Stehlin v The the Queen
[2022] NZHC 1619
•11 July 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-000084
[2022] NZHC 1619
BETWEEN CHEROKEE STEHLIN
Appellant
AND
THE QUEEN
Respondent
Hearing: 8 July 2022 Appearances:
J N Olsen for Appellant
A McConachy for Respondent
Judgment:
11 July 2022
JUDGMENT OF LANG J
[on appeal against sentence and refusal to grant name suppression]
This judgment was delivered by me on 11 July 2022 at 10.30 am.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Rotorua
STEHLIN v R [2022] NZHC 1619 [11 July 2022]
[1] Mr Stehlin pleaded guilty in the District Court to charges of wounding with intent to cause grievous bodily harm and being in unlawful possession of a firearm. On 1 July 2022 Judge E P Paul sentenced Mr Stehlin to two years five months imprisonment.1
[2] Mr Stehlin appeals against sentence. He contends the Judge erred by fixing a starting point for the sentence that was too high and then provided him with insufficient discount to reflect mitigating factors. He says this resulted in a sentence that was manifestly excessive. He asks this Court to reduce the sentence to one of less than two years imprisonment. He then contends he should be sentenced to home detention rather than imprisonment.
[3] Mr Stehlin also appeals against a further decision the Judge made the same day declining to grant him permanent name suppression.2
The offending
[4] In the early hours of 27 September 202 Mr Stehlin and some associates were travelling in a motor vehicle towards Rotorua on Fairy Springs Road. They observed the victim and his partner walking along the footpath. The pair were intoxicated and the victim’s partner fell to the ground. Mr Stehlin saw this and believed the victim may have been assaulting his partner.
[5] Mr Stehlin got out of the vehicle carrying a shotgun. He then became involved in a verbal altercation with the victim that resulted in the two men pushing each other. At this point Mr Stehlin pointed the shotgun at the victim and shot him in his left leg. Mr Stehlin then got back into his vehicle and left the scene.
[6] The victim was able to call emergency services and then used his belt to apply a tourniquet to his leg. After being taken to hospital he was the subject of three separate operations to repair a fractured femur that had splintered in multiple places just above the knee joint. At that point there was a risk that his left leg may be amputated.
1 R v Stehlin [2022] NZDC 12480.
2 R v Stehlin [2022] NZDC 12192.
[7] After reading publicity about the incident Mr Stehlin went to the police station on the following day. Mr Stehlin told the police he thought it may have been him that was involved in the shooting. He said he had got a ride home from Mamaku and that as they drove along Fairy Springs Road, he saw what believed to be a male beating a female. He said he asked the driver of the vehicle to pull over. He then got out of the vehicle. He said he could not remember what happened from that point.
[8] Mr Stehlin also told the police he had found the firearm in a pocket in the door of the vehicle.
A The appeal against sentence
The sentence
[9] At sentencing the Crown contended the starting point for the sentence should be one of nine years imprisonment, whilst Mr Olsen submitted on Mr Stehlin’s behalf that a starting point of no more than six years was appropriate. The Judge considered the offending fell at the upper end of Band 2 identified in R v Taueki,3 calling for a starting point of between three and eight years imprisonment. The Judge considered the aggravating factors of the offending warranted a starting point of eight years imprisonment.
[10] The Judge then canvassed several mitigating factors. These included the fact that Mr Stehlin was just 17 years 10 months of age at the time of the offending and is now just 19. The Judge applied a 25 per cent discount to reflect this factor. He then applied a further discount of 25 per cent to reflect the fact that Mr Stehlin had entered guilty pleas to the charges and five per cent to reflect remorse.
[11] The Judge applied a further discount of ten per cent to reflect mitigating factors identified in several reports that had been tendered by Mr Stehlin’s counsel, including one under s 27 of the Sentencing Act 2002. This report disclosed that Mr Stehlin had an upbringing marked by violence and prompted in part by alcohol and substance abuse by those in his household. He also suffered from a cultural disconnect between
3 R v Taueki [2005] 3 NZLR 372 (CA).
his Māori and Samoan heritages and had been raised in a gang environment given that his father was, and remains, a patched member of the Mongrel Mob.
[12] These discounts resulted in a reduction of 65 per cent, or five years two months, from the starting point of eight years imprisonment. From the resulting sentence of two years ten months imprisonment the Judge applied a further discount of five months to reflect the fact that Mr Stehlin had been subject to restrictive EM bail conditions for a period of approximately 17 months. This resulted in the end sentence of two years five months imprisonment.
The starting point
[13] As the Judge observed, Mr Stehlin’s offending involved the use of a weapon fired at close range at the victim’s legs. Mr Stehlin had taken the weapon to the scene. The act of discharging the firearm at such close range created an obvious risk of inflicting fatal injury. It also resulted in the victim suffering very serious injuries requiring multiple surgeries to repair.
