Stansbury v Police

[2021] NZHC 346

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-000156

[2021] NZHC 346

BETWEEN

SAM TROY STANSBURY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	17 February 2021
Appearances:	C A Gentleman for Appellant J M Sutton for Respondent
Judgment:	2 March 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 2 March 2021 at 3:00 pm

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Tauranga

STANSBURY v POLICE [2021] NZHC 346 [2 March 2021]

[1]    Sam Troy Stansbury (the appellant), aged 28, appeals against the sentence imposed on him by Judge P G Mabey QC1 on 2 December 2020 of 22 months’ imprisonment with six months of prison release conditions. The Judge ordered him to pay reparation of $950, and disqualified him from driving a motor vehicle for a period of six months in relation to three charges of breaching a protection order;2 assault in a family relationship;3 burglary;4 causing a vehicle to undergo sustained los of traction5 and failing to stop when being pursued by police.6 The appellant had previously entered pleas of guilty to each of the charges The grounds of appeal are that the sentence imposed was manifestly excessive and the Judge erred by failing to allow discounts for remorse, and personal circumstances outlined in a s 27 cultural report. It is further alleged that there was an error in one of the charges which was not correctly amended.

Background

[2]    The following factual background is drawn from the police summaries of facts on which the appellant entered his guilty pleas.

Assault on a person in a family relationship and contravenes protection order

[3]    The defendant and the first victim [“A”] were previously in a relationship for four years. They have two young children and now live in separate towns. After eight prior reported family harm incidents involving the appellant and A, on 24 March 2011 the Ōpōtiki District Court issued a final protection order against the appellant.

[4]    On 1 March 2020 A was at her home address with her two children. In the early afternoon the appellant telephoned her saying that he would be visiting shortly. He arrived soon afterwards. The appellant and A spent time drinking and talking before the appellant became increasingly agitated over matters arising in the course of their conversation. At approximately 4.30pm the appellant’s mother arrived at the address and was greeted outside the property by A. This angered the appellant and he

1      Police v Stansbury [2020] NZDC 25301.

2      Family Violence Act 2018, ss 9(a), 90 and 112(1)(a). Maximum penalty: 3 years’ imprisonment.

3      Crimes Act 1961, s 194A. Maximum penalty: 2 years’ imprisonment.

4      Section 231. Maximum penalty: 3 months’ imprisonment.

5      Land Transport Act 1998, s 36A(1)(c). Maximum penalty: 3 months’ imprisonment, fine $4,500.

6      Land Transport Act 1998, s 52A. Maximum penalty: 10 years’ imprisonment.

verbally abused A. A was scared by the appellant’s behaviour and returned into the house telling the appellant to leave. However, the appellant followed A into the house and confronted her in the hallway, where he directed a tirade of verbal abuse at her. When A turned away from him the appellant pushed her on the side of her shoulder. A then ran to a window and escaped through it from the house. The appellant however pursued her and chased her down, whereupon a member of the public intervened, and the appellant quickly returned to his mother’s vehicle and fled. A was assessed by a doctor following the incident and complained of a sore head, and was prescribed medication for pain.

Contravenes protection order

[5]    The appellant and the second victim [“B”] were in a relationship for two years and have a child together. After six previous family harm incidents between the appellant and B, on 31 January 2019 the Ōpōtiki District Court issued a final protection order against the appellant.

[6]    At approximately 9am on 24 May 2020 the appellant was with B at her home address after having slept the previous night there. On learning that B intended to travel out of town without him, the appellant became angry and verbally abusive. He began banging and crashing items around B’s bedroom. B’s mother then intervened and the appellant became verbally abusive towards her. B and her mother both told the appellant several times to leave, and threatened to call the police, but he ignored their requests and continued verbally abusing them. The appellant then left the property shortly before the police arrived.

Contravenes protection order

[7]    At around 12:00 pm on 10 August 2020 the appellant and B were driving together in the appellant’s vehicle. A heated argument developed, B smashed the wing mirror and cracking the appellant’s car windscreen. The appellant stopped his car, dragged B out of the vehicle and threw her to the ground. B made her way to the police station and reported the incident.

