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 in his mid-forties.

[11]   Mr Stephens met the complainant in June or July 2020. He commenced an intimate relationship with her around the end of August 2020 and the beginning of September 2020. He did not tell his probation officer.

[12]   Mr Stephens explained the electronic bracelet he was wearing around his ankle by telling the complainant about his previous prison sentence. However, he downplayed why he had spent so long in prison, saying he had been acquitted of eight counts of rape and then wrongly accused by his ex-partner of beating her. That is the offence he said he was convicted for.

[13]   The relationship between Mr Stephens and the complainant was volatile. They would argue and the relationship was “a very frequent on/off” one.

[14]   At about 2 pm on 20 March 2021, Mr Stephens called the complainant, telling her he was going to start drinking if she did not come and see him. Mr Stephens is an alcoholic, as is the complainant, the two having met at Alcoholics Anonymous.

[15]   The complainant told Mr Stephens she was having coffee with her brother and would call him later.

[16]   At about 4.30 pm, the complainant met Mr Stephens at Blockhouse Bay Beach where he sat in his car. Mr Stephens said he had consumed a large amount of prescription drugs and about 24 cans of alcohol.

[17]   Mr Stephens was angry with the complainant for putting her brother before him and he argued with her. The complainant told Mr Stephens she did not want to see him that night, as had been planned, but agreed to let him return with her to her home on the stipulation there would be no sex and he would leave by 8.30 pm.

[18]   Mr Stephens became very angry with the complainant after they had arrived at the complainant’s home because he learned the complainant was planning to go to counselling with her ex-husband, the father of her child.

[19]The summary of facts describes what happened next:

[Mr Stephens] in an intoxicated and medicated drug fuelled rage, grabbed the victim under her jaw with a ‘C’ like grip causing the Complainant to be extremely frightened and in pain.

The Complainant told [Mr Stephens] to let her go and that he was scaring her.

[Mr Stephens] finally released the Complainant but refused to let her go outside for a cigarette as he was fearful, she would scream once outside.

Whilst seated on the living room couch [Mr Stephens] told the Complainant “Right, let me tell you how tonight’s going to go”.

[Mr Stephens] further stated they were going to work through the Complainant’s loyalty issues and then they would be having sex.

The Complainant in her frightened state begged [Mr Stephens] “Please, Please, I don’t want to have sex, don’t rape me”.

[Mr Stephens] replied “No!, we are going to have sex”.

The Complainant informed [Mr Stephens] that she was sore around her privates resulting in [Mr Stephens] telling her “Doesn’t matter, I’ll turn you over and fuck you up the arse”.

In a panicked state the Complainant picked up her phone to call the Police, however before being able to make the call [Mr Stephens] grabbed it out of her hand and threw it on the floor.

[Mr Stephens] proceeded to push the Complainant to the floor, picked her up and slammed her against the living room wall and twisting her left arm.

[Mr Stephens] continued the assault by pulling the Complainant’s hair causing her head to pull to one side.

On realising her tears and pleas for the physical assault to stop were not working, the Complainant changed tack by placating [Mr Stephens] telling him he’d just had a bad day due to the alcohol and medication he had consumed earlier.

[Mr Stephens] began to calm down to the point the Complainant could see he was starting to look drowsy and his words slurred as the effects of the alcohol and prescription drugs he had consumed earlier started to take effect.

The Complainant convinced [Mr Stephens] to lay down in her bed where she lay fully clothed beside him until he started to drift off to sleep.

The Complainant told [Mr Stephens] she was going to take a shower and would be back.

The Complainant picked up her phone without [Mr Stephens’s] knowledge and walked into the bathroom.

The Complainant turned on the shower in an effort to hide the sound of her calling Police.

[Mr Stephens] heard the Complainant speaking in the bathroom and started to shout at her whilst banging on the bathroom locked door.

[20]   The police arrived at the complainant’s address where they found Mr Stephens in an intoxicated state. He was arrested for breaching his prison release conditions.

