THE QUEEN v TYLER STEPHENS [2001] NZCA 362 (6 December 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 272/01

THE QUEEN

V

TYLER STEPHENS

Hearing:	6 December 2001
Coram:	Keith J Doogue J Gendall J
Appearances:	P J Kaye for appellant J M Jelas for the Crown
Judgment:	6 December 2001

judgment of the court DELIVERED BY DOOGUE J

Introduction

[1] This is an appeal against a sentence of imprisonment of two years and nine months imposed on the appellant following his conviction by a jury in the High Court for injuring his female partner with intent to injure her.He was sentenced by the trial Judge.It was the second trial of seven charges against him.He was acquitted in respect of the other six counts in the indictment, four of which alleged sexual offences and two of which alleged an assault by a male on a female.All counts related to the appellant's female partner.

Background

[2] The sentencing Judge accepted that the jury's verdict indicated it believed the complainant's version of events in respect of the particular crime and rejected the appellant's.However, given the other verdicts he could not rely on her account in respect of other matters where the appellant's account differed.The Judge recorded the following sequence of events:After an argument about an evening meal the appellant threw his plate, with the meal upon it, at the complainant in their bedroom.The complainant went to the bathroom to clean herself.The dispute continued.She made the appellant another meal.She returned to the bedroom.The appellant was still angry.He went to the bedroom.He hit the complainant around the head, threw her on the floor, sat on her stomach and put his forearm across her throat, stopping her breathing.The appellant then took her head in his hands and head-butted her hard twice.There was considerable bruising and swelling of her forehead, and a black eye which persisted for about a couple of weeks.

[3] The Judge accepted that the injury was not permanent but said it could not be dismissed as trifling or transitory.He categorised the assault as a severe and repeated one.He noted that it caused the complainant inconvenience, some humiliation and some distress in dealing with people around her, particularly at her employment.

[4] The Judge summarised the offending in this way:

There was no weapon involved, I accept that, but I need to sentence you on the basis that this was a deliberate action on your part, a severe injury - though limited in time - between you, a large fit strong young man and a diminutive woman, and that you headbutted her, not once but twice, and caused injury of about a fortnight's duration.And I need also to consider the surrounding circumstances.It followed a build-up.You had the opportunity to withdraw. The incident should never have happened if you had exercised self-restraint. These are the circumstances I need to take into account.

[5] In sentencing the appellant the Judge referred in passing to a number of factors he appeared to regard as relevant.He took the view that the 26 year old appellant, who was a serving police officer at the time the incident occurred, should have been able to control any anger or chagrin that he felt if he thought that his female partner was being unreasonable in some way.He noted that the appellant continued to deny the offending had occurred, although he accepted that the appellant had come some way towards accepting it.He noted that the appellant had a good background and no offending prior to that for which he was being sentenced, although there had been subsequent offending of a different nature.The Judge recognised that because of the appellant's occupation there had been more media interest in the case than might otherwise have occurred.He accepted that the appellant had a genuine affection for his partner's children, which was reciprocated.He noted that the pre-sentence report stated that the appellant had a high motivation to change and was unlikely to re-offend.He referred to a moving victim impact report from the complainant.He rejected the recommendation of an experienced probation officer that a suspended sentence of imprisonment be imposed along with a sentence of periodic detention.

[6] The appellant subsequent to the present offence and prior to sentencing had been sentenced to two months' imprisonment for a later offence of possession of a class B drug and convicted and discharged in respect of later offences of possession of cannabis and operating a vehicle carelessly.

[7] The Judge took the view that s 5 of the Criminal Justice Act 1985 applied, which is not challenged, and that the sentence to be imposed had to exceed two years' imprisonment.The sentence under appeal was then imposed.

The appeal

[8] The appeal is brought upon the grounds that the sentence imposed was manifestly excessive and that a sentence of 18 months to two years' imprisonment would have been appropriate.Given the period of the sentence already served, no submissions were made as to a suspended prison sentence.

[9] Counsel for the appellant addressed a number of the factors identified by the sentencing Judge as either negative or positive relating to the appellant. We do not consider it necessary to address each of these factors.We accept the submission for the Crown that each of them went to whether the particular factors were mitigating circumstances or not.The Judge in his sentencing remarks did not categorise the particular factors as either aggravating or mitigating, and thus we think it is appropriate to deal with the matter in the way put to us on behalf of the Crown.

