Stone v R
[2011] NZCA 558
•7 November 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA549/2011 [2011] NZCA 558 |
| BETWEEN ROBERT SHANE STONE |
| AND THE QUEEN |
| Hearing: 1 November 2011 |
| Court: Harrison, Miller and Asher JJ |
| Counsel: K Holden for Appellant |
| Judgment: 7 November 2011 at 11.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
Robert Stone was found guilty following trial before a Judge and jury in the District Court at Auckland on one count of assault with a weapon. He pleaded guilty to a separate count of intentional damage. He was discharged on a count of wounding with intent to cause grievous bodily harm.
Mr Stone was convicted and sentenced by Judge Hubble, who presided at trial, to a total of 18 months imprisonment on the two charges.[1] He appeals against his sentence on the ground that it was manifestly excessive or wrong in principle.
Facts
[1] R v Stone DC Auckland CRI-2009-044-7255, 18 August 2011.
Some confusion surrounds the facts and their sequence. We have attempted to reconstruct those facts relevant to Mr Stone’s sentence appeal as follows.
Mr Stone shared a flat with two couples in Glenfield. They had a party there one evening in August 2009. The occupants were joined by a number of guests. Mr Stone consumed a considerable amount of alcohol. As the evening wore on, he became increasingly aggressive towards some guests. At one stage he brandished a club type weapon before placing it in his pants.
A group of guests associated with Mr Modrich, one of Mr Stone’s flatmates, became sufficiently concerned about Mr Stone’s behaviour to decide to leave. Messrs Stone and Modrich became involved in an argument. Mr Stone removed a thin and narrow ornamental pale from a wooden fence from which a nail protruded. He struck Mr Modrich about the head with this implement causing localised bruising and wounds. When sentencing Mr Stone, Judge Hubble proceeded on the premise that Mr Modrich’s injuries required stitches. Ms Holden advises that the wound was glued. We do not see a material difference between the two types of treatments. This event was the subject of the charge of assault with a weapon.
Subsequently Mr Modrich was attacked with a knife. One blow almost severed his right arm. The wound began to bleed profusely. This event was the subject of the count of wounding with intent to cause grievous bodily harm on which Mr Stone was acquitted at trial. When sentencing Mr Stone, Judge Hubble expressed his satisfaction from the evidence given at trial that Mr Stone had in fact inflicted the injury. The Judge surmised that the jury acquitted Mr Stone because he was acting in self defence. Ms Holden who represented Mr Stone at trial advises that he did not raise this defence and that it was not the subject of a judicial direction to the jury. Whatever is the case, the Judge was careful to recite that this event did not of itself influence Mr Stone’s sentence.
However, the fact that Mr Stone inflicted the injury was directly relevant in another sentencing context. After the injury’s physical manifestations appeared, Mr Modrich’s girlfriend went to her motor vehicle which was parked in a nearby driveway. She intended to use it to transfer Mr Modrich urgently to hospital. On Judge Hubble’s findings, Mr Stone must have known of Mr Modrich’s injury and of his girlfriend’s purpose in getting her vehicle.
The summary of facts on which Mr Stone pleaded guilty to the charge of intentional damage recites that Mr Modrich’s girlfriend drove the motor vehicle to the roadside for the purpose of collecting Mr Modrich. Mr Stone threw an empty glass bottle at the vehicle, smashing its front windscreen. Later he threw a second glass bottle which smashed the passenger side window. He yelled abuse at the driver as she collected Mr Modrich and drove away. These events caused her considerable distress.
Sentence
Judge Hubble found that Mr Stone was not acting under provocation of any type when he committed either offence. The Judge treated the assault with a weapon as the index or lead offence. He adopted a starting point of 13 months imprisonment for this charge. He purported to adjust it upward by three months to take account of the aggravating features of Mr Stone’s propensity for violence and for the charge of intentional damage. Those steps completed the process necessary to fixing the end sentence.
Judge Hubble apparently made a computation error. That is because he treated the end result as one of 18 months imprisonment, not 16 months which would have been mathematically correct. We are satisfied that the Judge intended throughout to impose a sentence of 18 months’ imprisonment for the totality of Mr Stone’s offending including the aggravating feature of his propensity for violence.
Judge Hubble was not satisfied that a sentence of home detention or community detention was appropriate.
Decision
Ms Holden submits that the Judge erred in: (1) adopting a starting point that was too high; (2) treating the charge of intentional damage as an aggravating factor justifying a three months uplift to the starting point; (3) not allowing a discount for mitigating factors; (4) sentencing erroneously on “an overall bad impression” of Mr Stone which was unjustified on the facts and the verdicts; (5) not imposing a sentence of home detention.
The first, second and fourth grounds roll into a challenge to the starting point. When addressing this composite ground of appeal, it must be noted that the Judge’s primary function was to impose a sentence reflecting the totality of Mr Stone’s offending. Judge Hubble was uniquely placed to evaluate Mr Stone’s culpability having presided at trial.
As noted, the Judge treated the charge of assault with a weapon as the lead or index offence, attracting a starting point of 12 months imprisonment. However, he could as easily have structured the sentence to reach the same end result without risk of appellate intervention by adopting the same starting point for the charge of intentional damage. In our judgment that was arguably the more serious offence; it carries a maximum term of seven years imprisonment whereas assault with a weapon carries a maximum of five years imprisonment.
The circumstances of the intentional damage charge were serious. Mr Stone must have known that Mr Modrich was seriously injured; that he required urgent medical treatment; and that his girlfriend was getting her vehicle to take him to hospital. Not only did he cause intentional damage to the vehicle, Mr Stone also wanted to prevent Mr Modrich’s girlfriend from coming to his aid. His use of two empty bottles as a weapon was plainly designed to frighten and deter her. That feature was particularly aggravating. And Mr Stone’s violence was gratuitous.
The Judge could properly have adjusted a 12 months starting point upwards by three months to take account of Mr Stone’s propensity for property and violence offences starting in the Youth Court in 2003. While his previous offending was less serious, it was constant and for a 24 year old he had a relatively lengthy list of previous convictions. The Judge would have also been entitled to adjust the starting point further upwards by at least three months on the totality principle to take into account the separate circumstances of Mr Stone’s conviction for the charge of assault with a weapon.
It follows that we are not satisfied that the Judge erred in adopting a starting point of 18 months imprisonment.
Ms Holden’s fourth ground is that the Judge should have allowed a discount for personal factors. She relies on the facts that Mr Stone did not commit any further offences in the two years between August 2009 when he offended and August 2011 when he was sentenced; and that he had made attempts in this period at rehabilitation by completing an anti-violence programme.
While we accept of course that judges should attempt wherever possible within the sentencing regime to encourage attempts at rehabilitation, we are not satisfied that Judge Hubble erred in not giving Mr Stone’s personal circumstances mitigating weight.
Finally, Ms Holden submits that the Judge was effectively wrong in principle in declining to impose a sentence of home detention. The question is whether the Judge made a reviewable error. Here he considered home detention but determined that it was inappropriate because of the circumstances of the offending, the degree of violence demonstrated by Mr Stone and the prospect that he would be living at an address with his partner when the police had expressed concerns for her safety if he was confined with her for a lengthy period.
We agree with Ms Bicknell that the Judge’s approach was appropriate, and we are not satisfied that he erred in imposing a term of imprisonment.
Result
Mr Stone’s appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington, for Respondent
5
0
0