Stollery v The Queen - [2020] NZCA 429

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA139/2019
[2020] NZCA 429

BETWEEN	TAMARA DAWN STOLLERY Appellant
AND	THE QUEEN Respondent

Hearing:	24 August 2020
Court:	Gilbert, Thomas and Dunningham JJ
Counsel:	J D Lucas for Appellant Z R Hamill for Respondent
Judgment:	17 September 2020 at 3 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

Introduction

Ms Stollery was convicted of arson following a trial by jury and sentenced by Judge Garland in the District Court at Christchurch to three years and six months’ imprisonment.[1] She appeals her conviction and sentence.
[1]R v Stollery [2019] NZDC 2619.
Ms Stollery was charged under s 267(1)(c) of the Crimes Act 1961, which provides that every one commits arson and is liable to imprisonment for a term not exceeding 14 years who:
intentionally damages by fire or by means of any explosive any immovable property, or any vehicle, ship or aircraft, with intent to obtain any benefit, or to cause loss to any other person.
Ms Stollery claims there was a miscarriage of justice that has created a real risk the outcome of the trial was affected,[2] as:
(a)she did not intend to “obtain any benefit”; and
(b)the Judge erred in not giving a Papadopoulos direction when the jury indicated they were unable to reach a unanimous verdict.
[2]Criminal Procedure Act 2011, s 232.
Ms Stollery abandoned another ground of appeal, namely that the jury’s verdict was unreasonable.
Ms Stollery also challenges her sentence of three years and six months’ imprisonment on the basis the starting point was too high having regard to the aggravating and mitigating features of the offending, and the discount for personal mitigating features was insufficient.
Ms Stollery’s appeal was filed 14 working days out of time. As the delay was short and there has been no prejudice to the Crown, an extension of time is not opposed and is accordingly granted.

Background

Ms Stollery’s house in Greymouth burned down on 12 November 2015. The property was owned by Housing New Zealand. Ms Stollery lived there with her adult son.
Ms Stollery had wanted to move away from Greymouth to Tauranga. She had family in Tauranga and her son had been the subject of assaults in Greymouth. When she raised this with Housing New Zealand she was told she would need to go on the Ministry of Social Development waiting list.
The evidence at trial was that, on the evening of 11 November 2015, Ms Stollery visited a close friend. Ms Stollery told this friend that she wanted to transfer out of Greymouth and they discussed the proposition that, if Ms Stollery burned her house down, she would receive an immediate transfer to Tauranga. Ms Stollery decided to act on that suggestion. At about 1.00 am on 12 November 2015 she left her friend’s house, carried…

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 Stollery v The Queen

Details

AGLC: Stollery v The Queen [2020] NZCA 429
Case: [2020] NZCA 429
Decision Date: 17 September 2020 at 3 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Ms Tamara Dawn Stollery appealed both her conviction and sentence. The trial judge had convicted Ms Stollery of arson under s 267(1)(c) of the Crimes Act 1961, and sentenced her to three years and six months’ imprisonment. Ms Stollery argued that she did not intend to obtain any benefit from the arson, and that the trial judge should have given a Papadopoulos direction when the jury indicated they were unable to reach a unanimous verdict. The Court of Appeal granted the extension of time for the appeal but dismissed the appeal against conviction and sentence. The Court found that the jury’s verdict demonstrated that Ms Stollery had deliberately set fire to the house with the intention of fulfilling her wish of leaving Greymouth and having Housing New Zealand provide her with another property elsewhere. The Court further found that the Judge’s approach to directing the jury on a majority verdict was orthodox and appropriate. In relation to the sentence, the Court found the starting point of three years and nine months’ imprisonment was within the available range, and the three-month discount for personal mitigating factors was appropriate.

Orders