Stanley v The Queen - [2012] NZCA 74

IN THE COURT OF APPEAL OF NEW ZEALAND

CA645/2011
[2012] NZCA 74

BETWEEN DAVID EDWARD STANLEY
Appellant

AND THE QUEEN
Respondent

Hearing: 14 February 2012

Court: Arnold, Potter and Simon France JJ

Counsel: N Levy for Appellant
P D Marshall for Respondent

Judgment: 8 March 2012 at 11 a.m.

JUDGMENT OF THE COURT

A The sentence appeal is allowed.
B The existing cumulative sentence of three years, one month’s imprisonment on the burglary offending is quashed. In its place we impose a cumulative sentence of two years, seven months’ imprisonment.
CAll other sentences are unchanged.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Mr Stanley appeals against the imposition of a sentence of three years, one month’s imprisonment, which was added to existing sentences for other offending to result in an overall term of five years, nine months’ imprisonment. The focus of the appeal is the length of that overall term, which is made up of three cumulative links:
(a)two years, six months for a serious assault on his young girlfriend, plus other offending (e.g. theft of petrol);
(b)two months for breach of protection order (while on bail);
(c)three years, one month for five burglaries of residential properties.
The third of these sentences was imposed by Judge Marshall in September 2011 and is the catalyst for the appeal.[1] At the time of the September 2011 sentencing, Mr Stanley was already subject to the first two sentences and had served two years of that two year, eight month term.
[1] R v Stanley DC Hamilton CRI‑2009-057-175, 21 September 2011.
Judge Marshall’s decision to make the new sentence of three years, one month’s imprisonment cumulative on those existing sentences was motivated by a desire to maximise Mr Stanley’s parole position. To explain, cumulative sentences combine to form one single term for parole purposes. Therefore, in this case, making the sentence cumulative would create a single term of five years, nine months’ imprisonment. Parole eligibility arises after serving one third, which would be 23 months. Since Mr Stanley had already spent two years in jail on the earlier sentences, a cumulative sentence on this occasion would have the effect that he remained parole eligible. However, if the new sentence was made concurrent (i.e. if the three year one month term ran from the date of sentencing), Mr Stanley would need to serve one third of that independent new sentence before being eligible for parole. That would mean another 12 months in jail before becoming eligible for parole again.
Thus, making the sentences cumulative was done for Mr Stanley’s benefit. However, Mr Stanley appeals on the basis that, having decided upon cumulative sentences (even if for his benefit), the Court was obligated to consider totality and failed to do so.
Before addressing that submission, it is necessary first to identify another unusual feature of the case.

An incorrect warrant

It is particularly unfortunate, given the sentencing Judge’s intentions, that an error was made in the warrant which effectively undermined the point…

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 The Queen

Details

AGLC: Stanley v The Queen [2012] NZCA 74
Case: [2012] NZCA 74
Decision Date: 8 March 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by David Edward Stanley against his sentence, which resulted in an overall term of five years, nine months' imprisonment. Stanley was convicted of multiple offences, including serious assault on his girlfriend, theft of petrol, breach of a protection order, and five burglaries of residential properties. The appeal focused on the length of the overall sentence, specifically the three-year, one-month term for the burglary offences, which was made cumulative with the existing sentences.

The legal issue before the Court was whether the sentencing judge had appropriately considered the principle of totality when imposing cumulative sentences. Section 85 of the Sentencing Act 2002 requires that cumulative sentences do not result in a term of imprisonment that is "wholly out of proportion to the gravity of the overall offending". The Court needed to determine if the sentence imposed was disproportionate and whether the sentencing judge had properly considered this requirement.

The Court found that while the sentence was not necessarily disproportionate on ordinary principles, several factors warranted a reduction. These factors included the impact on Stanley's parole eligibility, which was deferred due to the cumulative nature of the sentences and an error in the warrant. Additionally, Stanley had received minimal reductions from the notional starting point for his age, first-time offending, and demonstrated insight into his criminal behaviour. Considering these factors, the Court decided a further reduction of six months was appropriate. Therefore, the sentence of three years, one month for the burglary offences was reduced to two years, seven months. The total term of imprisonment was now five years, three months, with the other sentences remaining unchanged.

Orders