Stewart v R [2020] NZHC 60 (3 February 2020)

Last Updated: 7 February 2020

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-041-570 [2020] NZHC 60

BETWEEN	BODIE (AKA BRODIE) STEWART Appellant
AND	THE QUEEN Respondent

Hearing:	3 February 2020
Counsel:	A J Willis for Appellant L M Marshall for Crown
Judgment:	3 February 2020

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 5 December 2019, Mr Stewart was sentenced by Judge Rea in the Napier District Court to one year four months’ imprisonment after the defendant pleaded guilty to a charge of assault with intent to injure.¹ The maximum penalty for this offence is three years.

[2] Mr Stewart appeals the sentence on the ground that the Judge made an error of law in imposing a sentence of imprisonment as opposed to home detention and placed too much weight on deterrence and punishment, and not enough weight on Mr Stewart’s rehabilitative progress and requirements.

1. The Queen v Brodie Stewart, Miharo Papa and Eddie Teunuku Paul [2019] NZDC 24535; Crimes Act 1961, s 193.

STEWART v R [2020] NZHC 60 [3 February 2020]

[3] The Crown opposes the appeal, submitting that the Judge did not err and that a sentence of imprisonment rather than home detention is appropriate in the circumstances of this case.

Factual background

[4] On 21 October 2017, Mr Stewart, Mr Papa, Mr Paul and two others were involved in an assault in Hawkes Bay Regional Prison. All five were affiliated with the Mongrel Mob and there had been rising tensions in the particular unit of the prison due to the presence of rival gang members.

[5] At 10:45 am, prison officers noted that a particular cell in the unit occupied by an inmate affiliated to Black Power was closed and guarded by Mr Paul. They moved towards the cell to investigate but Mr Paul would not let them open the door to the cell. They were able to see through the window that Mr Papa, Mr Stewart and another were kicking the complainant, Mr Nathan, in the head while he was lying on the floor.

[6] After a passage of time, the group carrying out the assault moved away from the cell, after which the complainant came out of the cell, making further challenges to the group. This led the group to rush back towards the cell in response to the complainant’s challenges, while Corrections officers tried to prevent the group from entering back into the cell. In this altercation, Mr Papa rushed the Corrections officers to try to get back into the cell, causing one officer to suffer a broken finger. The complainant suffered multiple facial lacerations, significant bruising to his eyes, and concussion.

[7] Mr Stewart, Mr Paul and Mr Papa all pleaded guilty to assault with intent to injure, while Mr Papa also pleaded guilty to the additional charge of assaulting a prison officer in the execution of her duty.

[8] While Mr Stewart was in prison at the time of the offending (21 October 2017), he was released from prison in February 2019. He moved to Picton in April 2019 but was subsequently obliged to move back to Hawkes Bay, where he incurred new drugs charges, which were dealt with by a sentence of intensive supervision. Both the Court and Probation Services agreed to his return to Picton to undertake that sentence.

District Court decision and sentencing

[9] The Judge sentenced Mr Stewart, Mr Paul and Mr Papa together. He acknowledged that it had taken some time for this matter to reach the sentencing stage, noting that the defendants had earlier elected a trial by jury on more serious charges, but this had been resolved shortly before the trial was due to commence.

[10] In considering an appropriate sentence for the offence, the Judge firstly noted that the offending “had a gang base to it”,² and was worsened by the decision of the defendants to enter into the cell as a group to assault the complainant in a space where he had nowhere to go.

[11] Secondly, the Judge referred to the conviction histories of Mr Stewart, Mr Paul and Mr Papa, all three having a significant history of violence. He noted that Mr Stewart had 24 breaches of sentences or orders, leading him to conclude that the defendant did not respond well to sentences that he had a choice about.³

[12] The Judge indicated that violence in a prison setting must be dealt with in a way that denounces the activity, and that cases at appellate level have consistently held that people who are prepared to use violence in this situation must receive a custodial sentence. He observed that the imposition of anything short of a reasonably substantial custodial sentence would simply provide encouragement for others to commit prison violence.⁴

[13] Consequently, the Judge considered that the starting point for this level of violence, based on the offence, was 18 months’ imprisonment. The Judge uplifted the sentence by three months to reflect the past history of the defendants, leading to a starting point of 21 months’ imprisonment. He considered that each defendant was entitled to a discount of between 15 and 20 per cent for the fact that they pleaded guilty, leading to an end sentence of one year and four months’ imprisonment.⁵

² Above n 1, at [5].

