Stewart v Police
[2012] NZHC 1538
•26 June 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000141 [2012] NZHC 1538
KRISTOPHER LEONARD STEWART
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 26 June 2012
Counsel: S Youn for Appellant
J Cairney for Respondent
Judgment: 26 June 2012
JUDGMENT OF ASHER J
Solicitors/Counsel:
Public Defence Service, PO Box 90 243, Auckland Mail Centre 1142. Email: [email protected]
Crown Solicitor, DX CP24063, Auckland 1140. Email: [email protected]
STEWART V NZ POLICE HC AK CRI-2012-404-000141 [26 June 2012]
Introduction
[1] In March to May 2011 and July to September 2011 Kristopher Stewart went on two separate sequences of dishonesty offending. During the first he also drove a vehicle while forbidden on three occasions. He was on bail at the time of the second round of offending. He was sentenced ultimately by Judge Callander on 15 charges. The end sentence was two years and three months imprisonment. He appeals that sentence.
Chronology of offending
[2] Mr Stewart is 35 years old. He has 156 prior convictions which include dishonesty offences, drug offences, driving offences and offences for breaches of court orders. He has served various terms of imprisonment. His offending appears to have started in 1995 and proceeded unabated since then.
Theft (value exceeding $1,000)
[3] On 6 February 2007 Mr Stewart had been forbidden from driving until a new licence was obtained. On 23 March 2011 he approached a parked car on Glendale Road, Glen Eden. He smashed the front driver’s window and took several items including a black bag, passport, digital camera and prescription glasses. The property stolen was worth approximately $1,500 and has never been recovered.
Two burglaries, two driving while forbidden, receiving (value over $1,000), conversion
[4] On 23/24 April 2011 a Nissan Bluebird motor vehicle worth $2,500 was stolen from Paice Avenue, Mt Eden. On 27 April 2011 Mr Stewart entered Toyco in Waganer Place by smashing a window at the store. He stole a Dell laptop, three PC trainer laptops and a Vtech laptop that appear to be worth approximately $3,000.
[5] On 22 May 2011 Mr Stewart was driving on Chancery Street, Auckland City.
He stopped outside “Me and City” clothing store which was closed and locked. He
got out of his vehicle and forced open the glass doors of the store. He removed several items of clothing from the store and returned to the car. A female associate assisted him. The clothing included leather jackets.
[6] On 24 May 2011 Mr Stewart was located by Police at Princes Wharf driving
the stolen Nissan Bluebird. It contained a card stolen from the “Me and City” store.
[7] Mr Stewart was then arrested. He admitted his involvement in the burglary of the “Me and City” store. He admitted knowing that the Nissan was stolen, but denied stealing it.
Breach of bail
[8] On 1 July 2011 Mr Stewart, having been released on bail, failed to attend the
Auckland District Court as required.
Theft
[9] On 26 July 2011 Mr Stewart approached a Mazda vehicle in the carpark at the Newmarket train station. He smashed the driver’s window, unlocked the vehicle and entered. He removed a Navman GPS unit worth $400 and a passport. DNA evidence taken from the car was found that belonged to him.
Receiving (value over $1,000), receiving (value under $500 x 2), driving while forbidden, possession of conversion instruments, possession of a pipe
[10] On 21 August 2011 a Ford motor vehicle worth $4,500 was stolen from Nelson Street, Auckland City. On 24 August 2011 a Toyota motor vehicle was broken into on Blockhouse Bay Road. A Tomtom GPS unit worth $500, a marine radio and GPS sounder were stolen. On 30 August 2011 a house on Victoria Street, Onehunga was burgled. A credit card, Kathmandu card, $100 supermarket voucher and a laptop computer was stolen.
[11] On 3 September 2011 Mr Stewart was found asleep at the wheel of the stolen
Ford motor vehicle at an intersection. The Police found that the vehicle’s ignition
had been removed and that it had been started with a pair of pliers. He was found to be in possession of screwdrivers, crowbars, a set of pliers and a multipurpose tool. These are commonly used in the conversion of motor vehicles. Also located were other paraphernalia connected with drug use. He was also found in possession of the stolen Tomtom GPS unit, credit card, Kathmandu card and supermarket voucher.