Judge Sharp’s sentence

[21]The Judge considered the aggravating features of the offending to be:

·     The extent of the violence (which the Judge acknowledged was not extreme in physical terms but which she characterised as extreme in emotional terms because of the fear induced in the complainant, particularly by the threat of sexual violation).

·     The psychological harm to the complainant. The victim impact statement describes a victim who suffers from PTSD and who lives in perpetual fear for her life. The complainant has debilitating panic attacks and cannot sleep. She is attending trauma therapy and has installed security cameras, both at significant financial cost.

·     Mr Stephens tried to prevent the complainant from seeking help.

·     The  complainant  was  vulnerable  because  of  her  relationship  with  Mr Stephens. There was a breach of trust to a moderate degree.

[22]   The Judge considered Nuku v R3 to be relevant in the absence of a guideline judgment. The Judge accepted the Crown’s submission that the offending is within band 2 of Nuku and that a starting point of two years’ imprisonment is appropriate.

[23]   The first personal aggravating feature identified by the Judge was the fact that Mr Stephens committed the offence while on release conditions relating to his previous offending.

[24]   The second personal aggravating feature was Mr Stephens’s relevant record of convictions. These were:

·     2001: two years’ imprisonment for injuring with intent to injure

·     2012: speaks threateningly (family violence)

·     2015: one year’s imprisonment for male assaults female (family violence)

[25]   As to personal mitigating features, the Judge referred to Mr Stephens’s offer to make amends by paying $5,000 as an emotional harm reparation sum and to his genuine remorse.

[26]   The Judge also referred to Mr Stephens’s diagnosis of PTSD and bipolar disorder “with which he has struggled for a long time”.4 The Judge said:

[36] I agree with her that there should be an uplift to reflect personal aggravating features, but I consider that five months is more appropriate. From that there must be the 25 per cent for the early guilty plea, plus, (since I am satisfied that his remorse is genuine and he has attempted to make amends with an emotional harm payment, although the victim refuses to accept it, so he is prepared to donate it to the charity of the Court’s choice) he should have a discount of three per cent. He should have a further three per cent for his

3      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

4 At [32].

mental health conditions, which may be considered to have, if not caused, certainly exacerbated his tendency to offend in this particular way.

[27]   The Judge applied the 31 per cent discounts total to the overall starting point of 29 months and reached a sentence of 20 months, before credit for time spent on recall. The credit allowed was four months, bringing the end sentence to 16 months’ imprisonment.

Submissions

[28]   Ms Cooper submits that the two year starting point was too high because the actual violence inflicted on the complainant did not result in injuries. Ms Cooper referred to comparator cases where lesser starting points were adopted in more serious episodes of violence.5 Ms Cooper also referred to cases where, in her submission, significantly greater acts of violence justified two year starting points.6

[29]   Ms Cooper accepts that the complainant has been traumatised by the incident but submits this should not equate with physical injury. Ms Cooper’s submission is that the complainant has had an extreme reaction to what occurred and Mr Stephens should not be penalised for that.

[30]   Ms Cooper’s overarching submission is that consistency in sentences is important and Judge Sharp’s sentence is inconsistent with the cases cited.

[31]   As I have said, Ms Cooper’s submission is that if the starting point was too high then so too was the uplift of five months for Mr Stephens’s offending while on parole and for his previous relevant convictions. For one thing, Mr Stephens was on parole for nine months without incident.

[32]   Ms Cooper submits, firmly, that the Judge should have given a significantly greater discount for Mr Stephens’s remorse. Ms Cooper points out that the Judge recognised that there was remorse. Mr Stephens offered to take part in restorative justice and offered $5,000 emotional harm reparation. The complainant refused both

5      R v Raroa [2014] NZCA 57; Sharma v R [2015] NZCA 468.

6      Goodman v R [2016] NZCA 64; Cunningham v R [2019] NZCA 622.

offers but Mr Stephens was willing to pay the $5,000 to charity. I interpolate that the

$5,000 has not been paid, although Ms Cooper’s instructions are that it will be. Finally, Mr Stephens wrote an eloquent letter expressing his remorse.

