R v Stevens
[2023] NZHC 144
•8 February 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-069-294
[2023] NZHC 144
THE KING v
STEVENS
Hearing: 8 February 2023 Appearances:
T Afoa for the Crown
S Mills for the Defendant
Sentence:
8 February 2023
SENTENCING NOTES OF ROBINSON J
Solicitors/Counsel: Gordon Pilditch, Rotorua Lance Lawson, Rotorua
THE KING v STEVENS [2023] NZHC 144 [8 February 2023]
Introduction
[1] Mr Stevens, as I am sure you know you’re here today to be sentenced after having pleaded guilty in the District Court to charges of aggravated robbery,1 burglary2 and breach of your release conditions.3
[2] Your matter was transferred to this Court to consider whether a sentence of periodic detention might be appropriate. Justice Lang first reviewed the file and determined that there was no real prospect of preventive detention in this case given the nature of your offending and the sentence that would otherwise be imposed. So Justice Lang didn’t order the reports that I would need to have before me to impose a sentence of preventive detention. I completely agree with Justice Lang, and I will sentence you this morning in accordance with ordinary sentencing principles.
Approach to sentencing
[3] So Mr Stevens the first thing I have to do in deciding your sentence is to fix a “starting point” for your sentence and that will be based on the seriousness of your offending.4 Then I will consider whether the sentence should go up or down depending on personal circumstances, your personal circumstances and that produce the end sentence.
[4] So I’m going to begin by just briefly describing your offending as set out in the summary of facts to which you have pleaded guilty. I know that your aware of what happened, but I need to set this out because others are interested too.
Facts
[5] So, dealing first with the breach of release condition. After you were released from custody on 1 February last year you were subject to standard conditions for six months. Those conditions included that you must report to your Probation Officer as and when required. You did that but only for a very short time, and you did not report
1 Crimes Act 1961, s 235(c). Maximum penalty 14 years’ imprisonment.
2 Section 231(1)(a). Maximum penalty 10 years’ imprisonment.
3 Sentencing Act 2002, s 96(1). Maximum penalty one year’s imprisonment or a $2,000 fine.
4 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
to your probation officer on 28 February 2022, when you were required to do so. And you didn’t contact Community Corrections to provide a reasonable excuse for not doing so. It turns out that instead you left Auckland where you had been sleeping rough, and caught a bus to Taupō.
[6] So, this brings us to the burglary charge. An amended summary of facts records that you were in Taupō in the days leading up to the 31st March 2022. At some point you entered a residential address at 203 Lake Terrace, Taupō. That address is used as a holiday home by the victim, who you do not know. You turned on the power, you ate some food and drank some coffee. On your behalf Mr Mills describes that offending as essentially squatting in order to put a roof over your head and I intend to agree with the way in which Mr Mills has described it.
[7] Third, the aggravated robbery charge. Just before 7 am on the 31st March 2022, you entered the Mobil petrol station at 208 Lake Terrace, Taupō. You asked the shop attendant for a packet of cigarettes. She grabbed the cigarettes from the cabinet behind her and turned back to you to scan the barcode. At that point, you pulled a 29 cm knife from the front of your waistline, pointed it at the victim and said, “You fucking call the cops, I’ll kill you.” The shop attendant threw the cigarettes onto the counter, repeatedly saying to you, “Please don’t kill me, I won’t call the Police.”
[8] You went outside and smoked one of the cigarettes. The shop attendant walked into the office area, locked the door and called the Police. You re-entered the service station, grabbed a bottle of water from the fridge and took a drink. The Police then arrived, and you left the store with the knife in your hand. When challenged by the Police, you dropped the knife, you got to the ground and you were arrested.
[9] The shop attendant was not physically harmed but I have a statement from her and she tells me that she during the incident she was very very scared. She says in her statement to me how that offending has affected her. She says that she honestly believed that you were deciding whether or not you were going to kill her. After you robbed her she was so scared that she couldn’t keep working at the service station. She had to get a new job and that meant that for some time she had less work and therefore less money.
Personal circumstances
[10] I turn now to your personal circumstances briefly. Mr Stevens, your 56 years old. You have roughly 140 previous convictions and 6 Youth Court notations.