District Court sentencing
[12] Judge Callander treated the burglary charges as the lead offences. He did not distinguish between the two charges. He went through Mr Stewart’s extensive history of offending and substance addiction. He has been through drug addiction programmes in the past but has not fully attended these and they have not been successful. He noted that the offending could be seen as having occurred in two packages. The first package were offences prior to him being arrested and granted bail, and the second package were those offences which occurred later.
[13] The Judge accepted the submission of Mr Kan, then counsel for Mr Stewart, that the appropriate starting point was one and a half years imprisonment. He stated:[1]
[1] Police v Stewart DC Auckland CRI-2011-004-9768, 11 April 2012 at [17].
Prison it has to be, and I am of the view that Mr Kan’s essential submissions in terms of starting point and uplift are correct. Again it could well have been argued that those figures were somewhat light, but because I am anxious that you ultimately get rehabilitated, do your time and get out into a good programme, I do not want to impose a sentence that is going to be a sentence that would cow you under. As a result I am prepared to accept his basic argument that one would be looking at a starting point in the order of one and a half year’s imprisonment, taking into account the totality of all your offending. I am obliged to do that.
(emphasis added.)
[14] He also accepted Mr Kan’s submission as to uplift for previous convictions and increased that sentence by a year to two and a half years’ imprisonment. He then traversed the discount for guilty pleas. He was not enthusiastic about giving Mr Stewart any discount for guilty pleas, given that he had initially pleaded not
guilty to the burglaries and some of the other offending. He ultimately gave a 10 per
cent discount of three months. This left an end sentence for each of the burglary charges of two years and three months’ imprisonment to be served concurrently. He addressed the other offences and handed down sentences on each.
[15] A summary then of all the charges and the maximum penalties and sentences imposed is as follows:
Offence Act/Section Maximum penalty Sentence imposed
Burglary (x 2) Crimes Act, s 231 10 years’
imprisonment
27 months’
imprisonment each
Conversion of a vehicle
Theft (value exceeds $1,000)
Crimes Act, s 226 Two years’
imprisonment
Crimes Act, s 223(b) Seven years’
imprisonment
Three months’ imprisonment Six months’ imprisonment
Driving a vehicle whilst forbidden( x 3)
Land Transport Act, s
52(1)(c)
$10,000fine Convicted and discharged
Possession of pipes
Misuse of Drugs Act
1975, s 13
One year imprisonment or
$500 fine
Three months’
imprisonment
Possession of instruments capable of converting a vehicle
Theft (value less than $500)
Crimes Act, s 227 One year imprisonment
Crimes Act, s 223(d) Three months’
imprisonment
Three months’
imprisonment
Three months’
imprisonment
Receiving stolen property (value exceeds $1,000) (x 2)
Receiving stolen property (value less than $500) (x
2)
Crimes Act, ss 246 and
247(a)
Crimes Act, ss 246 and
247(c)
Seven years’
imprisonment
Three months’
imprisonment
Six months’
imprisonment each
Six months’
imprisonment each
Failure to answer bail
Bail Act, s 37(a) One year imprisonment or
$2,000 fine
Convicted and discharged
[16] Mr Youn for the appellant focussed on the discount given for remorse and the guilty pleas. He submitted that a discount of 15 to 20 per cent should have been given and that the sentence was therefore manifestly excessive.
[17] Mr Cairney for the respondent submitted that the starting point and uplift were within the appropriate range.
Analysis
[18] Under s 121(3)(b) of the Summary Proceedings Act 1957 the High Court may quash or vary a sentence where it is clearly excessive or inadequate or inappropriate. The Court may intervene if there has been an error vitiating the lower Court’s original sentencing discretion. The Court on appeal will not intervene where the sentence is within the range and properly justified on sentencing principles.
Starting point
[19] Mr Stewart has been shown to be guilty of two serious crime sequences. I have not seen any victim impact reports. However, on my count there were no less than nine separate incidents of dishonesty offending, all of which would have caused considerable harm and suffering to the complainants. The effect of a burglary or a conversion of a vehicle or a theft on an innocent sufferer is profound.