³ At [6].

⁴ At [7].

⁵ At [8].

[14] The Judge also imposed release conditions running six months beyond the sentence expiry date for Mr Papa and Mr Stewart, to be determined by the probation officer.⁶

[15] The Judge considered that given the past history of the defendants and the nature of the offending home detention was not adequate to meet the seriousness of the offence or to denounce the conduct that occurred.⁷

Standard on appeal

[16] This appeal is brought under s 250 of the Criminal Procedure Act 2011 (CPA). Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.⁸ The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.⁹

Submissions on appeal

[17] The principal submission made by Mr Willis on behalf of the appellant is that the Judge erred in not exercising his discretion to allow Mr Stewart to serve his sentence by way of home detention. This submission is advanced under two grounds:

(a) that the Judge erred in stating that Mr Stewart must receive a sentence of imprisonment for his offending; and

(b) that the Judge gave too much weight to deterrence and punishment, and not enough weight was given to rehabilitative progress and requirements, influencing his decision to not exercise his discretion in favour of home detention.

⁶ At [11].

⁷ At [9].

⁸ Tutakangahau v R [2014] NZCA 279.

⁹ Ripia v R [2011] NZCA 101 at [15].

[18] Counsel submitted that the Court cannot impose a sentence of imprisonment unless it satisfies the requirements under s 16(2) of the Sentencing Act 2002 (the Act):

16 Sentence of imprisonment

... (2) The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b) those purposes cannot be achieved by a sentence other than imprisonment; and

(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.

[19] Counsel submitted that home detention provides a real alternative to imprisonment, and noted the case of R v Iosefa, where the Court of Appeal observed that home detention “carries with it in considerable measure, the principles of deterrence and denunciation”.¹⁰

[20] With regard to the first ground of the appellant’s principal submission, counsel for Mr Stewart, while acknowledging that violent offences in prison must be dealt with in a way that denounces violence in that setting, submitted that the Judge went too far in stating at [7] of his decision that all prisoners who use violence must receive a custodial sentence. Counsel submitted that although the Judge did mention home detention, he did not consider it to be a real option and his observations at [7] were not supported or referenced with authority which demanded imprisonment for prison violence offences.

[21] Counsel referred to the case of Van Silfhout v Police, cited by the Crown, where the Court imposed a concurrent sentence of 12 months’ imprisonment to facilitate an early release, as authority for the proposition that the Court in this case should structure a sentence to allow release and rehabilitation as opposed to imprisonment. Counsel also argued that the decision of Tryselaar v R, despite the Court in that case indicating offending in a prison environment demands a stern response, is not authority for the

¹⁰ R v Iosefa [2008] NZCA 453 at [41].

proposition that home detention is unavailable to those convicted of violent offences while in prison.¹¹

[22] With regard to the second ground of the appellant’s principal submission, counsel accepted that offending in prison does require deterrence and punishment to be important considerations. However, counsel submitted that the Judge gave too much weight to these factors and did not fully recognise Mr Stewart’s rehabilitative prospects or needs.

[23] In his oral submissions, Mr Willis developed the argument that the views expressed by the Judge in [7] so coloured his approach that he did not, in reality, give any meaningful consideration to the Court’s obligations under s 16(2) of the Sentencing Act to consider alternatives to imprisonment.

