Stephen Tandy v The Queen - [2008] NZSC 8

IN THE SUPREME COURT OF NEW ZEALAND
SC 86/2007
[2008] NZSC 8
STEPHEN PETER TANDY
v
THE QUEEN
Court:Elias CJ, Blanchard and Tipping JJ
Counsel:P T R Heaslip for Applicant

S B Edwards for Crown

Judgment:22 February 2008

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
REASONS
[1]     The applicant seeks to appeal a sentence of eight years for rape, imposed by the Court of Appeal on a Solicitor-General’s appeal. He had been convicted in the District Court after pleading guilty part-way through trial and after the complainant had given her evidence in chief and been cross-examined on behalf of two co-defendants. Judge Hubble sentenced the applicant to 6½ years imprisonment. The Court of Appeal increased the sentence on the basis that the sentence was manifestly inadequate and had been arrived at by the sentencing Judge on an erroneous basis.
[2]     The complainant was a vulnerable 14 year old who had run away from home. She fell in with a crowd of young men and went with them to the grounds of a school where they began drinking. The applicant, who was 17 years at the time of the offence, sexually violated the complainant in the presence of the other young men and with their assistance. At the time, the applicant knew that the complainant had already been sexually violated by others in the group.
[3]     It was apparent on the face of the Judge’s sentencing remarks that he had made an error in arriving at the sentence he imposed. He had double-counted the allowance he made for the applicant’s guilty plea. The Court of Appeal accepted that the effective discount of 2½ years for the guilty plea was too high both by reason of the double-counting and in application of the approach to late guilty pleas adopted in R v Fonotia[1] and R v C.[2] In addition, the Court of Appeal accepted the Solicitor-General’s contention that the sentencing Judge had adopted a lower starting point than the eight years indicated by R v A,[3] a decision which has been a guideline for rape sentencing for nearly 15 years and which has been recently affirmed by the Court of Appeal.[4] Moreover, the Court of Appeal pointed out that the sentencing Judge had been wrong to distinguish the case of Solicitor General v Mihaka & Taia,[5] which indicates that a starting point of 12 years would not have been out of line for the offending here.
[1] [2007] 3 NZLR 338.
[2]    (Court of Appeal, CA 51/00, 22 September 2003.)
[3] [1994] 2 NZLR 129.
[4]    In R v Tawha (Court of Appeal, CA 396/02, 26 February 2003) and R v Takiari [2007] NZCA 273.
[5]    (Court of Appeal, CA 397/98, 23 February 1999.)
[4]     The applicant claims that the Court of Appeal erred in law in discounting the allowance for his guilty plea because of the late stage at which the plea was entered.   He criticises the Court of…

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 Stephen Tandy v The Queen

Details

AGLC: Stephen Tandy v The Queen [2008] NZSC 8
Case: [2008] NZSC 8
Decision Date: 22 February 2008

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Stephen Peter Tandy appealed against a sentence of eight years for rape, which the Court of Appeal had imposed on a Solicitor-General’s appeal. Tandy had originally been sentenced to 6½ years imprisonment by the District Court, following a guilty plea made partway through the trial. The Court of Appeal increased the sentence, finding it manifestly inadequate and incorrectly calculated. Tandy sought leave to appeal against this decision.

The central legal issue before the Court was whether the Court of Appeal was correct in increasing the sentence, and if the starting point of eight years suggested by R v A was appropriate. Tandy argued that the Court of Appeal erred in reducing the discount for his late guilty plea and failed to consider his remorse. He also contended that the Court of Appeal improperly restricted the sentencing judge's discretion to issue a merciful sentence. Furthermore, Tandy challenged the validity of the starting point suggested by R v A.

The Court dismissed the application for leave to appeal. It found that the Court of Appeal was correct in concluding that the District Court had double-counted the discount for the guilty plea, and that the starting point of eight years was appropriate. The Court held that there was no error of principle in the Court of Appeal's assessment of sentencing levels. The Supreme Court noted that the Sentencing Council Act 2007 would oversee sentencing levels in the future, and it would not interfere with the Court of Appeal's established practice unless a clear error of principle was evident. No substantial miscarriage of justice was identified, and the application for leave to appeal was declined.

Orders