R v STEPHENSON [2018] NZHC 2628

R v STEPHENSON [2018] NZHC 2628 [9 October 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2017-019-002434[2018] NZHC 2628THE QUEENvDAVID AARON STEPHENSONHearing: 9 October 2018Counsel: L Dunn for CrownS K Green for defendantJudgment: 9 October 2018SENTENCING NOTES OF KATZ JSolicitors: Almao Douch, Office of the Crown Solicitor, HamiltonCounsel: S K Green, Barrister, AucklandIntroduction[1] Mr Stephenson, you have pleaded guilty to charges of kidnapping, assaultwith a weapon, threatening to kill (two charges), unlawful possession of a pistol,unlawful possession of a firearm, male assaults female, indecent assault, supplyingmethamphetamine, possession of methamphetamine, possession of a Class Ccontrolled drug and two charges of possession of a drug utensil.[2] I have previously given you a sentence indication in respect of these charges,which you accepted. Two of the charges (kidnapping and indecent assault) are secondstrike offences. As a result, you will be required to serve any sentence imposed inrespect of those charges without the possibility of parole.1 In addition, you haveentered a guilty plea this morning through counsel to a charge of breach of parole. Thebreach arose as a result of you being found in possession of drugs on 6 April 2017, inbreach of your parole conditions.The offending[3] On 16 November 2016, you were released from prison, where you had beenserving a sentence of two years and eight months' imprisonment in respect ofconvictions for assault and wounding with intent to cause grievous bodily harm.[4] Five months later, on the evening of 5 April 2017, you sent the victim, whomyou knew, a text message saying that you needed to talk to her. In the early hours ofthe following morning the two of you met and you got into the passenger seat of thevictim's car. Once in the car, you produced a pistol, which you aimed at the victim'shead. You told her to drive and said "this is going to be a long night for you". Youdemanded to know where the witnesses who had testified against you at your previoustrial lived. The victim told you she did not know, and you shot the pistol at thewindscreen, causing it to crack. You then aimed the gun at the victim's head, and toldher that "the next one is going through your head if you don't tell me".1 Sentencing Act 2002, s 86C(1) and (4).[5] You demanded that the victim drive you to an associate's address, where youtook the victim's phone and wallet to ensure that she did not leave. You then retrievedwhat looked like a shotgun covered in blankets. You put it in the boot of the car andsaid again that it would be a long night for the victim.[6] You then directed the victim to drive to another location, where you got out ofher car and picked up an associate of yours, continuing your journey in the associate'svehicle. You were driving. When you stopped at a petrol station you made the victimget out of the car and stay close to you. The three of you then continued drivingtowards Hamilton. You continued to ask the victim where the witnesses who had givenevidence against you lived. She said that she did not know. You hit her across theface with a closed fist. You told the victim "every time you fucken lie to me I'm goingto smack you". You continued to threaten the victim, despite her continually tellingyou she did not know where the witnesses lived.[7] You then dropped your associate off and drove the victim to a secluded area ofa supermarket car park. You got out of the car and yelled at the victim, telling her tostart telling the truth about where the witnesses lived because the "narks were goingto pay for [you] not being able to see [your] son for three years". The victim cried andtried to tell you that she did not know anything that could assist you. You told her toshut up and if she did not, you would blindfold her and put her in the boot.[8] You eventually drove to a McDonalds car park where you gave somemethamphetamine to the occupants of another car that pulled up, which you said wasa down payment towards them stealing a fast car for you.[9] You then drove towards Cambridge, with the victim still in the car, and parkedthe car on Hart Road. You grabbed your pistol and told the victim to get into the backseat. You gave her back her phone and told her "not to do anything stupid or else",and then demanded she look up pornography on it. She did so, and played a video foryou. You began to smoke some methamphetamine out of a container, and after a shorttime, put some methamphetamine into a pipe and put it in front of the victim's face,telling her to "smoke this". She thought she would be assaulted if she did not, and soshe smoked it.[10] You then indecently assaulted the victim, culminating in your masturbating onher chest. The victim then got dressed and pleaded with you to take her home, tellingyou that if she was not home by 6.30 am to look after her child, her father would callthe police. You eventually agreed and took her back to the address where her car hadbeen left. You told her to keep quiet about what had happened and that if she went tothe police, you would kill her. The victim then drove home.[11] You were stopped by police later that day. The police found a .22 rifle in theboot, methamphetamine, a pipe and straw used for smoking methamphetamine, andsome cannabis. You were arrested and charged.Sentencing approach[12] In sentencing you today, I must hold you accountable for your offending, deterand denounce your conduct, and take into account the need for community protection.I also take into account the importance of facilitating your rehabilitation, and that theleast restrictive sentence appropriate in the circumstances must be imposed.