Stuart v Police
[2023] NZHC 2867
•13 October 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-161
[2023] NZHC 2867
BETWEEN ROBERT JAMES STUART
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 October 2023 Appearances:
M J Smit for Appellant
G E R Alloway for Respondent
Judgment:
13 October 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 13 October 2023 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
STUART v NEW ZEALAND POLICE [2023] NZHC 2867 [13 October 2023]
Introduction
[1] Robert Stuart has been convicted with assault on a person in a family relationship,1 threatening to kill,2 and assault.3
[2] He was sentenced in the District Court to 18 months’ imprisonment.4 He appeals this sentence on the ground that it was manifestly excessive.
Facts
[3] On 1 February 2023, Mr Stuart was at the victim’s home. Also present was the victim’s caregiver. A verbal argument occurred between Mr Stuart and the victim who was in a wheelchair. The caregiver called her employer to report the verbal abuse. In response to this, Mr Stuart struck her cell phone out of her hand, using his fist in a hammer like motion. He then threatened to kill the victim stating “You’re dead. I’ve had enough of you”, whilst making a cutting gesture with his finger across his neck.
[4] Subsequently, on 17 April 2023, Mr Stuart was in a vehicle with his partner, the third victim. While driving, they had an argument and Mr Stuart pinched the skin of the victim’s right leg multiple times. Mr Stuart then grabbed the victim’s left hand, holding it with one of his hands and punching it with the other hand around five times before pulling over.
District Court decision
[5] Judge McMeeken adopted the charge of threatening to kill as the lead charge. A starting point of 18 months’ imprisonment was taken and she included the assault charge within this. The Judge accepted that Mr Stuart would be eligible for home detention but that there was no available address.
[6] She noted that with the starting point of 18 months, there would then be deductions to be made (the nature of which she does not specify). She then notes that
1 Crimes Act 1961, s 194A – maximum penalty: two years’ imprisonment.
2 Section 306 – maximum penalty: seven years’ imprisonment.
3 Summary Offences Act 1981, s 9 – maximum penalty: six months’ imprisonment or fine not exceeding $4000.
4 Police v Stuart [2023] NZDC 16101.
she would have to add time for the April offending, resulting in an end sentence of 18 months’ imprisonment.
[7] The Judge also imposed various release conditions for six months after the expiry of the sentence. These were to not possess, consume or use alcohol and drugs, to not have any form of contact with any of the victims at all without prior consent of the probation officer, to attend and complete an appropriate non-violence programme and also to attend an assessment for any other program deemed appropriate by the probation officer.
Principles on appeal
[8] 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.5 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
Submissions
Appellant’s submissions
[9] Mr Smit for the appellant appeals on the basis that the sentence was manifestly excessive.
[10] First, he submits the sentence was affected by an error. The Judge understood that Mr Stuart had already been in custody for seven months prior to sentencing, but this was a mistake and he had only spent 105 days in custody. Ms Smit submitted this
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101 at [15].
error was relevant to sentencing as had she known he had only served three months, she would likely have imposed a shorter sentence.
[11] Second, Mr Smit submits an appropriate starting point for the lead charge of threatening to kill is 12 months’ imprisonment. In R v Sykes, a 12-month starting point was adopted with an uplift for the aggravating factor of the presence of a weapon.8 He submits the present offending is not as serious as in Sykes and thus 12 months is appropriate. Counsel submits that the common assault charge should be sentenced concurrently as it was part of the same incident and a further uplift of three months is required for the charge in April and for his prior history.
[12] Mr Smit submits that Mr Stuart should be entitled to at least a 20 per cent credit for pleading guilty as he did so at the first reasonable opportunity once resolution of an additional charge had been obtained.
[13] Therefore, counsel submits that the current sentence of 18 months’ imprisonment is manifestly excessive, and a sentence of 12 months is appropriate in the circumstances.
Respondent’s submissions
[14] Mr Alloway for the respondent submits that the sentence imposed was within range and thus the appeal should be dismissed.
[15] He submits that the starting point of 18 months’ imprisonment on the threatening to kill charge was available, citing the decision of Faaleaga v R which identified the key factors for culpability on a charge of threatening to kill.9 Counsel notes that Mr Stuart’s threat was directly to the victim who was vulnerable, there was an associated assault, a breach of trust and the threat occurred in the victim’s home.
