Stephen v Police - [2021] NZHC 418

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-404

[2021] NZHC 418

BETWEEN
BRIAN STEPHEN

Appellant

AND

NZ POLICE

Respondent

Hearing: 22 February 2021

Appearances:

D S Niven for the Appellant

L N Wilson for the Respondent

Judgment:

9 March 2021

JUDGMENT OF POWELL J

This judgment was delivered by me on 9 March 2021 at 3.30 pm Registrar/Deputy Registrar
Date:

STEPHEN v NZ POLICE [2021] NZHC 418 [9 March 2021]

[1] Brian Stephen appeals a sentence of two years and one month in prison imposed by Judge R J Collins1 after Mr Stephen pleaded guilty to:

(a)Injuring with intent to cause grievous bodily harm.2

(b)Common assault.3

[2] The offending for which Mr Stephen was sentenced arose out of two separate incidents:

(a)In the more serious incident, Mr Stephen and the victim began arguing outside a bar. Mr Stephen punched the victim’s left cheek twice, causing him to stumble backwards. Mr Stephen kicked the victim in the groin twice before punching him forcefully in the jaw with a closed fist, and kicking him again in the groin. The victim retaliated by punching Mr Stephen and at that point Mr Stephen grabbed the victim and pulled him onto the ground. While the victim was lying on the ground, Mr Stephen proceeded to kick him in the back of his head four times. He then stepped away from the victim before returning and kicking him hard in the right temple area. A bystander intervened and Mr Stephen walked away, leaving the victim lying on the pavement. The victim was subsequently hospitalised, having received grazes to his legs, bleeding to his skull and bruising to his face as a result of the assault.

(b)The common assault charge had occurred earlier the same day. Mr Stephen began verbally abusing his then partner in a pharmacy. As his partner attempted to hide in the pharmacy Mr Stephen struck her on the right side of her head, causing her to fall to the ground, an assault that left her fearful of Mr Stephen.

1      Police v Stephen [2020] NZDC 11357. There was some indication from the notice of appeal that Mr Stephen was also challenging his conviction, but Mr Niven confirmed at the hearing that only the sentence is an issue in this appeal.
2      Crimes Act 1961, s 189(1). Maximum penalty 10 years’ imprisonment.
3      Section 196. Maximum penalty one year’s imprisonment.

The District Court decision

[3] Mr Stephen was sentenced after accepting a sentencing indication provided by Judge Collins,4 and after a 10 month adjournment to allow Mr Stephen to undertake rehabilitation at Odyssey House for his drug and alcohol addictions while he was on bail awaiting sentence. Mr Stephen in fact sought a further adjournment to enable him to take up a bed at the program run by the Grace Foundation, but Judge Collins declined to provide the opportunity for further rehabilitation to occur, noting it did not seem a good fit for…

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 Stephen v Police

Details

AGLC: Stephen v Police [2021] NZHC 418
Case: [2021] NZHC 418
Decision Date: 9 March 2021

CaseChat Overview and Summary

Brian Stephen appeals a two-year and one-month prison sentence imposed by Judge R J Collins following a guilty plea to injuring with intent to cause grievous bodily harm and common assault. The appeal concerns the severity of the sentence imposed by the District Court. The offending arose from two separate incidents involving the victim. The first was a serious attack outside a bar, in which Mr Stephen punched and kicked the victim multiple times, including to the head and groin. The victim was hospitalised as a result. The second incident involved Mr Stephen verbally abusing his partner and striking her on the head in a pharmacy. The appeal concerns whether the sentence was manifestly excessive and whether the Judge erred in not allowing Mr Stephen to pursue a further period of rehabilitation at the Grace Foundation. The High Court found that the sentence was not manifestly excessive and that the Judge was entitled to take into account Mr Stephen's failure to complete his rehabilitation at Odyssey House. The Court also found that any change in approach to the sentencing discount for a guilty plea would not result in a materially different sentence. The appeal was dismissed.

Orders