STUART v R [2021] NZCA 539

STUART v R [2021] NZCA 539 [18 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA455/2021[2021] NZCA 539BETWEEN KANE DONALD STUARTApplicantAND THE QUEENRespondentCourt: Brown, Venning and Cull JJCounsel: A W Slipper and A T Tupuola for Applicant R E King for RespondentJudgment:(On the papers)18 October 2021 at 10.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Mr Stuart seeks leave to bring a second appeal against a sentence of two years and six months' imprisonment imposed in respect of 20 charges of drug and dishonesty offending to which he pleaded guilty.Background[2] All but two of the 20 charges to which Mr Stuart pleaded guilty arose from a spate of thefts and dishonesty offending between June and August 2019. Over the course of two months Mr Stuart broke into 11 cars taking items worth around $13,000. According to the Crown, he accrued approximately $850 worth of transactions on stolen bankcards, stole $100 worth of petrol and unlawfully entered a residential carpark where he took a bike worth $500. He also obtained $4,500 by deception following the sale of a stolen car. In addition he faced one charge of possession of a class A drug and one charge of breaching District Court bail.Sentencing in the District Court[3] In the District Court Judge Bouchier adopted a starting point of 15 months' imprisonment for the lead charges of burglary and dishonestly using a document. 1 The Judge applied an uplift of 15 months for the remainder of the charges and applied a further uplift of 12 months for Mr Stuart's previous convictions. This resulted in 42 months' imprisonment. The Judge then allowed a discount of 25 per cent for the guilty plea. This was deducted from the final starting point of 42 months, resulting in a final sentence of 30 months' imprisonment.2Appeal to the High Court[4] Although the appeal was initially broader, by the date of hearing the sole ground of appeal was that the sentencing Judge erred by not allowing discounts (totalling 20 to 25 per cent) for methamphetamine addiction, personal deprivation and rehabilitative prospects.3 Hinton J agreed that a causal link between Mr Stuart's offending and his methamphetamine addiction could be inferred and that there was also a clear link with his history of systemic deprivation. Her Honour considered that he should have received a discount of 7.5 months for these factors, calculated as 25 per cent of 30 months (the adjusted starting point).41 R v Stuart [2020] NZDC 24404.2 At [13]–[14].3 Stuart v R [2021] NZHC 710.4 At [17] and [23].[5] However, because his guilty plea was not entered at the first opportunity, the Judge considered that 20 per cent was the appropriate level of discount. Furthermore she considered that the sentencing Judge had erred in applying the discount to the uplifted sentence of 42 months rather than to the adjusted starting point of 30 months, namely by applying Hessell v R5 rather than Moses v R.6 Consequently the guilty plea discount should have been six months instead of 12 months. As Hinton J's methodology resulted in a sentence of 28.5 months rather than the 30 months imposed, the Judge held that the sentence was not manifestly excessive and dismissed Mr Stuart's appeal. 7Leave principles[6] The application for leave to bring a second appeal is governed by s 253 of the Criminal Procedure Act 2011. Leave may be granted where the proposed appeal involves a matter of general or public importance, or where a miscarriage of justice may have occurred or will occur if the appeal is not heard. 8[7] As this Court confirmed in McAllister v R, the test for a second appeal is high.9Leave will not generally be granted where the application raises issues calling for a factual assessment specific to the circumstances of the case in question. 10 Although the miscarriage test will extend to arguable errors by the Court below, not every such error will give rise to a miscarriage of justice. 11The proposed grounds of appeal[8] Mr Stuart's application for leave to appeal framed the proposed issue on appeal in this way:The issue is whether personal discounts should be offset against personal uplifts or whether they should be applied globally (i.e. to a starting point adjusted upwards as a result of those personal uplifts).5 Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.6 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.7 Stuart v R, above n 3, at [23].8 Criminal Procedure Act 2011, s 253(3).9 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.10 At [36].11 At [38].If the first method is used, Mr Stuart receives an end point of 28.5 months' imprisonment. If the second method is used, Mr Stuart receives an end point of 23.1 months' imprisonment.The latter method could have resulted in a non-custodial sentence provided the Court was minded to exercise its jurisdiction to impose an electronically-monitored sentence as an alternative.The High Court's adoption and usage of the first method resulted in an imprisonment sentence above 24 months. By virtue of the Court's stance, a non-custodial sentence by way of an electronically-monitored sentence could not be argued to be considered. Counsel proposed as when the matter was at the District Court level that calculations be conducted by using the second method.There is indication in Hessel or Moses about which method is correct. Authorities in New Zealand currently leave both methods open for use. It appears it is ultimately a presiding Judge's preference as to which method is used and a number of District Court decisions still follow the second method.The appeal will have a narrow and primary focus on reasons why the second method should be used. Briefly, the second method:a. Refuses personal uplifts and discounts being categorised together and given the same legal weight; andb. Is mathematically sound; andc. Would allow for consistency across all Courts.DiscussionA matter of general of public importance?