[16] While no decisions are entirely analogous, Mr Alloway submits that the following cases provide some guidance to the court.
8 R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.
9 Faaleaga v R [2011] NZCA 495 at [11].
[17] In Taylor v Police, the appellant went to his former partner’s house, pushed his way into her house, pinned her against the wall and threatened to kill her.10 A starting point of 18 months’ imprisonment was adopted. This case is considered to be analogous to the present situation as the threat occurred in the context of a minor assault, the victim was vulnerable, and the threat occurred in the victim’s home.
[18] In Rudd v R, the appellant called a contractor who had worked for him and threatened to kill him.11 He attempted to call him again twice over the following five days. Again, a starting point of 18 months’ imprisonment was adopted. Rudd is considered to be more serious than Mr Stuart’s situation as the threat was premeditated, followed up on twice and the victim was fearful.
[19] Finally, in R v McVeagh, the Court of Appeal held that a sentence of 15 months’ imprisonment was not excessive for a threat to kill.12 In this case a mentally ill offender sent a letter from prison threatening to kill a former member of Parliament. Counsel accepts that the present case is more serious, involving actual violence and it was made directly to a vulnerable victim.
[20] Counsel accepts that the assault in a family relationship offending was reasonably minor. However, he submits that a cumulative sentence was available as this offending was unconnected in time and nature. A starting point of around four months’ imprisonment could have been adopted, citing the following cases.
[21] Firstly, in Skerten v Police, the defendant was in an argument with his partner who packed their children into the car.13 When she went back inside, the defendant kicked her once in the lower leg. The Court considered a five-month starting point to be excessive and held a starting point of no more than three months’ imprisonment should be adopted.
10 Taylor v Police [2014] NZHC 1139.
11 Rudd v R [2015] NZHC 2399.
12 R v McVeagh CA140/94, 4 August 1994.
13 Skerten v Police [2021] NZHC 3425.
[22] In MacEwan v Police, the defendant was convicted of male assaults female.14 He whipped the complainant in the face with a piece of clothing. She fled however when she returned, he placed her in a headlock for around two minutes. The High Court considered a starting point of nine months’ imprisonment was too high, reducing the starting point to seven months’ imprisonment.
[23] Mr Alloway submits that adequate discounts were given. A discount of 20 per cent on a 22-month starting point is around four and a half months and thus the Judge did not err when treating the guilty plea and uplift for assault on a person in a family relationship as equivalent. It is noted that the judge did not uplift the sentence to reflect the appellant’s history of relevant offending.
Analysis
Was the starting point too high?
[24] I agree with counsel for the appellant that the starting point of 18 months for the lead offending is too high.
[25] I reject the submission that the Judge was influenced by her mistaken understanding of how long the appellant had been in custody. This submission is entirely speculative. There is nothing to suggest it influenced the Judge’s decision. The real issue is whether the sentence was too long when compared with similar cases.
[26] In Sands v Police, for example, the starting point taken for the threat to kill was 12 months’ imprisonment which was uplifted by six months for an assault on the victim.15 In that case, Mr Sands and his partner, the first victim, lived together. The other two victims lived 50 meters away. There was an altercation where Mr Sands slapped his partner, causing her nose to bleed. She fled to her neighbours house who tried to call the police. Mr Sands entered their house, tried to grab the phone and yelled at them “if you call the fucking pigs, I will fucking kill you cunts”. He then left and said “watch your backs”. This situation is more severe than the present offending involving a more serious physical assault than that committed by Mr Stuart.
14 MacEwan v Police [2019] NZHC 3320.
15 Sands v Police [2021] NZHC 2302.
[27] In Byrne v Police, following a period of binge drinking, the appellant assaulted his partner over a 20 minute period.16 He punched, kicked, slapped and pulled her hair before she was uplifted by her friend who took her and her daughter to the police station. During the course of this, the appellant used his cell phone to threaten to kill the appellant. It was considered at the High Court that the starting point of 18 months was too high and an appropriate starting point was 12 months’ imprisonment. The threats to kill were considered “drunken bravado”. While I do not think the threats were of the same nature in the present scenario, I do not consider Mr Stuart’s offending to be worse than that in Byrne and thus a starting point of 18 months is too high.
