R v Stade - [2015] NZHC 2611

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000079 [2015] NZHC 2611

BETWEEN
THE QUEEN

Appellant

AND

BEAU DEAN STADE Respondent

Hearing: 20 October 2015

Appearances:

J E Mildenhall for Appellant
C D Eason for Respondent

Judgment:

22 October 2015

JUDGMENT OF GENDALL J

Introduction

[1] The appellant, the Solicitor-General appeals against a sentence imposed on

15 July 2015 in the District Court of two years, six months’ imprisonment against the respondent Mr Beau Stade in respect of one charge of aggravated burglary. The appeal is advanced on the basis the sentence was manifestly inadequate and wrong in principle because the learned Judge:

(a) failed to properly assess Mr Stade’s culpability and did not articulate

the starting point for sentencing purposes; and

(b)granted total discounts for mitigating factors which were commensurate with those given to a co-offender, Mr Marvelle Jackson, yet Mr Jackson entered an early guilty plea and provided significant assistance to Police when Mr Stade did neither.

[2] Mr Stade resists the appeal on the bases that:

R v STADE [2015] NZHC 2611 [22 October 2015]

(a) the Judge properly assessed his culpability;

(b)

the absence of a starting point is irrelevant as the Judge properly took account of the purposes and principles of sentencing; and

(c)

the Judge took account of the principle of parity of sentence as between all three co-offenders.

Facts

[3] At the relevant time Mr Stade resided with his co-offender, Mr Jesse O’Connell. Mr O’Connell was friends with the third co-offender, Mr Marvelle Jackson.

[4] On the afternoon of Friday, 24 April 2015, Mr Jackson borrowed a vehicle which belonged to his partner. He then went to the address of Messrs Stade and O’Connell. The three men spent the afternoon socialising and consuming alcohol. Mr Jackson was smoking synthetic cannabis while Messrs Stade and O’Connell were smoking cannabis.

[5] At some point during the day, Messrs Jackson and O’Connell were in need of money. Mr Jackson’s partner had sent him a text message stating their daughter required baby formula as they were nearly out. Mr Jackson replied to his partner that him and Mr O’Connell were going to buy baby formula and that they would be using his partner’s car.

[6] That same afternoon, Mr O’Connell sent a text message to his on-again off- again partner saying that he needed money. After a further text, his partner responded that she would give him money “if he wasn’t such an asshole”. The text message exchanges continued until at 4.52 pm there was a reference to a gun. This was followed at 5.29 pm with a text stating that Mr O’Connell was about to hold up a dairy. No dairy was ever robbed. It seems this was a ploy to convince his partner to give him money.

[7] At some later point, Mr O’Connell informed his other two co-offenders about an address known to him to have drugs. As a result of this information, the men decided to rob the occupants of that address.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Stade

Details

AGLC: R v Stade [2015] NZHC 2611
Case: [2015] NZHC 2611
Decision Date: 22 October 2015

CaseChat Overview and Summary

The appeal in R v Stade concerns the sentence imposed by the District Court on Mr Beau Stade for aggravated burglary. The appellant, the Solicitor-General, argues the sentence was manifestly inadequate and wrong in principle. The appeal contends that the sentencing Judge failed to properly assess Mr Stade’s culpability and did not articulate a starting point. Additionally, the appeal argues that the Judge granted total discounts for mitigating factors equivalent to those given to a co-offender, Mr Marvelle Jackson, despite Jackson’s early guilty plea and assistance to the police. Mr Stade resists the appeal by arguing that the Judge properly assessed his culpability, that the absence of a starting point is irrelevant as the purposes and principles of sentencing were considered, and that the principle of parity of sentence was taken into account.

The High Court found that the sentencing process had indeed miscarried due to the failure to follow proper sentencing practice. The Court held that Judge Saunders did not properly identify a starting point or adjust the sentence for aggravating and mitigating personal factors, resulting in a manifestly inadequate sentence. The Court decided to undertake the sentencing exercise afresh, setting a starting point of six years’ imprisonment for Mr Stade, applying a 20% discount for personal mitigating features, and a 15% discount for the guilty plea. The end sentence imposed was four years’ imprisonment, which was deemed the most lenient sentence possible to remove the manifest inadequacy.

The appeal was allowed, and the sentence imposed in the District Court was quashed, replaced with a sentence of four years’ imprisonment. The Court also granted leave for Mr Stade to vacate his guilty plea if he wished to do so, considering the substantial difference between the indicated sentence and the sentence imposed on appeal.

Orders