STANSBURY v POLICE [2021] NZHC 346

STANSBURY v POLICE [2021] NZHC 346 [2 March 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-000156[2021] NZHC 346BETWEEN SAM TROY STANSBURYAppellantAND NEW ZEALAND POLICERespondentHearing: 17 February 2021Appearances: C A Gentleman for AppellantJ M Sutton for RespondentJudgment: 2 March 2021JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 2 March 2021 at 3:00 pmRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, Tauranga[1] Sam Troy Stansbury (the appellant), aged 28, appeals against the sentenceimposed on him by Judge P G Mabey QC1 on 2 December 2020 of 22 months'imprisonment with six months of prison release conditions. The Judge ordered him topay reparation of $950, and disqualified him from driving a motor vehicle for a periodof six months in relation to three charges of breaching a protection order;2 assault in afamily relationship;3 burglary;4 causing a vehicle to undergo sustained los of traction5and failing to stop when being pursued by police.6 The appellant had previouslyentered pleas of guilty to each of the charges The grounds of appeal are that thesentence imposed was manifestly excessive and the Judge erred by failing to allowdiscounts for remorse, and personal circumstances outlined in a s 27 cultural report. Itis further alleged that there was an error in one of the charges which was not correctlyamended.Background[2] The following factual background is drawn from the police summaries of factson which the appellant entered his guilty pleas.Assault on a person in a family relationship and contravenes protection order[3] The defendant and the first victim ["A"] were previously in a relationship forfour years. They have two young children and now live in separate towns. After eightprior reported family harm incidents involving the appellant and A, on 24 March 2011the Ōpōtiki District Court issued a final protection order against the appellant.[4] On 1 March 2020 A was at her home address with her two children. In theearly afternoon the appellant telephoned her saying that he would be visiting shortly.He arrived soon afterwards. The appellant and A spent time drinking and talkingbefore the appellant became increasingly agitated over matters arising in the course oftheir conversation. At approximately 4.30pm the appellant's mother arrived at theaddress and was greeted outside the property by A. This angered the appellant and he1 Police v Stansbury [2020] NZDC 25301.2 Family Violence Act 2018, ss 9(a), 90 and 112(1)(a). Maximum penalty: 3 years' imprisonment.3 Crimes Act 1961, s 194A. Maximum penalty: 2 years' imprisonment.4 Section 231. Maximum penalty: 3 months' imprisonment.5 Land Transport Act 1998, s 36A(1)(c). Maximum penalty: 3 months' imprisonment, fine $4,500.6 Land Transport Act 1998, s 52A. Maximum penalty: 10 years' imprisonment.verbally abused A. A was scared by the appellant's behaviour and returned into thehouse telling the appellant to leave. However, the appellant followed A into the houseand confronted her in the hallway, where he directed a tirade of verbal abuse at her.When A turned away from him the appellant pushed her on the side of her shoulder.A then ran to a window and escaped through it from the house. The appellant howeverpursued her and chased her down, whereupon a member of the public intervened, andthe appellant quickly returned to his mother's vehicle and fled. A was assessed by adoctor following the incident and complained of a sore head, and was prescribedmedication for pain.Contravenes protection order[5] The appellant and the second victim ["B"] were in a relationship for two yearsand have a child together. After six previous family harm incidents between theappellant and B, on 31 January 2019 the Ōpōtiki District Court issued a final protectionorder against the appellant.[6] At approximately 9am on 24 May 2020 the appellant was with B at her homeaddress after having slept the previous night there. On learning that B intended totravel out of town without him, the appellant became angry and verbally abusive. Hebegan banging and crashing items around B's bedroom. B's mother then intervenedand the appellant became verbally abusive towards her. B and her mother both toldthe appellant several times to leave, and threatened to call the police, but he ignoredtheir requests and continued verbally abusing them. The appellant then left theproperty shortly before the police arrived.Contravenes protection order[7] At around 12:00 pm on 10 August 2020 the appellant and B were drivingtogether in the appellant's vehicle. A heated argument developed, B smashed the wingmirror and cracking the appellant's car windscreen. The appellant stopped his car,dragged B out of the vehicle and threw her to the ground. B made her way to thepolice station and reported the incident.Failing to stop for flashing lights and operates vehicle causing sustained loss oftraction[8] On 6 December 2019 at 9.30pm two police officers who both know theappellant, responded to a call reporting multiple vehicles doing "burnouts" on St JohnStreet, Ōpōtiki. By the time the police arrived the vehicles had already departedalthough there was a group of people standing around at the side of the road. Thepolice could see tyre marks on the road and could smell burning rubber. The officersthen drove around the vicinity for some time before re-entering St John Street wherethey saw a grey utility doing "burnouts" in the middle of the road. The appellant wasdriving the vehicle. Police approached with their lights and siren on, and the appellantsped away. The police pursued the appellant's vehicle until it stopped at a locked