009 suggests that these efforts were not successful.

[41]     Dr  Goodwin,  the  psychiatrist,  emphasised  the  risk  of  future  offending resulting from Mr Stephens’ use of methamphetamine.  He sees drug and alcohol as being essential to reducing the risk that Mr Stephens poses to the community.

[42]     As I have mentioned, Mr Stephens has written to me and I accept that he is genuinely remorseful and I accept what he says about a genuine desire to address the problems that he has in terms of drug and alcohol abuse and anger management.  The difficulty I have is that whilst these are genuine feelings, it is clear that Mr Stephens has seriously underestimated the difficulties he will face in conquering the problems that he has.  Many of his issues are very deep-seated and will take a long time and considerable resolve to overcome.

[43]     Considering all of the factors that I have been faced with I am left with very grave concerns that release in the foreseeable future will be very likely to lead to serious violent re-offending by Mr Stephens.  Not only would this be a terrible thing for the community but in fact for Mr Stephens himself it would be a bad thing.  Mr Stephens himself deserves the long opportunity to really get to grips with the problems  that  he  has.    Set  against  his long  history of  offending  and  failure  to complete previous drug and alcohol, anger management programmes, I have reached the conclusion that a sentence of preventive detention is needed for the community’s protection and I do not consider that the community is sufficiently protected by a lengthy finite sentence.

[44]     Given that conclusion I am required by s 89 to impose a minimum period of imprisonment of at least five years.   Under s 89(2) the minimum period of imprisonment must be the longer of either the minimum period of imprisonment required to reflect the gravity of the offence or the minimum period required for the purposes of safety to the community.   I have already indicated that had I been imposing a finite sentence the starting point would have been 11 years.   In my judgment a non-parole period in that situation would have been six years six months. My assessment is that this would be the minimum period needed for the purposes of

s 89(2) as well.   I would have thought that if Mr Stephens is at all motivated to address these issues then he would need every minute of that length of time to deal with his problems.  I therefore impose a minimum term of imprisonment of six years and six months.

Addendum

[45]     Ms Ryan has rightly drawn to my attention that the five-and-a-half year terms on the aggravated robberies for victims B and S imposed on Ms Opetaia would exceed the five year final sentence reached on the lead charge.   This was not my intention and I therefore quash those sentences and substitute them with sentences of five years.

Further addendum – 12 November 2010

[46]    Subsequent to this sentencing I received advice regarding the charge of unlawfully being in an enclosed yard. Contrary to my understanding, only Mr Stephens was charged with this offence which had, in any event, been withdrawn several months ago. The result is that no sentence should have been imposed for this

offence and the sentence imposed is quashed.

P Courtney J