Stubbs v The Queen
[2016] NZHC 2609
•1 November 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000261 [2016] NZHC 2609
BETWEEN SAMUEL STUBBS
Appellant
AND
THE QUEEN Respondent
Hearing: 31 October 2016 Appearances:
J Corby for the Appellant
D Wiseman for the RespondentJudgment:
1 November 2016
JUDGMENT OF FOGARTY J
This judgment was delivered by Justice Fogarty
On 1 November 2016 at 4.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel: Crown Law, Auckland J Corby, Auckland
STUBBS v R [2016] NZHC 2609 [1 November 2016]
[1] The appellant was sentenced to two years nine months’ imprisonment, having pleaded guilty to four charges of sexual conduct with a young person and two of supplying cannabis to people under 18. The charges related to sexual offending against four separate girls. The appellant had access to each of them through his son who was friends with them. One night at his home, a group of teenagers were socialising. They intended to stay overnight. The appellant bought them alcohol which they consumed. He went with them to a local park and gave them cannabis which they smoked. He hugged, tried to kiss and tried to touch the breasts of a 15 year old girl. She resisted by pulling away. He continued to restrain her, holding her tight and kissing her neck. She continued to resist, she pleaded for him to stop and eventually he did.
[2] The group stayed overnight. In the early hours of the morning, the appellant approached another girl who was asleep on a couch, she awoke to find him lying on her with his hand down her pants, touching her genitalia. When she awoke, he left, went to his room but messaged her inviting her to join him. She declined.
[3] A week later, there was another gathering. This included another third girl who was 13 and got drunk on alcohol he supplied. She smoked cannabis that he supplied. She went to sleep on a couch and again, he took the chance to put his hand down her pants and to touch her genitalia. Also on the same night was the fourth girl. During that evening, he propositioned her, hugged her, touched the side of her chest over her clothing and rubbed her back.
[4] The sentencing Judge rightly noted that all of the offending involved a serious breach of trust. All the girls were vulnerable because of their age and, in some cases, because of their level of intoxication. The effects of all of them were serious as indicated by the Victim Impact reports which the Judge had read.
[5] A starting point for the two most serious incidents looked at on their own would be two years’ imprisonment. Standing back and looking at the sentencing as a whole, the Judge uplifted that starting point from two years to three and a half. He disregarded the previous convictions as not warranting an uplift. The Judge recognised the plea of guilty, although it had come late, but it meant that all four girls
and their families did not have to relive what had happened to them. He allowed a discount of 20 per cent.
[6] I received a traditional argument from Mr Corby in support of the proposition that the end sentence was manifestly excessive. Mr Corby argued to this end by examining a large number of authorities – one going back as far as 1998.
[7] There are numerous cases of breach of trust in a domestic and social setting of this kind, unfortunately. There is however no tariff. Each case has to be considered on its own.
[8] Mr Corby’s argument did not square up to s 250. Section 250 of the Criminal
Procedure Act provides:
250 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
(3) The first appeal court must dismiss the appeal in any other case.
[9] So the Court must identify an error and then secondly, come to the view that a different sentence should be imposed. Sexual offending is notoriously circumstantial.
[10] The Judge’s starting point of three and a half years can be compared with the submissions he received in the District Court from the Crown, which contended for a starting point of four to five years’ imprisonment.
[11] In my view, the breach of trust, confinement of individuals, use of alcohol and marijuana, and the multiplicity of offending bring this case well within the bounds of the starting point taken by the Judge in the District Court. It is not necessary to burden the length of the judgment to cite the numerous cases that have
been advanced, both to the District Court and to this Court by counsel. Essentially, Mr Corby was unable to persuade me that there was any error engaging s 250(2)(a). Second, I am not bought to a state of mind that a different sentence (should) be imposed. See Tutakangahau v R.1
[12] Counsel for the Crown sought to distinguish the cases relied upon by the appellant as one involved only one charge, the other involved two. I do not think that affects my judgment unduly. Other cases relied upon by the appellant involved three charges: R v Nuntoon,2 and six instances in O v R. 3 In the District Court the Crown argument was able to cite a number of cases involving one victim only, with a limited number of offending, adopting a starting point of two years’ imprisonment. For example, R v Feausi.4
[13] I reiterate however that I gained no assistance by trying to drive a tariff from the very large number of cases. In the absence of a tariff it makes it even harder to succeed on this appeal. Mr Corby was not able to establish that this decision by Judge E M Thomas could be regarded as an outlier. For this reason, the appeal is
dismissed.
Fogarty J
1 Tutakangahau v R [2014] NZCA 279.
2 R Nuntoon HC Auckland, Ronald Young J, 15 September 2009.
3 O v R CA 643/2009 [14 December 2010].
4 R v Feausi DC Hamilton CRI-2008-019-7431, forgery in 2009.
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