gate.The appellant then ran from the scene and could not be located.Burglary[9] At around 2.20 pm on 18 August 2020 the appellant went to the complainant'saddress in an isolated area near Toatoa. The appellant does not know the complainant.The appellant went onto the complainant's property and searched through a parkedvehicle. He then entered the complainant's house and stole meat valued at $150,70,possum traps valued at $700, a diesel container and a 4x4 Suzuki 300 quad bike valuedat $2,000. The defendant loaded the items onto the quad bike and drove away on it.His actions were caught on CCTV. The property taken was valued at $2,850. Thequad bike was subsequently located and recovered.The sentencing decision[10] Judge Mabey commenced his sentencing of the appellant by noting the factsof the offending and observing that the offending needed to be seen in light of theappellant's previous convictions which included multiple incidents of domesticviolence, charges of male assaults female, common assault, assault with intent to injureand a number of charges of breaching a protection order, the most recent being inDecember 2019 accompanied by a family violence assault. The Judge rejected MsGentleman's submission that a sentence of home detention was appropriate as theleast restrictive outcome. He commented that although the breaches of the protectionorders were not of the most serious kind, they were nevertheless a continuation of theappellant's history of breaching protection orders, and as recurrent breaches requireda deterrent sentence, a home detention sentence would be insufficient to achieve thatpurpose.[11] The Judge was prepared to give the appellant "full credit" for his guilty pleasbut said that although counsel submitted a discount for remorse was appropriate, hefound there to be no evidence of the appellant's remorse before him.[12] The Judge considered the s 277 report obtained by the appellant to be of noassistance, commenting that the report writer appeared to have used a template withminimal amendments for all three of the unrelated defendants the Judge wassentencing that day. The Judge commented that it appeared that the three reports were"almost identical" and he concluded that because of the close similarities betweenthem, he could not give any weight to the report setting out the appellant's backgroundbecause doing so would require him to overlook his real concerns about the quality ofthe reports and the ability and competence of the person who had prepared them.[13] The Judge commented:8In relation to one of the people to be sentenced I have invited his counsel totake further instructions, as it might be that an alternative report would beappropriate.In this matter, there has been no such suggestion from Ms Gentleman. In anyevent I doubt if an alternative report would make any difference to thesentence I am going to impose for persistent and recidivist family violence,which can only result in a sentence of imprisonment.[14] The Judge said that he would be sending the three reports to the Legal Aidauthorities for consideration of the issue he had raised and which had led him to doubtthe authenticity of the reports. 9[15] The Judge did however consider the letters and documents provided by theappellant and members of his family, and he noted that the appellant had attendedprison courses and had certificates to that effect. The Judge observed that it appeared7 Sentencing Act 2002, s 27.8 At [15] and [16].9 At [12] – [17].that the appellant would have the support of his community when released from prison,which was a positive indication of his prospects of rehabilitation.[16] The Judge adopted a starting point of 18 months' imprisonment on the burglarycharge which he observed to be the most serious.10 In relation to the breach ofprotection orders, which he described as being "persistent and recidivist", the Judgeadopted a starting point of 15 months' imprisonment.11 The Judge found that as theburglary and the breach of protection order offending was unrelated, the sentenceswere to be served cumulatively.[17] The Judge then allowed a 25 per cent discount for the guilty plea to the burglarycharge, which was reduced to 13 and a half months, and a 25 per cent discount for theguilty pleas to the breach of protection order charges, resulting in an end sentence of11 months for those charges, and resulting in a total cumulative sentence at this pointof 24 and a half months imprisonment.[18] Applying the totality principle, the Judge then reduced the burglary sentenceby one and a half months to bring it down to 12 months, commenting that doing sowould result in a 22 month term of imprisonment. There is however an error in theJudge's calculation as the 12 months he settled upon for the burglary offending addedto the 11 months he had determined as the end sentence for the breach of protectionorder charges yielded an end sentence of 23 months and not the 22 months stated bythe Judge. The Judge also made an order that the appellant pay reparation of $950 tothe victim of the burglary offending in respect of the unrecovered items taken in theburglary.[19] The Judge noted that the driving charges and failing to stop did not attract aterm of imprisonment, and said the sustained loss of traction and family harm chargeswould be dealt with by concurrent terms of imprisonment. On the sustained loss oftraction charge, he imposed a sentence of one month's imprisonment to be servedconcurrently with the other prison sentences, and six months' disqualification fromholding a driver's licence.10 At [18].11 At [21].