Stephens v R [2011] NZCA 341 (25 July 2011)

Last Updated: 2 August 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA808/2010 [2011] NZCA 341

BETWEEN QUENTIN STEPHENS Appellant

AND THE QUEEN Respondent

Hearing: 13 July 2011

Court: Randerson, Potter and Ronald Young JJ

Counsel: M M Wilkinson-Smith for Appellant M J Inwood for Respondent

Judgment: 25 July 2011 at 10 a.m.

JUDGMENT OF THE COURT

The appeal against sentence is allowed but only for the purpose of correcting the imposition of sentences in accordance with [35] of this judgment.
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REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The appellant was sentenced by Courtney J in the High Court to preventive detention after he pleaded guilty to a series of serious offences committed over a three day period in February 2010.[1] A minimum period of imprisonment of six and a half years was also imposed.
[2] For some of the offending, the appellant was jointly charged with a Ms Opetaia who received an effective sentence of five years imprisonment with a minimum period of three years, three months. Her sentence is not at issue in this appeal.
[3] The most serious of the appellant’s convictions were on three charges of aggravated robbery, one of kidnapping and one of robbery. In addition, there were two charges of burglary; one charge of unlawfully taking a motor vehicle; two charges of aggravated injury; two charges of theft; and one charge of possession of needles contrary to the Misuse of Drugs Act 1975.
[4] The offences arose from seven separate incidents summarised by the sentencing Judge as follows:

[3] ... The first occurred on the morning of 1 February 2010 and was the burglary of items from a home of victim M together with the theft of a Nissan Pulsar, which was used over the next three days to commit other crimes.

[4] The second incident occurred on the morning of 2 February 2010 and was the theft of a phone and cash from a shop owned by victim J.

[5] The third offence occurred on the afternoon of 3 February 2010 and was the theft of a handbag belonging to victim Q. Mr Stephens wrenched the handbag from her grip as she walked along the street while Ms Opetaia distracted her.

[6] The fourth incident occurred at 7 pm at a residential house in Mount Roskill occupied by victims T and H. They were not at home at the time. The offenders entered the property by smashing a glass window panel and took personal belongings. While they were still there victims B and S arrived at the property to ask about renting it. Mr Stephens threatened victim B with a hammer and demanded that he hand over his wallet, which he did. Ms Opetaia demanded that victim S hand over her rings, punching her in the neck.

[7] The fifth incident occurred shortly after 7.45 pm on the same evening, 3 February 2010. Victim G was walking to his flat in Upper Queen Street and on entering the block of flats was confronted by Mr Stephens, still carrying the hammer used in the previous robbery. He forced victim G into the front footwell of the Nissan Pulsar. Ms Opetaia drove to an ATM machine on Symonds Street, where victim G was forced to withdraw money from his bank account. Victim G gave him cash from the ATM machine. In the meantime Ms Opetaia had removed his cellphone from the victim’s backpack. They then drove off, leaving the victim at the ATM machine.

[8] The sixth incident occurred at a cafe in Point Chevalier at 8.15 pm on the same night. Victim R was sitting at a table outside the cafe using his iPod. Mr Stephens wrenched the iPod from his hand. A struggle ensued during which the victim fell to the ground sustaining minor injury. Mr Stephens then tried to take his backpack at which point members of the public intervened. A staff member, victim MS, was manhandled to the ground. A customer, victim RH, was punched and kicked several times as he lay on the ground causing bruising and grazing to his face and a fractured foot. Victim MS was then punched in the face and sustained severe bruising to her face and bruising to her arms. Mr Stephens got in the Nissan Pulsar with Ms Opetaia and drove away.

[9] Finally, later the same night the police located the Nissan Pulsar off Great North Road. Mr Stephens and Ms Opetaia were found hiding in gardens nearby. Their apprehension at that point resulted in the charges of possession of needles and syringe for drugs and unlawfully being on the property.

