Stephen v The Queen

[2017] NZHC 3087

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202

CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-412-44 [2017] NZHC 3087

BETWEEN

BRENDON DAVID STEPHEN

Appellant

AND

THE CROWN Respondent

Hearing:	11 December 2017
Appearances:	J A Westgate for Appellant C E R Power for Respondent
Judgment:	12 December 2017

JUDGMENT OF NICHOLAS DAVIDSON J

STEPHEN v THE CROWN [2017]  NZHC 3087  [12 December 2017]

Background to appeal

[1]      The appellant pleaded guilty to serious charges of historic sexual abuse of his young cousin.  He was sentenced to two years and three months imprisonment on charges of rape, sexual violation and indecency.1   He appeals that sentence.

Facts

[2]      The appellant sexually abused the victim over a period of four years, while she was aged between six and nine years and the appellant between 14 and 17 years. The abuse involved vaginal penetration, forcing the victim to perform oral sex and to masturbate him.  She suppressed what had happened until an event in recent years triggered her memories and led to disclosure.

[3]      Charges were laid and the appellant first appeared in November 2015. He elected trial by jury. Some days before the trial, the Judge gave an informal indication of sentence on a revised series of charges, and he pleaded guilty.

District Court sentencing

[4]      There was a very full report by a clinical psychologist before the court and a harrowing victim impact statement.

[5]      The Judge had given an informal sentence indication involving a starting point of five years imprisonment.   He applied a discount of 25 per cent because of the appellant’s age at the time of the offending and gave a 20 per cent credit for the guilty pleas because, although very late in the piece, they were of benefit to the victim who would not have to face the ordeal of giving evidence.  The psychologist’s report and pre-sentence report raised a number of factors which mitigated the offending and the Judge applied a further five per cent discount for these. He applied all these discounts to reach a sentence of two years and six months imprisonment. He then acknowledged

the appellant’s background and personal difficulties and the inherent difficulties he

1      R v Stephen [2017] NZDC 15923.

would face in prison and gave him a further discount of three months, resulting in an end sentence of two years and three months.

Principles on appeal

[6]      Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2    It is appropriate for this court to substitute its own views only if the sentence is “manifestly excessive” and not justified by relevant sentencing principles.3

Submissions

Appellant’s submissions

[7]      The appellant appeals the sentence based on the discount of five per cent for the issues raised in the psychologist’s report. Mr Westgate says that mitigating features associated with his psychological difficulties and other factors mean he is entitled to a discount of 15 per cent, not the five per cent given by the Judge, so that the end sentence was manifestly excessive.

[8]      He submits that the following factors support this larger discount:

(a)       the appellant has not committed any further sexual offences;

(b)he has not disclosed or displayed any further sexually motivated offending behaviour and there is no evidence of his having deviant sexual interest;

(c)      he was subject to sexual abuse during his childhood (by two different perpetrators); and

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Ripia v R [2011] NZCA 101 at [15].

(d)he  has  long  standing  learning  problems  and  his  intelligence  and understanding is borderline.

Respondent’s submissions

[9]      The respondent, through Mr Power, submits that the discount given by the Judge was sufficient and that there was no error of principle so the sentence, and that it was within range.

Analysis

[10]     Mr Westgate acknowledges that the “other factors” raised in the psychologist’s report are reflected in part in the “final five per cent” (3 months) discount for the difficulties that the appellant would face in prison.

[11]     Otherwise, there is no authority to compel or influence a conclusion that the five per cent discount did not sufficiently recognise personal mitigating factors when a further five percent discount from the starting point was applied, giving a total

10 per cent discount.

[12]     Further, the Judge applied the discount for guilty pleas alongside the other discounts, resulting in a lower sentence, as opposed to discounting for guilty pleas after the other discounts.4  Had Hessell been applied in full, with a 25 per cent “youth” discount and the 15 per cent discount for personal factors sought by Mr Westgate, followed by 20 per cent guilty plea discount, that would have resulted in an end sentence of two years and three months, exactly the sentence imposed by the Judge. There can be no concern that the sentence is not within range.

Conclusion and Disposition

[13]     The sentence of two years and three months imprisonment was not manifestly excessive or unjust. The appeal is dismissed.

4      Hessell v R [2010] NZSC 35 at [73].

…………………………………………….

Nicholas Davidson J

Solicitors:

J A Westgate, Dunedin

RPB Law, Dunedin