[20] Following the hearing Judge Mabey issued a Minute12 in which he explainedthe reasons for his concerns regarding the three s 27 reports prepared by the sameauthor and which he had decided he should disregard because of their similarity andhis concerns about their authenticity. The Judge noted in his Minute that:[2] The reports are in identical form and are in relation to three men. Thecontent for each progresses from the beginning of their lives until now and inan almost identical way explains their childhood as they grew to pre-teenage,then teenage and adulthood. The same things are reported as to theirupbringing, their treatment by others and identical forms of male sexual abuseincluding rape. The report then goes on to describe the descent into drug usein an almost identical way and draws conclusions using similar words as tothe consequences of their childhood and upbringing....[4] I formed the view that given the similarity and apparent templatedapproach to reporting, and in particular the almost identical history describedfor each man that I could have difficulty relying on any of the reports. I doubtif three men who are unrelated and unknown to each other, ( I have confirmedthat with their counsel) would come up with such a similar history of lifeevents which end up in a s 27 report all directed at considerable credit onsentencing.[5] There is a brief biography at the end of the report without much detail asto the writer's experience of qualifications and I was left with a concern thatthe writer of these reports was simply taking advantage of the ability to writethe reports at the cost of the State without any deep thought or even properinquiry.[7] The three reports that trouble me are a narrative by the report writer onwhat was self-reported and in the absence of an [collusion] or conspiracybetween the three men, which there was not, there are good grounds for realconcern as to just what effort was put in by the report writer and where he gothis information.[8] The criticism may seem harsh but the court is not about to be persuadedby documents which within their own content give cause to concern as towhether they are valid or useful from a sentencing point of view.[10] .. I add that even if there was only one report of the three I would havehad real reservations and would unlikely have given it any weight in any eventbut the combination of three almost identical repots requires me to take theaction that I have.12 Minute of Judge P G Mabey QC, dated 2 December 2020.Appeal against sentence[21] An appeal against sentence is governed by the Criminal Procedure Act 2011.Section 250(2) provides that the Court must allow an appeal against sentence ifsatisfied that for any reason, there is an error in the sentence imposed on conviction,and a different sentence should be imposed. In any other case, the Court must dismissthe appeal.13[22] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was notintended to change the previous approach taken by the courts under the SummaryProceedings Act 1957.14 As such, the measure of error that must be shown, is that thesentence is "manifestly excessive".15 The High Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencingprinciples. Whether a sentence is 'manifestly excessive' is to be examined in terms ofthe sentence given, rather than the process by which the sentence was reached.SubmissionsAppellant's submissions[23] Ms Gentleman submits the sentencing Judge ought to have afforded her clienta discount for matters contained in the s 27 report. Specifically, that from a young agethe appellant witnessed brutal violence being frequently inflicted on his mother by hisstep-father. The appellant told the author of the s 27 report that the violent behaviourtowards his mother continued over a number of years. The report also refers to theappellant being subjected to sexual abuse as a child between the ages of 10 and 12 andalso of physical violence inflicted upon him by his step-father who would punch himwith his fists to the head and render him almost unconscious. She submits that theviolence the appellant witnessed and was subjected to provides a causal nexus betweenhis offending against his partners and the violence he experienced FurthermoreMs Gentleman submits the Judge ought to have provided a discount to recognise theappellant's genuine remorse which is referred to in the s 27 report. For both of thesefactors, she submits a 10 per cent discount on sentence ought to have been awarded.13 Criminal Procedure Act 2011, s 250(3).14 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26] – [27].15 At [26] – [27].[24] Ms Gentleman says that the Judge raised his concerns about the s 27 reports amatter of minutes before the sentencing and in the circumstances she had little time toconsider that matter. Counsel says that she accepts that although she could have donemore to press the relevance and reliability of the s 27 report, she nevertheless submitsthat the Judge erred by putting the report aside and deciding that it was of no assistancewhatsoever in determining the appropriate sentence to be imposed on the appellant.Ms Gentleman submits that the Judge's failure to take the s 27 report and its contentsinto account has resulted in an injustice to the appellant.[25] Counsel says that the Judge also erred in finding the appellant had notexpressed any remorse. She says that the appellant expressed his remorse in the lettershe wrote to the victim of the burglary offending and to his former partner who was thevictim of his breach of protection order offending on 1 March 2020. These letters wereprovided to the Judge prior to the sentencing. Ms Gentleman notes that the appellantalso expressed his remorse to the author of the s 27 report who wrote:16Sam is truly remorseful for his actions towards the victims in these mattersbefore the courts.He shared how he could not believe how much of an idiot he was. Lookingback and reflecting on what had happened, he fully regrets what he had doneand sincerely apologises to the victims in these particular matters.