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…

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 Stanley v Police

Details

AGLC: Stanley v Police [2015] NZHC 1743
Case: [2015] NZHC 1743
Decision Date: 28 July 2015

CaseChat Overview and Summary

Hayden James Stanley appealed against his sentence of 15 months imprisonment, imposed by Judge Roberts in the District Court, for receiving a stolen Holden utility and breaching a community work sentence. The appellant argued that a sentence of imprisonment in the range of six to eight months would be more appropriate. The appeal was heard by Clifford J in the High Court. The legal issues were whether the District Court Judge had erred in declining a referral to restorative justice, in sentencing on the basis of unproven facts, and in imposing an uplift for previous convictions. The Judge had declined a second referral to restorative justice on the basis that Mr Stanley had not taken responsibility for the consequences of his offending, and that restorative justice would have been unlikely to have had a positive outcome. The High Court found that the decision not to refer Mr Stanley to restorative justice was not appealable, and in any event the Judge had taken into account Mr Stanley’s apparent later willingness to participate in restorative justice. The Judge had also relied on some unproven facts and information not before the Court, but the High Court found that the starting point sentence of 15 months imprisonment, while stern, was not out of range. The Judge had uplifted the sentence by five months for the appellant’s previous convictions, but the High Court found that an uplift was not necessary given 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. The High Court allowed the appeal against sentence and imposed a sentence of 11 months imprisonment.

Orders