Stephens v Police [2014] NZHC 175 (18 February 2014)

Last Updated: 11 March 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-57 [2014] NZHC 175

BETWEEN NICOL JOY STEPHENS Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 17 February 2014

Counsel: LJR Wilkins for the Appellant

J E Tarrant for the Respondent

Judgment: 17 February 2014

Reasons: 18 February 2014

_{JUDGMENT OF BROWN J}

This judgment was delivered by me on 18 February 2014 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, Hamilton

Counsel: LJR Wilkins, Hamilton

STEPHENS v POLICE [2014] NZHC 175 [17 February 2014]

Introduction

[1] Ms Stephens appeals against a sentence of three years imprisonment imposed by Judge AIM Tompkins in the Hamilton District Court on 12 July 2013. Ms Stephens had entered guilty pleas on the first appearance to two indictably laid charges, one of dangerous driving causing death and a second of dangerous driving causing injury.

Background facts

[2] The charges related to a crash that occurred on 18 October 2012 on Ohaupo Road, Glenview, Hamilton. The appellant was driving dangerously and at excessive speed when her vehicle collided with an oncoming vehicle resulting in the death of her passenger and serious injury to the driver of the oncoming vehicle. Earlier that evening the appellant and her passenger had met with an associate in a carpark, allegedly to purchase methamphetamine. It appears that the passenger acquired the drugs but elected not to pay for them. He returned to the vehicle and Ms Stephens drove off with him in the passenger seat.

[3] The associate engaged in pursuit and both cars sped dangerously and at high speed first through residential areas and subsequently on the open road. Witness accounts suggest the appellant engaged in a sustained period of bad driving. Prior to crashing, the vehicle’s speed was estimated to be 100-140 kms/hr, the speed causing the vehicle to waver and slide across the double yellow lines. There is no evidence that the oncoming vehicle was speeding at the time.

District Court decision

[4] The Judge set the starting point at five years imprisonment on the basis of an assessment of Ms Stephen’s overall culpability and the gravity of the offending. The Judge considered the High Court judgment in R v Gacitua¹ to be closely analogous

_{to the facts in Ms Stephens’ case. He also referred to the 2011 increase in the}

¹ R v Gacitua [2012] NZHC 2542 (more recently upheld by the Court of Appeal R v Cacitua

[2013] NZCA 234).

maximum period of imprisonment for dangerous driving causing death from five to ten years.²

[5] The Judge proceeded to deduct 12 months (20 per cent) for Ms Stephens’ degree of demonstrated remorse, her rehabilitative steps and for her participation in the restorative justice process including the wish taken by the victim’s family that Ms Stephens not be sentenced to imprisonment.

[6] Finally the Judge deducted 12 months (25 per cent) for Ms Stephens’ guilty

plea, resulting in an end sentence of three years imprisonment.

Grounds of appeal

[7] The grounds of appeal specified in the notice of appeal dated 23 July 2013 stated that:

(a) the learned trial Judge erred in calculating the discount for guilty pleas; and

(b) the end sentence was manifestly excessive.

[8] However in the written submissions in support of the appeal the grounds were reframed as follows:

(a) That the overall reduction in sentence insufficiently reflected the exceptional remorse and efforts at rehabilitation demonstrated by the appellant. This ground was advanced in reliance on the High Court judgment R v Prince.³

(b) There appears to have been an error in the formulation of the discount allowed for very prompt pleas of guilty.

² _{R v Stephens DC Hamilton CRI-2012-019-007423, 12 July 2013 at [15].}

³ R v Prince HC Wanganui CRI-2011-083-1775, 5 December 2011.

Approach to appeal

[9] As the proceedings were commenced before 1 July 2013 the Summary

Proceedings Act 1957 applies pursuant to s 397 of the Criminal Procedure Act 2011.

[10] An appeal against sentence is a general appeal which is by way of rehearing. Section 121(3)(b) of the 1957 Act states that if the High Court determines that a sentence is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence” then the Court may quash or vary the sentence.

[11] The approach taken for appeals under s 121(3) is set out in Yorston v Police:⁴

(a) There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an error principle.

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

If the sentence falls within the range available to the District Court Judge the High

Court will not intervene.

First ground of appeal

[12] Mr Wilkins’ submission was that the precedent of Prince was entirely on point in respect of the current appeal. There the 18 year old prisoner had consumed alcohol and driven in a very deficient manner leading to a crash that led to the death of one of his passengers and the injury of four others. Williams J adopted a starting point of five years which Mr Wilkins conceded was entirely appropriate both for

Prince and in the present case. However Williams J deducted a total of three years arriving at a final sentence of two years which enabled his Honour to impose a sentence of 12 months home detention with 250 hours of community work.