[11] Although you are from Tuai in the Hawke’s Bay region, as I say you most recently have been living without a home in the streets of Auckland. I turn more to your personal circumstances shortly.
Purposes of sentencing
[12] In terms of what the Court is trying to achieve today Mr Stevens, I have to think about that when I sentence you and I have thought about that and in sentencing you I need to try to promote in you a sense of responsibility. I need to denounce what you have done to tell you that its wrong and also of course to protect the community. The Court also needs to try to help you with your rehabilitation and your reintegration.
Starting point
[13] So, in terms of the starting point for your sentence, your lawyer, Mr Mills who has done a very good job for you, and Ms Afoa for the Crown agree that the lead charge is the aggravated robbery charge. And they both say that a starting point of three and a half years’ imprisonment is appropriate for that charge.
[14] When I think about that I need to think about what sentences the Courts have set in other cases that may be a bit like yours. The guideline judgment for aggravated robbery is a case called R v Mako. I agree with the lawyers here that the main aggravating feature of your offending is your use of the knife. Also, the Crown points to the threats that you made to the shop assistant and also suggests that the effect on victim is another aggravating feature.
[15] Ms Afoa for the Crown also says there was a low level of premeditation in that you were armed with a weapon.
[16] On the other hand, Mr Mills on your behalf says that you often arm yourself with a knife for protection. He says there was no premeditation, and this was just an opportunistic incident.
[17] I tend to agree with Ms Afoa on this point. It may be that you carry a knife for protection but here you decided to steal the cigarettes and to do that you used the knife to threaten the shop assistant. To me this does show some degree of premeditation, although as the Crown I think responsibly accepts, perhaps not very much.
[18] I’ve read all the other cases that both lawyers have referred me too.5 And I agree that when I compare your offending to that that took place in other cases an appropriate starting point in your case for the aggravated robbery charge is 3.5, three and a half years’ imprisonment.
Uplift
[19] Ordinarily, I would impose an uplift on that sentence to take into account the other two charges and although the Crown does not presently have carriage of those charges, I intend to do that here and Mr Mills very responsibly suggests that it is not inappropriate for me to do that. He has noted that the burglary charges as I’ve said clearly rates to a squatting situation in which you were simply trying to put a roof over your head. He says that the breach of release conditions are intertwined with all of that offending and that it relates to you not reporting to community corrections and leaving Auckland. I agree with Mr Mills on all of that and so I will impose a reasonably small uplift of three months’ imprisonment taking into account all of that relevant background. I therefore adopt a starting point of three years and nine months imprisonment.
Personal factors
[20] So now Mr Stevens I need to think about things that are just about you. In many cases someone with a list of previous convictions like yours would have an
5 See R v Manu [2012] NZHC 1411; Tera v Police [2013] NZHC 1229; R v Wharerau [2017] NZDC 3504; and Reweti v R [2018] NZHC 809.
increase in their sentence because those previous convictions would be looked at as an aggravating factor.
Aggravating factors
[21] You have a very lengthy history of offending going back to 1982. As I’ve said you have approximately 140 convictions including for burglary, robbery and dishonesty offences and you have received many sentences of imprisonment. However, on your behalf Mr Mills says that such an uplift would be inappropriate given your mental health, including your mental health at the time of the offending.6 The Crown agrees with Mr Mills, and so do I.
Mitigating factors
[22] So, I am now going to think about things Mr Stevens, about you, which might reduce your sentence from three years and nine months. Mr Mills says that your sentence should be reduced to take into account your mental health and also other aspects of your personal background. And those have been set out in a Comprehensive Report that’s been prepared to help me with your sentencing today.
[23] In terms of your mental health, I have two reports in front of me. One by Dr Kevin Austin and one by Dr Peter Dean. Both of those reports make reference to your long-standing mental health issues. They both detail a long history of schizophrenia. Dr Dean reports that you have had several lengthy admissions for rehabilitation to forensic impatient psychiatric care. You have received a range of psychiatric medication and I understand that you are presently taking psychiatric medication albeit not that which you might be taking were you not currently in prison. Dr Dean considers that your long-standing pattern of anti-social behaviour is consistent with a diagnosis of anti-social personality disorder. I also note and accept that Dr Dean and Dr Austin considers that it is likely that your schizophrenia was active at the time of your offending.