[10] Effectively the submissions for the appellant were that the sentencing Judge, in imposing the sentence under appeal, adopted too high a starting point and gave too little credit to the mitigating circumstances relating to the appellant.

[11] Amongst the matters for which counsel for the appellant submitted credit should have been given was the greater effect upon the appellant of serving a prison sentence because of his background as a police officer and the loss of his career as a police officer.The sentencing Judge did not comment directly on either of these matters.There is nothing before the Court to suggest that the appellant's custodial sentence imposed in respect of the drug offence caused him additional hardship.The former of the two factors is thus hardly one which need concern us.The latter of the two factors is not something that particularly assists the appellant.The drug offence with the associated term of imprisonment must of itself have been likely to lead to the end of the appellant's police career.That career had itself been relatively short.

[12] Because of the drug offending, it was accepted the appellant was not entitled to the credit he might otherwise have been entitled to as a first offender.Nevertheless, it was submitted, he had had no record of offending prior to the present offence, and there was the extremely positive outlook for the future.

[13] Counsel for the appellant traversed a considerable number of sentencing decisions of this Court and the High Court.Apart from a case relied upon by the sentencing Judge which we will come to, all the cases referred to involved sentences of up to two years' imprisonment.Based on those cases it was submitted that overall a sentence of between 12 and 24 months' imprisonment would have covered the range for the more serious level of the particular type of violence of which the appellant had been found guilty.

Discussion

[14] At issue is the appropriate sentencing range for a severe manual assault by a strong and healthy male upon a slighter female in the circumstances already outlined.The cases to which we have been referred by counsel for the appellant are of little assistance in that respect as each of them turns upon its own facts.

[15] There are no tariff judgments in this Court relating to s 189(2) of the Crimes Act 1961 in respect of injuring with intent to injure offences.

[16] The Judge in this case relied on R v Clarke [2000] 3 NZLR 354, where, because of significant aggravating circumstances relating to the offence and the offender, a starting point of 4½ years' imprisonment was taken prior to considering the plea of guilty.We do not regard that case of assistance here as the distinguishing features are too great.

[17] The Crown recognises that the present case does not justify such a high starting point, although we are not here dealing with a plea of guilty.The Crown argues that the Judge could have reasonably considered a 3 to 3½ years starting point before considering mitigating circumstances.Counsel for the Crown submits the sentence imposed was at the higher end of the available range.

[18] It has to be said that for a first offender, as the appellant undoubtedly was at the time of the offence, where no permanent injury resulted from the offence, and where no weapon was used, we would have expected a starting point of substantially less than three years' imprisonment to be taken, before a consideration of aggravating and mitigating features, unless there were unusual circumstances.None had been identified here.

[19] With all respect to the sentencing Judge, we do not regard the fact that the appellant was a serving police officer at the time of the offending to be relevant to his actions in a volatile domestic situation.This is a very different situation from that in R v Bailey [1988] 1 NZLR 109, relied upon by the Crown, where the offending was of a very different nature.

[20] The post-offending convictions meant that the appellant could not have credit for good character.Likewise the absence of remorse meant that he could not have credit for contrition.However, these are not aggravating features but an absence of mitigating features.

[21] The mitigating features of importance were the appellant's high motivation to change and the low risk of re-offending.The sentencing Judge appears to have accepted that they applied because of the steps taken by the appellant while he had been in custody on remand.

[22] When the limited nature of the offending, despite its innate seriousness, is taken into account, along with the mitigating features that the appellant is motivated to change and there is a low risk of re-offending, we consider that the maximum sentence which could reasonably have been imposed had to be about two years' imprisonment.A sentence at the level of that under appeal would reflect aggravating circumstances, which were not present in this case, and an absence of mitigating circumstances, which was not the case here.The sentence had to be balanced against sentences for more serious offending.When that is done, we consider the sentence under appeal manifestly excessive.

Decision

[23] The appeal is allowed.The sentence of two years and nine months' imprisonment is quashed and a sentence of two years' imprisonment is imposed in substitution.

[24] We have considered home detention, upon which counsel made no submissions. Having regard to all the circumstances of the case and the provisions of s 21D Criminal Justice Act 1985, we decline leave to apply for home detention.

Solicitors

Crown Law Office, Wellington, for the Crown