[13] While Mr Wilkins acknowledged that Ms Stephens’ case is not identical to Prince, there being obvious distinctions of varying degrees of significance, he contended that Judge Tompkins had erred in effect in failing to give a greater discount for remorse and other mitigating factors than 12 months. In particular he drew attention to the fact that at [14] of the sentencing notes no mention is made of meaningful offers of compensation made by the appellant and accepted by the victims, nor of the assessed low risk of her reoffending or her significant family and community support. He noted that these were all factors that were in play in Prince.

[14] For the Crown Ms Tarrant noted that it is well known that deduction for exceptional remorse and other personal mitigating factors is a matter of discretion for the sentencing Judge at the time and that there is no formulaic way of making deductions for such mitigating factors. She noted that Judge Tompkins recognised the fact that the appellant sought a significant discount for proven remorse, rehabilitative steps and participating in the restorative justice processes⁵ but submitted that the discount given of 12 months (being a 20 per cent discount from five years) was a matter of discretion and was not inadequate or clearly wrong

requiring it to be interfered with on appeal.

[15] Mr Wilkins recognised that it is unclear precisely how the discounts were calculated in Prince. Williams J did not indicate discrete discounts for the various factors to which he referred but arrived at a deduction on a global basis. He said:

[49] Mr Prince, taking all these factors into account, I have decided that this is one case where the right thing to do is to go out on a limb for you.

[50] I will deduct three years.

[16] In seeking to identify the amount of discount for remorse in Prince, Mr Wilkins suggested that if one presumes a maximum discount for guilty plea then a further discount of some 35-40 per cent must have been allowed for remorse.

[17] However on my analysis a 25 per cent discount for a guilty plea to arrive at an end sentence of two years imprisonment must translate to a two year eight month term prior to such discount. Consequently the degree of discount for remorse and other factors in Prince would be two years four months or approximately 47 per cent of the five year starting point.

[18] I am unable to accept that a discount anywhere near 47 per cent would be appropriate for the mitigating factors in the present case. I consider that the 20 per cent figure adopted by Judge Tompkins was sound and indeed marginally generous. I do not find that there was any error in his approach which would justify this Court taking a different view.

Second ground of appeal

[19] Contrary to the tenor of the first ground of appeal as originally drawn, Mr Wilkins accepted that there was no error in the calculation of the discount for the guilty plea being the application of a 25 per cent discount to the figure reached by subtracting the 12 month discount for remorse from the five year starting point. The point he made was directed rather to the sequence of the application of the discounts for remorse and guilty plea. He submitted that there is a degree of perversity in the contrite prisoner receiving a lesser discount for guilty plea on the basis of exceptional remorse than the prisoner would have received had he or she demonstrated no remorse at all above and beyond the entry of a guilty plea.

[20] Of course the problem is not with the level of discount i.e. the percentage adopted, but rather that the application of the percentage to a reduced period of imprisonment results in a smaller actual period of time to be subtracted. It was implicit in the revised calculation he proposed⁶ that the discount for guilty plea (being the larger discount in the circumstances) should be applied first and prior to a

_{discount for remorse.}

⁶ A reduction of 25 percent of five years reducing the sentence to three years nine months followed by a reduction of 12 months resulting in an end sentence of two years and nine months imprisonment.

[21] The answer to that submission lies in the judgment of the Supreme Court in

Hessell v R⁷ where the Court said:

[73] There is no objection in principle to the application of a reduction in a sentence for a guilty plea once all other relevant matters have been evaluated and a provisional sentence reflecting them has been decided on. Indeed, there are advantages in addressing the guilty plea at this stage of the process (along with any special assistance given by the defendant to the authorities). It will be clear that the defendant is getting credit for the plea and what that credit is. This transparency validates the honesty of the system and provides a degree of predictability which will assist counsel in advising persons charged who have in mind pleading guilty.

[22] Judge Tompkins adopted that approach and there is no basis for taking issue with it.

Conclusion

[23] For the reasons explained above I do not consider that the Judge made any error which would warrant this Court intervening. Furthermore I do not consider that a sentence of three years imprisonment in the circumstances of this case was

_{manifestly excessive. The appeal is dismissed.}

_{Brown J}

⁷ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].