R v Stevens - [2021] NZHC 2026

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2019-019-007418

[2021] NZHC 2026

THE QUEEN

v

JAMES DILLON STEVENS

Hearing: 5 August 2021

Appearances:

D McWilliam for the Crown R Webby for the Defendant

Judgment:

5 August 2021

SENTENCING NOTES OF POWELL J

R v STEVENS [2021] NZHC 2026 [5 August 2021]

[1] James Stevens, you appear for sentence having been found guilty at trial of sexual violation by unlawful sexual connection (“the sexual violation”)1 and attempted unlawful sexual connection with a boy under 12 (“the attempted sexual connection”).2 You had also previously pleaded guilty to a charge of breach of sentence of supervision.

[2] As you are aware the focus of your trial was on the second of these offences, the attempted sexual connection. You were well known to the victim, then aged 11, and his family who had initially welcomed your apparent friendship, although you had subsequently been asked to stay away. On 29 November 2019, you rode your bike several times along the street where the victim lives in an effort to meet with him. You eventually made contact after he had left the local swimming pool and was walking home.

[3] About 100 metres from the victim’s home you took the victim down a driveway. At the rear of the house at the end of the driveway there was a deck, and you proceeded to sit in a deckchair. You pulled down your pants and were in the process of getting the victim to have oral sex with you, that is putting your erect penis into his mouth, when a neighbour, who had seen you both go down the driveway, intervened. When confronted, the victim ran away, and you pulled up your pants and left the property.

[4] When Police were called the victim gave an evidential interview and in the course of that interview stated that he had previously had oral sex with you. This account, confirmed in the victim’s evidence at your trial, provided the basis for the verdict on the first charge, the sexual violation, although little further detail was provided.

[5] There can be no doubt that the victim in this case, and indeed his family, have suffered significant harm as the result of your offending. This is apparent not just from the victim impact statements that have been referred to today which I have received from both the victim and his grandmother, but the effects are also clear from the

1 Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty 20 years’ imprisonment.
2 Crimes Act 1961, s 132(2). Maximum penalty 10 years’ imprisonment.

various psychological and psychiatric reports before me, particularly the report of Ms Young. The victim has described feeling bad about himself because of what has happened. He says he “struggle[s]” mentally” with what you did to him. He is afraid of you and often worries that you are going to come after him and his family and do…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Stevens

Details

AGLC: R v Stevens [2021] NZHC 2026
Case: [2021] NZHC 2026
Decision Date: 5 August 2021

CaseChat Overview and Summary

In the High Court of New Zealand, James Dillon Stevens was convicted of sexual violation by unlawful sexual connection and attempted unlawful sexual connection with a boy under 12, as well as breach of a sentence of supervision. The central legal issues for the court were whether the defendant should be sentenced to a finite term of imprisonment or preventive detention, and if the latter, what the minimum period of imprisonment before parole eligibility should be.

The court began by discussing the purposes and principles of sentencing under the Sentencing Act 2002, which include holding the offender accountable, promoting responsibility, denouncing the conduct, deterring the offender and others, and protecting the community. Given the seriousness of the offences and the vulnerability of the victim, the court was required to impose the least restrictive sentence appropriate to achieve these purposes. The court considered whether sentencing Stevens to a finite term of imprisonment without parole would be "manifestly unjust" given his personal circumstances and the nature of his offending.

The court determined that a finite sentence for the attempted sexual connection offence, as a third-strike offence, would be 10 years imprisonment without parole. However, the court found that this would be manifestly unjust given the extensive difficulties Stevens faced due to perinatal hypoxia, Moebius Syndrome, and other cognitive issues. A 20% discount brought the notional sentence to around seven years. The court concluded that sentencing Stevens to 10 years without parole was grossly disproportionate and manifestly unjust.

Turning to preventive detention, the court found that Stevens was likely to commit another qualifying offence if released at the end of a finite sentence due to his pattern of serious offending and high risk of reoffending. While specialised rehabilitation may be required, it was uncertain whether it would lower Stevens' risk. The court determined that preventive detention was necessary to protect the public. The minimum period of imprisonment before parole eligibility was set at seven years, the same as the finite sentence that would have been manifestly unjust.

Stevens was sentenced to preventive detention for the attempted sexual connection offence, with a minimum period of imprisonment of seven years. He was also sentenced to seven years' imprisonment for the sexual violation offence, to be served concurrently. He was convicted but discharged for the breach of sentence of supervision charge.

Orders