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.…

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.

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Details

Case: [2021] NZHC 346
Decision Date: 2 March 2021

CaseChat Overview and Summary

Sam Troy Stansbury appeals against his sentence of 22 months’ imprisonment with six months of prison release conditions imposed by Judge P G Mabey QC. The appellant contends the sentence is manifestly excessive, and that the Judge erred by failing to allow discounts for remorse and personal circumstances outlined in a s 27 cultural report. The appellant also submits that there was an error in one of the charges which was not correctly amended. The Court considers whether the appellant's sentence is manifestly excessive and whether the Judge erred in disregarding the s 27 cultural report and finding no evidence of the appellant's remorse. The Court finds that the Judge erred by failing to take account of the appellant's remorse and the s 27 factors. However, the combined effect of the Judge's arithmetical error and the Judge's reduction of the burglary sentence 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 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. The appeal is dismissed, and the sentence of 22 months’ imprisonment is upheld and confirmed. All other sentencing orders made are confirmed and remain as imposed by the Judge.

Orders