Stuart v The Queen
[2021] NZHC 710
•9 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000546
[2021] NZHC 710
BETWEEN KANE DONALD STUART
Appellant
AND
THE QUEEN
Respondent
Hearing: 29 March 2021 Appearances:
A Tupuola for the Appellant
D McGivern for the Respondent
Judgment:
9 July 2021
REASONS JUDGMENT OF HINTON J
This judgment was delivered by me on 9 July 2021 at 3:00 pm
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell, Auckland
Bloem & Associates, Auckland
STUART v R [2021] NZHC 710 [9 July 2021]
[1] On 29 March 2021 I dismissed this appeal with reasons to be provided. I also explained my reasons in full to counsel at the conclusion of the hearing because I was concerned that Ms Tupuola (for Mr Stuart) understand how I reached my conclusion in the face of the very good points she raised.
[2] Mr Stuart appealed against sentence. Judge Bouchier sentenced him to 30 months’ imprisonment for a number of Crown and police charges.1 The Crown charges were: two charges of theft, one over $1,000,2 one under $500;3 two charges of dishonestly using a document;4 one charge of burglary;5 and one charge of obtaining by deception.6 The Police charges were: two charges of dishonestly using a document;7 three charges of theft over $1,000;8 one charge of theft between $500 and
$1,000;9 one charge of possession of methamphetamine;10 one charge of breaching District Court bail;11 and six charges of theft under $500.12 Mr Stuart pleaded guilty to all charges.
[3] While the appeal was initially broader, by the time of the hearing the sole ground was that the Judge erred by not allowing discounts (totalling 20 to 25 per cent) for methamphetamine addiction, personal deprivation and rehabilitative prospects.
[4] Further, the Crown in fact accepted that it could have been open to the Judge to allow an additional discount of approximately 20 per cent for personal deprivation, not for the other factors. But the Crown submitted the sentence was still not manifestly excessive because the Judge was too generous in other regards and made an error in her calculations. In combination these would substantially offset any additional discount.
1 R v Stuart [2020] NZDC 24404.
2 Crimes Act 1961, s 223(b); maximum penalty seven years imprisonment.
3 Crimes Act 1961, s 223(d); maximum penalty three months imprisonment.
4 Crimes Act 1961, s 228(1)(b); maximum penalty seven years imprisonment.
5 Crimes Act 1961, s 231(1)(a); maximum penalty ten years imprisonment.
6 Crimes Act 1961, s 241(1); maximum penalty seven years imprisonment.
7 Crimes Act 1961, s 228(1)(b); maximum penalty seven years imprisonment.
8 Crimes Act 1961, s 223(b); maximum penalty seven years imprisonment.
9 Crimes Act 1961, s 223(c); maximum penalty one year imprisonment.
10 Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2)(a); maximum penalty 6 months imprisonment or a fine not exceeding $1,000.
11 Bail Act 2000, s 38(a); maximum penalty one year imprisonment or a fine not exceeding $2,000.
12 Crimes Act 1961, s 223(d); maximum penalty three months imprisonment.
Law
[5] The appellant has an appeal as of right under Section 244 of the Criminal Procedure Act 2011 ("the Act").
[6] Section 250 of the Act sets out how a court must determine a sentence appeal. An appeal must be allowed if the court is satisfied that there is an error in the sentence and that a different sentence should be imposed.
[7] The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:13
…the standard of appellate review in sentence appeals… requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason, it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only the sentence enjoys an appropriate margin of appreciation.
[8] In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply, and the Court would not intervene where the “sentence imposed was within a range that could be properly justified by accepted sentencing principles”.14
Sentencing in District Court
[9] In June and July 2019, Mr Stuart committed a number of dishonesty offences as set out above. The methamphetamine charge arose when Mr Stuart was stopped and searched by Police who found 0.21 grams of methamphetamine in his wallet. As noted Mr Stuart pleaded guilty to all charges.
[10] The Judge adopted the charges of burglary and dishonest use of a document as the lead charges and set a starting point of 15 months’ imprisonment. She then uplifted by 15 months for the other offending to impose a total starting point of 30 months’ imprisonment. For personal factors related to the offender, the Judge uplifted the
13 Palmer v R [2016] NZCA 541, at [17].
14 Tutakangahau v R [2014] 279, at [35]-[36].
sentence by 12 months to reflect Mr Stuart’s previous convictions. The Judge then applied a discount of 25 per cent for Mr Stuart’s guilty plea and discounted a further one and half months to round the end sentence down to 30 months’ imprisonment. The Judge also imposed six months’ post-imprisonment conditions as set out in the pre- sentence report.
[11] The Judge’s approach to sentencing largely adopted the approach submitted to her by defence counsel, except counsel had submitted there should be a further 20 per cent discount for drug addiction, as applied in Zhang v R. The Judge considered this submission but found there was no evidence to establish a causal nexus between the offending and Mr Stuart’s background of substance abuse. The Judge declined to adjourn the sentencing to allow a s 27 report to be prepared.
Discussion
[12] In written submissions on the appeal Ms Tupuola had contended that the Judge failed to consider the principle of totality in determining the starting point of 30 months’ imprisonment.15 However that argument was not pursued at the hearing and I agree with the Judge that the adjusted starting point of 30 months was an appropriate starting point for all of the offending.
