Stanley v Police

[2015] NZHC 1743

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-26 [2015] NZHC 1743

BETWEEN

HAYDEN JAMES STANLEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	27 July 2015
Counsel:	M S Boyd for Appellant S J Simpkin and N L Laird for Respondent
Judgment:	28 July 2015

JUDGMENT OF CLIFFORD J

Introduction

[1]      The appellant, Hayden James Stanley, pleaded guilty to charges of receiving a stolen Holden Thunderbird utility and breaching a sentence of community work. Mr Stanley was sentenced by Judge Roberts in the District Court at New Plymouth on 5 June 2015 to 15 months imprisonment.1    Mr Stanley now appeals against that sentence as being manifestly excessive.   Mr Stanley says that a sentence of imprisonment  of  in  the range  of  six  to  eight  months  would  be  the  appropriate outcome.

Facts

[2]      The circumstances of Mr Stanley’s offending can be stated briefly, very much as they were set out in the statement of facts to which Mr Stanley pleaded guilty.

1      New Zealand Police v Stanley [2015] NZDC 10400.

[3]      Between 10.00 am and 2.00 pm on Tuesday 24 February 2015 a 2006 Holden utility, valued at $30,000, was stolen from a building on Brown Street in Inglewood. Later that afternoon Mr Stanley and an  associate were seen with the vehicle in Eltham.  The vehicle was recovered the following day at an address in Eltham where Mr Stanley and  his  associate had  stayed  the night.   The reward posted  by the vehicle’s owner had borne fruit.

[4]      By then, Mr Stanley had attempted to sell the vehicle for $100.

[5]      Mr Stanley’s  criminal history is of some  relevance.    In September 2014

Mr Stanley had been convicted of receiving and sentenced to six months supervision and 300 hours community work.   Mr Stanley was, therefore, still subject to that sentence of supervision when he reoffended in February 2015.  Mr Stanley also has a conviction for a January 2013 burglary.  He has some 12 other previous convictions, including for disorderly behaviour, possessing an offensive weapon, trespass and theft from a car.

[6]      Mr Stanley had not previously been subject to a sentence of imprisonment.

The challenged sentencing decision

[7]      In assessing the seriousness of Mr Stanley’s offending, the Judge noted similarities between Mr Stanley’s previous conviction for receiving, and the charge on which he was before the Judge previously.  The Judge noted that, as had been the case on that previous occasion, Mr Stanley was attempting to “fence” stolen goods a very short time after their theft.  In each instance, the Judge noted that Mr Stanley claimed not to be the burglar, but refused to say who was.  Noting that Mr Stanley had re-offended whilst still subject to the sentence for his earlier conviction for

receiving, the Judge went on to comment:2

You are very, very close to the burglar again.  Indeed, I would go so far to say the cynic in me would have you pegged as the burglar but of course in the absence of evidence to that I am probably embarking on irregular and improper logic.  But it seems to me to be an astounding coincidence that here we are, you in possession of something that you could never afford, even the stolen price, again claiming to be a receiver.

2      At [15(b)].

[8]      The Judge first determined that a sentence of imprisonment was called for to hold Mr Stanley accountable, to denounce his conduct and to deter him and provide protection  for  the  public.    The  Judge  then  fixed  a  starting  point  sentence  of

15 months  imprisonment.    He  increased  that  starting  point  by  five  months  by reference to the aggravating factors of Mr Stanley’s very similar, recent previous offending and his failure to comply with his previous sentence of community work. Allowing Mr Stanley a five month discount for his guilty plea, he reached an end sentence of 15 months imprisonment.  The Judge remitted the balance of the earlier community work sentence.

Appeal

[9]      For Mr Stanley, Ms Boyd argued on appeal that the Judge had erred in a number of ways, including by:

(a)       refusing a referral to restorative justice;

(b)sentencing on the basis of unproven facts or material that was not properly before the Court; and

(c)      imposing an uplift for previous convictions, and in doing so pointing to  a need  for  a  sentence of imprisonment  in  order to  protect  the community.

[10]     I deal with each matter in turn.

Restorative justice

[11]     Mr Stanley first appeared in the District Court on this matter on 31 March

2015.  Mr Stanley was remanded for sentencing on 12 May, and his file referred to the Taranaki Restorative Justice Trust as required by s 24A(2) of the Sentencing Act

2002.  Mr Stanley attended Court on 12 May.  Restorative Justice had been unable to contact Mr Stanley.

[12]     As matters transpired, the Judge was unavailable on 12 May and Mr Stanley’s

sentencing was adjourned until 5 June.