[28] Finally in Saunders v Police, Mr Saunders went around to the house of an associate of his ex-wife who had a protection order against him (which he breached and was sentenced to supervision for).17 He told the associate that he had “come round to the address to apologise… for what [he] was about to do”, saying “they were all going to be dead” referring to his ex-wife, her new partner and the partner he had recently split up with (whom he also had a temporary protection order issued). The starting point for the threatening to kill was 10 months’ imprisonment.
[29] Whilst one of the victims was vulnerable and the threat was associated with a minor assault, when compared to cases where 18 month starting points are taken, these generally involve more violent, prolonged assaults. I am satisfied 12 months is an appropriate sentence for the lead offending.
Assault on a person in a family relationship
[30] When considering the uplift for the April assault on a person in a family relationship. I acknowledge that the assault is of a relatively minor nature involving Mr Stuart pinching the victim’s skin, grabbing her hand and punching it with his hand around five times.
[31] The cases cited by the respondent are helpful, although ultimately, each case is very fact dependent. A further informative decision is that of Chang v Police.18 Here,
16 Byrne v Police HC Dunedin CRI-2008-412-4, 5 March 2008.
17 Saunders v Police [2015] NZHC 1964.
18 Chang v Police [2019] NZHC 2051.
Mr Chang grabbed his wife by the hair and slapped her face twice before telling her to “get out and die”. He was sentenced to nine months’ supervision. In Whichman v Police a starting point of six months was considered to be within range however, on appeal, the Court said it would have taken a starting point of five months.19 In that case, Mr Whichman was with the complainant who was sleeping on the couch. Mr Whichman began yelling at her. He grabbed her and threw her to the ground and then pulled her through the lounge onto the veranda, causing her to hit her head and right ankle on the door. This assault is more severe than that committed by Mr Stuart.
[32] In light of all the cases, I consider an uplift of three months’ imprisonment is appropriate for the April offending. This would result in an end starting point of 15 months.
[33] The next issue is whether there should be an uplift for prior offending. It is important such uplifts are not imposed as a matter of course but instead reflect a considered response to specific aspects of an offender’s previous criminal history.20 In considering whether the previous convictions bear upon character and culpability of the offender, indicate a reoffending risk, or the need to protect society through a deterrent sentence, the courts will consider, the number, seriousness, and nature of the convictions and the time since the last conviction.
[34] Mr Stuart has a relatively lengthy criminal record dating back to 2014. He has prior convictions for behaving threateningly in 2020 and 2019, speaking threateningly in 2019, assault on a person in a family relationship in 2019 and assault in 2020 and 2019. Notably, he also has a significant family violence bail report. I consider a further uplift of three months is warranted for this personal aggravating factor.
[35] When considering discounts, it is ultimately unclear what discounts were allowed at the District Court. The Judge merely noted that they would balance out the uplifts. With regards to Mr Stuart’s guilty plea, the respondent believes that a 15-20 per cent reduction should be given for this. Mr Stuart pled guilty at the second
19 Whichman v Police [2019] NZHC 3245.
20 O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302.
case review hearing. I agree a 20 per cent reduction could be made. This would be three months, ultimately cancelling out the uplift.
[36] Therefore, the final sentence would be 15 months’ imprisonment. This is well within the range for considering a sentence of home detention. While no home detention address was available it is unclear whether the Judge was intending to preclude home detention being applied for.
[37] Mr Stuart has spent three months in custody prior to sentencing and now has spent an additional two while waiting for the appeal. Therefore, if a sentence of 15 months is imposed, he still has more than two months to serve. While Mr Smit does not suggest home detention is appropriate here, I would not grant leave in any event. Mr Stuart’s history of non-compliance with Court orders, drug-use and anti-social behaviour make such a sentence inappropriate.
Conclusion
[38] The appeal is allowed. The sentence of 18 months’ imprisonment is quashed. In its place, a sentence of 15 months’ imprisonment is imposed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
M Smit, Barrister, Christchurch
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