R v Stuart - [2008] NZCA 66

IN THE COURT OF APPEAL OF NEW ZEALAND
CA610/07
[2008] NZCA 66
THE QUEEN
v
AARON CRAIG STUART
Hearing:4 March 2008

Court:Chambers, Gendall and Harrison JJ
Counsel:A S Greig for Appellant

M D Downs for Crown

Judgment:18 March 2008 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION AND SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]       Mr Aaron Stuart appeals against his conviction on one count of robbery following trial before a jury in the District Court at Christchurch. Mr Stuart had earlier pleaded guilty to but was not convicted of an alternative count of burglary. His principal ground of appeal is that the trial Judge misdirected the jury on what is called the doctrine of recent possession.
[2]       Mr Stuart also appeals against his sentence of 18 months imprisonment on the ground that it is manifestly excessive.
Background
[3]       In March 2007 Mr Jean Rossetti, a 17 year old Brazilian exchange student, was living in Christchurch. His evidence at trial was that one evening he and a friend rode their mountain bikes to a party in the suburb of Halswell. They locked the bikes to a railing in a driveway separating a residential property and a park.
[4]       At about 3 am on 10 March 2007 Mr Rossetti and his friend returned to and unlocked their bikes preparatory to riding home. They saw two young men at the end of the driveway who started to run after Mr Rossetti and his friend. They caught up further down the road near the Halswell shopping centre. One of them was able to immobilise Mr Rossetti’s bike by securing the front wheel between his legs. This man put his hand on the handlebar and threatened to punch Mr Rossetti if he did not comply with a demand to surrender the bike.
[5]       Mr Rossetti attempted to escape. But the same man pulled him off the bike, causing him to fall to the ground. The other man kicked him two or three times in the back. Then the principal assailant and his accomplice rode off on the bike.
[6]       Mr Rossetti identified Mr Stuart as his assailant and robber. He described the man as wearing a simple white sleeveless top or singlet, white skater shoes, and black sporty nylon pants. He had white skin and no facial hair.
[7]       Mr Anthony Greig, Mr Stuart’s counsel, questioned Mr Rossetti’s identification. Mr Rossetti accepted that, first, he was not sure of Mr Stuart’s identification when questioned on this point at the preliminary hearing some months earlier and, second, he described his assailant as having a tattoo at the back of his neck, which was not a feature of Mr Stuart’s appearance. Otherwise Mr Greig did not suggest to Mr Rossetti that his identification of Mr Stuart was mistaken or, more importantly, that his assailant was a man more closely fitting the description of Mr Cameron King, another Crown witness.
[8]       On 11 March the police recovered…

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 R v Stuart

Details

AGLC: R v Stuart [2008] NZCA 66
Case: [2008] NZCA 66
Decision Date: 18 March 2008

CaseChat Overview and Summary

In the appeal, Aaron Craig Stuart challenges both his conviction and sentence for a robbery incident that occurred in Christchurch. The appeal pertains to the jury's understanding of the doctrine of recent possession and the severity of the imposed sentence. Stuart argues that the trial judge misdirected the jury regarding the doctrine of recent possession and that the sentence of 18 months imprisonment was manifestly excessive. The court of appeal examined Stuart's claims to determine if the trial judge provided the correct legal instructions and if the sentence was appropriate given the circumstances.

The court found that the trial judge did not misdirect the jury on the doctrine of recent possession. The doctrine, as described in the case of Robertson, allows the inference of theft or receiving by circumstantial evidence if a person is found in possession of stolen property shortly after the theft. The judge correctly informed the jury that recent possession could be evidence of guilt if no reasonable explanation for possession existed. Stuart's counsel argued that the judge failed to direct the jury on the existence of a plausible explanation, but the court found this argument unpersuasive. Stuart's only explanation, that he received the bike from "Corey," was deemed untruthful, and no other plausible explanation was presented. Therefore, the appeal against conviction was dismissed.

Regarding the sentence, the court considered the totality principle, which requires considering the cumulative effect of multiple offences. Stuart was sentenced to 23 months imprisonment for four serious offences, including robbery, assault, and attempting to pervert the course of justice. The court found that the sentence was appropriate given the pattern of serious violence and dishonesty exhibited by Stuart. The judge's decision to start with a three-year imprisonment term for the robbery charge was justified by the use of bullying and menacing conduct, along with actual violence. The court dismissed the appeal against the sentence, affirming the trial judge's application of the totality principle.

In conclusion, the court upheld the conviction and sentence, finding no merit in Stuart's arguments regarding the jury's understanding of the doctrine of recent possession and the severity of the imposed sentence.

Orders