The appellant’s previous history

[5] The appellant was 34 years of age at the date of sentencing. The Judge described him as having an unstable and deprived childhood with his teenage years marked by drug and alcohol abuse. She noted his long criminal history dating back to 1991. Leaving aside offending dealt with in the Youth Court, his first serious criminal offending occurred in 1995/1996 when he was sentenced to a term of six years imprisonment on charges of aggravated robbery and aggravated wounding.
[6] Those convictions arose from an incident in Whangarei in which ten people were threatened by a group of men including the appellant armed with a shotgun and steel bars. A number of victims were struck with the steel bar resulting in very severe injuries to one of the victims, a woman who sustained a fracture to her skull and lost the use of an eye. The sentencing Judge described the offending as involving an outrageous attack on innocent people in a private dwelling. At the time of the offending the appellant was 19 years of age and appears to have been sentenced as a party to the offending since another man was clearly treated as the principal offender, receiving a sentence of 12 years imprisonment.
[7] The appellant’s offending recommenced soon after his release from prison. Between 2000 and 2005 he was convicted of a series of mostly minor offending including two convictions for common assault in 2004 and one of possession of an offensive weapon the same year. His next serious offending occurred in 2005 resulting in a sentence of four years imprisonment imposed in December 2006 after he pleaded guilty to two charges of aggravated robbery.
[8] We observe that the appellant appears to have been treated leniently at this time since the offending involved the presentation of fake bombs to bank tellers with threats to blow them up if they did not hand over the money demanded. Substantial sums were obtained in consequence of these threats.
[9] The appellant was released from prison in January 2009. He was convicted in May and June 2009 for breaching release conditions. Shortly afterwards he was convicted for a common assault which occurred on 2 November 2009 and then the subject offending occurred in February 2010.
[10] It is evident that the two substantial terms of imprisonment imposed upon the appellant in 1996 and 2006 respectively have not deterred him from the pattern of violent offending first begun in 1995. His history also shows a disregard for authority since he has a number of convictions for obstructing and resisting police, failing to comply with community work sentences and breaches of release conditions.

The Judge’s approach to sentencing

[11] After setting out the factual circumstances, the Judge addressed the effect on the victims of the offending. She noted that the victim impact reports disclosed feelings of shock, ongoing fear, distress at losing personal possessions and, in two cases, quite serious injuries which have had ongoing effects. She considered that the aggravated robbery against the victim G was the most serious offence, although only slightly less serious was the offending against victims B and S. This involved the threat of violence with a hammer and actual violence to one of the victims. The first burglary effected while the occupants of the house were inside asleep could not be regarded as anything other than a serious invasion of privacy and the incident at the Point Chevalier cafe also involved actual violence at a serious level.
[12] Having regard to the history of previous violence, the Judge considered that a starting point for a finite sentence was 11 years imprisonment. With a discount of one-third to reflect the appellant’s guilty plea, this would have resulted in a sentence of seven years four months imprisonment.
[13] The Judge then referred to the two reports the Court had received addressing the issues relevant to a sentence of preventive detention. The first was a report from a clinical psychologist, Ms Kim Bradley. It is evident from this report that the appellant has a lengthy history of alcohol and drug abuse. He told the report writer that, prior to the subject offending, he had consumed large amounts of methamphetamine on a daily basis and acknowledged engaging in a variety of anti-social and criminal behaviour to fund his substance abuse. He also acknowledged gang affiliations. He described his relationship to his co-offender over the 12 months prior to the offending as “tumultuous and unstable”. Ms Bradley’s opinion was that the appellant’s expressions of remorse appeared superficial and that he expressed little victim empathy.
[14] With regard to previous treatment, Ms Bradley noted that the appellant reported starting courses such as drug and alcohol and anger management while in prison but not completing them. During the course of his last term of imprisonment, the appellant had completed a medium intensity rehabilitation programme designed to teach offenders how to alter their thoughts and behaviour relevant to their offending. The report writer noted that the appellant’s very rapid relapse to reoffending following his release in January 2009 indicated that previous rehabilitation attempts were less than successful. She considered this resulted from the appellant’s lack of motivation to make lifestyle changes and an inability to apply any therapeutic gains. She noted that the treatment provided to date had not been of sufficient duration or intensity to be effective.
[15] Ms Bradley concluded that the appellant’s history of offending was marked by early onset criminal versatility as well as persistent and frequent offending over time. While substance abuse had been a significant contributor to the offending, it was likely to have acted as a disinhibitor and exacerbated a propensity for aggression and violence. She concluded that while the long term prediction of risk was inherently problematic, her current assessment was that the appellant had a high likelihood of violent reoffending in the future. Programmes for intensive specialist rehabilitation treatment addressing drug and alcohol abuse and his propensity for violence were recommended. Ms Bradley ventured the opinion that a finite sentence of a sufficient term to allow the appellant to undertake intensive rehabilitation programmes might be sufficient to mitigate his future potential risk.
[16] The second report before the sentencing Judge was from a psychiatrist, Dr Ian Goodwin. Dr Goodwin was of the opinion that the appellant did not fulfil the criteria for mental disorder but the onset of violence at an early age and the disinhibiting effects of his significant history of drug abuse led him to the view that the appellant’s risk of recurrent violence was high if he were to continue to use methamphetamine on release. Dr Goodwin saw it as imperative that his drug and alcohol issues should be addressed both in prison and upon release if his risk of reoffending in a similar manner was to be reduced.
[17] The Judge noted that the case had similarities with R v Edwards [2] in which a sentence of preventive detention was upheld in the case of an offender with a long history of violence who had pleaded guilty to a spree of drug-fuelled offending including two charges of aggravated robbery. The Judge considered that in terms of the factors in s 87(4) of the Sentencing Act 2002 there was a pattern of serious offending and serious harm was caused to the community. While accepting (on the basis of a letter sent to the Court by the appellant) that he was genuinely remorseful, it was clear he had seriously underestimated the difficulties he would face in conquering his issues with drug and alcohol abuse and anger management. These were deep-seated and the Judge considered would take a long time and considerable resolve to overcome. She concluded:

