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 Mr Rossetti’s bike at Mr Stuart’s home.  In an interview with a police officer, Constable McLaughlan, Mr Stuart admitted that at the relevant time he had been at a party near the scene of the robbery.  He denied taking Mr Rossetti’s bike or hitting him.  He did, however, admit to riding the bike home from the party.  He said that someone called Corey had retrieved it from a garage and given it to him. 

[9]       The police officer’s evidence was that when he spoke to Mr Stuart on the day after the robbery he was wearing ‘a white singlet, blue nylon baggy pants and white skater shoes’.

[10]     Mr King was the other Crown witness.  He remembered driving around Christchurch with Mr Stuart and his partner in the early hours of 10 March.  He said Mr Stuart was wearing a white singlet, jeans or a black pair of trousers, and normal casual shoes.  He described Mr Stuart chasing after a boy on a bike near the Halswell shopping centre.  He saw him knock the rider off his bike, then jump on and ride away.  Mr King ran after him until they reached Mr Stuart’s uncle’s house nearby.  Mr Stuart then put the bike in the boot of his partner’s car and they went into Mr Stuart’s uncle’s house.

[11]     In cross-examination Mr King agreed with Mr Greig’s propositions that his memory of events was good; that after the robbery Mr Stuart sent him a text suggesting they meet somewhere ‘in order to get our stories right’ (Mr Stuart then knew the police were looking for him); and that in another text Mr Stuart advised Mr King to say that he got the bike from Corey (Mr King did not know such a person).  Furthermore, by way of corroboration of a material part of Mr Rossetti’s evidence, Mr King confirmed to Mr Greig that he remembered Mr Stuart walking up to Mr Rossetti while he was seated on his bike, and holding onto the handlebars (at a distance of about two to three metres from Mr King). 

[12]     Mr Greig then put a slightly different account of events to Mr King.  He suggested that Mr King was wearing the white top, that Mr King pulled Mr Rossetti off his bike, and that Mr Stuart then jumped on the back as Mr King rode away.  Mr King denied this proposition.

[13]     Mr Greig concluded his cross-examination by suggesting that Mr King had lied to save his ‘own skin by heaping all the blame on [Mr Stuart]’.  Mr King also rejected this assertion.

[14]     Mr Stuart elected not to give evidence or call any witnesses in his defence.

Conviction

[15]     The sole ground raised on appeal by Mr Greig is that the trial Judge, Judge Moore, misdirected the jury on what is described as the doctrine of recent possession.  Mr Greig cites as a correct statement of the law this passage from Robertson (gen ed) Adams on Criminal Law (looseleaf ed) at [CA219.09]:

The doctrine of recent possession is a rule allowing proof of theft or receiving by circumstantial evidence, rather than a rule of substantive criminal law.  If a person is found in possession of stolen property reasonably soon after the theft, an inference may be drawn that that person either stole the property or received it from the thief … The nature of the property, and the circumstances in which it was stolen, may indicate that the accused was the thief rather than the receiver … In appropriate cases recent possession may also provide circumstantial evidence that the accused committed other offences such as burglary ….  (Citations omitted.)

[16]     Mr Greig’s brief written submission did not particularise the Judge’s alleged misdirection.  The relevant passages of the summing-up are as follows:

[18]     What it comes down to is this.  When there’s been a burglary or a robbery or a theft, if somebody is found with the proceeds of that crime shortly after it occurred, then in the absence of an explanation that might reasonably be true and if it were true was consistent with innocence, the fact of the recent possession is of itself evidence which with nothing else a jury could accept – it’s for the jury – as proving that the person who’s found with the proceeds of the crime was the person who did it.  And of course it’s not merely a case of when a person’s physically first seen with the proceeds of the crime; it’s a question of what the evidence shows as to their connection with it…  And if they hadn’t given evidence of identification in this case I would still have to tell you that Mr Stuart’s possession of the bike so soon after the event is a fact which would entitle you, not to tell you – the facts are for you, would entitle you to conclude that he was the man who took it.

[19]     So that’s both a specific piece of law that applies to this case and it’s also an example of this process of drawing inferences that I mentioned to you.  It’s not a case of guessing or speculation, that mustn’t have anything to do with it.  But where you’ve got somebody with hot property very soon after it’s been taken, and how long depends on the nature of the property and the extent to which it is likely to change hands quickly, then you’ve got evidence which, if you accept it, you could take all by itself as establishing who the offender was... 

[17]     When pressed in oral argument to specify the misdirection, Mr Greig initially submitted that the Judge’s use of the phrase ‘a specific piece of law that applies to this case’ constituted a material error.  We disagree.  What is known as the doctrine of legal possession is no more than a description of the reasoning process legitimately available to a Court when evaluating evidence led at trial to support a dishonesty charge.  Whether the doctrine is properly described as a ‘specific piece of law’ or not is of no consequence.  Judge Moore was right about its purpose and effect.  As Mr Greig accepted, he correctly directed the jury that, in the absence of an explanation which might reasonably be true, it could draw an inference adverse to Mr Stuart from the fact of his possession of the stolen bike the day after the robbery.

[18]     Mr Greig then shifted his focus to an argument that the Judge failed to direct the jury about the existence of a plausible explanation from Mr Stuart which might contradict an adverse inference.  This argument is also unsustainable.  Mr Stuart did not give evidence at trial.  His only explanation, that he received the bike from ‘Corey’, was given to Constable McLaughlan.  But at trial Mr Greig conceded that Mr Stuart’s explanation was untruthful.

