Stephen v Police
[2021] NZHC 418
•9 March 2021
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 Mr Stephen, and instead proceeded with the sentencing.
[4] In the sentencing indication, Judge Collins placed the injuring with intent offending in band one of R v Taueki (starting point three years and six months). Since Mr Stephen was charged under s 189 and not s 188 (wounding with intent),5 this starting point had to be adjusted. His Honour rejected defence counsel’s proposal of two years and six months due to the prolonged nature of the attack on a defenceless person and the attack to the head. A starting point of three years was adopted with three months added for the assault charge. Four months was added for Mr Stephen’s previous convictions. Judge Collins indicated that a 20% discount would be available for a guilty plea and left open the possibility of further adjustments for other personal factors including remorse and/or prospects of rehabilitation.
[5] Judge Collins applied the sentence indication at sentencing. By that time, as Judge Collins noted, Mr Stephen had not completed his treatment at Odyssey house. Instead he absconded shortly before the COVID-19 lockdown to visit family members with health issues. Judge Collins observed in his sentencing notes that while Mr Stephen had in some respects operated well at Odyssey House, Odyssey House staff were critical of his apparent unwillingness to engage in joint programmes and it appears from the discharge summary that he would have been exited from the rehabilitation programme had he not already departed.
4 Police v Stephen DC Auckland CRI-2019-004-000444, 19 August 2019.
5 This section imposes a maximum penalty of 14 years’ imprisonment where grievous bodily harm is intended (s 188(1)) or seven years where a defendant intends to injure or is reckless and causes grievous bodily harm (s 188(2)).
[6] In sentencing Mr Stephen, Judge Collins proceeded to discount from the 3 years 7 months (43 month) starting point 11 months (approximately 25.5 percent): five months in recognition of Mr Stephen’s time on EM bail and rehabilitative efforts, one month because of a very positive Corrections report, three months for Mr Stephen’s drug and alcohol addictions and two months for remorse. From the resulting 32 months his Honour deducted 20 per cent for his guilty plea, which he rounded up to a discrete 7 months. The end sentence on the injuring with intent charge was 25 months, and two months’ imprisonment on the assault charge (to be served concurrently). This term was to be served without parole as this was a Second Strike matter for Mr Stephen.
The case for Mr Stephen
[7] While Mr Niven on behalf of Mr Stephen took no issue with the structure of the sentence or the sentence indication, he submitted the end sentence imposed was manifestly excessive as a result of inadequate discounts. In particular, Mr Niven submitted that Judge Collins had insufficient relevant personal background information about Mr Stephen, now before the Court by way of a s 27 report commissioned for the appeal. Furthermore, in Mr Niven’s submission Mr Stephen’s sentence:
…is based on an error and wrong in principle, in that His Honour improperly denied the appellant the opportunity to pursue a rehabilitative programme that was immediately available through the Grace Foundation.
[8] Mr Niven submitted the end sentence should have been less than two years imprisonment, with home detention therefore notionally available, albeit that no suitable placement has been identified.
Discussion
[9] An appeal against sentence comes under s 244(1) of the Criminal Procedure Act 2011. A court must allow an appeal if satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.6 An appeal
6 Section 250(2).
will succeed if the appellant can point to a material error in the sentence.7 The overall focus is on whether the sentence is within the appropriate range, rather than the process by which the sentence was reached.8
[10] In this case, having considered the submissions made on behalf of Mr Stephen, I am not satisfied that the sentence imposed could be categorised as manifestly excessive or that there is any other error apparent.
[11] First, while I accept that there is now further information before the Court by way of a s 27 report prepared by Louise Henare, the matters identified in the report were largely taken into account by Judge Collins in the course of his sentencing and reflected in the discounts already provided. It is quite clear from the sentencing notes that Judge Collins had developed an accurate picture of Mr Stephen in the course of various remands from the sentence indication in August 2019 through to the sentencing in June 2020, as well as through two relatively comprehensive Provision of Advice to the Courts reports (PAC reports).
[12] While the s 27 report provides a lot of information about childhood trauma suffered by Mr Stephen which is not mentioned in either of the PAC reports, nor specifically in the sentencing notes, this does not mean that there were inadequate discounts given. The reason for this is the childhood trauma provides a clear and coherent explanation for Mr Stephen’s drug and alcohol problems which have been well and truly accounted for by Judge Collins at sentencing, the three months (approximately 7 per cent) discount given “for the causative factors of [Mr Stephen’s] drug and alcohol addictions”.9
[13] Overall, I agree with Ms Wilson on behalf of the Police that the discounts already given are comprehensive and, as Judge Collins noted, generous. They reflect not only the causes of Mr Stephen’s addiction issues but the rehabilitation completed to date, his commitment to further rehabilitation, and genuine remorse. I therefore
7 Tutakangahau v R [2014] NZCA 279 at [30]; [32]-[35].
8 At [36].
9 Police v Stephen [2020] NZDC 11357 at [14].
conclude that the sentence imposed was not manifestly excessive and no further discount was warranted.
[14] In addition, I am satisfied there was no error on the part of Judge Collins in declining to allow for a further adjournment of the sentencing to enable Mr Stephen to attend the Grace Foundation programme. In making the decision to proceed, Judge Collins was clearly entitled to take into account the long period that had elapsed since the sentence indication was accepted and Mr Stephen’s failure to complete the Odyssey House programme. As the Judge’s sentencing notes make clear, it was not just the fact that Mr Stephen had chosen to leave the program but, as noted, there were aspects of Mr Stephen’s personality that made it difficult for him to complete the Odyssey House programme. It appears that he would have been exited from the programme in any event, and this was clearly relevant in reaching a conclusion that Mr Stephen would be likely to have difficulties at the Grace Foundation. Given this position, the refusal to adjourn the sentencing does not amount to an error requiring any change in the sentence imposed.
[15] Finally, for completeness and as I discussed with counsel on hearing, I have considered whether Mr Stephen is entitled to a discount as a result of the changes to the accepted sentencing methodology with regard to the application of the guilty plea discount that have occurred since he was sentenced by Judge Collins. Under the altered approach which this Court has agreed can be adopted retrospectively,10 a net deduction is applied for all personal circumstances including uplifts for previous convictions and discounts for guilty pleas.11 Applying this new methodology in this case would result in the following calculation:
Starting point (factors relating to the offending) 39 months’ imprisonment Personal Factors (net discount)12 38 per cent
10 Moses v R [2020] NZCA 296; Romero v R [2020] NZHC 2740 at [68]. See also Pearson v R
[2020] NZCA 573 at [34].
11 In this case, there was an additional 10 percent (four months) for previous convictions less 28 percent (11 months) for the personal factors identified by Judge Collins and 20 percent for the guilty plea.
12 Uplift for previous convictions, less mitigating personal factors identified by Judge Collins together with guilty plea discount.
End sentence 24 months’ imprisonment
[16] The difference in approach results in a sentence that is not materially different and in the context of the sentence could only be considered impermissible tinkering.
Decision
[17]The appeal is dismissed.
Powell J
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