[33]   Ms Cooper’s submission is that there is nothing more that Mr Stephens could do to demonstrate his remorse. He is a mature man who is addicted to alcohol. He “fell off the wagon” and this undoubtedly contributed to the offending.

[34]   In Ms Cooper’s submission, the cases demonstrate that a 10 per cent discount was available for Mr Stephens’s remorse and offer of reparation.

[35]   Ms Cooper refers also to Mr Stephens’s mental health. It is submitted that there was a nexus with the offending,  as  the Judge appeared  to  recognise.  It  is, Ms Cooper submits, commonplace to allow discounts from 12 per cent to 30 per cent for  mental  health  difficulties  contributing  to  offending.7  In  the  present  case,  Ms Cooper’s submission is that a discount in the range of five to 10 per cent should have been awarded.

[36]   Mr Steele for the Crown supports the Judge’s sentence. The Judge was, he submits, right to consider Nuku v R to be of assistance in sentencing for this type of offending.8 Mr Steele submits:

4.2 The instant case appropriately falls within band two of R v Nuku where a starting point of up to three years imprisonment will be appropriate where three or fewer aggravating factors are present. In this case her Honour identified four (above at paragraph 2.2) and the appellant accepts there are five aggravating features present to “various degrees”.

[37]   Mr Steele referred also to comparator cases in which starting points of two years were upheld on appeal.9

[38]Mr Steele acknowledges, as he must, that the physical violence in Holdem and

Goodman was more extensive than in this case, but the distinguishing feature in this

7      E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411, at [71].

8      Tamihana v R [2015] NZCA 169 at [16]; Cunningham v R, above n 6, at [18].

9      Holdem v R [2018] NZHC 634; Goodman v R, above n 6.

case was the psychological harm. That, he submits, justifies the starting point adopted by Judge Sharp. Mr Steele submits further:

4.12 The explicit sexual threats made by Mr Stephens were particularly sinister and frightening (a feature absent from the cases above, and the cases referred to by the appellant). Even more so when viewed in the context of Mr Stephens’ previous offending which involved serious sexual violence and similarly explicit threats. A factor which has clearly contributed greatly to the current victim’s suffering and which distinguishes this case from any of those identified.

[39]   Mr Steele submits the discounts awarded by the Judge were appropriate in the circumstances. There was, for example, no report by a mental health expert linking Mr Stephens’s mental health conditions to the offending.

Discussion

[40]   Assault with intent to injure is a charge which is focused on the intention of the offender when using violence against the victim. By pleading guilty to the charge, Mr Stephens accepted that he intended to cause the complainant actual bodily harm. It is not an element of the offence that injury was actually inflicted.

[41]   The offence of injuring with intent to injure10 covers a situation where there is both an intention to injure and the actual infliction of injury. The maximum penalty is five years’ imprisonment as opposed to three years for assault with intent to injure.

[42]   It is quite common (as the comparator cases illustrate) for assault with intent to injure to be charged even though the victim was injured. I suspect that the lesser charge is seen as more likely to attract a plea of guilty. In such cases, the fact that injury was inflicted becomes an aggravating factor of the offending. The weight to be given to it depends on the nature and extent of the injury inflicted. As a general principle, the intent to injure is usually tied to the injury inflicted.

[43]   To set a starting point for sentencing on a charge of assault with intent to injure it is necessary to identify the factors which define the gravity of the offending and thus

10     Crimes Act 1961, s 189(2).

identify where on the range of possible starting points, the maximum being three years, the offending sits.

[44]   Judge Sharp had regard to Nuku v R in setting her starting point. That case provides guidance for sentencing on charges under ss 188(2) (with intent to injure, wounds, maims, disfigures, or causes grievous bodily harm), 189(2) (with intent to injure, injures) and 191(2) (with intent related to specified offending, injures). The maximum penalties, respectively, are seven years, five years, and seven years.