Failing to stop for flashing lights and operates vehicle causing sustained loss of traction

[8]    On 6 December 2019 at 9.30pm two police officers who both know the appellant, responded to a call reporting multiple vehicles doing “burnouts” on St John Street, Ōpōtiki. By the time the police arrived the vehicles had already departed although there was a group of people standing around at the side of the road. The police could see tyre marks on the road and could smell burning rubber. The officers then drove around the vicinity for some time before re-entering St John Street where they saw a grey utility doing “burnouts” in the middle of the road. The appellant was driving the vehicle. Police approached with their lights and siren on, and the appellant sped away. The police pursued the appellant’s vehicle until it stopped at a locked gate. The appellant then ran from the scene and could not be located.

Burglary

[9]    At around 2.20 pm on 18 August 2020 the appellant went to the complainant’s address in an isolated area near Toatoa. The appellant does not know the complainant. The appellant went onto the complainant’s property and searched through a parked vehicle. He then entered the complainant’s house and stole meat valued at $150,70, possum traps valued at $700, a diesel container and a 4x4 Suzuki 300 quad bike valued at $2,000. The defendant loaded the items onto the quad bike and drove away on it. His actions were caught on CCTV. The property taken was valued at $2,850. The quad bike was subsequently located and recovered.

The sentencing decision

[10]   Judge Mabey commenced his sentencing of the appellant by noting the facts of the offending and observing that the offending needed to be seen in light of the appellant’s previous convictions which included multiple incidents of domestic violence, charges of male assaults female, common assault, assault with intent to injure and a number of charges of breaching a protection order, the most recent being in December 2019 accompanied by a family violence assault. The Judge rejected Ms Gentleman’s submission that a sentence of home detention was appropriate as the least restrictive outcome. He commented that although the breaches of the protection orders were not of the most serious kind, they were nevertheless a continuation of the

appellant’s history of breaching protection orders, and as recurrent breaches required a deterrent sentence, a home detention sentence would be insufficient to achieve that purpose.

[11]   The Judge was prepared to give the appellant “full credit” for his guilty pleas but said that although counsel submitted a discount for remorse was appropriate, he found there to be no evidence of the appellant’s remorse before him.

[12]   The Judge considered the s 277 report obtained by the appellant to be of no assistance, commenting that the report writer appeared to have used a template with minimal amendments for all three of the unrelated defendants the Judge was sentencing that day. The Judge commented that it appeared that the three reports were “almost identical” and he concluded that because of the close similarities between them, he could not give any weight to the report setting out the appellant’s background because doing so would require him to overlook his real concerns about the quality of the reports and the ability and competence of the person who had prepared them.

[13]The Judge commented:8

In relation to one of the people to be sentenced I have invited his counsel to take further instructions, as it might be that an alternative report would be appropriate.

In this matter, there has been no such suggestion from Ms Gentleman. In any event I doubt if an alternative report would make any difference to the sentence I am going to impose for persistent and recidivist family violence, which can only result in a sentence of imprisonment.

[14]   The Judge said that he would be sending the three reports to the Legal Aid authorities for consideration of the issue he had raised and which had led him to doubt the authenticity of the reports. 9

[15]   The Judge did however consider the letters and documents provided by the appellant and members of his family, and he noted that the appellant had attended prison courses and had certificates to that effect. The Judge observed that it appeared

7      Sentencing Act 2002, s 27.

8      At [15] and [16].

9      At [12] – [17].

that the appellant would have the support of his community when released from prison, which was a positive indication of his prospects of rehabilitation.

[16]   The Judge adopted a starting point of 18 months’ imprisonment on the burglary charge which he observed to be the most serious.10 In relation to the breach of protection orders, which he described as being “persistent and recidivist”, the Judge adopted a starting point of 15 months’ imprisonment.11 The Judge found that as the burglary and the breach of protection order offending was unrelated, the sentences were to be served cumulatively.

[17]   The Judge then allowed a 25 per cent discount for the guilty plea to the burglary charge, which was reduced to 13 and a half months, and a 25 per cent discount for the guilty pleas to the breach of protection order charges, resulting in an end sentence of 11 months for those charges, and resulting in a total cumulative sentence at this point of 24 and a half months imprisonment.

[18]   Applying the totality principle, the Judge then reduced the burglary sentence by one and a half months to bring it down to 12 months, commenting that doing so would result in a 22 month term of imprisonment. There is however an error in the Judge’s calculation as the 12 months he settled upon for the burglary offending added to the 11 months he had determined as the end sentence for the breach of protection order charges yielded an end sentence of 23 months and not the 22 months stated by the Judge. The Judge also made an order that the appellant pay reparation of $950 to the victim of the burglary offending in respect of the unrecovered items taken in the burglary.