[13] I turn to the submission that the Judge erred by not awarding a discount for Mr Stuart’s methamphetamine addiction. The Court of Appeal in Zhang held that such a discount may be appropriate where a defendant can present persuasive evidence to show on the balance of probabilities that their offending is linked to their addiction.16 In Berkland the Court of Appeal held that the defendant must also show that his or her addiction was an “operative cause” of their offending.17
[14] Ms Tupuola submitted that the link is clearly established and could have been explored further in a s 27 cultural report had one been available. Even without the cultural report, Ms Tupuola submitted the Judge could have taken the pre-sentencing
15 Sentencing Act 2002, s 85.
16 Zhang v R [2019] NZCA 507; (2019) 29 CRNZ 282, at [148].
17 Berkland v R [2020] NZCA 150, at [77]. The defendant was granted leave to appeal to the Supreme Court and a decision is pending.
report and the plan with Mr Stuart’s probation officer for his rehabilitation after release as evidence of the link between Mr Stuart’s addiction and his offending. Mr McGivern submitted that the only evidence available to the Court was based on Mr Stuart’s self- report and was therefore not persuasive evidence linking his addiction to his offending.
[15] In my view, the causal link between Mr Stuart’s offences and his addiction can readily be inferred, particularly from the pre-sentence report, and I do not need a s 27 report to do so. Mr Stuart is 33 years old. He had been in rehabilitative centres most of his life. He had offended over a long period but stopped for three years which coincided with his apparently being drug-free. Further it seems Mr Stuart’s offending started again when he started using drugs and alcohol again. He was found with methamphetamine at the time of this offending. The present dishonesty offending substantially related to theft of money. It can reasonably be inferred that the offences were committed in order to fund Mr Stuart’s addiction. Although no psychologist’s report is available, this Court and the Court of Appeal have both previously held a defendant can meet their Zhang onus of proof regarding addiction without expert evidence if it can be established on the facts.18
[16] Similarly, Ms Tupuola submitted that even without a s 27 report there is a clear link between Mr Stuart’s history of systemic deprivation and his offending which justified a further discount.19 Mr McGivern acknowledged that a discount of 20 per cent would be appropriate in this regard, accepting that the case was comparable to that of Mr Wilson in Poi v R. Mr Wilson similarly experienced trauma in his formative years leading to profound damage.20
[17] An acknowledgement of the impact of Mr Stuart’s addiction and personal deprivation on his offending by way of discount of 25 per cent for personal circumstances would have been appropriate.
[18] Finally, Ms Tupuola submitted that Mr Stuart should have been awarded a discount for his rehabilitative efforts. Mr Stuart had created a plan with a probation
18 Roberts v R [2019] NZHC 3319, at [39]; and Martin v R [2020] NZCA 318, at [30].
19 SG v Heta [2018] NZHC 2453.
20 Poi v R [2020] NZCA 312, at [35].
officer for his rehabilitation after release. Mr McGivern submitted that no discount was warranted for this factor, as it is a factor properly left to the Judge’s discretion and a discount may be refused if the defendant has an extensive criminal history.21 Mr McGivern submitted that all Mr Stuart had illustrated was an intent to engage in rehabilitation and absent any steps towards this, the Judge was free to award no discount. It seems in this case the Judge did not so much decline to award a discount but rather it was not put to her. In any event for the reasons Mr McGivern propounds, I do not consider the Judge erred in not awarding a discount for this factor.
[19] For personal deprivation and addiction I consider Mr Stuart should have received a discount of 25 per cent.
[20] Mr McGivern submitted that the end sentence was nonetheless not manifestly excessive. Additional discounts to reflect s 27 factors would not change the end sentence as the Judge applied too great a discount for guilty pleas and incorrectly applied Hessell when she should have applied Moses. The Judge also gave an additional one and half month discount for no stated reason, which would clearly not be available if an additional 25 per cent discount were made.
[21] As noted, the Judge awarded a 25 per cent discount for Mr Stuart’s guilty plea. Mr McGivern submits that discount should have been at most 20 per cent as Mr Stuart did not make the plea at the first available opportunity.22 Instead Mr Stuart made a tactical decision to test his case at a s 137 hearing and to only plead guilty to the remaining charges. Mr McGivern submits this is materially similar to R v Southern Boundary Wines Ltd (in liq),23 where the Court applied a 20 per cent discount as the defendant only pleaded guilty (to charges under the Wine Act 2003) after the s 147 hearing.24 I agree that the discount of 25 per cent was generous to Mr Stuart and the guilty plea discount should have been 20 per cent.
21 Ross v R [2015] NZHC 1633.
22 Cooper v R [2013] NZCA 551.
23 R v Southern Boundary Wines Ltd (in liq) [2020] NZHC 514.
24 At [106].
[22] The Judge used the Hessell approach when applying the guilty plea discount.25 She applied the guilty plea discount to the uplifted sentence of 42 months. The Judge should have used the Moses approach, and applied the guilty plea discount to the adjusted starting point of 30 months.26
[23] As a consequence, while I agree that the Judge erred by not awarding a discount to reflect the link between Mr Stuart’s offending and his addiction, and s 27 factors, I am not convinced a different sentence should have been imposed. Taking the Judge’s adjusted starting point of 30 months’ imprisonment, adding 12 months for previous convictions and deducting from the start point 20 per cent for the guilty plea and the additional discount of 25 per cent for personal circumstances, the final sentence reached would be 28.5 months’ imprisonment. The sentence imposed of 30 months’ imprisonment was therefore not manifestly excessive. It was within the range available to the sentencing judge.
Conclusion
[24]For the above reasons I dismissed the appeal.
Hinton J
25 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607, (2010) 24 CRNZ 966.
26 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.
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