[14] The victim impact statements by the victim and his partner make it clear the offending has had a devastating effect on their lives. The victim will suffer lifelong consequences from the injuries he suffered at Mr Stehlin’s hands. He has also suffered a blood clot that has now resulted in significant respiratory issues. The offending has also produced considerable mental suffering for both the victim and his partner.
[15] I do not draw a great deal of assistance from other cases in this area because the facts of offending vary so widely. However, I agree with the Judge and counsel for the Crown that the facts in Nuku v R are the most comparable to, albeit more serious than, those in the present case.4 A starting point of nine and a half years imprisonment was not criticised by the Court of Appeal in that case.
[16] I consider the greatest assistance in terms of starting point in the present case is to be derived from the principles contained in Taueki itself.5 The range of starting
4 Nuku v R [2019] NZCA 319.
5 Above n 3.
points identified in Taueki6 for offending that falls within Band 2 applies to cases that have two or three of the aggravating features identified in the decision.7 The violence that Mr Stehlin inflicted on the victim can properly be regarded as extremely serious and it has resulted in serious and long lasting injury to the victim. It also involved the use of a lethal weapon in the form of a firearm. As the Court observed in Taueki:8
The more lethal the weapon that is used the greater the aggravating factor will be. Offending will also be aggravated if a lethal weapon is brought to the scene for use as intimidation. In those circumstances it can be anticipated that such a weapon may in fact be used by the offender.
[17] The correctness of the observation in the final sentence of the passage set out above is demonstrated graphically by the events that occurred in the present case. Had Mr Stehlin not taken the firearm with him when he went to confront the victim he would not be in his present predicament.
[18] The existence of the aggravating factors identified in the present case satisfies me that the Judge was entitled to place the offending at the upper end of Band 2. A starting point of eight years imprisonment was therefore within the available range albeit at the very upper end.
Mitigating factors
[19] Mr Olsen has advanced detailed arguments setting out the reasons why he says the Judge erred in failing to apply, or applying inadequate, discounts for numerous mitigating factors. These include the factors identified in the various reports, remorse, previous good character, time spent on restrictive EM bail and rehabilitative steps Mr Stehlin has undertaken.
[20] Some of these may be open to debate. These include Mr Olsen’s submission that Mr Stehlin was entitled to credit for previous good character when he has been before the Youth Court for three driving offences. There is also force in the Crown’s submission that Mr Stehlin must accept a large measure of responsibility for the fact that he was on EM bail for such a lengthy period. He entered his guilty pleas on 29
6 At [38].
7 [31].
8 At [31].
March 2021. At that time a sentencing date was allocated on 27 May 2021. Had sentencing proceeded on that date Mr Stehlin would have been on EM bail for a total of approximately seven months.
[21] The lengthy delay before sentencing took place was due firstly to the fact that Mr Stehlin he sought and obtained an adjournment so he could undertake residential rehabilitation for alcohol-related issues. This occurred following conferences with Judge MacKenzie between 26 May and 2 July 2021. Sentencing was then scheduled for 18 November 2021. Shortly before that date Mr Stehlin sought a disputed facts hearing to determine whether he could advance excessive self-defence as a factor that reduced his overall culpability. This was initially scheduled for December 2021 but was subsequently shifted (after several intervening Covid-related adjournments) to 30 June 2022. Mr Stehlin ultimately abandoned his argument on 14 June 2022. Sentencing finally proceeded on 1 July 2022.
[22] I do not propose to traverse each of Mr Olsen’s remaining arguments because two factors persuade me his overarching submission that the sentence was manifestly excessive cannot succeed. The first is that, taking into account the discount applied to reflect the time spent on EM bail, the Judge applied discounts for mitigating factors totalling 70 per cent. A relatively short time ago discounts totalling 40 per cent would have been regarded as generous. It is now not uncommon for discounts of 50 to 60 per cent to be applied, particularly in the case of youthful offenders and in cases where useful s 27 reports are tendered to the Court. Even so, the final discount of 70 per cent that the Judge applied in the present case must be regarded as being towards the upper end of the available scale.
[23] Secondly, the fallacy in Mr Olsen’s argument is demonstrated by the fact that, applying his analysis, the Judge would have been required to apply discounts totalling 95 per cent. He would then have been required to apply a further discount of ten months to reflect the fact that Mr Stehlin was subject to restrictive EM bail conditions for 20 months. The end result of this process would be a conviction and discharge. That plainly could not be a correct response to offending of this seriousness.
[24] Such an approach demonstrates that the discounts to be given for mitigating factors such as youth, previous good character, expressions of remorse and rehabilitative prospects may often overlap. The fact that a discount has been applied at a particular level for a mitigating factor in other cases does not justify, without more, applying it at the same level in the case before the court. Applying individual discounts at particular levels or percentages for each mitigating factor may also run the risk of creating an overall reduction of sentence that is too high. At the end of the sentencing process it is still necessary to stand back and ensure the end sentence is appropriate having regard to all the circumstances of the case.
