R v Stephenson [2018] NZHC 2628 (9 October 2018)

Last Updated: 7 December 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-019-002434 [2018] NZHC 2628

THE QUEEN

v

_{DAVID AARON STEPHENSON}

Hearing:	9 October 2018
Counsel:	L Dunn for Crown S K Green for defendant
Judgment:	9 October 2018

_{SENTENCING NOTES OF KATZ J}

Solicitors: Almao Douch, Office of the Crown Solicitor, Hamilton

_{Counsel: S K Green, Barrister, Auckland}

R v STEPHENSON [2018] NZHC 2628 [9 October 2018]

Introduction

[1] Mr Stephenson, you have pleaded guilty to charges of kidnapping, assault with a weapon, threatening to kill (two charges), unlawful possession of a pistol, unlawful possession of a firearm, male assaults female, indecent assault, supplying methamphetamine, possession of methamphetamine, possession of a Class C controlled drug and two charges of possession of a drug utensil.

[2] I have previously given you a sentence indication in respect of these charges, which you accepted. Two of the charges (kidnapping and indecent assault) are second strike offences. As a result, you will be required to serve any sentence imposed in respect of those charges without the possibility of parole.¹ In addition, you have entered a guilty plea this morning through counsel to a charge of breach of parole. The breach arose as a result of you being found in possession of drugs on 6 April 2017, in breach of your parole conditions.

The offending

[3] On 16 November 2016, you were released from prison, where you had been serving a sentence of two years and eight months’ imprisonment in respect of convictions for assault and wounding with intent to cause grievous bodily harm.

[4] Five months later, on the evening of 5 April 2017, you sent the victim, whom you knew, a text message saying that you needed to talk to her. In the early hours of the following morning the two of you met and you got into the passenger seat of the victim’s car. Once in the car, you produced a pistol, which you aimed at the victim’s head. You told her to drive and said “this is going to be a long night for you”. You demanded to know where the witnesses who had testified against you at your previous trial lived. The victim told you she did not know, and you shot the pistol at the windscreen, causing it to crack. You then aimed the gun at the victim’s head, and told

_{her that “the next one is going through your head if you don’t tell me”.}

¹ Sentencing Act 2002, s 86C(1) and (4).

[5] You demanded that the victim drive you to an associate’s address, where you took the victim’s phone and wallet to ensure that she did not leave. You then retrieved what looked like a shotgun covered in blankets. You put it in the boot of the car and said again that it would be a long night for the victim.

[6] You then directed the victim to drive to another location, where you got out of her car and picked up an associate of yours, continuing your journey in the associate’s vehicle. You were driving. When you stopped at a petrol station you made the victim get out of the car and stay close to you. The three of you then continued driving towards Hamilton. You continued to ask the victim where the witnesses who had given evidence against you lived. She said that she did not know. You hit her across the face with a closed fist. You told the victim “every time you fucken lie to me I’m going to smack you”. You continued to threaten the victim, despite her continually telling you she did not know where the witnesses lived.

[7] You then dropped your associate off and drove the victim to a secluded area of a supermarket car park. You got out of the car and yelled at the victim, telling her to start telling the truth about where the witnesses lived because the “narks were going to pay for [you] not being able to see [your] son for three years”. The victim cried and tried to tell you that she did not know anything that could assist you. You told her to shut up and if she did not, you would blindfold her and put her in the boot.

[8] You eventually drove to a McDonalds car park where you gave some methamphetamine to the occupants of another car that pulled up, which you said was a down payment towards them stealing a fast car for you.

[9] You then drove towards Cambridge, with the victim still in the car, and parked the car on Hart Road. You grabbed your pistol and told the victim to get into the back seat. You gave her back her phone and told her “not to do anything stupid or else”, and then demanded she look up pornography on it. She did so, and played a video for you. You began to smoke some methamphetamine out of a container, and after a short time, put some methamphetamine into a pipe and put it in front of the victim’s face, telling her to “smoke this”. She thought she would be assaulted if she did not, and so she smoked it.

[10] You then indecently assaulted the victim, culminating in your masturbating on her chest. The victim then got dressed and pleaded with you to take her home, telling you that if she was not home by 6.30 am to look after her child, her father would call the police. You eventually agreed and took her back to the address where her car had been left. You told her to keep quiet about what had happened and that if she went to the police, you would kill her. The victim then drove home.

[11] You were stopped by police later that day. The police found a .22 rifle in the boot, methamphetamine, a pipe and straw used for smoking methamphetamine, and some cannabis. You were arrested and charged.

Sentencing approach

[12] In sentencing you today, I must hold you accountable for your offending, deter and denounce your conduct, and take into account the need for community protection. I also take into account the importance of facilitating your rehabilitation, and that the least restrictive sentence appropriate in the circumstances must be imposed.