[43] Considering all of the factors that I have been faced with I am left with very grave concerns that release in the foreseeable future will be very likely to lead to serious violent re-offending by Mr Stephens. Not only would this be a terrible thing for the community but in fact for Mr Stephens himself it would be a bad thing. Mr Stephens himself deserves the long opportunity to really get to grips with the problems that he has. Set against his long history of offending and failure to complete previous drug and alcohol, anger management programmes, I have reached the conclusion that a sentence of preventive detention is needed for the community’s protection and I do not consider that the community is sufficiently protected by a lengthy finite sentence.

[18] Addressing the minimum period of imprisonment of at least five years which must be imposed under s 89 of the Sentencing Act, the Judge considered that the appropriate period was six years six months, noting that if the appellant was motivated to address the issues identified then he would need all of that time to deal with them.

The grounds for appeal

[19] In advancing the appeal against sentence, Mrs Wilkinson-Smith submitted that the sentence of preventive detention was manifestly excessive and that a lengthy determinate sentence would be adequate to protect society. She informed the Court that the appellant did not take issue with a determinate sentence of 11 years with a minimum period of imprisonment of six and a half years. While this did not take account of any discount for a guilty plea, Mrs Wilkinson-Smith acknowledged that it was open for the Court to impose a longer finite term of imprisonment than would ordinarily be imposed in order to meet the purposes of sentencing including, in particular, the need to protect society.
[20] Mrs Wilkinson-Smith noted that the sentencing Judge had acknowledged that the level of violence used by the appellant was not as serious as in other cases where preventive detention had been imposed. Although violence in the form of punching and kicking was involved and there were threats with a weapon, there was no actual use of the weapon to cause physical injury. No serious injury resulted and the offending was motivated by a desire to obtain funds to pay for a drug habit.
[21] Mrs Wilkinson-Smith also submitted that the sentencing Judge had placed too much weight on the fact that the appellant had reoffended quickly upon release from previous sentences without acknowledging that the reoffending was of a minor nature. She submitted that the Judge had failed to consider whether the public would be adequately protected by a determinate sentence coupled with a warning that any future conviction for a qualifying offence would likely result in a sentence of preventive detention. In this respect, the appellant had not previously received such a warning.
[22] With regard to the previous offending, Mrs Wilkinson-Smith submitted that it had been accepted by the sentencing Judge in relation to the 1995 offending that the appellant had not delivered any of the actual blows and was sentenced on the basis that he was a party to violence perpetrated by an older associate; there had been no actual violence or weapon involved in the bank robberies resulting in the four year sentence in 2006; and the other offences, while numerous, were mainly of a minor nature. She submitted there was no pattern of escalating violence and that the level of violence was significantly less than that involved in the Edwards case relied upon by the Judge at sentencing.
[23] The appellant had not previously been sentenced to a lengthy determinate term of imprisonment and a term of that nature would be sufficient to enable him to complete the rehabilitation programmes recommended by the report writers.

