STEVENS v NEW ZEALAND POLICE [2021] NZCA 340

STEVENS v NEW ZEALAND POLICE [2021] NZCA 340 [26 July 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA9/2021[2021] NZCA 340BETWEEN ISAAC KEREHOMA STEVENSApplicantAND NEW ZEALAND POLICERespondentCourt: Goddard, Venning and Peters JJCounsel: E A Hall for ApplicantJ E Mildenhall for RespondentJudgment:(On the papers)26 July 2021 at 11.00 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The applicant, Mr Stevens, seeks leave to bring a second appeal againstconviction and sentence.1[2] We may only grant leave if satisfied the appeal involves a matter of general orpublic importance, or a miscarriage of justice may have occurred or may occur unless1 Criminal Procedure Act 2011, ss 237(1) and 253(1).the appeal is heard.2 Ms Hall, counsel for Mr Stevens throughout, submits that bothlimbs are satisfied on the proposed appeal against conviction, and that the second issatisfied on the proposed appeal against sentence.Background[3] On 11 October 2019 and following a Judge-alone trial, Judge Edwards foundMr Stevens guilty and convicted him of 13 charges of violent and sexual offendingagainst his then-partner, committed between January and June 2017.3[4] On 17 December 2019, Judge Edwards sentenced Mr Stevens to 10 years andfour months' imprisonment.4 The Judge adopted a starting point of 12 years, alloweddiscounts of 14 months to reflect both the nexus between Mr Stevens' background andhis offending and his efforts to rehabilitate, and six months for his guilty pleas to threecharges.5 The Judge imposed a minimum period of imprisonment of 50 per cent, orfive years and two months' imprisonment.6Appeal to High Court[5] Mr Stevens appealed against his conviction and sentence to the High Court.[6] Before Cooke J, Ms Hall contended a miscarriage of justice had occurred ontwo separate grounds. First, the Judge had erred in her assessment of the evidence tosuch an extent a miscarriage of justice had occurred, being the ground in s 232(2)(b)of the Criminal Procedure Act 2011. Secondly, a miscarriage had occurred because ofspecific errors the Judge had made in, or affecting, the course of trial.[7] The appeal against sentence was brought on the ground the sentence wasmanifestly excessive.[8] Cooke J dismissed both appeals.7 Insofar as concerns the appeal againstconviction, Cooke J accepted there were deficiencies in Judge Edwards' judgment.2 Sections 237(2) and 253(3).3 R v Stevens [2019] NZDC 20484 at [39].4 R v Stevens [2019] NZDC 25602.5 At [41].6 At [44].7 Stevens v R [2020] NZHC 3290.The Judge agreed with Ms Hall that the judgment was formulated at a "generic" level.The Judge also acknowledged that, in most cases, the Judge had not identified andanalysed the specific elements of the charges against Mr Stevens, and that she had notset out her factual findings in a comprehensive way.8[9] Despite that, and for the extensive reasons he gave, Cooke J was satisfied theJudge's reasons and reasoning were sufficient to meet the requirements of s 232(2)(b).9[10] Cooke J then addressed the individual errors Ms Hall contended the Judge hadmade. Ultimately, and again for the detailed reasons given, Cooke J was satisfied thatthere had been no miscarriage of justice.10[11] On the matter of sentence, Cooke J was satisfied that the end sentence waswithin the available range and so not manifestly excessive.11Submissions in support of leave[12] Ms Hall submits that a matter of general or public importance arises on theproposed appeal against conviction because it would concern the: correct approach to decision making by Judges in Judge alone trials, theneed to provide proper reasons with a sound basis in law, and to the protectionof rights for a defendant as preserved by the minimum standards set out in theNew Zealand Bill of Rights Act 1990.[13] Ms Hall also submits that a miscarriage of justice has occurred for the samereasons that she argued before Cooke J.[14] As to the proposed appeal against sentence, Ms Hall wishes to argue that theJudge adopted too high a starting point, the discount for Mr Stevens' background wasinsufficient, the Judge failed to apply the credit for the guilty pleas as directed inMoses v R, and the Judge failed to give sufficient consideration to whether a minimumperiod of imprisonment was required.128 At [12]–[15].9 At [16]–[22].10 At [30].11 At [73].12 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.Discussion[15] No ground of general or public importance arises on the proposed appealagainst conviction. As Crown counsel submitted, the approach to decision-making inJudge-alone trials is settled, having been recently considered by the Supreme Court inSena v Police.13 Cooke J himself referred to Sena, and to predecessor cases,R v Connell and R v Eide.14[16] Nor is there a risk of a miscarriage of justice if we do not give leave fora second appeal against conviction. Cooke J addressed each matter that Ms Hall hasadvised she wishes to pursue, and she has not referred us to any error that Cooke J issaid to have made in his analysis. On the face of her submissions, Ms Hall simplywishes to "re-run" the same arguments she advanced before Cooke J.[17] As to the proposed appeal against sentence, the only point proposed to beadvanced that does not appear to have been addressed by Cooke J is the "failure" toapply the credit for the guilty pleas using the percentage-based methodologycontemplated by Moses. Whether this is a new argument or Cooke J overlooked it(which seems unlikely given his comprehensive judgment), it does not warranta second appeal.[18] Moses had not been delivered by the time Judge Edwards sentencedMr Stevens, although it had been by the time Cooke J heard the appeal. Accordingly,there can be no criticism of the Judge for giving a discount of a specific period —six months — without identifying a precise percentage discount and applying theMoses methodology for calculation of the end sentence based on that percentagediscount. And there is no reason to think that the effect of any difference between theJudge's approach and the Moses approach would be material to the length ofMr Stevens' sentence or minimum period of imprisonment.Result[19] The application for leave to bring a second appeal is declined.13 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.14 R v Connell [1985] 2 NZLR 233 (CA); and R v Eide [2005] 2 NZLR 504 (CA).Solicitors:Crown Law Office, Wellington for Respondent