[24] Counsel outlined the rehabilitative prospects of Mr Stewart, set out in the Provision of Advice to the Courts Report dated 5 December 2019. Positive aspects of the report in favour of home detention included the remorse displayed by the appellant at the interview, a suitable address for home detention, and his undertaking of intensive supervision. Particular emphasis was placed on Mr Stewart’s relocation from the Hawkes Bay to Picton in April 2019, where he had been able to sever association with gang peers who had been a negative influence on him, follow a community-based sentence for the first time, attend church, engage well with his probation officer and maintain a supportive relationship with the occupants where he was living.

[25] Counsel submitted in focusing mainly on deterrence and punishment, the Judge failed to properly acknowledge these factors, as well as the risk of Mr Stewart being subject to additional negative influences if imprisoned in Hawkes Bay. Counsel argued that the Mr Stewart’s rehabilitative potential was quite significant and deserved to be given greater weight in the sentencing process, which he submitted did not occur. Had this occurred, he submitted that Mr Stewart should have been sentenced to home detention rather than imprisonment.

¹¹ Tryselaar v R [2012] NZCA 353 at [18].

Submissions on appeal – the Crown

[26] Ms Marshall, counsel for the Crown, has submitted that the Judge did not err in sentencing the appellant to imprisonment instead of home detention, and that the appeal should be dismissed. Counsel referred to the approach to appeals against a sentence of imprisonment where home detention is available as outlined in Manikpersadh v R:¹²

• [11] This Court identified the appropriate approach in James v R in this way:

[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[12] We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”.

[27] Counsel referred to the case of R v Kepu, where the Court of Appeal endorsed the importance of deterrence and denunciation in prison violence cases. Counsel noted that although that case concerned an assault on a Corrections officer, the principles were relevant as the Court held that “violence in the prison environment also has the potential to escalate rapidly, and may seriously undermine the discipline needed to effectively manage a penal institution”.¹³

[28] Counsel acknowledged that the Judge did place considerable weight on the need for denunciation and deterrence. However, counsel submitted that given the appellant’s “significant” history of violence (as well as the 24 breaches of sentences

¹² Manikpersadh v R [2011] NZCA 452 at [11]- [12].

¹³ R v Kepu [2011] NZCA 104 at [18].

or orders), the nature of the offending and the fact that it occurred within a prison, the Judge correctly applied and weighted the sentencing principles in the circumstances, determining that home detention would be insufficient to reflect the appellant’s history and the nature of the offending.

Relevant law

[29] Section 7 of the Act sets out the purposes for which a Court may sentence an offender.¹⁴ These include denouncing the conduct in which the offender was involved,¹⁵ deterring the offender or other persons from committing the same or similar offence,¹⁶ and assisting in the offender’s rehabilitation.¹⁷

[30] The Court of Appeal has indicated that there is no presumption for or against the commutation of a short-term sentence of imprisonment to home detention.¹⁸ What is called for is an exercise of sentencing discretion in a way that gives effect to the purposes and principles under ss 7 and 8 of the Act.¹⁹ This approach was affirmed in Palmer v R, where the Court of Appeal also held that in marginal or borderline cases, the margin of appreciation extended to Judges is usually significant.²⁰

[31] With regard to specific cases concerning issue of deterrence and denunciation in prison violence case, the Court of Appeal in R v Kepu held that in the prison environment, particularly where actual violence occurs to prison officers, issues of deterrence and denunciation are at the forefront of the principles that the Courts must apply when offenders are sentenced.²¹

[32] In R v Connelly, the Court of Appeal ruled that re-offending while in prison, particularly violent re-offending, must have significant consequences for the offender, notwithstanding that the outcome is a very lengthy period of imprisonment.²²

¹⁴ Sentencing Act 2002, s 7.

¹⁵ Section 7(e).

¹⁶ Section 7(f).

¹⁷ Section 7(h).

¹⁸ R v Vhavha [2009] NZCA 588 at [29].

¹⁹ At [29].

²⁰ Palmer v R [2016] NZCA 541 at [19].

²¹ R v Kepu, above n 13, at [19].

²² R v Connelly [2010] NZCA 52 at [31].