[13]     As required by the Sentencing Act the Judge did, as can be seen, adjourn Mr Stanley’s sentencing when he first appeared, and refer the matter to restorative justice.   Because Mr Stanley had not provided a correct telephone address, the Taranaki Restorative Justice Trust was unable to contact him.  Over the same period, Mr Stanley failed to attend meetings at Corrections as agreed.

[14]     After the 12 May sentencing was adjourned, the Restorative Justice Trust asked for a second referral.   The Judge declined that.   Ms Boyd challenges that decision as being wrong.   It is not clear to me that that decision is appealable. Rather, and as Ms Boyd re-phrased her submission, the real question is whether the Judge took account of Mr Stanley’s apparent later willingness to be involved in a restorative justice initiative.

[15]     At sentencing the Judge commented:

I  do  note,  as  I  read  the  report,  that  you  acknowledge  that  you  would apologise and that you are unwilling however to accept responsibility for the reparation figure or any amount of it.   That being the case nothing would have been achieved at restorative justice.

[16]     The victim impact report from the owner of the utility in my view confirms that restorative justice would have been unlikely to have had a positive outcome. The best that can be said, therefore, is that Mr Stanley indicated a willingness to participate in restorative justice, albeit without acknowledging any responsibility for all the consequences of the offending with which he was involved.

[17]     I do not think these matters provide Mr Stanley with a basis upon which to challenge the sentence imposed on him.

Relying on unproven facts and information not before the Court

[18]     In sentencing Mr Stanley, the Judge referred to the pre-sentencing report for the  September  2014  offending,  for  which  he  had  been  the  sentencing  Judge. Ms Boyd objected to that, as she was not aware that material was before the Judge.

Having said that, Ms Boyd acknowledged that there was no material in that earlier report that was not, in fact, repeated in the later report.  There is, therefore, nothing in this point.

[19]     The Judge also commented on aspects of Mr Stanley’s offending which, Ms Boyd submitted, went beyond the statement of facts to which Mr Stanley had pleaded guilty. The Judge said:

You are very, very close to the burglar again.  Indeed, I would go so far to say the cynic in me would have you pegged as the burglar but of course in the absence of evidence to that I am probably embarking on irregular and improper logic.  But it seems to me to be an astounding coincidence that here we are, you in possession of something that you could never afford, even the stolen price, again claiming to be a receiver.

[20]     Referring to damage to the vehicle, the Judge also commented:

He, the victim, complains too of the consequences of burnouts.  Looking at your track history it does not take a great mind to recognise who that was.

[21]     Finally, the Judge also recorded the victim’s statement that Mr Stanley had a

key to his vehicle, which Mr Stanley denied.

[22]     It is well accepted that a judge should not go beyond the statement of facts to which an offender pleads guilty in assessing their criminality.  At the same time, the contents of a Probation pre-sentence report, and implications of the facts of the offending pleaded to, are matters that can properly be taken into account.

[23]     The  courts  have  recognised  that  it  is  an  aggravating  factor  of  receiving offending that a receiver was in possession of the stolen property shortly after the theft.   That was certainly the case here.   As the Judge recognised, however, his comment on that aggravating factor did take him close to, if not into, a conclusion not available to him – given the charge Mr Stanley faced and the statement of facts to which he pleaded guilty.

[24]     Furthermore, the question of Mr Stanley being in possession of a key to the vehicle, and of him being responsible for burnouts, were not matters that could be regarded by the Judge as aggravating his admitted offending, as they went beyond

the scope of the facts that had been admitted.  I therefore have some concerns with the 15 month starting point identified by the Judge.

[25]     I acknowledge, however, that that sentence of imprisonment also replaced the sentence of community work, which had been the only real sanction for Mr Stanley’s earlier offending.  By reference to that factor, and albeit by a narrow margin, I find that the starting point sentence of 15 months imprisonment, while (as acknowledged by the Crown) stern, is not out of range.

Previous convictions and imprisonment to protect the community

[26]     Having set a starting point of 15 months, the Judge uplifted that for five months to take account of Mr Stanley’s previous convictions.  I am concerned at the extent of that uplift.   The Judge had already acknowledged that the need to send Mr Stanley to prison was at least in part a consequence of his having failed to respond to a non-custodial sentence for similar offending.  In those circumstances, I do not think an uplift was necessary.  The fact of imprisonment itself was sufficient to recognise that matter.

Result

[27]     I therefore allow Mr Stanley’s appeal against sentence and quash his sentence of 15 months imprisonment.   Mr Stanley is entitled to a full guilty plea discount. From the starting point of 15 months imprisonment, an end sentence of 11 months results. That is the sentence I impose on Mr Stanley.

“Clifford J”

Solicitors:

Hannam and Co Lawyers Ltd, New Plymouth for Appellant

Crown Solicitor, New Plymouth for Respondent