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Stepanicic v R

Stepanicic v R

Case [2015] NZCA 211 4 June 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA187/2015
[2015] NZCA 211

BETWEEN	CHARLES STEPANICIC Appellant
AND	THE QUEEN Respondent

Hearing:	14 May 2015
Court:	Randerson, Courtney and Kós JJ
Counsel:	P H H Tomlinson for Appellant B D Tantrum and E E Meade for Respondent
Judgment:	4 June 2015 at 11:30 am

JUDGMENT OF THE COURT

AAn extension of time to appeal is granted.
B The appeal against sentence is allowed.
CThe sentence of seven years imprisonment on the two burglary charges is quashed.
DThe minimum period of imprisonment imposed on the two burglary charges is also quashed.
EConcurrent sentences of two years imprisonment on each of the burglary charges are substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant faced four charges in the District Court arising from events in the early hours of 6 April 2011. He had broken into two residential dwellings but was later located by a police officer who sustained injury allegedly caused by the appellant.
On the morning of his jury trial he pleaded guilty to the two burglary charges. After the trial before Judge P Sinclair, he was acquitted on a charge of threatening to kill a police officer but convicted on one charge of causing grievous bodily harm with intent to avoid arrest or facilitate flight. He was sentenced by Judge Sinclair on 16 April 2014 to a total of seven years imprisonment on the three charges on which he had been convicted.[1] In addition, a minimum period of imprisonment of three years and two months was imposed. There was no differentiation as to the sentences relating to each charge. Effectively the result must be treated as concurrent sentences of seven years on all three charges with a minimum period of imprisonment on each as well.
[1]R v Stepanic[ic] DC Manukau CRI-2011-084-205, 16 April 2015.
On 2 March 2015 this Court allowed the appellant’s appeal on the charge of causing grievous bodily harm.[2] His conviction on that count was quashed and a retrial ordered. No alteration was made to the sentence on the burglary charges since that was not then in issue. We were advised that there is a fixture for the appellant’s retrial on that count scheduled for 31 August 2015 and there is to be a sentencing indication hearing on 12 June 2015.
[2]Stepanicic v R [2015] NZCA 35.
The appellant now appeals against his sentence on the burglary charges. The Crown accepts that a sentence of seven years imprisonment for the burglary charges alone is manifestly excessive and that it is appropriate that, in these unusual circumstances, this Court should effectively re‑sentence the appellant on those charges.

Background facts

The facts are not in dispute. The first burglary occurred at 5.45 am on 6 April 2011. The appellant went to a residential address in West Auckland. A female victim was home and in her bed at the time. The appellant gained entry into the house through an unlocked door. While in…

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 Stepanicic v R

Details

AGLC: Stepanicic v R [2015] NZCA 211
Case: [2015] NZCA 211
Decision Date: 4 June 2015 at 11:30 am

CaseChat Overview and Summary

The appellant, Charles Stepanicic, was convicted of two burglary charges and one charge of causing grievous bodily harm with intent to avoid arrest or facilitate flight. He was sentenced to a total of seven years imprisonment on the three charges, with a minimum period of imprisonment of three years and two months. This was treated as concurrent sentences of seven years on all three charges with a minimum period of imprisonment on each. The appellant appealed against his sentence on the burglary charges, arguing that the sentence of seven years imprisonment was manifestly excessive. The Crown accepted that the sentence was excessive and that the Court should effectively re-sentence the appellant on those charges.

The legal issues the court had to decide were the appropriate starting point for the sentence and whether there should be an uplift or discount for certain factors. The starting point for the sentence was a point of contention between counsel, with the appellant's counsel suggesting 18 months imprisonment and the Crown's counsel suggesting two and a half years imprisonment. The court considered the appropriate starting point to be two years imprisonment, with an uplift of four months for the appellant being on bail for other offending at the time of the subject offences. A discount of four months was also applied for the appellant's guilty pleas, resulting in a proper sentence of two years imprisonment on each of the two burglary charges.

The court concluded that it was important when sentencing on multiple charges to impose separate sentences appropriate to each charge. An extension of time to appeal was granted. The appeal against sentence was allowed, and the sentence of seven years imprisonment on the two burglary charges was quashed. The minimum period of imprisonment imposed on the two burglary charges was also quashed. Concurrent sentences of two years imprisonment on each of the burglary charges were substituted.

Orders