STUART v NEW ZEALAND POLICE [2023] NZHC 2867

STUART v NEW ZEALAND POLICE [2023] NZHC 2867 [13 October 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-161[2023] NZHC 2867BETWEEN ROBERT JAMES STUARTAppellantAND NEW ZEALAND POLICERespondentHearing: 5 October 2023Appearances: M J Smit for AppellantG E R Alloway for RespondentJudgment: 13 October 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 13 October 2023 at 2 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Robert Stuart has been convicted with assault on a person in a familyrelationship,1 threatening to kill,2 and assault.3[2] He was sentenced in the District Court to 18 months' imprisonment.4 Heappeals 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 thevictim's caregiver. A verbal argument occurred between Mr Stuart and the victim whowas in a wheelchair. The caregiver called her employer to report the verbal abuse. Inresponse to this, Mr Stuart struck her cell phone out of her hand, using his fist in ahammer like motion. He then threatened to kill the victim stating "You're dead. I'vehad 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 skinof 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 timesbefore 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 assaultcharge within this. The Judge accepted that Mr Stuart would be eligible for homedetention but that there was no available address.[6] She noted that with the starting point of 18 months, there would then bedeductions to be made (the nature of which she does not specify). She then notes that1 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 notexceeding $4000.4 Police v Stuart [2023] NZDC 16101.she would have to add time for the April offending, resulting in an end sentence of18 months' imprisonment.[7] The Judge also imposed various release conditions for six months after theexpiry 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 ofthe probation officer, to attend and complete an appropriate non-violence programmeand also to attend an assessment for any other program deemed appropriate by theprobation officer.Principles on appeal[8] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.5 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".6 It is only appropriate forthis Court to intervene and substitute its own views if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.7SubmissionsAppellant's submissions[9] Mr Smit for the appellant appeals on the basis that the sentence was manifestlyexcessive.[10] First, he submits the sentence was affected by an error. The Judge understoodthat Mr Stuart had already been in custody for seven months prior to sentencing, butthis was a mistake and he had only spent 105 days in custody. Ms Smit submitted this5 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 ofthreatening to kill is 12 months' imprisonment. In R v Sykes, a 12-month starting pointwas adopted with an uplift for the aggravating factor of the presence of a weapon.8 Hesubmits the present offending is not as serious as in Sykes and thus 12 months isappropriate. Counsel submits that the common assault charge should be sentencedconcurrently as it was part of the same incident and a further uplift of three months isrequired 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 creditfor pleading guilty as he did so at the first reasonable opportunity once resolution ofan 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 inthe circumstances.Respondent's submissions[14] Mr Alloway for the respondent submits that the sentence imposed was withinrange and thus the appeal should be dismissed.[15] He submits that the starting point of 18 months' imprisonment on thethreatening to kill charge was available, citing the decision of Faaleaga v R whichidentified the key factors for culpability on a charge of threatening to kill.9 Counselnotes that Mr Stuart's threat was directly to the victim who was vulnerable, there wasan 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 thefollowing 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 hisway into her house, pinned her against the wall and threatened to kill her.10 A startingpoint of 18 months' imprisonment was adopted. This case is considered to beanalogous to the present situation as the threat occurred in the context of a minorassault, 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 andthreatened to kill him.11 He attempted to call him again twice over the followingfive days. Again, a starting point of 18 months' imprisonment was adopted. Rudd isconsidered to be more serious than Mr Stuart's situation as the threat waspremeditated, 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 illoffender 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 itwas made directly to a vulnerable victim.[20] Counsel accepts that the assault in a family relationship offending wasreasonably minor. However, he submits that a cumulative sentence was available asthis offending was unconnected in time and nature. A starting point of aroundfour months' imprisonment could have been adopted, citing the following cases.[21] Firstly, in Skerten v Police, the defendant was in an argument with his partnerwho packed their children into the car.13 When she went back inside, the defendantkicked her once in the lower leg. The Court considered a five-month starting point tobe excessive and held a starting point of no more than three months' imprisonmentshould 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.14He whipped the complainant in the face with a piece of clothing. She fled howeverwhen she returned, he placed her in a headlock for around two minutes. TheHigh 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 of20 per cent on a 22-month starting point is around four and a half months and thus theJudge did not err when treating the guilty plea and uplift for assault on a person in afamily relationship as equivalent. It is noted that the judge did not uplift the sentenceto reflect the appellant's history of relevant offending.AnalysisWas the starting point too high?