[9] The argument advanced for Mr Stuart disclaimed any challenge to this Court's sentencing methodology in Moses. The heart of the proposed appeal was that Hinton J had erred in her application of the methodology in "offsetting" against mitigating factors personal to the offender an uplift for previous offending as an aggravating factor.[10] Observing that the table in Moses12 refers only to an "adjusted starting point" and "personal mitigating factors", counsel for Mr Stuart submitted that there is no "exact" guidance in the Moses table as to how relevant previous and contemporaneous convictions are to be incorporated into the sentence calculation by way of an uplift.12 Moses v R, above n 6, at [30].[11] The gist of the argument for Mr Stuart is captured in the submissions in reply as follows:The appellant's position remains; the correct way to calculate an adjusted starting point is for the lead, contemporaneous and relevant previous convictions to be included in Step One rather than Step Two of Moses.[12] This would have the consequence that the adjusted starting point would include any uplift for previous convictions thereby achieving a larger multiplicand to which the discount rate would be applied. The figure of 23.1 months in the application for leave was derived in this way:42 [15 + 15 + 12] x 45% [25 + 20] = 18.942 – 18.9 = 23.1By contrast the methodology applied by Hinton J is reflected in the following calculation:30 [15 + 15] x 45% [25 + 20] = 13.542 [15 + 15 + 12] – 13.5 = 28.5[13] In Moses this Court replaced the three-step methodology established in this Court's judgment in Hessell (which survived the Supreme Court judgment) with a two-step methodology as follows: 13[46] A two-step methodology should be used:(a) the first step, following Taueki, calculates the adjusted starting point, incorporating aggravating and mitigating features of the offence;(b) the second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.13 Moses v R, above n 6 (footnote omitted).[14] The Court had earlier defined the term "adjusted starting point" to incorporate all aggravating and mitigating factors of the offending. 14 The Court explained that under this methodology all second-step uplifts and discounts are fixed by reference to the adjusted starting point. It makes no difference to sentence length therefore if the guilty plea discount is the last step in the sentence calculation. 15[15] Ms Moses had no relevant prior convictions and hence the issue of such an uplift did not arise. However in our view it is abundantly clear from the reasoning inMoses that previous convictions constitute an aggravating factor personal to the offender, not an aggravating feature of the instant offending.[16] We agree with Ms King's submission for the Crown that it is clear that contemporaneous offending is to be taken into account at step 1 and previous offending is to be taken into account at step 2. No refinement to the Mosesmethodology is required as the submissions for Mr Stuart propose. It follows that the methodology applied by Hinton J was correct. The proposed appeal does not satisfy the s 253(3)(a) requirement.A miscarriage of justice?[17] The submissions for Mr Stuart raised two specific points relating to miscarriage of justice, namely that his guilty plea discount should not have been reduced from 25 to 20 per cent and that the methodology adopted prevented him from being eligible for a non-custodial sentence or immediate release due to time served.[18] The 1.5 month difference occasioned by the reduced guilty plea discount is marginal, and equates to the difference between the sentences in the lower courts. While acknowledging its marginal nature, counsel for Mr Stuart pursued the point, taking issue with the Judge's characterisation of Mr Stuart's pursuit of an application under s 147 of the Criminal Procedure Act as a tactical decision. 16 In Cooper v R this Court held that a guilty plea that is delayed for tactical reasons is still a delay.1714 At [6].15 At [47].16 Stuart v R, above n 3, at [21].17 Cooper v R [2013] NZCA 551 at [30].It cannot attract the same discount as if the offender pleaded guilty at the earliest opportunity. On this issue we accept the Crown submission that the imposition of a 20 per cent discount for the guilty plea in the circumstances did not give rise to a miscarriage of justice.[19] We also endorse Ms King's submission that there was no error by Hinton J not taking into account the time Mr Stuart had spent on remand. Section 82 of the Sentencing Act 2002 provides that in determining the length of any sentence of imprisonment to be imposed the Court must not take into account an offender's pre- sentence detention. Rather the period of pre-sentence detention is automatically counted as time served by virtue of the Parole Act 2002. It is not a matter for the sentencing Judge to consider.Conclusion[20] Standing back, in our view 30 months' imprisonment was appropriate for the totality of Mr Stuart's offending. As that sentence was plainly not manifestly unjust, there is no proper basis for this Court to interfere. 18Result[21] The application for leave to bring a second appeal is declined.Solicitors:Bloem & Associates, Albany for ApplicantCrown Law Office, Wellington for Respondent18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].