[19]   The Judge noted that the driving charges and failing to stop did not attract a term of imprisonment, and said the sustained loss of traction and family harm charges would be dealt with by concurrent terms of imprisonment. On the sustained loss of traction charge, he imposed a sentence of one month’s imprisonment to be served concurrently with the other prison sentences, and six months’ disqualification from holding a driver’s licence.

10 At [18].

11 At [21].

[20]   Following the hearing Judge Mabey issued a Minute12 in which he explained the reasons for his concerns regarding the three s 27 reports prepared by the same author and which he had decided he should disregard because of their similarity and his concerns about their authenticity. The Judge noted in his Minute that:

[2] The reports are in identical form and are in relation to three men. The content for each progresses from the beginning of their lives until now and in an almost identical way explains their childhood as they grew to pre-teenage, then teenage and adulthood. The same things are reported as to their upbringing, their treatment by others and identical forms of male sexual abuse including rape. The report then goes on to describe the descent into drug use in an almost identical way and draws conclusions using similar words as to the consequences of their childhood and upbringing.

...

[4]    I formed the view that given the similarity and apparent templated approach to reporting, and in particular the almost identical history described for each man that I could have difficulty relying on any of the reports. I doubt if three men who are unrelated and unknown to each other, ( I have confirmed that with their counsel) would come up with such a similar history of life events which end up in a s 27 report all directed at considerable credit on sentencing.

[5]   There is a brief biography at the end of the report without much detail as to the writer’s experience of qualifications and I was left with a concern that the writer of these reports was simply taking advantage of the ability to write the reports at the cost of the State without any deep thought or even proper inquiry.

…

[7]   The three reports that trouble me are a narrative by the report writer on what was self-reported and in the absence of an [collusion] or conspiracy between the three men, which there was not, there are good grounds for real concern as to just what effort was put in by the report writer and where he got his information.

[8]   The criticism may seem harsh but the court is not about to be persuaded by documents which within their own content give cause to concern as to whether they are valid or useful from a sentencing point of view.

…

[10] ….. I add that even if there was only one report of the three I would have had real reservations and would unlikely have given it any weight in any event but the combination of three almost identical repots requires me to take the action that I have.

12     Minute of Judge P G Mabey QC, dated 2 December 2020.

Appeal against sentence

[21]   An appeal against sentence is governed by the Criminal Procedure Act 2011. Section 250(2) provides that the Court must allow an appeal against sentence if satisfied that for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.13

[22]   The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.14 As such, the measure of error that must be shown, is that the sentence is “manifestly excessive”.15 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is ‘manifestly excessive’ is to be examined in terms of the sentence given, rather than the process by which the sentence was reached.

Submissions

Appellant’s submissions

[23]   Ms Gentleman submits the sentencing Judge ought to have afforded her client a discount for matters contained in the s 27 report. Specifically, that from a young age the appellant witnessed brutal violence being frequently inflicted on his mother by his step-father. The appellant told the author of the s 27 report that the violent behaviour towards his mother continued over a number of years. The report also refers to the appellant being subjected to sexual abuse as a child between the ages of 10 and 12 and also of physical violence inflicted upon him by his step-father who would punch him with his fists to the head and render him almost unconscious. She submits that the violence the appellant witnessed and was subjected to provides a causal nexus between his offending against his  partners  and  the violence he  experienced  Furthermore Ms Gentleman submits the Judge ought to have provided a discount to recognise the appellant’s genuine remorse which is referred to in the s 27 report. For both of these factors, she submits a 10 per cent discount on sentence ought to have been awarded.

13     Criminal Procedure Act 2011, s 250(3).

14     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26] – [27].

15     At [26] – [27].

[24]   Ms Gentleman says that the Judge raised his concerns about the s 27 reports a matter of minutes before the sentencing and in the circumstances she had little time to consider that matter. Counsel says that she accepts that although she could have done more to press the relevance and reliability of the s 27 report, she nevertheless submits that the Judge erred by putting the report aside and deciding that it was of no assistance whatsoever in determining the appropriate sentence to be imposed on the appellant. Ms Gentleman submits that the Judge’s failure to take the s 27 report and its contents into account has resulted in an injustice to the appellant.

[25]   Counsel says that the Judge also erred in finding the appellant had not expressed any remorse. She says that the appellant expressed his remorse in the letters he wrote to the victim of the burglary offending and to his former partner who was the victim of his breach of protection order offending on 1 March 2020. These letters were provided to the Judge prior to the sentencing. Ms Gentleman notes that the appellant also expressed his remorse to the author of the s 27 report who wrote:16

Sam is truly remorseful for his actions towards the victims in these matters before the courts.