Discussion

[24] The principles upon which the Court approaches consideration of a sentence of preventive detention are well-established. The purpose of such a sentence is to protect the community from those who pose a significant ongoing risk to the safety of its members.[3] There is no issue that the appellant is eligible for such a sentence having committed several qualifying offences and being over the age of 18 years.
[25] We approach the appeal by considering the factors under s 87(4) of the Sentencing Act that must be taken into account when considering whether to impose a sentence of preventive detention. The first of these is the pattern of serious offending disclosed by the offender’s history. We agree with the assessment by the Judge that the appellant’s past history does indeed show a pattern of serious violence. While we accept that the current offending may be considered less serious than the previous incidents for which he was sentenced in 1996 and 2006, they must be regarded as serious nevertheless.
[26] Concerning features of the previous offending are the serious injuries inflicted with steel bars on the victims in the 1996 offending (although these were apparently not inflicted by the appellant, he was a willing party to that offending); his involvement and leading role in the bank robberies for which he was sentenced in 2006; the actual and threatened violence in the current offending; the use of a hammer to threaten victims; and the appellant’s willingness to enter residential homes as well as confronting victims in the street and in retail shops. Given the fact that the appellant was under the influence of methamphetamine at the time, the risk that the hammer which he was carrying would be used to inflict serious violence was high.
[27] The second factor is the seriousness of the harm to the community caused by the offending. We have no doubt, having regard to the nature of the offending and the victim impact statements, that the appellant’s current and past offending has had serious effects on the community.
[28] We deal with the next two factors together. They involve a consideration of information indicating a tendency to commit serious offences in the future and the absence of or failure of efforts by the offender to address the causes of the offending. There can be no doubt on the basis of the reports provided to the sentencing Judge and the appellant’s past history that, if he does not successfully address his issues with drug and alcohol abuse and anger management, there is a high risk that, upon his release from prison, he will commit another qualifying offence.[4] It is evident that the previous relatively lengthy terms of imprisonment have had no deterrent impact upon the appellant. Upon his release, on each occasion, he has not long afterwards begun to offend again (on the last occasion, within 12 months of his release).
[29] We agree with the Judge that the appellant does not appear to have any real appreciation of the difficulties he faces addressing the causes of his offending and that he does not have any real commitment or incentive towards addressing them. His failure to complete the treatment courses while in prison previously does not provide a satisfactory level of confidence in this respect.
[30] While we accept that the level of violence involved in Edwards was greater than that involved in the present case, there were similarities in that the appellant had embarked upon a spree of criminal offending driven by a need to obtain money to feed his drug habit. This Court agreed with the sentencing Judge that the combination of drug abuse and the appellant’s propensity for violence was a potentially lethal combination. This Court also accepted the assessment by the Judge that the community would not be sufficiently protected by a lengthy finite sentence, the last factor to be addressed under s 87(4). Despite the statutory preference for a lengthy determinate sentence, this Court agreed with the sentencing Judge who had concluded that he could not be confident the appellant was prepared to deal with his drug abuse and his propensity for violence in a way which would adequately protect society from the risk of future violent offending.
[31] The other decisions of this Court referred to by Mrs Wilkinson-Smith are readily distinguishable. In R v Pritchard[5] a sentence of preventive detention was set aside because the offender had previously been sentenced to short terms of imprisonment and rehabilitation programmes had not been available to him. And in R v Wilson[6] the appellant was sentenced to a term of life imprisonment and a sentence of preventive detention as well, which was not seen to be necessary to achieve the protection of the community.
[32] While acknowledging the force of the submissions made by Mrs Wilkinson-Smith, we are not persuaded that we should interfere with the exercise of discretion by the sentencing Judge to impose a sentence of preventive detention in this case. We agree with the assessment made by the Judge that the protection of the community from serious violent offenders such as the appellant requires a sentence of preventive detention. That sentence will provide the additional incentive which we are satisfied the appellant needs to address the causes of his offending and to deter him from future offending upon his release. As the Judge said, this is as much in the appellant’s interests as it is in the interests of the community.
[33] We also take into account that a sentence of preventive detention will enable the responsible authorities to monitor the appellant’s progress upon his release in a way not possible with a finite sentence. This and the ongoing possibility of a recall if further offending occurs is necessary to ensure the community is protected from the risk of further violent offending upon the appellant’s release.
[34] We see no reason to disagree with the assessment by the Judge that a minimum period of imprisonment of six and a half years should also be imposed in terms of s 89 of the Sentencing Act.
[35] We have been informed that the minimum period of imprisonment was imposed on all of the offences for which the appellant was sentenced in the High Court. In order to regularise the position, the present sentences will be quashed and the following sentences substituted:

• (a) The sentence of preventive detention with a minimum period of imprisonment of six and a half years is imposed on the following counts only:
  • (i) The three counts of aggravated robbery (s 235 Crimes Act 1961);
  • (ii) The two counts of aggravated injury (s 191 Crimes Act);
  • (iii) The single count of kidnapping (s 209 Crimes Act); and
  • (iv) The single count of robbery (s 234 Crimes Act).
• (b) On the two counts of burglary, 18 months imprisonment on each charge.
• (c) On the count of unlawfully taking a motor vehicle, 12 months imprisonment.
• (d) On the two counts of theft, three months imprisonment in each case.
• (e) On the count of possession of needles, three months imprisonment.

[36] All sentences are to be served concurrently.
[37] The appeal is allowed but only to the extent of correcting the imposition of sentences.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Stephens HC Auckland, CRI-2010-4-1971, 2 November 2010.
[2] R v Edwards CA223/04, 17 November 2004.
[3] Sentencing Act 2002, s 87(1).
[4] Sentencing Act 2002, s 87(2)(c).
[5] R v Pritchard [2010] NZCA 403.
[6] R v Wilson [2010] NZCA 360.