Police v Stephens [2019] NZDC 2013 (7 February 2019)

Last Updated: 3 September 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT PALMERSTON NORTH I TE KŌTI-Ā-ROHE KI TE PAPAIOEA

CRI-2018-054-002353

[2019] NZDC 2013

NEW ZEALAND POLICE

Prosecutor v

[SPENCER STEPHENS] Defendant

Hearing:	7 February 2019
Appearances:	W M A van Roosmalen-Werie for the Prosecutor M Anderson for the Defendant
Judgment:	7 February 2019

NOTES OF JUDGE L C ROWE ON SENTENCING

[1] [Spencer Stephens], you appear for sentence having pleaded guilty to posting a digital communication, namely a Facebook post, with intent to cause harm and causing serious emotional distress, two breaches of protection order on 25 April/2 May, male assault female and breach of a protection order on [date deleted] and obstructing or attempting to pervert the course of justice between [date deleted] and 5 September.

[2] Starting with the Facebook posting; that was a posting which was derogatory of your ex-partner. It identified her occupation, her name and her address in ways that you knew would place her at risk and was calculated by you to cause her distress.

NEW ZEALAND POLICE v [SPENCER STEPHENS] [2019] NZDC 2013 [7 February 2019]

[3] The breaches of protection order on 25 April and 2 May were occasions where you and your ex-partner were firstly together at an address that you own jointly. There was an altercation between you. She left because she considered your attitude was becoming increasingly aggressive. As she left you verbally abused her and yelled at her. She went to [store 1]'s, you turned up, parked your vehicle next to hers and continued to verbally abuse her. She drove to [store 2], you arrived and confronted her again. Your explanation to the police was that it was a coincidence that you were at the same shops.

[4] Between 25 April and 2 May you sent a series of unwanted text messages to her. She did not reply to them but you continued to send them. Your actions in following and confronting the victim and then sending her text messages in this way were in direct breach of the protection order that she took out against you in 2016.

[5] You pleaded guilty to these offences and they were put off for you to attend Manline and for sentencing. While awaiting sentencing you went to the victim’s home on [date deleted] where you got into an altercation with her. You assaulted her by punching her to the face causing her to fall to the ground. She got up, you were trying to leave in a car, she tried to grab the car keys, you closed the car door on her arm. Not only was your presence at her address, in those circumstances, a breach of the protection order, it was also a direct breach of bail conditions which prohibited you from having contact with her and from going to her address.

[6] You then got your new partner and a friend, who were both present while this happened, to lie on your behalf. You got the partner to create a false alibi to say you were not there, that you were with her. You got the friend to lie and say that he was not with you.

[7] The statements made by your friend and your new partner were given not only to the police but also to the Court in support of a bail application and you were granted bail, in part in reliance on the false alibi that you had constructed.

[8] I have a letter from you today in which you express remorse for your conduct. You say you deeply regret not thinking things through before acting and you look

forward to moving on with your new partner, reconnecting with your children. In submissions today from your lawyer you have wanted me to know that the victim invited you over and your explanation is that she initiated the violence. It is a characteristic of your conduct over the last year, and these repeat offences, that you have behaved in a very manipulative way towards her and others to the point that you got your new partner to lie for you to cover for your conduct.

[9] You were on bail conditions not to have anything to do with that victim and yet you were there and you punched her. It is time to stop blaming other people for your violence. You are shaking your head today, you have pleaded guilty to assaulting her and punching her. You also said to your pre-sentence reporter that you pleaded guilty because you considered you had no choice. It is time for you to front up to your behaviour Mr [Stephens]. You have had other people lie for you, you have had other people cover for you. You have repeatedly breached your protection order and you breached your bail conditions.

[10] My assessment is that this is a sustained period of very manipulative behaviour of a former partner and manipulative behaviour towards your new partner and others and you tried to manipulate the course of justice.

[11] When you were to be sentenced previously, a letter was presented from Manline which described you as engaging in that process and displaying honesty, courage and trust which impressed your counsellor. Your conduct [around the offending] and your attempt to pervert the course of justice runs contrary to the virtues that [your counsellor] says you displayed to him.

[12] The Facebook posting offence requires a starting point of four months’ imprisonment. It could be higher but I have regard to totality. The breaches of protection order on 25 April through to 2 May require an additional four months’ imprisonment. The offences on [date deleted], male assault female and breach of protection order require a starting point of nine months. The attempt to pervert justice between [date deleted] and 5 September requires a starting point of at least 12 months. It could be significantly higher. I have regard to Horridge v Police where Downs J in that case approved a starting point of 20 months in similar circumstances where a false

alibi was created, but again I have regard to totality.1 Total starting point for all this offending is 29 months’ imprisonment.

[13] I now have regard to the aggravating features that exist here which is seriously offending while on bail and attempting to pervert the course of justice while on bail, plus your previous history of violence against the same victim and others. You have convictions for assaulting this victim twice previously in [years deleted] and previously breaching your protection order. You have other assaults and threatening convictions from earlier.

[14] I consider the aggravating features in this case are not an instance of double counting or re-punishing you for previous offences. Rather it is a case of sending an unequivocal message to you Mr [Stephens] that this conduct and repeated conduct will not be tolerated. It is time for your manipulation and abuse of women to end. This increase is to protect the public, protect your partner, to denounce and deter you. The addition for these aggravating features is six months. Total overall starting point 35 months’ imprisonment.

[15] I reduce that by nine months for your guilty pleas. You pleaded not guilty initially to the male assault female and breach of protection order charges from [date deleted], consistent with the false alibi that you created. I ought not give such a big discount for your guilty pleas to those charges but I consider a nine-month reduction is more than what is required in the circumstances.

[16] The end sentence is 26 months’ imprisonment made up as follows; for attempting to pervert the course of justice, 12 months’ imprisonment. For male assault female and breach of protection order on [date deleted], six months’ imprisonment, cumulatively. For posting the harmful digital communication, four months’ imprisonment, cumulatively. For breaching the protection order on 25 April through to 2 May, four months’ imprisonment, cumulatively.

[17] Total penalty 26 months’ imprisonment. Because the end point is more than 24 months the issue of home detention does not arise but I would not have imposed

1 Horridge v Police [2018] NZHC 2589.

home detention if it had been available to you. I consider that home detention would not send the required message of denunciation and deterrence, nor would it protect the public sufficiently. It is time for this conduct to stop Mr [Stephens].

Judge L C Rowe

District Court Judge

Date of authentication: 12/02/2019

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.