STANLEY v NEW ZEALAND POLICE [2023] NZHC 1879

STANLEY v NEW ZEALAND POLICE [2023] NZHC 1879 [18 July 2023]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2023-443-12[2023] NZHC 1879BETWEEN KYLE JORDAN STANLEYAppellantAND NEW ZEALAND POLICERespondentHearing: 18 July 2023Appearances: P J Mooney for the AppellantR L Hicklin for the RespondentJudgment: 18 July 2023ORAL JUDGMENT OF PALMERSolicitorsMooney & Webb, New PlymouthC & M Legal, New PlymouthWhat happened?[1] Around 10:15 pm on Friday 13 May 2022, Mr Kyle Stanley, aged 26, wasdeliberately stopping traffic from travelling through the Devon Street and Currie Streetintersection, in downtown New Plymouth. Mr Sonntag, aged 58 and considerablysmaller than Mr Stanley, got out of his vehicle and demanded Mr Stanley get off theroad. Mr Stanley punched and kicked the car on the passenger side. After his wifeparked the car on the side of the road, Mr Sonntag got out again and demanded anexplanation. Mr Stanley punched Mr Sonntag several times in the head and bodywhile Mr Sonntag held up his hand attempting to block the blows. Mr Stanley ran offwhen members of the public came to help Mr Sonntag. Mr Sonntag was knockedunconscious, bleeding from his head. He sustained a severe concussion, a largelaceration on the back of his head, several smaller cuts to his face and body andbruising. The Sonntags have explained the long-term physical, financial, and mentalimpacts of the offending in their victim impact statements.[2] Mr Stanley pleaded guilty to injuring with intent to injure which carries amaximum penalty of five years' imprisonment. On 23 May 2023, Mr Stanley wassentenced by Judge Grieg in the District Court at New Plymouth.1 The Judgeconsidered the offending sat within band 2 of the Nuku bands due to aggravatingfactors of attacking the head, significant injury and vulnerability of the victim and seta starting point of two years and 10 months' imprisonment.2 He discounted that bysomething over 15 per cent for Mr Stanley pleading guilty seven months after theoffending. He noted that Mr Stanley lost his mother at 16 and had care of his sonevery weekend but did not make any discount for that. Neither did he uplift thesentence for a previous minor assault.3 The end sentence was two years and fourmonths' imprisonment and a reparation order of $2,818. Mr Stanley appeals thesentence.1 New Zealand Police v Stanley [2023] NZDC 6755.2 At [30], citing Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.3 At [7].Submissions[3] Mr Mooney, for Mr Stanley, points to two sentences for injuring with recklessdisregard, and one for injuring with intent to injure, with lower starting points.4 Hesubmits the starting point here was too high in comparison with other cases and shouldhave been 18 to 20 months' imprisonment. He submits the Judge erred in not givinga discount of 25 per cent for the guilty plea because Mr Stanley pleaded guilty at areasonably early opportunity. He submits the Judge erred in not sentencing Mr Stanleyto home detention and says his partner's address is still available for that purpose.[4] Ms Hicklin, for the Police, submits the case is similar to Burton v Police, wherea starting point of two years and six months imprisonment for injuring with intent toinjure was upheld where there was provocation.5 It was appropriate for a wanton actof violence against a vulnerable victim resulting in serious injuries. She submits thestarting point was available, the discount appropriate and home detention was notavailable.Should the appeal be allowed?[5] Under s 240(2) of the Criminal Procedure Act 2011, I must allow the appeal ifsatisfied there has been a material error in the sentence imposed and a differentsentence should be imposed. The focus is on whether the end sentence is within theavailable range.6 The Court will only intervene and substitute its own views on appealif the sentence is "manifestly excessive".7[6] I agree with the Judge here that the sentence is appropriately considered inband two of the Nuku bands, which has three or fewer aggravating factors and astarting point of up to three years' imprisonment.8 The two injuring with recklessdisregard cases Mr Mooney points to are for a less serious offence in terms of intentand the offending in each of the three cases was for shorter attacks. I accept MsHicklin's submission that Barton is more comparable to this offending than those4 Toeta v Police [2023] NZHC 888; Wilson-McAlister v Police [2021] NZHC 800; and Te Puni vPolice [2019] NZHC 762.5 Burton v Police [2017] NZHC 664.6 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27], [33], and [35].7 Ripia v R [2011] NZCA 101 at [15].8 Nuku v R, above n 2, at [38].cases. While on the higher side, I consider the starting point was available to theJudge.[7] I do not accept a higher discount for the guilty plea was warranted. Mr Stanleypleaded not guilty in July 2022 after appearing three times (and failing to appear once)in June and July 2022 and did not plead guilty until December 2022. The Police caseappears to have been strong. He changed his plea only once a charge of wilful damagewas dropped. I consider a discount of 15 per cent was well available.[8] It follows that I do not consider a sentence of home detention was available tothe Judge. Even had it been available, I consider it would have been open to the Judgeto have concluded that imprisonment was an appropriate sentence.Result[9] I dismiss the appeal.Palmer J