He shared how he could not believe how much of an idiot he was. Looking back and reflecting on what had happened, he fully regrets what he had done and sincerely apologises to the victims in these particular matters.

[26]   Ms Gentleman submits that by failing to take the appellant’s remorse into account, and by disregarding the contents of the appellant’s s 27 report and particularly the domestic violence that the appellant had witnessed and been subjected to as a child, the Judge failed to consider mitigating factors that warranted allowing further discounts and which if taken into account ought to have resulted in a sentence of home detention being imposed rather than the sentence of 22 months’ imprisonment.

Respondent’s submissions

[27]   Ms Sutton for the Crown submits: the Judge was correct in not placing any weight on the s 27 cultural report when he had concerns as to its reliability. Ms Sutton submits that in any event the matters described in the s 27 report do not establish any

16     S 27 Cultural Report dated 24 November 2020, paragraph 2(b).

sufficient nexus between the appellant’s cultural background and his offending. She notes that in the two other sentencing cases before the Judge on the day of the appellant’s sentencing, counsel for one of those other defendants sought and was granted an adjournment to enable another s 27 report to be obtained, while the other proceeded, disregarding the s 27 report. However, the appellant’s counsel did not seek an adjournment in order to take steps to obtain another s 27 report. Ms Sutton submits that having regard to the concerns expressed by the Judge regarding the similarities between the three cultural reports, the contents of the appellant’s report cannot be considered to be reliable, and the Judge was justified in disregarding it when sentencing the appellant.

[28]    As regards the issue of the appellant’s remorse, Ms Sutton observed that the pre-sentence report, while noting the appellant expressed remorse for his offending against his partner and said that he was “not blaming her, its my own actions, its my fault”, also apportioned  the blame for his actions on his partner  and her actions.   Ms Sutton says that such blaming of the appellant’s partner is inconsistent with having genuine remorse, and it was therefore open to the Judge to conclude that the appellant’s remorse was minimal.

[29]   She submits the appellant received adequate credit for his personal circumstances, and the Judge was correct in not commuting the sentence of imprisonment to home detention. She submits that the final sentence imposed was not manifestly excessive.

Discussion

[30]   Having reviewed the three s 27 reports annexed to the Judge’s Minute of 2 December 2020, I respectfully do not agree with his description of them as being “almost identical”. While they share the same format and in some parts of the reports the same wording is used and is common to all three reports, the factual background of each of the defendants who are the subject of the reports, while relating they all experienced the same sort of physical abuse during childhood, is nevertheless significantly different in terms of the details. The background information regarding each of the three defendants appears to have been compiled on the basis of information

obtained by the author of the report from each of the three defendants independently. The biographical summaries in each case refer to the defendants witnessing serious domestic violence taking place and themselves being subjected to violence. In the first case the violence was at the hands of the defendant’s father, in the second case the violence was at the hands of the defendant’s grandfather, and in the appellant’s case his step-father. In each case the defendants report being sexually abused in their early teens, before starting to use cannabis and progressing to using methamphetamine. While the personal histories of the three defendants are obviously similar, their similarity does not itself indicate that the report writer has not accurately recorded the personal histories of the three men. It is a woeful reality that the lives of many New Zealand children have and are being profoundly affected and damaged by their domestic circumstances in which they are exposed to adults whose lives are characterised by alcohol and drug abuse and violence, including domestic violence and violence towards children. The fact that these features are present in the cases of three young men from similar backgrounds who all are appearing before the court is more likely an indication of the extent and prevalence of the domestic violence and child abuse within the community in which they were raised, rather than any failing on the part of the author of the reports.

[31]   I accordingly consider that the similarities between the three s 27 reports as observed by the Judge, and his consequent concerns about the reliability of the reports, was not a sufficient basis on which to set aside and totally disregard the appellant’s report. While the Judge observed that the personal history set out in the report was the product of self-reporting and had not been corroborated, having regard to the nature of the matters, any sources of corroboration were unlikely to have been available. In my view, the Judge’s decision to disregard the report without having heard from the author was an error which operated to the detriment and prejudice of the appellant in two principal respects. Firstly as regards whether the appellant was genuinely remorseful for his offending, and secondly as regards the issue of whether his personal, family, community, and cultural background may have contributed to the commission of the offences for which he was being sentenced.