[33] In Tryselaar v R, the Court of Appeal made a similar observation, ruling that offending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response.²³

Analysis

[34] The cases of Kepu and Tryselaar both firmly endorse that the principles of deterrence and denunciation should be significant considerations when sentencing for violent offences that occur in a prison environment. It should be noted that both these cases involved violent offences of greater severity than the current case, as well as involving direct attacks on prison officers. Tryselaar concerned the aggravated wounding of two prison officers with a weapon,²⁴ while Kepu concerned the manslaughter of a prison officer that was premeditated.²⁵

[35] Connelly is a more analogous case as it concerned an attack by a group of prison inmates on a fellow inmate in the victim’s cell, with those inmates being charged with wounding with intent to cause grievous bodily harm.²⁶ At [30], the Court cited the English Court of Appeal case of R v Ali, where a “stern attitude” towards violent offences in prison was recommended, and endorsed this approach at [31], indicating that violent re-offending while in prison must have significant consequences for the offender.

[36] Despite the cases of Kepu and Tryselaar involving more severe levels of violent offending, the appellate courts have stressed that a stern approach to sentencing, heavily influenced by the principles of deterrence and denunciation, is the appropriate way to deal with violent offences that occur in the prison environment. It is important to make clear that it is not correct to state that a sentence of imprisonment, as opposed to home detention, must be imposed in all situations of prison violence. However, I conclude that the Judge did not err in emphasising the principles of denunciation and deterrence, as he did in [7] of his judgment. Despite the language

²³ Above n 11, at [18].

²⁴ Above n 11, at [3]-[4].

²⁵ Above n 13, at [6] and [18].

²⁶ Above n 22, at [5]-[8].

used by the Judge in [7], it is clear that the Judge did actually consider whether the sentence of imprisonment could or should be commuted to one of home detention. I will address this issue shortly.

[37] As indicated by the Court of Appeal in R v Vhavha, there is no presumption either for or against commutation of a sentence of imprisonment to home detention.²⁷ Instead, what is required is an exercise of sentencing discretion in a way that gives effect to the purposes and principles under ss 7 and 8 of the Act.²⁸ This obviously includes denunciation and deterrence, but may also include the rehabilitation of the offender.²⁹

[38] As set out in [24] above, considerations relating to rehabilitation do arise in this case. The appellant does appear to have some positive rehabilitative potential, particularly given he has been able to at least begin turning his life around by moving to Picton. Although there were some setbacks along the way, overall, the life that Mr Stewart was able to live while in Picton gives some cause for optimism that he may be able to rehabilitate himself. The Provision of Advice to Courts Report also considers that his risks can be managed by a less restrictive sentence of home detention, particularly given the support offered by his friends and family in Picton.

[39] The Judge did not specifically refer to Mr Stewart’s rehabilitative potential, and ideally should have. However, he did acknowledge that for the offenders in this case who had recommendations of home detention, this sentence would not be adequate to meet the seriousness of the conduct, or properly denounce it. Given the Court of Appeal’s ruling in Palmer v R, where it held that in marginal or borderline cases, the margin of appreciation extended to Judges is usually significant,³⁰ it cannot be said that the Judge has not correctly exercised his discretion to impose an appropriate sentence by balancing the benefits of home detention with the violent nature of the offence, previous convictions and the principles of denunciation and deterrence, which appellate courts have ruled should be at the forefront of sentencing decisions in these circumstances.

²⁷ Above n 18, at [29].

²⁸ Above n 18, at [29].

²⁹ Sentencing Act 2002, s 7(h).

³⁰ Palmer v R [2016] NZCA 541 at [19].

[40] The Judge’s reasoning in [9] is cursory but it was open to the judge to conclude that Mr Stewart’s record and the nature of this offending outweighed the need to consider rehabilitation.

[41] Therefore, it cannot be said that the Judge erred in imposing a sentence of imprisonment rather than one of home detention.

Conclusion

[42] For the reasons given above, the appeal is dismissed.

Churchman J

Solicitors:

Public Defence Service, Hastings Crown Solicitor’s Office, Hastings