[13] I take the kidnapping charge as the lead offence. Some of your other offending is so closely interlinked with the kidnapping charge that the best approach is to consider that offending as an aggravating feature of the kidnapping charge. In particular, I consider the threats to kill, firearms and violence offences are largely subsumed within the offence of kidnapping, such that no separate uplift to your sentence is required in relation to those charges. Rather, they ought to be considered as part of the kidnapping assessment.

[14] In relation to the indecent assault offending and the drug offending, I consider that specific uplifts to your sentence are appropriate, given the discrete nature of that offending.

The starting point

Kidnapping

[15] I consider that the aggravating features of the kidnapping offending are as follows:

(a) Premeditation — There was a strong element of premeditation given that you arranged to meet the victim and brought a weapon with you. Your primary goal was to obtain information from the victim.

(b) Violence and detention — the victim was detained over a number of hours. She had genuine concerns for her safety, given that you were armed with a weapon, fired it, aimed it at her, and made a number of threats. You took her phone and wallet from her, and also committed actual violence against her by punching her.

(c) Presence of weapons — You were armed with a pistol, which you fired in the victim’s vehicle, damaging her windscreen, and you also obtained a rifle, which you put into the boot of the vehicle.

(d) Effects of offending on victim— The victim has elected not to provide a victim impact statement. I have no doubt, however, that she would have feared for her life during the incident. She also likely has serious ongoing fears for her personal safety, including in particular when you are eventually released from prison.

(e) Extent of offending — You went on a crime spree. You committed violent offending, drug offending, sexual offending and possessed firearms, all in the course of one night.

[16] The maximum penalty for kidnapping is 14 years’ imprisonment.² I have considered a number of kidnapping cases for comparative purposes, including those referred to by counsel. Some of them, however, involve offending that is significantly

² Crimes Act 1961, s 209.

less serious than this case. The starting points in the cases I have considered ranged from two years and four months’ imprisonment to six years and six months’ imprisonment.³

[17] Your offending was serious and occurred over a number of hours. With reference to the cases I have referred to, and the aggravating features I have outlined above, I consider that a starting point of five years’ imprisonment is appropriate.

Assault with a weapon, unlawful possession of a firearm, male assaults female and threatening to kill

[18] As I have already noted, I consider that your culpability in respect of the charges of assault with a weapon, male assaults female, and threatening to kill is subsumed within the kidnapping charge. With reference to other, broadly similar, cases that I have considered, I have concluded that the following concurrent sentences are appropriate for those charges:

(a) one year’s imprisonment in respect of the charge of assault with a weapon;

(b) six months’ imprisonment in respect of the charge of male assaults female;

(c) two years’ imprisonment on each of the charges of threatening to kill;

and

(d) two years’ imprisonment on each of the charges of unlawful possession of a firearm.

³ R v Yates [2018] NZHC 1341 (starting point of six years and six months’ imprisonment); Mau’u v R [2011] NZCA 385 (starting point of three years’ imprisonment); Boyle v R [2017] NZCA 173 (starting point of three years and four months’ imprisonment); Heke v R [2016] NZCA

38 (starting point of two years and four months’ imprisonment); Tozer v R [2010] NZCA 7 (starting point of three years and six months’ imprisonment).

Indecent assault

[19] In respect of the indecent assault charge, the maximum penalty is 7 years’ imprisonment.⁴ With reference to the various cases counsel have referred to, and other cases I have considered,⁵ if the indecent assault charge was considered on a standalone basis, a sentence of between three years’ imprisonment and four years’ imprisonment (if not higher) would likely be appropriate. Given, however, that the indecent assault occurred in the context of the kidnapping offending, I apply a one year uplift to the starting point for that offending, to reflect totality. This increases your overall starting point to six years’ imprisonment.

Drug offending

[20] You have also been charged with supplying methamphetamine,⁶ possession of methamphetamine,⁷ two charges of possession of a utensil,⁸ and possession of a Class C controlled drug.⁹ A specific uplift is required to recognise the distinctly different nature of this offending.

[21] The most serious of the drug-related charges is the charge of supplying methamphetamine. The summary of facts does not specify the amount involved. I proceed on the basis that it was less than five grams, which would bring this offending within Band 1 of the guideline case of R v Fatu,¹⁰ which provides for starting points of two to four years’ imprisonment. On a standalone basis, a sentence of two years’

_{imprisonment would be appropriate for this charge.}

⁴ Crimes Act 1961, s 135.

⁵ Dayal v R [2016] NZHC 1027 (starting point of three years and six months’ imprisonment);

Teriini v R [2013] NZCA 614 (starting point of three years’ imprisonment); Rickit v R [2010] NZCA 25, R v Rickit DC Auckland CRI-2007-004-26957, 28 July 2009 (end sentence of nine months’ imprisonment).