[25] That is the approach I propose to take in this appeal. The key question is whether the end sentence can realistically be regarded as manifestly excessive having regard to all relevant considerations. This assessment necessitates recognition of the fact the case involves extremely serious offending of its type that has had life- threatening and lifelong consequences for the victim. On the other hand, Mr Stehlin was undoubtedly entitled to significant reductions to reflect several mitigating factors personal to him. Taking those considerations into account, and having regard to the fact that the starting point was eight years imprisonment, I do not consider an end sentence of two years five months imprisonment can realistically be regarded as manifestly excessive.
Result
[26]The appeal against sentence is dismissed.
B The appeal against refusal to grant permanent name suppression
[27] Mr Stehlin’s name was not suppressed throughout the course of the proceedings in the District Court. At sentencing, however, Mr Olsen sought a permanent order suppressing Mr Stehlin’s name and identifying particulars. He advised me that Mr Stehlin instructed him to seek permanent suppression after he saw representatives of the news media in the courtroom on the day he was to be sentenced.
[28] In a short decision delivered immediately after Mr Stehlin had been sentenced the Judge noted that the proceedings had been before the Court for more than a year.
He then observed:9
[4] The media are entitled to publish these proceedings. The public interest must trump all; particularly where a term of imprisonment has been imposed, particularly where a term of imprisonment has been forecast for some time.
[5] The defendant’s age is not a factor which could, in any way, support a suppression argument today and that application is declined likewise.
[29] Mr Olsen relies for this aspect of the appeal on the decision of the Court of Appeal in DP v R.10 In that case the Court confirmed that the principles contained in the United Nations Convention on the Rights of a Child (UNCROC), coupled with s 25(i) of the New Zealand Bill of Rights Act 1990, mean that name suppression may be appropriate in cases involving young offenders even where they have been convicted of serious offending.
[30] I accept the Judge erred in his approach because the Court of Appeal made it clear in DP that youth is a factor that may support suppression being granted. However, it is necessary to bear in mind that DP involved very different factual circumstances. The appellant had been 13 years of age at the date of the offending and was just 15 years of age at the time of his successful appeal against refusal to grant suppression of name. His trial had attracted nationwide publicity in all forms of the news media. In addition, he had had a deprived and dysfunctional childhood that was far worse than that suffered by Mr Stehlin. He had also suffered a traumatic brain injury that had long lasting effects and was unlikely to have a support network on his release. Added to this was the fact that he had expressed suicidal ideations.
[31] The Court observed in DP that a young person is likely to suffer a greater degree of hardship than an adult if their name is published because they lack the maturity to deal with the attendant publicity.11 Once this scale is engaged “the question becomes whether and where along the spectrum the degree of likely hardship arising
9 R v Stehlin, above n 2.
10 DP (CA418/2015) v R [2015] NZCA 476, [2016] 2 NZLR 306.
11 DP v R, above n 8, at [23].
from name publication reaches the requisite level of extremity.”12 The Court concluded that while the effect for a young person who has not suffered the same degree of deprivation as DP may not reach that threshold, it was satisfied that his circumstances qualified.
[32] None of the factors that applied in DP are present in the case of Mr Stehlin. The reports that have been provided do not suggest he suffers from any form of mental impairment or suicidal ideation. He also appears to have a supportive family network that will be able to help him reintegrate into the community on his release.
[33] As will already be evident, youth alone is not sufficient to establish jurisdiction to grant name suppression. If that were so every young offender would automatically be entitled to name suppression when plainly that is not the case. Rather, an applicant for name suppression, regardless of age, must first establish one of the threshold requirements specified in s 200(2) of the Criminal Procedure Act 2011. The only ground on which Mr Stehlin could rely is that of extreme hardship.13
[34] Counsel advised me that an article about Mr Stehlin’s offending appeared in the Rotorua newspaper shortly after the hearing on 1 July 2022. Another, perhaps smaller, article may appear if the present appeal is unsuccessful. Other than this, however, the case does not seem to have attracted significant news media interest.
[35] Furthermore, none of the material Mr Olsen provided at sentencing addressed the likely effects on Mr Stehlin if his name was to be published following sentencing. There is therefore no evidential basis to enable the Judge at first instance, or this Court on appeal, to conclude Mr Stehlin is likely to suffer extreme hardship if his name and identifying particulars are published. For these reasons the appeal against refusal to grant name suppression cannot succeed.
12 Above n 8, at [23].
13 Criminal Procedure Act 2011, s 200(2)(a).
Result
[36]The appeal against refusal to grant name suppression is dismissed.
Lang J