Stanley v Police

[2023] NZHC 1879

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2023-443-12

[2023] NZHC 1879

BETWEEN

KYLE JORDAN STANLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 July 2023
Appearances:	P J Mooney for the Appellant R L Hicklin for the Respondent
Judgment:	18 July 2023

ORAL JUDGMENT OF PALMER

Solicitors

Mooney & Webb, New Plymouth C & M Legal, New Plymouth

STANLEY v NEW ZEALAND POLICE [2023] NZHC 1879 [18 July 2023]

What happened?

[1]    Around 10:15 pm on Friday 13 May 2022, Mr Kyle Stanley, aged 26, was deliberately stopping traffic from travelling through the Devon Street and Currie Street intersection, in downtown New Plymouth. Mr Sonntag, aged 58 and considerably smaller than Mr Stanley, got out of his vehicle and demanded Mr Stanley get off the road. Mr Stanley punched and kicked the car on the passenger side. After his wife parked the car on the side of the road, Mr Sonntag got out again and demanded an explanation. Mr Stanley punched Mr Sonntag several times in the head and body while Mr Sonntag held up his hand attempting to block the blows. Mr Stanley ran off when members of the public came to help Mr Sonntag. Mr Sonntag was knocked unconscious, bleeding from his head. He sustained a severe concussion, a large laceration on the back of his head, several smaller cuts to his face and body and bruising. The Sonntags have explained the long-term physical, financial, and mental impacts of the offending in their victim impact statements.

[2]    Mr Stanley pleaded guilty to injuring with intent to injure which carries a maximum penalty of five years’ imprisonment. On 23 May 2023, Mr Stanley was sentenced by Judge Grieg in the District Court at New Plymouth.1 The Judge considered the offending sat within band 2 of the Nuku bands due to aggravating factors of attacking the head, significant injury and vulnerability of the victim and set a starting point of two years and 10 months’ imprisonment.2 He discounted that by something over 15 per cent for Mr Stanley pleading guilty seven months after the offending. He noted that Mr Stanley lost his mother at 16 and had care of his son every weekend but did not make any discount for that. Neither did he uplift the sentence for a previous minor assault.3 The end sentence was two years and four months’ imprisonment and a reparation order of $2,818. Mr Stanley appeals the sentence.

1      New Zealand Police v Stanley [2023] NZDC 6755.

2      At [30], citing Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

3 At [7].

Submissions

[3]    Mr Mooney, for Mr Stanley, points to two sentences for injuring with reckless disregard, and one for injuring with intent to injure, with lower starting points.4 He submits the starting point here was too high in comparison with other cases and should have been 18 to 20 months’ imprisonment. He submits the Judge erred in not giving a discount of 25 per cent for the guilty plea because Mr Stanley pleaded guilty at a reasonably early opportunity. He submits the Judge erred in not sentencing Mr Stanley to home detention and says his partner’s address is still available for that purpose.

[4]    Ms Hicklin, for the Police, submits the case is similar to Burton v Police, where a starting point of two years and six months imprisonment for injuring with intent to injure was upheld where there was provocation.5 It was appropriate for a wanton act of violence against a vulnerable victim resulting in serious injuries. She submits the starting point was available, the discount appropriate and home detention was not available.

Should the appeal be allowed?

[5]    Under s 240(2) of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there has been a material error in the sentence imposed and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.6 The Court will only intervene and substitute its own views on appeal if the sentence is “manifestly excessive”.7

[6]    I agree with the Judge here that the sentence is appropriately considered in band two of the Nuku bands, which has three or fewer aggravating factors and a starting point of up to three years’ imprisonment.8 The two injuring with reckless disregard cases Mr Mooney points to are for a less serious offence in terms of intent and the offending in each of the three cases was for shorter attacks. I accept Ms Hicklin’s submission that Barton is more comparable to this offending than those

4      Toeta v Police [2023] NZHC 888; Wilson-McAlister v Police [2021] NZHC 800; and Te Puni v Police [2019] NZHC 762.

5      Burton v Police [2017] NZHC 664.

6      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27], [33], and [35].

7      Ripia v R [2011] NZCA 101 at [15].

8      Nuku v R, above n 2, at [38].

cases. While on the higher side, I consider the starting point was available to the Judge.

[7]    I do not accept a higher discount for the guilty plea was warranted. Mr Stanley pleaded not guilty in July 2022 after appearing three times (and failing to appear once) in June and July 2022 and did not plead guilty until December 2022. The Police case appears to have been strong. He changed his plea only once a charge of wilful damage was dropped. I consider a discount of 15 per cent was well available.

[8]    It follows that I do not consider a sentence of home detention was available to the Judge. Even had it been available, I consider it would have been open to the Judge to have concluded that imprisonment was an appropriate sentence.

Result

[9]I dismiss the appeal.

Palmer J