Stenning v The Queen

[2021] NZHC 3177

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-405

[2021] NZHC 3177

BETWEEN

JOHN TIMI STENNING

Appellant

AND

THE QUEEN

Respondent

Hearing:	25 November 2021
Appearances:	T Ngawhika for Appellant L Evans for Respondent
Judgment:	25 November 2021

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 25 November 2021 at 2 pm.

Registrar/Deputy Registrar Date……………

Solicitors:

Crown Solicitor, Rotorua

STENNING v R [2021] NZHC 3177 [25 November 2021]

[1]    Mr Stenning pleaded guilty in the District Court to six charges of theft, two charges of intentional damage, one charge of being in possession of an offensive weapon, one charge of reckless driving and one charge of assault with intent to injure. On 10 August 2021 Judge R Walker sentenced Mr Stenning to 17 months imprisonment.1

[2]    Mr Stenning appeals against sentence. He contends the Judge erred in adding uplifts to the starting point and this produced an end sentence that was manifestly excessive in all the circumstances.

The charges

[3]    The theft charges were laid as a result of two separate types of offending. On two occasions in March and April 2021 Mr Stenning pumped petrol into his vehicle and then drove away without paying for it. The four remaining charges relate to incidents in which Mr Stenning went into large retail stores and walked out without paying for items he took with him. In each case these had a value of between $170 and $241.

[4]    The most serious charges arose as a result of an incident that occurred in the early hours of 7 April 2021. On that date Mr Stenning was at his address with his partner, with whom he had been in a relationship for just over a year. The couple had a seven week old child as a result of their relationship. Mr Stenning’s partner also has a four year old son  from  a  previous  relationship.  On  the  evening  in  question  Mr Stenning’s partner had a female friend visiting the address.

[5]    At about 4.40 am an argument arose between Mr Stenning and his partner. This initially resulted in Mr Stenning and his partner engaging in a verbal argument. It became more serious, however, when Mr Stenning smashed the rear windows of two vehicles owned by his partner. These had been parked in the driveway of the address.

[6]    Mr Stenning then became involved in a further argument with his partner. This resulted in him pushing his partner to the ground and assaulting her by punching and

1      New Zealand Police v Stenning [2021] NZDC 16388.

kicking her with moderate force on several occasions. Mr Stenning then grabbed his partner by the hair and forcefully banged her head against the door of one of the vehicles parked outside the address. When  his  partner  ran  back  into  the  house Mr Stenning picked up a large axe and swung it back and forth in a threatening manner outside the address. Not surprisingly, both his partner and her associate felt intimidated and scared by this conduct.

[7]    The police then arrived and Mr Stenning got into his vehicle. He reversed his vehicle out onto the roadway at speed, colliding with a moving police patrol vehicle as he did so. He then got out of his vehicle and was arrested.

[8]    Mr Stenning’s partner suffered minor bruising and swelling to her face and neck. She also complained of pain around her face and upper body.

The sentence

[9]    The Judge adopted a starting point of 12 months imprisonment on the lead charge of assault with intent to injure. He then added an uplift of three months to reflect the charges of intentional damage and reckless driving. He added a further uplift of three months to reflect the four shoplifting charges and two months to reflect the two charges relating to the theft of petrol. This resulted in a sentence of 20 months imprisonment.

[10]   The Judge applied a three month uplift to reflect the fact that Mr Stenning has previous convictions for violent offending. He then applied a discount of six months, or 25 per cent, to reflect guilty pleas. This produced the end sentence of 17 months imprisonment.

The appeal

[11]   On Mr Stenning’s behalf Ms Nawhika does not challenge the starting point the Judge adopted on the lead charge of assault with intent to injure. Nor does she challenge the uplift applied for the shoplifting charges. However, she challenges the uplift of two months the Judge applied to reflect the remaining two theft charges and

the uplift of three months to reflect Mr Stenning’s previous convictions for offending involving violence.

The uplift for theft charges

[12]   The offending giving rise to the charges of stealing petrol was obviously brazen in nature because it involved Mr Stenning driving away from service stations after making no attempt to pay for petrol he had pumped into his vehicle. In each case the value of the petrol stolen was around $60.

[13]   I consider that the uplift of two months on each of these charges was stern, but within the available range having regard to the fact that Mr Stenning has previous convictions for offending involving dishonesty. I therefore do not consider the Judge erred in imposing an uplift of two months to reflect these charges. Furthermore, the uplift did not result in Mr Stenning receiving a sentence that was manifestly excessive. The offending giving rise to the lead charge of assault with intent to injure was sufficiently serious that the Judge could easily have selected a higher starting point on that charge.

The uplift to reflect previous convictions

[14]   The Judge did not explain why he considered an uplift was required to reflect Mr Stenning’s previous convictions. I consider the uplift could only relate to the charge of assault with intent to injure because Mr Stenning does not have previous convictions for offending of the type reflected in the remaining charges.

[15]   Ms Ngawhika submits that Mr Stenning’s previous relevant convictions may now be regarded as historic. On 4 November 1999 he was imprisoned for six years on a charge of robbery using violence. At the same time he was sentenced to 14 years imprisonment on charges of rape and aggravated burglary. The incident giving rise to those charges must obviously have involved very serious offending to attract such a lengthy sentence.

[16]   Following his release after serving that sentence Mr Stenning was convicted in 2010 on two charges of common assault. He then sustained a conviction in September

2011 on a charge of injuring with intent to injure for which he received a sentence of six months imprisonment. He served that sentence cumulatively on a sentence of one months imprisonment imposed on a charge of common assault.

[17]   I accept Ms Ngawhika’s submission that Mr Stenning sustained his earlier convictions for offending involving violence some time ago. However, I do not consider the gap between the previous offending and the offending giving rise to the present charges is such that his earlier convictions can now be regarded as historic. The present offending demonstrates that Mr Stenning has not learned his lesson from previous prison sentences imposed for violent offending. Given that background I consider the three month uplift to reflect previous convictions for offending involving violence was justified.

Result

[18]The appeal against sentence is dismissed.

Lang J