[13] I take the kidnapping charge as the lead offence. Some of your other offendingis so closely interlinked with the kidnapping charge that the best approach is toconsider that offending as an aggravating feature of the kidnapping charge. Inparticular, I consider the threats to kill, firearms and violence offences are largelysubsumed within the offence of kidnapping, such that no separate uplift to yoursentence is required in relation to those charges. Rather, they ought to be consideredas part of the kidnapping assessment.[14] In relation to the indecent assault offending and the drug offending, I considerthat specific uplifts to your sentence are appropriate, given the discrete nature of thatoffending.The starting pointKidnapping[15] I consider that the aggravating features of the kidnapping offending are asfollows:(a) Premeditation — There was a strong element of premeditation giventhat you arranged to meet the victim and brought a weapon with you.Your primary goal was to obtain information from the victim.(b) Violence and detention — the victim was detained over a number ofhours. She had genuine concerns for her safety, given that you werearmed with a weapon, fired it, aimed it at her, and made a number ofthreats. You took her phone and wallet from her, and also committedactual violence against her by punching her.(c) Presence of weapons — You were armed with a pistol, which you firedin the victim's vehicle, damaging her windscreen, and you alsoobtained a rifle, which you put into the boot of the vehicle.(d) Effects of offending on victim— The victim has elected not to providea victim impact statement. I have no doubt, however, that she wouldhave feared for her life during the incident. She also likely has seriousongoing fears for her personal safety, including in particular when youare eventually released from prison.(e) Extent of offending — You went on a crime spree. You committedviolent offending, drug offending, sexual offending and possessedfirearms, all in the course of one night.[16] The maximum penalty for kidnapping is 14 years' imprisonment.2 I haveconsidered a number of kidnapping cases for comparative purposes, including thosereferred to by counsel. Some of them, however, involve offending that is significantly2 Crimes Act 1961, s 209.less serious than this case. The starting points in the cases I have considered rangedfrom two years and four months' imprisonment to six years and six months'imprisonment.3[17] Your offending was serious and occurred over a number of hours. Withreference to the cases I have referred to, and the aggravating features I have outlinedabove, I consider that a starting point of five years' imprisonment is appropriate.Assault with a weapon, unlawful possession of a firearm, male assaults female andthreatening to kill[18] As I have already noted, I consider that your culpability in respect of thecharges of assault with a weapon, male assaults female, and threatening to kill issubsumed within the kidnapping charge. With reference to other, broadly similar,cases that I have considered, I have concluded that the following concurrent sentencesare appropriate for those charges:(a) one year's imprisonment in respect of the charge of assault with aweapon;(b) six months' imprisonment in respect of the charge of male assaultsfemale;(c) two years' imprisonment on each of the charges of threatening to kill;and(d) two years' imprisonment on each of the charges of unlawful possessionof a firearm.3 R v Yates [2018] NZHC 1341 (starting point of six years and six months' imprisonment);Mau'u v R [2011] NZCA 385 (starting point of three years' imprisonment); Boyle v R [2017]NZCA 173 (starting point of three years and four months' imprisonment); Heke v R [2016] NZCA38 (starting point of two years and four months' imprisonment); Tozer v R [2010] NZCA 7 (startingpoint of three years and six months' imprisonment).Indecent assault[19] In respect of the indecent assault charge, the maximum penalty is 7 years'imprisonment.4 With reference to the various cases counsel have referred to, and othercases I have considered,5 if the indecent assault charge was considered on a standalonebasis, a sentence of between three years' imprisonment and four years' imprisonment(if not higher) would likely be appropriate. Given, however, that the indecent assaultoccurred in the context of the kidnapping offending, I apply a one year uplift to thestarting point for that offending, to reflect totality. This increases your overall startingpoint to six years' imprisonment.Drug offending[20] You have also been charged with supplying methamphetamine,6 possessionof methamphetamine,7 two charges of possession of a utensil,8 and possession of aClass C controlled drug.9 A specific uplift is required to recognise the distinctlydifferent nature of this offending.[21] The most serious of the drug-related charges is the charge of supplyingmethamphetamine. The summary of facts does not specify the amount involved. Iproceed on the basis that it was less than five grams, which would bring this offendingwithin Band 1 of the guideline case of R v Fatu,10 which provides for starting pointsof two to four years' imprisonment. On a standalone basis, a sentence of two years'imprisonment would be appropriate for this charge.4 Crimes Act 1961, s 135.5 Dayal v R [2016] NZHC 1027 (starting point of three years and six months' imprisonment);Teriini v R [2013] NZCA 614 (starting point of three years' imprisonment); Rickit v R [2010]NZCA 25, R v Rickit DC Auckland CRI-2007-004-26957, 28 July 2009 (end sentence of ninemonths' imprisonment).6 Misuse of Drugs Act 1975, s 6(1)(c).7 Misuse of Drugs Act 1975, s 7(1)(a).8 Misuse of Drugs Act 1975, s 13(1)(a).9 Misuse of Drugs Act 1975, s 7(1)(a).10 R v Fatu [2006] 2 NZLR 72 (CA).