6 See E (CA689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [70].
[24] In terms of your background more generally Mr Mills also refers me to Dr Dean’s report noting that you were, that your upbringing was chaotic, and you suffered extreme parental neglect. You were placed into foster care where Dr Austin reports you suffered physical, sexually and psychological abuse. You were uplifted and placed into that state care at the ages, between the ages of 9 and 12. You ran away from home when you were 13 and never saw your parents again.
[25] You told the author of the Department of Corrections pre-sentence report that you have attempted to commit suicide on three occasions, one as recently as 31 August 2022. The prison notes confirm what you told those people, and that you are monitored for self-harm risk.
[26] Overall, I agree with Mr Mills who says that it is clear from the reports that you are a person whose life has left you largely incapable of self-care and highly institutionalised. You clearly struggle to survive on your own.
[27] For the Crown, Ms Afoa responsibly agrees that your mental health is a mitigating factor.7
[28] Mr Mills submits that an overall discount taking into account your mental health and the issues outlined in the comprehensive report, that an overall discount of 25 per cent. I agree with that assessment. I also agree with Mr Mills’ submission that in the circumstances it is a little bit artificial to try and separate the mental health issues, your mental health issues from the issues arising from your upbringing and described in the comprehensive report. However, if I am required to provide some sort of breakdown, I would provide a discount of 15 per cent to reflect the mental health issues and 10 per cent to reflect the issues set out in the cultural report. In any event, as I say I accept Mr Mills’ submission that a 25 per cent discount is appropriate.
Guilty plea
[29] Mr Mills says that you are entitled to the full 25 per cent discount to reflect your guilty plea. He points out that you pleaded guilty to the burglary and release
7 Counsel cite E (CA 689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411, at [71]; Orchard v R
[2019] NZCA 529, [2020] 2 NZLR 37 at [48].
condition charges at a very early stage. He submits that any delay in pleading guilty to the aggravated robbery charge was due to counsel obtaining psychiatric reports so that Mr Mills could consider what defences may be available to you, and other issues that he needed to advise you on and that he needed those reports in order to do so.
[30] Ms Afoa accepts that a discount of 25 per cent is appropriate and I am prepared to allow a discount of 25 per cent in light of your guilty plea.
Final sentence
[31] Overall, this gives rise to a discount of 50 per cent to be applied to an end sentence of three years’ and nine months or 45 months. Rounding this down slightly gives rise to an end sentence of 22 months imprisonment.
Home detention
[32] Mr Mills does not seek home detention. I agree Mr Stevens that home detention is not appropriate for no other reason that, sadly, you have no home to go too.
Post -detention conditions
Before I confirm Mr Stevens’ sentence, I make the following comments. The Department of Corrections pre-sentence report concludes that Mr Stevens has a high risk of harm and re-offending given his very lengthy criminal history. That is clearly a reasonable conclusion. However, as I have briefly set out, Mr Stevens has significant mental health issues for which he should receive treatment and support, rather than punishment. As Dr Dean noted in his report, there are options available for transfer to a hospital under s 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 in the event that Mr Stevens’ mental state deteriorates and he requires acute care. However, I agree with Dr Dean that in any event Mr Stevens will need considerable support on his release into the community. Clearly he would benefit from stable accommodation, social support and proper mental health care.
Result
[33]Mr Stevens, would you please stand.
[34] On the lead charge of aggravated robbery, I sentence you to 22 months’ imprisonment.
[35]On the charge of burglary, I sentence you to three months’ imprisonment.
[36] On the charge of the breach of release conditions I sentence you to one month imprisonment.
[37]The sentences are to be served concurrently.
[38] Following the completion of that sentence you will be subject to the six months’ standard post release conditions as set out in the Sentencing Act and the Parole Act.
[39]Thank you Mr Stevens, you may stand down.
Robinson J
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