Stuart v Police [2014] NZHC 1502 (1 July 2014)

Last Updated: 8 July 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000021 [2014] NZHC 1502

PETER JAMES STUART

v

_{NEW ZEALAND POLICE}

Hearing:	1 July 2014 (via audiovisual link to Christchurch)
Appearances:	S A Saunderson-Warner for the Appellant R D Smith for the Respondent
Judgment:	1 July 2014

_{ORAL JUDGMENT OF PANCKHURST J}

[1] This is an appeal against refusal of bail. As counsel have rightly noted, it is a difficult matter and also it seems to me unusual on account of the factual background. Mr Stuart has pleaded guilty to a charge of threatening to kill, which occurred on 7 April 2014. He told a facilitator at an intellectually disabled persons’ facility that he wanted to kill the complainant woman, either with a knife or by using a gun. He repeated those threats to a second facilitator, and as a result the facilitators made contact with the police. When interviewed, Mr Stuart admitted that he had made such threats and indeed revealed the background and why he was so poorly intentioned towards this woman.

[2] The appellant is 32 years of age. He has a conviction in 2004 for sexual violation, in relation to which he was sentenced to 300 hours’ community work. However, that offence was committed in 1997 when he was still in his teens. It was

_{investigated at the time, but Ms Saunderson-Warner informs me that a prosecution}

STUART v NEW ZEALAND POLICE [2014] NZHC 1502 [1 July 2014]

did not result. Rather, in 2004 Mr Stuart presented at the police station, admitted that the old complaint was in fact truthful and he was duly charged. No doubt it is these unusual circumstances and his youthfulness at the time of the offending which brought about the lenient sentence.

[3] He has disclosed that conviction to the complainant. She is an older woman, some 20 years the senior of Mr Stuart. They know one another because Mr Stuart was friendly with the woman’s son, who is now deceased. Over a period of some years there have been numerous phone calls made by Mr Stuart to the complainant since he has, what I think is best termed a fixation, that she is spreading rumours pertaining to his previous sexual offence.

[4] I note that Mr Stuart has two convictions in 2007 for the offence of offensive use of a telephone, those two matters having been committed on successive days. His only other conviction is the present one, following his plea of guilty to the April

2014 threat to kill charge.

[5] Initially, he was bailed in relation to that charge when he first appeared in mid-April. A month later in May he entered a plea of guilty. He was remanded, again on bail, to be sentenced on 19 June. However, the sentencing date was enlarged until July because a s 38 psychiatric report had been called for but could not be available for 19 June. Two days later a breach of bail occurred. This was on

21 June. The appellant phoned the complainant woman, but did not, in the event, speak to her. She answered; he hung up. She did not complain to the police about this anonymous call, although no doubt she quickly realised who the caller was.

[6] Rather, the matter came to light as a result of contact which the appellant had with psychiatrists or other health professionals at the emergency psychiatric service. He recounted to them what had occurred and also indicated thoughts which he had been having in relation to the complainant. These included, for example, his reference to intending to place a knife in her letter box, coupled with a threat. In any event, personnel from the emergency psychiatric service contacted the police and this gave rise to the breach of bail hearing before Judge Coyle on 25 June.

[7] The Judge was confronted with a victim impact statement which indicated that the complainant does entertain real concerns for her safety. He noted that both ss 13 and 8 were relevant to the decision which he needed to make; the former, because Mr Stuart is awaiting sentencing following his plea of guilty to the threatening to kill charge, although it seems to me that the application of that section was somewhat dubious, given that the appellant had been released on bail in May when I assume another Judge determined that it was not necessary in the interests of justice that he be remanded in custody pending sentencing. Hence, it seems to me, Judge Coyle really dealt with the matter pursuant to s 8 and ultimately concluded that there was a “very real risk” of offending. Hence, he remanded the appellant in custody until 24 July, which is the new sentencing date.

[8] Ms Saunderson-Warner has characterised that decision as plainly wrong. She points out, correctly, that the appellant has no convictions for violent offending, save for the matter upon which awaits sentence. She points out also that there is no evidence that the appellant has ever physically confronted the complainant, rather his fixation has resulted in his making numerous phone calls to her over a lengthy period, and in addition he has made threats not direct to her but to others. Counsel also pointed out that he has no history of offending on bail and breaching bail, save for the breach to which I have already made reference.

[9] Mr Stuart suffers from a borderline intelligence quota. Previously, it was thought that he may have actual mental health issues, but more recent reports, I am told, have concluded that he is of borderline intelligence. Judge Coyle said that this meant there was the potential that his “stop reflex may be somewhat diminished”. Ms Saunderson-Warner characterised this as impermissible reasoning, but I disagree with that criticism. The Judge was assessing future risk, not punishment for something that needed to be established beyond reasonable doubt. It may be that his choice of words was unfortunate, but as I will mention in a moment, it seems to me there was a foundation for genuine concern as to the appellant’s state of mind in the recent past when this bail decision was reached.

[10] The appellant is presently in the at-risk unit at the men’s prison. It is 23 days

until his sentencing date on 24 July.

[11] Mr Smith, while acknowledging that this was an unusual and difficult matter, submitted that there is a real basis for concern as to the risk of offending against the complainant. He relied principally on the fact that the matters which I have referred to have arisen as a result of the concerns initially expressed by facilitators at a facility for the intellectually disabled. They made a complaint to the police of the threats to kill and then more recently, following the 21 June phone call, health professionals from the emergency psychiatric service took the course of advising the police of what the appellant had said to them in relation to the phone call he had made. By contrast, it is noteworthy that the complainant woman herself did not complain about the phone call, so that the occasion for bail to be revoked might never have arisen.

[12] It is this dimension which ultimately influences me to the view that the Judge did not err in declining bail. The matter is unusual. A psychiatric report is under preparation. The period that the appellant is likely to be in custody is relatively short. He is in the at-risk unit and therefore not exposed to the general prison population. I am of the view that there is a sufficient risk of further offending to warrant the remand in custody, particularly when I bring to account the views of the complainant, as I am required to do.

[13] That said, this case is going to produce an equally difficult decision in relation to a sentencing disposition later this month. Mr Smith made the point that a pre-sentence report has not been requested, only the s 38 report. It cannot be said that a sentence of imprisonment is an inevitable, or even necessarily a likely outcome. If the appellant is to remain in the community it would, as Mr Smith submitted, be essential that there be some mechanism to control matters in the hope that the risk he may pose to the complainant as a result of his fixation can be met. However, that is a matter that counsel will need to take up with the District Court.

[14] For these reasons, however, the appeal is dismissed.

Solicitors:

Joel Aspinall, Dunedin

RPB Law, Dunedin