[22] In relation to the other drug-related charges, the maximum penalty for thecharge of possession of methamphetamine is six months' imprisonment,11 one year'simprisonment for possession of a utensil12 and three months' imprisonment forpossession of a class C controlled drug.13 Given that this offending is not the mostserious offending of its kind, the small amount of drugs involved, and the fact that Iam imposing a two-year concurrent sentence in respect of the most serious drugscharge, I consider that a conviction and discharge would be appropriate in respect ofthese remaining charges. I also consider that a conviction and discharge is appropriatein respect of the breach of parole charge.[23] Taking into account totality, a further uplift of one year's imprisonment isappropriate to reflect your overall drug offending.Conclusion on starting point[24] I have set an initial starting point of five years' imprisonment for thekidnapping charge. In addition, I have imposed a one year uplift for the indecentassault offending and a further one year uplift for the drug offending. This brings youroverall starting point to one of seven years' imprisonment.Personal aggravating and mitigating features[25] Mr Stephenson, you are 31 years' old. You have a good relationship with yourmother and your older brother, who are your primary support people. You also reporthaving had an abusive childhood at the hands of a step-parent, which has causedongoing depression and associated issues.[26] You have previously worked as a farm hand and also have experience inwelding and general engineering. You hope to study small business management inprison, and the writer of your pre-sentence report is optimistic about your capacity fortertiary education, which is encouraging.11 Misuse of Drugs Act 1975, s 7(2)(a), and a fine of $1,000 as well, or in the alternative.12 Misuse of Drugs Act 1975, s 13(3), and a fine of $500 as well, or in the alternative.13 Misuse of Drugs Act 1975, s 7(2)(b), and a fine of $500 as well, or in the alternative.[27] You are a long-term user of methamphetamine, although you have hadextended periods where you have abstained from using it. Unfortunately, however,you relapsed and started using again within weeks of your release from prison inNovember 2016. You were under its influence during your offending. Your drug useappears to have been a significant contributing factor to your offending. The pre-sentence report writer considered that you showed some insight into your drugproblems. You have never undergone significant rehabilitative intervention for drugaddiction.[28] You have nine previous convictions for violent offending, includingconvictions for assault and wounding with intent to cause grievous bodily harm. Yourpresent offending occurred within five months of your release from prison. You alsohave previous convictions for drug-related offending.[29] Given your criminal history and the fact that the current offending occurred onparole, I consider an uplift of six months is appropriate.[30] Your pre-sentence report records that you have demonstrated some remorse foryour offending, and have also shown some insight into your behaviour. The reportwriter considers that you showed genuine empathy for your victim during yourinterview. You are open to counselling for your drug addiction and violent tendencies,and I encourage you to pursue such opportunities.[31] Your counsel, Ms Green, submits that a remorse discount is appropriate.She has provided me with a copy of a letter that you wrote to the victim. In that letteryou apologise to the victim and acknowledge that the experience must have been verytraumatic for her. You reassure her that you do not bear her any ongoing animosity, orwish her any harm.[32] I accept that you do have a degree of insight into your offending and that yourexpression of remorse is genuine. Overall, I consider that a discount of four monthsis appropriate to reflect your remorse.Guilty plea discount[33] Your trial was due to commence the week after I gave your sentence indication.Trial preparation would have been at an advanced stage at the time of the indication.However, by subsequently pleading guilty you reduced the burden on the court'sresources. Further, you spared the victim the trauma of testifying at trial. Given thenature of your offending, giving evidence would likely have been an extremelydifficult and stressful experience for her. Given those circumstances, I consider that aguilty plea discount of ten percent is appropriate.Sentence[34] Mr Stephenson, please stand. I sentence you to:(a) six years and five months' imprisonment for the kidnapping charge;(b) three years' imprisonment for the indecent assault charge;(c) two years' imprisonment on each of the two charges of threatening tokill;(d) two years' imprisonment for the supply of methamphetamine charge;(e) two years' imprisonment on each of the two unlawful possession of aweapon charges;(f) one year's imprisonment for the assault with a weapon charge;(g) six months' imprisonment for the male assaults female charge.[35] Each sentence of imprisonment is to be served concurrently, which means thatyour effective end sentence is six years and five months' imprisonment.[36] On the two charges of possession of a utensil, the charge of possession of aClass C controlled drug, the charge of possession of methamphetamine, and the chargeof breach of parole, you are convicted and discharged.[37] You may stand down._________________________Katz J