⁶ Misuse of Drugs Act 1975, s 6(1)(c).

⁷ Misuse of Drugs Act 1975, s 7(1)(a).

⁸ Misuse of Drugs Act 1975, s 13(1)(a).

⁹ Misuse of Drugs Act 1975, s 7(1)(a).

¹⁰ R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

[22] In relation to the other drug-related charges, the maximum penalty for the charge of possession of methamphetamine is six months’ imprisonment,¹¹ one year’s imprisonment for possession of a utensil¹² and three months’ imprisonment for possession of a class C controlled drug.¹³ Given that this offending is not the most serious offending of its kind, the small amount of drugs involved, and the fact that I am imposing a two-year concurrent sentence in respect of the most serious drugs charge, I consider that a conviction and discharge would be appropriate in respect of these remaining charges. I also consider that a conviction and discharge is appropriate in respect of the breach of parole charge.

[23] Taking into account totality, a further uplift of one year’s imprisonment is appropriate to reflect your overall drug offending.

Conclusion on starting point

[24] I have set an initial starting point of five years’ imprisonment for the kidnapping charge. In addition, I have imposed a one year uplift for the indecent assault offending and a further one year uplift for the drug offending. This brings your overall starting point to one of seven years’ imprisonment.

Personal aggravating and mitigating features

[25] Mr Stephenson, you are 31 years’ old. You have a good relationship with your mother and your older brother, who are your primary support people. You also report having had an abusive childhood at the hands of a step-parent, which has caused ongoing depression and associated issues.

[26] You have previously worked as a farm hand and also have experience in welding and general engineering. You hope to study small business management in prison, and the writer of your pre-sentence report is optimistic about your capacity for tertiary education, which is encouraging.

¹¹ Misuse of Drugs Act 1975, s 7(2)(a), and a fine of $1,000 as well, or in the alternative.

¹² Misuse of Drugs Act 1975, s 13(3), and a fine of $500 as well, or in the alternative.

¹³ Misuse of Drugs Act 1975, s 7(2)(b), and a fine of $500 as well, or in the alternative.

extended periods where you have abstained from using it. Unfortunately, however, you relapsed and started using again within weeks of your release from prison in November 2016. You were under its influence during your offending. Your drug use appears to have been a significant contributing factor to your offending. The pre- sentence report writer considered that you showed some insight into your drug problems. You have never undergone significant rehabilitative intervention for drug addiction.

[28] You have nine previous convictions for violent offending, including convictions for assault and wounding with intent to cause grievous bodily harm. Your present offending occurred within five months of your release from prison. You also have previous convictions for drug-related offending.

[29] Given your criminal history and the fact that the current offending occurred on parole, I consider an uplift of six months is appropriate.

[30] Your pre-sentence report records that you have demonstrated some remorse for your offending, and have also shown some insight into your behaviour. The report writer considers that you showed genuine empathy for your victim during your interview. You are open to counselling for your drug addiction and violent tendencies, and I encourage you to pursue such opportunities.

[31] Your counsel, Ms Green, submits that a remorse discount is appropriate. She has provided me with a copy of a letter that you wrote to the victim. In that letter you apologise to the victim and acknowledge that the experience must have been very traumatic for her. You reassure her that you do not bear her any ongoing animosity, or wish her any harm.

[32] I accept that you do have a degree of insight into your offending and that your expression of remorse is genuine. Overall, I consider that a discount of four months is appropriate to reflect your remorse.

[33] Your trial was due to commence the week after I gave your sentence indication. Trial preparation would have been at an advanced stage at the time of the indication. However, by subsequently pleading guilty you reduced the burden on the court’s resources. Further, you spared the victim the trauma of testifying at trial. Given the nature of your offending, giving evidence would likely have been an extremely difficult and stressful experience for her. Given those circumstances, I consider that a guilty plea discount of ten percent is appropriate.

Sentence

[34] Mr Stephenson, please stand. I sentence you to:

(a) six years and five months’ imprisonment for the kidnapping charge;

(b) three years’ imprisonment for the indecent assault charge;

(c) two years’ imprisonment on each of the two charges of threatening to kill;

(d) two years’ imprisonment for the supply of methamphetamine charge;

(e) two years’ imprisonment on each of the two unlawful possession of a weapon charges;

(f) one year’s imprisonment for the assault with a weapon charge;

(g) six months’ imprisonment for the male assaults female charge.

[35] Each sentence of imprisonment is to be served concurrently, which means that your effective end sentence is six years and five months’ imprisonment.

[36] On the two charges of possession of a utensil, the charge of possession of a Class C controlled drug, the charge of possession of methamphetamine, and the charge of breach of parole, you are convicted and discharged.

Katz J