Stanley v R [2012] NZCA 74 (8 March 2012)

Last Updated: 14 March 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA645/2011 [2012] NZCA 74

BETWEEN DAVID EDWARD STANLEY Appellant

AND THE QUEEN Respondent

Hearing: 14 February 2012

Court: Arnold, Potter and Simon France JJ

Counsel: N Levy for Appellant P D Marshall for Respondent

Judgment: 8 March 2012 at 11 a.m.

JUDGMENT OF THE COURT

1. The sentence appeal is allowed.
2. The existing cumulative sentence of three years, one month’s imprisonment on the burglary offending is quashed. In its place we impose a cumulative sentence of two years, seven months’ imprisonment.

100. All other sentences are unchanged.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] Mr Stanley appeals against the imposition of a sentence of three years, one month’s imprisonment, which was added to existing sentences for other offending to result in an overall term of five years, nine months’ imprisonment. The focus of the appeal is the length of that overall term, which is made up of three cumulative links:

• (a) two years, six months for a serious assault on his young girlfriend, plus other offending (e.g. theft of petrol);
• (b) two months for breach of protection order (while on bail);
• (c) three years, one month for five burglaries of residential properties.

[2] The third of these sentences was imposed by Judge Marshall in September 2011 and is the catalyst for the appeal.[1] At the time of the September 2011 sentencing, Mr Stanley was already subject to the first two sentences and had served two years of that two year, eight month term.
[3] Judge Marshall’s decision to make the new sentence of three years, one month’s imprisonment cumulative on those existing sentences was motivated by a desire to maximise Mr Stanley’s parole position. To explain, cumulative sentences combine to form one single term for parole purposes. Therefore, in this case, making the sentence cumulative would create a single term of five years, nine months’ imprisonment. Parole eligibility arises after serving one third, which would be 23 months. Since Mr Stanley had already spent two years in jail on the earlier sentences, a cumulative sentence on this occasion would have the effect that he remained parole eligible. However, if the new sentence was made concurrent (i.e. if the three year one month term ran from the date of sentencing), Mr Stanley would need to serve one third of that independent new sentence before being eligible for parole. That would mean another 12 months in jail before becoming eligible for parole again.
[4] Thus, making the sentences cumulative was done for Mr Stanley’s benefit. However, Mr Stanley appeals on the basis that, having decided upon cumulative sentences (even if for his benefit), the Court was obligated to consider totality and failed to do so.
[5] Before addressing that submission, it is necessary first to identify another unusual feature of the case.

An incorrect warrant

[6] It is particularly unfortunate, given the sentencing Judge’s intentions, that an error was made in the warrant which effectively undermined the point of making the sentences cumulative. Although the longest sentence of three years, one month was made cumulative, the four shorter sentences imposed at the same time were made concurrent on the existing sentences and so effectively ran from the date of sentencing. Thus, on the warrant as signed, Mr Stanley had the worst of both worlds:

• (a) A cumulative sentence extending the overall term to its maximum possible length.
• (b) Concurrent sentences that deferred parole until one third of the longest of the four shorter terms was served. This was an 18 month sentence, meaning another six months’ imprisonment had to be served before parole eligibility was reached.

[7] This error was recently identified by the Crown and the matter referred back to the sentencing Judge. The warrant has been amended and Mr Stanley is scheduled to appear before the Parole Board shortly.

Totality

[8] The criticism on appeal is that the Judge did not address totality issues. This is correct, although the unusual context which existed makes the oversight explicable. However, s 85 of the Sentencing Act 2002 mandates a sentencing court to ensure that cumulative sentences do not result in a sentence of imprisonment “wholly out of proportion to the gravity of the overall offending”. Later the section refers to ensuring that the total term is not “disproportionately long”. Since this exercise was overlooked, we proceed to consider the issue. We begin by describing the conduct underlying these sentences.
[9] The offending that led to the two year, six month sentence was very serious. Mr Stanley assaulted a 15 year old female companion with a screwdriver and later a wheel brace. In between the assaults he took the victim’s shoes to stop her getting away. The sentencing Judge described his behaviour as cruel and noted that after the assaults, when he had calmed down somewhat, Mr Stanley did not take the young woman to get medical treatment.
[10] At the same time as Mr Stanley was being sentenced for those assaults, the Court also sentenced him for three offences of stealing petrol from service stations. A starting point of three years was taken for all of the offending. Mr Stanley had gone to trial so no guilty plea discount was available. However, six months was deducted for his youth and the absence of previous convictions.
[11] The present offending represents the other significant link in the cumulative chain. It concerned five burglaries of residential dwellings. The houses were in a rural area and Mr Stanley would drive there, sometimes with an associate, break in and steal electrical goods. A nasty feature of the offending was that the fifth venue was the same as the first; eight days after the initial thefts Mr Stanley returned and stole the replacement goods.
[12] The Court took a starting point of three years, six months for all of the burglary offending. Five months was deducted in recognition of Mr Stanley’s new found insight and steps he had taken to disassociate himself from his gang connections.
[13] The middle link of two months for breaching a protection order relates to the complainant in the first trial.

Decision

[14] We are far from convinced that on ordinary principles an adjustment for totality was required in this case. However, there is a combination of factors that leads us nevertheless to make a modest adjustment.
[15] The first is parole eligibility. Mr Stanley has been affected twice. First, he was denied a parole hearing on the initial sentence until the outstanding burglary charges were resolved. This amounted to a deferral of even being considered for parole for 14 months. Although it could be seen as being of his own making, it is nevertheless a factor. He was affected a second time as there was a further period of no consideration for parole because of the incorrect warrant.
[16] Second, a total term of five years, nine months’ imprisonment, while probably available, is undoubtedly at the upper end of the range.
[17] Third and finally, from a total notional starting point of six years, nine months, Mr Stanley has received a deduction of only 12 months. This is a very modest reduction for a 23 year old who, at the time of the burglary offending, was a first offender and has shown commendable insight into his offending and a willingness to change. That willingness to change has been reflected in positive steps he has taken whilst in prison.
[18] Taking into account all these factors, and also as a way of encouraging Mr Stanley to maintain his resolve, we consider a further reduction of six months is appropriate.
[19] The appeal is allowed. The sentence of three years, one month’s imprisonment for the burglary offending is quashed and in its place we substitute a sentence of two years, seven months’ imprisonment. Like the sentence it replaces, this sentence is cumulative on the earlier sentences described in [1] (a) and (b) above. The other sentences remain unchanged. For the avoidance of doubt, that means that the total term is now five years, three months’ imprisonment.

Solicitors:
Crown Law Office, Wellington

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[1] R v Stanley DC Hamilton CRI-2009-057-175, 21 September 2011.