[24] I agree with counsel for the appellant that the starting point of 18 months forthe lead offending is too high.[25] I reject the submission that the Judge was influenced by her mistakenunderstanding of how long the appellant had been in custody. This submission isentirely 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 was12 months' imprisonment which was uplifted by six months for an assault on thevictim.15 In that case, Mr Sands and his partner, the first victim, lived together. Theother two victims lived 50 meters away. There was an altercation where Mr Sandsslapped his partner, causing her nose to bleed. She fled to her neighbours house whotried to call the police. Mr Sands entered their house, tried to grab the phone andyelled at them "if you call the fucking pigs, I will fucking kill you cunts". He then leftand said "watch your backs". This situation is more severe than the present offendinginvolving 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 assaultedhis partner over a 20 minute period.16 He punched, kicked, slapped and pulled her hairbefore she was uplifted by her friend who took her and her daughter to the policestation. During the course of this, the appellant used his cell phone to threaten to killthe appellant. It was considered at the High Court that the starting point of 18 monthswas too high and an appropriate starting point was 12 months' imprisonment. Thethreats to kill were considered "drunken bravado". While I do not think the threatswere of the same nature in the present scenario, I do not consider Mr Stuart's offendingto 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 anassociate of his ex-wife who had a protection order against him (which he breachedand was sentenced to supervision for).17 He told the associate that he had "come roundto the address to apologise for what [he] was about to do", saying "they were allgoing to be dead" referring to his ex-wife, her new partner and the partner he hadrecently split up with (whom he also had a temporary protection order issued). Thestarting point for the threatening to kill was 10 months' imprisonment.[29] Whilst one of the victims was vulnerable and the threat was associated with aminor assault, when compared to cases where 18 month starting points are taken, thesegenerally involve more violent, prolonged assaults. I am satisfied 12 months is anappropriate 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 familyrelationship. I acknowledge that the assault is of a relatively minor nature involvingMr Stuart pinching the victim's skin, grabbing her hand and punching it with his handaround five times.[31] The cases cited by the respondent are helpful, although ultimately, each case isvery 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 herto "get out and die". He was sentenced to nine months' supervision. In Whichman vPolice a starting point of six months was considered to be within range however, onappeal, the Court said it would have taken a starting point of five months.19 In thatcase, 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 andthen pulled her through the lounge onto the veranda, causing her to hit her head andright 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 isappropriate for the April offending. This would result in an end starting point of15 months.[33] The next issue is whether there should be an uplift for prior offending. It isimportant such uplifts are not imposed as a matter of course but instead reflect aconsidered response to specific aspects of an offender's previous criminal history.20In considering whether the previous convictions bear upon character and culpabilityof the offender, indicate a reoffending risk, or the need to protect society through adeterrent sentence, the courts will consider, the number, seriousness, and nature of theconvictions and the time since the last conviction.[34] Mr Stuart has a relatively lengthy criminal record dating back to 2014. He hasprior convictions for behaving threateningly in 2020 and 2019, speaking threateninglyin 2019, assault on a person in a family relationship in 2019 and assault in 2020 and2019. Notably, he also has a significant family violence bail report. I consider afurther uplift of three months is warranted for this personal aggravating factor.[35] When considering discounts, it is ultimately unclear what discounts wereallowed at the District Court. The Judge merely noted that they would balance out theuplifts. With regards to Mr Stuart's guilty plea, the respondent believes that a15-20 per cent reduction should be given for this. Mr Stuart pled guilty at the second19 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 bethree months, ultimately cancelling out the uplift.[36] Therefore, the final sentence would be 15 months' imprisonment. This is wellwithin the range for considering a sentence of home detention. While no homedetention address was available it is unclear whether the Judge was intending topreclude home detention being applied for.[37] Mr Stuart has spent three months in custody prior to sentencing and now hasspent an additional two while waiting for the appeal. Therefore, if a sentence of15 months is imposed, he still has more than two months to serve. While Mr Smitdoes not suggest home detention is appropriate here, I would not grant leave in anyevent. Mr Stuart's history of non-compliance with Court orders, drug-use andanti-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, ChristchurchCopy to:M Smit, Barrister, Christchurch