[26] Ms Gentleman submits that by failing to take the appellant's remorse intoaccount, and by disregarding the contents of the appellant's s 27 report and particularlythe domestic violence that the appellant had witnessed and been subjected to as a child,the Judge failed to consider mitigating factors that warranted allowing furtherdiscounts and which if taken into account ought to have resulted in a sentence of homedetention being imposed rather than the sentence of 22 months' imprisonment.Respondent's submissions[27] Ms Sutton for the Crown submits: the Judge was correct in not placing anyweight on the s 27 cultural report when he had concerns as to its reliability. Ms Suttonsubmits that in any event the matters described in the s 27 report do not establish any16 S 27 Cultural Report dated 24 November 2020, paragraph 2(b).sufficient nexus between the appellant's cultural background and his offending. Shenotes that in the two other sentencing cases before the Judge on the day of theappellant's sentencing, counsel for one of those other defendants sought and wasgranted an adjournment to enable another s 27 report to be obtained, while the otherproceeded, disregarding the s 27 report. However, the appellant's counsel did not seekan adjournment in order to take steps to obtain another s 27 report. Ms Sutton submitsthat having regard to the concerns expressed by the Judge regarding the similaritiesbetween the three cultural reports, the contents of the appellant's report cannot beconsidered to be reliable, and the Judge was justified in disregarding it whensentencing the appellant.[28] As regards the issue of the appellant's remorse, Ms Sutton observed that thepre-sentence report, while noting the appellant expressed remorse for his offendingagainst his partner and said that he was "not blaming her, its my own actions, its myfault", also apportioned the blame for his actions on his partner and her actions.Ms Sutton says that such blaming of the appellant's partner is inconsistent with havinggenuine remorse, and it was therefore open to the Judge to conclude that the appellant'sremorse was minimal.[29] She submits the appellant received adequate credit for his personalcircumstances, and the Judge was correct in not commuting the sentence ofimprisonment to home detention. She submits that the final sentence imposed was notmanifestly excessive.Discussion[30] Having reviewed the three s 27 reports annexed to the Judge's Minute of 2December 2020, I respectfully do not agree with his description of them as being"almost identical". While they share the same format and in some parts of the reportsthe same wording is used and is common to all three reports, the factual backgroundof each of the defendants who are the subject of the reports, while relating they allexperienced the same sort of physical abuse during childhood, is neverthelesssignificantly different in terms of the details. The background information regardingeach of the three defendants appears to have been compiled on the basis of informationobtained by the author of the report from each of the three defendants independently.The biographical summaries in each case refer to the defendants witnessing seriousdomestic violence taking place and themselves being subjected to violence. In the firstcase the violence was at the hands of the defendant's father, in the second case theviolence was at the hands of the defendant's grandfather, and in the appellant's casehis step-father. In each case the defendants report being sexually abused in their earlyteens, before starting to use cannabis and progressing to using methamphetamine.While the personal histories of the three defendants are obviously similar, theirsimilarity does not itself indicate that the report writer has not accurately recorded thepersonal histories of the three men. It is a woeful reality that the lives of many NewZealand children have and are being profoundly affected and damaged by theirdomestic circumstances in which they are exposed to adults whose lives arecharacterised by alcohol and drug abuse and violence, including domestic violenceand violence towards children. The fact that these features are present in the cases ofthree young men from similar backgrounds who all are appearing before the court ismore likely an indication of the extent and prevalence of the domestic violence andchild abuse within the community in which they were raised, rather than any failingon the part of the author of the reports.[31] I accordingly consider that the similarities between the three s 27 reports asobserved by the Judge, and his consequent concerns about the reliability of the reports,was not a sufficient basis on which to set aside and totally disregard the appellant'sreport. While the Judge observed that the personal history set out in the report was theproduct of self-reporting and had not been corroborated, having regard to the natureof the matters, any sources of corroboration were unlikely to have been available. Inmy view, the Judge's decision to disregard the report without having heard from theauthor was an error which operated to the detriment and prejudice of the appellant intwo principal respects. Firstly as regards whether the appellant was genuinelyremorseful for his offending, and secondly as regards the issue of whether his personal,family, community, and cultural background may have contributed to the commissionof the offences for which he was being sentenced.