[20] The maximum penalty for burglary is 10 years’ imprisonment. Mr Stewart was guilty of two serious counts. The maximum penalty for receiving property, the value of which exceeds $1,000, is seven years’ imprisonment. Mr Stewart was guilty of two serious counts. Even taking into account the totality principle, such a combination of serious offences demanded a starting point considerably higher than the one and a half years chosen by the Judge. Viewing the offending overall from the most lenient perspective, a starting point of at least two and a half years imprisonment was appropriate.
[21] Mr Youn in his submissions relied on the Court of Appeal decision of R v Columbus[2] where a sentence of two years and three months’ imprisonment was reduced to one year and 10 months’ imprisonment. The Court fixed a starting point of one and a half years imprisonment on appeal. There, Mr Columbus had been guilty of one act of burglary involving damage of $672 and two counts of theft
involving $479 and $68.
[2] R v Columbus [2008] NZCA 192.
[22] It can be seen immediately that there is no real comparison between the two cases. The overall offending of Mr Stewart was far more serious. In terms of value alone the amount involved was 10 times more. In terms of incidents of dishonesty, there were three times more offences.
[23] If a starting point of two and a half years is chosen and the uncontested one year uplift for the very serious prior offending is added on, the starting point is three and a half years imprisonment. That, as I have emphasised, is a very lenient starting point from Mr Stewart’s perspective.
[24] Accepting that conservative starting point of three and a half years it can be immediately seen that the points made by Mr Youn fall away. Even if the discounts he seeks were applied and a five per cent discount allowed for remorse and a 20 per cent discount given for the guilty pleas, the end sentence would still have been 27 months’ imprisonment, the sentence in fact imposed.
[25] However, I must comment that I would have regarded such discounts as too generous. While the discount of 10 per cent given by the Judge viewed alone without reference to the starting point could be seen as low, Mr Stewart’s remorse and his guilty pleas must be seen in context. His remorse comes after a 15-year litany of offending and failed attempts to deter and rehabilitate.
[26] The Judge was undoubtedly influenced by some real evidence that he may now be turning the corner. There is evidence in the form of a letter from a Corrections officer at the Golf Unit at Mt Eden Correction Facility that Mr Stewart has signed a zero tolerance contract and has been a model prisoner. It is to be hoped that this does signal a genuine turn around for Mr Stewart. However, given the background of the earlier failures, five per cent would have been the most that could be sensibly allocated for remorse.
[27] Then the guilty pleas, although entered before a trial was set down, were given quite some months after the initial charges were laid. Those guilty pleas must be seen in the context of the second dishonesty spree having been conducted while he was on bail, having pleaded not guilty to earlier charges. Further, as Mr Cairney
pointed out the Crown case against Mr Stewart was very strong. This factor reduced the discount available.[3]
[3] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[28] In all those circumstances a discount of anything more than 15 per cent would have been generous to Mr Stewart. A discount of 10 per cent, while conservative, could be seen to be within the range.
[29] The Judge was clearly moved by some real evidence of a turn around on Mr Stewart’s part and has imposed a most lenient sentence on him. As is explicit in his notes, the prospect of rehabilitation influenced the starting point he chose. It would have been preferable to have applied it at the second stage of sentencing. However, this was a matter he properly took into account.
[30] I have considered but decided not to exercise the discretionary the power of the Court to increase Mr Stewart’s sentence. I do this out of respect for the Judge’s decision in the particular circumstances, based as it was on his assessment of a real prospect of rehabilitation. But I must record that I did contemplate such a step, and but for the Judge’s view on rehabilitation I would have required counsel to address me on why a higher penalty should not have been imposed on appeal. Mr Stewart should regard himself as most fortunate.
[31] There is one respect in which the appeal must be allowed. The Judge in allocating concurrent sentences for each of the offences imposed sentences of six months’ imprisonment on each of the two minor receiving charges, where the value of the items was less than $500. In fact the maximum period of imprisonment available was three months’ imprisonment. Those sentences must change. This does not affect the end sentence as these were concurrent sentences on the less important
charges.
Result
[32] On counts CRN 11004014567 and CRN 11004014565 the sentences of six months’ imprisonment are reduced to three months’ imprisonment each. To that extent the appeal is allowed.
[33] In all other respects the appeal is dismissed. The overall sentence of two years and three months’ imprisonment stands.
……………………………..
Asher J