Stewart v Police - [2016] NZHC 2943

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000304 [2016] NZHC 2943

BETWEEN
DAVID JOHN STEWART

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 6 December 2016

Counsel:

D G Young for Appellant
T C Clark for Respondent

Judgment:

7 December 2016

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 7 December 2016 at 9.30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
D G Young, Auckland.
Meredith Connell, Auckland.

STEWART v POLICE [2016] NZHC 2943 [7 December 2016]

The issue

[1] The only issue in this appeal is whether Judge Fraser erred in imposing imprisonment rather than home detention. The appellant contends the Judge did. The respondent contends otherwise. My assessment of an otherwise simple issue is made difficult by the absence of sentencing notes and the parties’ inability to recall what the Judge said. So, in the context of an appeal directed at error, I am asked to approach the matter afresh. Time is of the essence. A bed is available at Odyssey House tomorrow. That may not be the case for much longer.

Background

[2] On 7 July 2015, the appellant stole three bottles of beer from an unlocked storage room of a Sandringham shop. He was disturbed by staff and ran from the scene. The appellant was arrested shortly thereafter.

[3] While on bail for that offence (of burglary), the appellant stole an electric toothbrush from a department store, clothing and an electric shaver from a different outlet of the same store, and twice drove having consumed alcohol while holding a zero-alcohol licence. The first Land Transport Act offence was committed on
31 October 2015. The appellant’s breath alcohol level was 156 micrograms of alcohol per litre of breath. The appellant said he was en route to “pick up a prostitute”. The second Land Transport Act offence occurred on 22 March 2016. The appellant’s breath alcohol level was 177 micrograms of alcohol per litre of breath.

[4] By the time the appellant appeared for sentence before Judge Fraser, he also faced two charges of breaching bail.

[5] In the absence of sentencing notes and contemporaneous records, little more is known than the outcome: a term of 16 months’ imprisonment. However, it is common ground leave to apply for home detention was sought in the event a bed became available at Odyssey House. The Judge declined to accede to that submission.

The appellant’s case

[6] The appellant contends the Judge erred in not doing so and the appeal should be allowed—now a bed is available. Mr Young for the appellant submits the offending was not particularly serious. And, home detention would advance the appellant’s rehabilitation, especially given the appellant’s alcohol problem.

Analysis

[7] It is likely the Judge was troubled by the appellant’s criminal history and his apparent propensity to disregard Court orders. The appellant twice breached bail in April 2016, and four of the five offences in question were committed on bail. In the last four years,…

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.

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Details

Case: [2016] NZHC 2943
Decision Date: 7 December 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of David John Stewart v Police was heard, involving an appeal against a decision to impose imprisonment rather than home detention. The appellant, David John Stewart, argued that the Judge had erred in imposing imprisonment instead of home detention, which was sought if a bed became available at Odyssey House. The respondent, New Zealand Police, contended that there was no error in the Judge's decision. The appeal was heard on 6 December 2016, with judgment delivered on 7 December 2016.

The central legal issue before the court was whether the trial Judge had erred in imposing a term of imprisonment instead of home detention. The appellant's counsel argued that the offending was not particularly serious and that home detention would facilitate the appellant's rehabilitation, especially considering his alcohol problem. The court was tasked with determining if there was an error in the sentence imposed and if a different sentence should be imposed under section 250 of the Criminal Procedure Act 2011.

The court examined the appellant's criminal history and propensity to disregard court orders, noting that the appellant had breached bail on two occasions and committed four of the five offences while on bail. The court also considered the pre-sentence report, which indicated that the appellant was at high risk of re-offending, showed little insight into his offending, and remained undeterred despite completing at least two drug and alcohol courses. The report further noted that the appellant was removed from one programme due to his behaviour. The court found that while home detention might have facilitated the appellant's rehabilitation, it was open to the Judge to place weight on the appellant's criminal history and propensity to breach court orders. Additionally, the pre-sentence report did not support a sentence of home detention, and the appellant's early departure from a rehabilitative course did not strengthen his case for home detention. The court concluded that the appeal was not well-founded and dismissed the appeal.

Orders