[32] The s 27 report refers to the appellant as being "truly remorseful" for hisactions towards the victims of his offending. I note that he also expressed his remorseto the author of the pre-sentence report, saying he was "really remorseful", and alsowrote thoughtful letters to the victim of the burglary and to his partner saying that hewas deeply sorry for his actions and, in the case of the burglary, explained thecircumstances which led to his offending when his own bike tipped and could not beoperated while he was working his own trap-line. Having read the letters there can beno doubting the genuineness of his expressions of regret for what he did, and of hisremorse. I accordingly find that the Judge erred in finding that there was no persuasiveevidence of the appellant having shown genuine remorse.[33] I also find that the Judge erred by disregarding the s 27 report dated 24November 2020 which detailed the appellant's personal, family and culturalbackground. While that background has no clear connection to his burglary offending,in my view it does go some way towards explaining his history of domestic violenceoffending and abuse towards his partners. His experience as a child witnessingdomestic violence, and being subjected to physical violence by male family members,shows a background which would make his actions of behaving in the same mannermore likely than if he had not experienced what would have been deeply traumaticexperiences for him. Being subjected to such violence and witnessing domesticviolence does not excuse his violent and abusive conduct towards the twocomplainants, but the fact that he was subjected to that particular kind of traumatogether with the other traumatic features of his childhood and youth during which hewas offended against, in my view warrants recognition in terms of a discount of hissentence. In my view it is material which does relate to the appellant's commission ofthe breach of protection order offending to such an extent as requires recognition andthe allowing of a discount.[34] In recognition of the appellant's remorse and commitment to rehabilitation Iconsider that a discount of five per-cent is appropriate and applicable to both theburglary and breach of protection order offending. In recognition of the appellant'spersonal, family and cultural background, I consider that a further five per-centdiscount is required and appropriate in respect of the breach of protection ordersoffending.[35] I find that the starting points adopted by the Judge were within range andappropriate. Applying a 25 per cent discount to the starting point of 18 months for theburglary offending together with a five per cent discount for remorse would yield anend sentence of 12 and a half months' imprisonment. Applying a 25 per cent discounttogether with a five per cent discount for remorse and a five per cent discount for s 27factors to the 15 month starting point, results in an end sentence of ten months'imprisonment and a total cumulative sentence of 22 and a half months' imprisonment.[36] It is therefore apparent that, although the Judge erred by failing to take accountof the appellant's remorse and the s 27 factors, the combined effect of the Judge'sarithmetical error (which reduced the end sentence by one month), and the Judge'sreduction of the burglary sentence by one and a half months by application of thetotality principle, resulted in an end sentence being imposed of 22 monthsimprisonment as compared to the 22 and a half months imprisonment, which is theresulting final sentence when the remorse and s 27 discounts are taken into account.The half-a-month (two week), difference between the end sentence imposed by theJudge and the end sentence produced following the allowing of the further discountsis not material and does not warrant any alteration to the sentence being made onappeal.[37] A sentence of home detention is not arrived at as a matter of routine wheneverthe end sentence falls below 24 months,17 and the availability of home detention as analternative sentence, does not render a short-term sentence of imprisonmentredundant.18 An appellate court recognises the advantage the sentencing Judge hashad in assessing an offender's character.19 Here the sentencing Judge considered thata term of imprisonment is the least restrictive sentencing outcome having regard to theappellant's persistent and repetitive domestic violence offending, and that deterrencewas an important consideration.[38] I agree with the Judge that the repeated and ongoing breaches of the protectionorders requires a deterrent sentence and that in the circumstances here, where the17 Sentencing Act 2002, s 15A(1).18 Polyanszky v R [2011] NZCA 4 at [13]; Heta v R [2012] NZCA 267 at [21].19 Palmer v R [2016] NZCA 541 at [19]; Aupouri v R [2019] NZCA 216 at [18].appellant has an extensive history of breaching protection orders, although theoffending was not of the most serious kind, a sentence of imprisonment rather thanhome detention represents the least restrictive outcome in terms of the appropriate andcondign sentence to be imposed.[39] I accordingly find that the Judge's decision not to impose a sentence of homedetention did not result in a sentence that is manifestly excessive, and does notconstitute an error.Result[40] The appeal is dismissed.[41] The sentence of 22 months' imprisonment is upheld and confirmed.[42] All other sentencing orders made are confirmed and remain as imposed by theJudge._____________Paul Davison J