[19]     Mr Greig submits that a different but nevertheless plausible explanation was tendered at trial.  He relies on his proposition in cross-examination of Mr King that it was Mr King, not Mr Stuart, who pulled Mr Rossetti off his bike and rode away, with Mr Stuart jumping on to the back.  Mr King denied this proposition, and Mr Greig’s consequential proposition that he was lying.  In the absence of a concession from Mr King, Mr Greig’s question was no more than an unsubstantiated assertion by counsel and was of no evidential value whatsoever.

[20]     In any event, the Judge, perhaps charitably to Mr Stuart, did briefly direct the jury that this version might amount to an explanation.

[21]     Moreover, on the explanatory thesis advanced by Mr Greig, Mr Stuart was plainly guilty as a party to the crime of robbing Mr Rossetti of his bike.  Mr Greig correctly pointed out that the Crown did not present its case in this way.  In contradiction of Mr Rossetti’s account, it relied on Mr King’s evidence that there was only one participant.  While this course appears inconsistent, Mr Greig’s proposition advanced in cross-examination (presumably on instructions) only served to establish Mr Stuart’s criminal participation.

[22]     For these reasons, we dismiss the appeal against conviction.

Sentence

[23]     Mr Stuart appeals against his sentence of 18 months imprisonment on the robbery charge.  Judge Moore also sentenced him to cumulative terms of (1) three months imprisonment for attempting to pervert the course of justice by fabricating a defence to the robbery and (2) two months imprisonment for assaulting the mother of a former friend, and a concurrent term of one month imprisonment for assault.  Mr Stuart was sentenced to a total of 23 months imprisonment on four serious offences.

[24]     Mr Greig challenges the Judge’s adoption of a three year starting point on the robbery charge.  He relies primarily on the Crown’s acceptance in the District Court of an appropriate starting point in the range of six to 12 months imprisonment.  The Judge justified a starting point of between 18 months and three years by adopting this passage from R v Mako [2000] 2 NZLR 170 at [59] (CA):

At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs.  Depending upon the circumstances the starting point would be between 18 months and three years.  Actual physical enforcement might well require a higher starting point.

[25]     Mr Greig correctly points out that in Mako this Court was discussing sentencing levels for various types of aggravated robbery – that is, causing grievous bodily harm to a person at the time of robbery, or robbing another person jointly with another, or robbing any other person while being armed with an offensive weapon or instrument: s 235 Crimes Act 1961.  The police charged Mr Stuart with robbery simpliciter – that is, theft accompanied by violence or threats of violence to a person used to extort the property stolen (s 234).  The maximum sentence for the latter is 10 years imprisonment, whereas it is 14 years for the former. 

[26]     Also, Mr Greig says the Judge erred in identifying premeditation as an aggravating factor within the starting point.  The Crown accepts that it was a spontaneous incident. 

[27]     While there is force in each of Mr Greig’s arguments, they cannot be seen in isolation.  Mr Stuart was not guilty of aggravated robbery because he did not use a weapon such as a knife.  He achieved his objective, however, in terms of the Mako dictum, by employing bullying or menacing conduct designed to enforce his demand, and then used actual violence to achieve it.  The Crown’s concession of a starting point of between six and 12 months for the robbery in these circumstances is generous (although it was qualified by an acknowledgement of a possible increase to reflect the overall offending) and we are not bound by it.

[28]     More importantly, Mr Stuart appeared for sentence on three additional charges.  First, he had admitted assaulting a middle aged lady on 11 April 2007, when he was on bail pending trial on the robbery charge.  His victim had initiated a fracas by delivering a punch during a heated argument.  Mr Stuart retaliated by punching her face with his closed right fist.  The victim fell to the ground, causing her nose to bleed profusely.  She resumed her feet and then Mr Stuart grabbed her shirt and head-butted her.  His victim suffered a broken nose, two swollen black eyes and a large lump on the side of her head.  She had 12 stitches inserted and suffered a swollen jaw, requiring her to eat food through a straw for two weeks.

[29]     On its own this offending would justify a sentence in the range of 12 to 18 months, even allowing for the element of provocation.  The Judge acknowledged its seriousness.  But he reduced the term to two months imprisonment when applying the totality approach.

[30]     Second, Mr Stuart had admitted attempting to pervert the course of justice.  As noted, Mr Stuart had sought to persuade Mr King to participate in a fabricated account of events if questioned by the police.  His message was to lie.  The Judge noted that this crime was an attempt to corrupt the justice system, and imposed a sentence of three months imprisonment.  On its own, the offence could have justified a longer term.

[31]     Third, Mr Stuart pleaded guilty to a charge of assaulting a middle aged man.  On 14 January 2007 he visited his former partner’s address.  He rode his BMX bike at speed and collided deliberately with the victim.  The victim was sore for several weeks after the assault.  Judge Moore imposed a concurrent term of one months imprisonment.  Again, on its own, a term of at least three months would have been justified.

[32]     It is artificial in these circumstances to attempt to isolate out one component of a sentence imposed by an orthodox application of the totality principle on four charges which were discrete in time, place and circumstance.  Together they showed a pattern of serious violence and dishonesty, meriting the end sentence of 23 months imprisonment.  And we note that, when adopting a starting point on the robbery charge of three years imprisonment, Judge Moore took express account of the totality principle and Mr Stuart’s youth in fixing an end sentence of 18 months.

[33]     Accordingly, we dismiss Mr Stuart’s appeal against sentence.

Solicitors:

Crown Law Office, Wellington