Stephens v The Queen - [2021] NZHC 3478

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-475

[2021] NZHC 3478

BETWEEN
TYLER STEPHENS

Appellant

AND

THE QUEEN

Respondent

Hearing: 13 December 2021 (via VMR)

Counsel:

T M Cooper for Appellant

H D L Steele and J R Ah Koy for Respondent

Judgment:

16 December 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 16 December 2021 at 9 am

Registrar/Deputy Registrar

Solicitors/Counsel:
Tiffany Cooper (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

STEPHENS v R [2021] NZHC 3478 [16 December 2021]

Introduction

[1] Mr Stephens pleaded guilty to a charge of assault with intent to injure.1 On 1 October 2021, he was sentenced by Judge M-E Sharp to 16 months’ imprisonment.2 He now appeals that sentence on the ground that it is manifestly excessive.

[2] My task is to decide whether there is an error in the sentence such that a different sentence should be imposed. If the sentence is manifestly excessive then that would be an error which must be corrected.

The appeal

[3] Judge Sharp adopted a starting point of two years’ imprisonment. Ms Cooper, for Mr Stephens, submits that the starting point should have been 18 months’ imprisonment.

[4] Judge Sharp increased the starting point by five months because Mr Stephens was in breach of prison release conditions and had a relevant record of violence. Ms Cooper submits that if the starting point should have been 18 months, then an uplift for these factors of no more than three months is justified.

[5] Judge Sharp gave discounts of three per cent for remorse, three per cent for Mr Stephens’s mental health difficulties, and four months to take account of the period Mr Stephens spent on recall on his previous sentence. Ms Cooper submits that appropriate discounts were 10 per cent for remorse, and five to 10 per cent for Mr Stephens’s mental health difficulties. The reduction of four months for time spent on recall is accepted.

[6] Judge Sharp gave Mr Stephens a 25 per cent discount for his guilty plea, the maximum available. Ms Cooper does not, of course, contest that.

[7] Ms Cooper’s ultimate submission is that the appropriate sentence for Mr Stephens was imprisonment in a range of nine to 10 months.

1 Crimes Act 1961, s 193; Maximum penalty, 3 years’ imprisonment.
2 R v Stephens [2021] NZDC 19592.

Background

[8] On 31 July 2015, Mr Stephens was sentenced to seven years and eight months’ imprisonment on charges of sexual violation by unlawful sexual connection, male assaults female and arson. A non-parole period of four years was ordered.

[9] On 20 June 2020, Mr Stephens was released from prison having served four years and 11 months. There were strict parole conditions which included a prohibition on the consumption of alcohol and a requirement that he disclose to his probation officer, at the earliest opportunity, details of any intimate relationship which he commenced.

[10]Mr Stephens is a mature adult…

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 Stephens v The Queen

Details

AGLC: Stephens v The Queen [2021] NZHC 3478
Case: [2021] NZHC 3478
Decision Date: 16 December 2021

CaseChat Overview and Summary

In Stephens v The Queen, the appellant, Tyler Stephens, appealed against his sentence for assault with intent to injure, arguing that it was manifestly excessive. The appellant had been sentenced to 16 months' imprisonment by Judge M-E Sharp. The main issue was whether there was an error in the sentence that required correction. The starting point for sentencing was a matter of contention, with the defence arguing for an 18-month starting point, rather than the two years chosen by Judge Sharp. The appellant's breach of prison release conditions and his previous record of violence led to an uplift of five months. The appellant's remorse, mental health difficulties, and time spent on recall were considered in the sentencing discount. The appeal was ultimately based on the argument that the sentence was inconsistent with other cases, and the appropriate sentence should have been nine to ten months.

In assessing the appeal, the court considered the nature of the charge and the elements that define the gravity of the offending. The court concluded that the starting point should be 20 months, rather than the two years chosen by Judge Sharp. The court also considered the discounts awarded by the Judge, finding that a five per cent discount for remorse was appropriate, and that the three per cent discount for mental health conditions was within the Judge's discretion. The court found that the sentence of 16 months' imprisonment was manifestly excessive and substituted a sentence of 12 months' imprisonment.

Orders