[45]   Therefore, all the offences addressed by Nuku v R have injury as an essential element and all have maximum penalties far above the three years maximum for assault with intent to injure. The Court of Appeal in Tamihana v R11 and Cunningham v R12 observed that Nuku v R can be helpful in assessing starting points in cases of assault with intent to injure because the charges addressed by Nuku v R all have the element of intent to injure. However, in both Tamihana and Cunningham the victims were actually injured. So, while I agree that the Nuku v R bands relating to aggravating factors can be helpful in assessing the starting point in a case of assault with intent to injure, I think the sentencing ranges attached to the bands are of little assistance if the victim was not injured.

[46]   I have read the comparator cases put forward by counsel. In Holdem v R, the assault was clearly more violent than in this case. The victim suffered clear injuries. A two years starting point was adopted. Similarly, in Goodman v R, a starting point of two years was adopted in circumstances where the assaults were more serious than in the present case and the victim was injured. The other cases cited have similar levels of violence and in two the starting points were less than two years.

[47]   I accept that the aggravating features identified by the Judge capture the seriousness of the offending. The psychological harm suffered by the complainant is particularly significant. I do not accept Ms Cooper’s submission that Mr Stephens cannot be held responsible for the complainant’s extreme reaction to the incident. He must take his victim as she was, and his violence caused her trauma. However, I accept

11     Tamihana v R, above n 8.

12     Cunningham v R, above n 6.

that when it comes to assessing Mr Stephens’s intention in carrying out the assaults, the victim’s psychological trauma was not intended by him.

[48]   I also consider the threat of sexual violation, which partly caused the complainant’s trauma, to be a significant aggravating factor.

[49]   On a first principles assessment of the gravity of Mr Stephens’s offending, I put it over the halfway point, but not to the two-thirds point adopted by the Judge. In my view, a starting point of 20 months was appropriate having regard to the aggravating factors and the absence of injury.

[50]   I consider that an uplift of four months for breaching release conditions and for the record of relevant prior offending is necessary. At 20 per cent of the starting point it is higher than I would normally impose. But, Mr Stephens’s previous offending was against his domestic partner and his violence towards her has similarities with the violence he used against the complainant. The conditions of abstaining from alcohol and informing his probation officer of any new relationship were designed to prevent Mr Stephens offending against another victim. Mr Stephens chose to break those conditions and he was therefore not only in breach of his parole but the breaches led directly to his offending.

[51]   As to the discounts, I accept Ms Cooper’s submission that the three per cent reduction for remorse was insufficient. The Judge accepted that Mr Stephens’s remorse was genuine. He took accountability for his actions and did all that could be expected of him by offering to engage in restorative justice and offering to pay $5,000 to a charity nominated by the Judge when his offer to pay it to the complainant was refused. The Judge nominated the Women’s Refuge. That was on 1 October 2021 and the payment has not been made, although Ms Cooper’s instructions are that it will be made. In these circumstances, I assess a five per cent discount is appropriate.

[52]   I do not find that the Judge erred in allowing a three per cent discount for   Mr Stephens’s mental health conditions. The Judge inferred there was a nexus between Mr Stephens’s mental health and his offending, but there is no expert assistance on the point. A three per cent discount was within the Judge’s discretion.

[53]I will not disturb the 25 per cent discount for the plea of guilty.

[54]   Therefore, from a starting point of 24 months, I would allow a total discount of 33 per cent. This brings the starting point (rounded) to 16 months.

[55]   Mr Stephens was recalled to continue his earlier sentence and served it from  9 April 2021 to 1 October 2021, a period of about six months. In Thomas v R,13 the Court of Appeal commented that a reduction in sentence by 66 per cent of time spent in custody on recall was appropriate and consistent with other cases. I will adopt that percentage. It amounts (rounded) to four months.

Decision

[56]   In  my  assessment,  an  appropriate  end  sentence  for  Mr  Stephens  was  12 months’ imprisonment. His sentence of 16 months is manifestly excessive.

[57]   I allow the appeal. Mr Stephens’s sentence of 16 months’ imprisonment is quashed. I substitute a sentence of 12 months’ imprisonment.

Brewer J

13     Thomas v R [2020] NZCA 257.