[32]   The s 27 report refers to the appellant as being “truly remorseful” for his actions towards the victims of his offending. I note that he also expressed his remorse

to the author of the pre-sentence report, saying he was “really remorseful”, and also wrote thoughtful letters to the victim of the burglary and to his partner saying that he was deeply sorry for his actions and, in the case of the burglary, explained the circumstances which led to his offending when his own bike tipped and could not be operated while he was working his own trap-line. Having read the letters there can be no doubting the genuineness of his expressions of regret for what he did, and of his remorse. I accordingly find that the Judge erred in finding that there was no persuasive evidence of the appellant having shown genuine remorse.

[33]   I also find that the Judge erred by disregarding the s 27 report dated 24 November 2020 which detailed the appellant’s personal, family and cultural background. While that background has no clear connection to his burglary offending, in my view it does go some way towards explaining his history of domestic violence offending and abuse towards his partners. His experience as a child witnessing domestic violence, and being subjected to physical violence by male family members, shows a background which would make his actions of behaving in the same manner more likely than if he had not experienced what would have been deeply traumatic experiences for him. Being subjected to such violence and witnessing domestic violence does not excuse his violent and abusive conduct towards the two complainants, but the fact that he was subjected to that particular kind of trauma together with the other traumatic features of his childhood and youth during which he was offended against, in my view warrants recognition in terms of a discount of his sentence. In my view it is material which does relate to the appellant’s commission of the breach of protection order offending to such an extent as requires recognition and the allowing of a discount.

[34]   In recognition of the appellant’s remorse and commitment to rehabilitation I consider that a discount of five per-cent is appropriate and applicable to both the burglary and breach of protection order offending. In recognition of the appellant’s personal, family and cultural background, I consider that a further five per-cent discount is required and appropriate in respect of the breach of protection orders offending.

[35]   I find that the starting points adopted by the Judge were within range and appropriate. Applying a 25 per cent discount to the starting point of 18 months for the burglary offending together with a five per cent discount for remorse would yield an end sentence of 12 and a half months’ imprisonment. Applying a 25 per cent discount together with a five per cent discount for remorse and a five per cent discount for s 27 factors to the 15 month starting point, results in an end sentence of ten months’ imprisonment and a total cumulative sentence of 22 and a half months’ imprisonment.

[36]   It is therefore apparent that, although the Judge erred by failing to take account of the appellant’s remorse and the s 27 factors, the combined effect of the Judge’s arithmetical error (which reduced the end sentence by one month), and the Judge’s reduction of the burglary sentence by one and a half months by application of the totality principle, resulted in an end sentence being imposed of 22 months imprisonment as compared to the 22 and a half months imprisonment, which is the resulting final sentence when the remorse and s 27 discounts are taken into account. The half-a-month (two week), difference between the end sentence imposed by the Judge and the end sentence produced following the allowing of the further discounts is not material and does not warrant any alteration to the sentence being made on appeal.

[37]    A sentence of home detention is not arrived at as a matter of routine whenever the end sentence falls below 24 months,17 and the availability of home detention as an alternative sentence, does not render a short-term sentence of imprisonment redundant.18 An appellate court recognises the advantage the sentencing Judge has had in assessing an offender’s character.19 Here the sentencing Judge considered that a term of imprisonment is the least restrictive sentencing outcome having regard to the appellant’s persistent and repetitive domestic violence offending, and that deterrence was an important consideration.

[38]   I agree with the Judge that the repeated and ongoing breaches of the protection orders requires a deterrent sentence and that in the circumstances here, where the

17     Sentencing Act 2002, s 15A(1).

18     Polyanszky v R [2011] NZCA 4 at [13]; Heta v R [2012] NZCA 267 at [21].

19     Palmer v R [2016] NZCA 541 at [19]; Aupouri v R [2019] NZCA 216 at [18].

appellant has an extensive history of breaching protection orders, although the offending was not of the most serious kind, a sentence of imprisonment rather than home detention represents the least restrictive outcome in terms of the appropriate and condign sentence to be imposed.

[39]   I accordingly find that the Judge’s decision not to impose a sentence of home detention did not result in a sentence that is manifestly excessive, and does not constitute an error.

Result

[40]The appeal is dismissed.

[41]The sentence of 22 months’ imprisonment is upheld and confirmed.

[42]   All other sentencing orders made are confirmed and remain as imposed by the Judge.

Paul Davison J