Stewart v Police
[2014] NZHC 2026
•25 August 2014
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2014-425-28 [2014] NZHC 2026
BETWEEN MICHAEL JAMES STEWART
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 25 August 2014 Appearances:
K McHugh for Appellant
M-J Thomas for RespondentJudgment:
25 August 2014
(ORAL) JUDGMENT OF LANG J [on appeal against sentence]
STEWART v NEW ZEALAND POLICE [2014] NZHC 2026 [25 August 2014]
[1] Mr Stewart pleaded guilty in the District Court to five charges of burglary, five charges of theft, one charge of receiving, one charge of common assault and one charge of unlawfully taking a motor vehicle. On 11 July 2014, Judge Turner sentenced Mr Stewart to an effective term of two years two months imprisonment.1
He now appeals against that sentence on the basis that the Judge erred in principle and this has led to a sentence that is manifestly excessive.
The facts
[2] In order to understand the issue the appeal raises, it is necessary to set out the facts of the offending. These are somewhat complex.
[3] The charge of common assault arose as a result of an incident that occurred at about 10.30 pm on 18 September 2013. On that date, Mr Stewart was socialising at an address in Invercargill. Loud music was playing in the house, and a neighbour came to the door to ask the occupants of Mr Stewart’s address to turn the volume down. Mr Stewart gratuitously involved himself in the exchange between the occupier of the address and the next door neighbour. He was immediately aggressive, and told the neighbour that the music was not sufficiently loud to wake the neighbour’s children up. He then punched the neighbour in the nose with sufficient force to break it. He also punched him on two other occasions. These left the victim with not only a broken nose, but also cuts to his face and forehead that required stitching. Mr Stewart went to the neighbour’s address a short time later to apologise for his behaviour.
[4] When he was spoken to later by the police about this incident, he said he could not recall what had happened and said that he had been very intoxicated at the time.
[5] The remaining charges relate to a spree of dishonest offending that occurred between November 2013 and March 2014. Between 15 November and 3 December
2013, Mr Stewart dishonestly received a stolen mountain bike from an associate. He
later sold it for $50 and kept the proceeds.
1 New Zealand Police v Stewart DC Invercargill CRI-2014-025-724, 11 July 2014.
[6] Between 6 and 8 January 2014, he went to a boxing and fitness gym where he gained entry by smashing a window and reaching through the broken glass to unlock the door. He then stole four sets of boxing gloves and headgear to a total of $620. He later sold those items for about $35. Most of that property has not been recovered.
[7] Between 10 and 15 February 2014, Mr Stewart went to a residential address in Invercargill. The address was the home of one of his former work colleagues. He entered an insecure garage and stole a motorcycle helmet, along with other motorcycle gear. He subsequently sold those items for the sum of $25. The helmet, gloves and one set of goggles were later recovered, but another pair of goggles had been sold before the police could recover them.
[8] Mr Stewart returned to the same address between 4 and 5 March 2014. On this occasion he forced open the canopy of a motor vehicle and stole clothing and tools worth approximately $2,500. He sold some of the clothing and tools for about
$65 in cash. The police were later able to recover a stolen jacket and small quantities of tools, but the other property stolen in this burglary was not recovered.
[9] On 16 March 2014, Mr Stewart jemmied open the rear canopy of another vehicle parked up a driveway. He stole tools from the vehicle worth approximately
$3,300. He arranged for an associate to sell some of those items on his behalf and received $40 in cash. Although some of the stolen property was recovered, the majority is still missing.
[10] On the evening of 22 March 2014, Mr Stewart found an unlocked motor vehicle parked on the street. He opened the door and took an iPod, wallet and the contents of a bank deposit book together worth in total approximately $200. The same evening he found another motor vehicle parked on the street with the keys in the ignition. He drove away in the vehicle and went to his former employer’s address, where he entered an unlocked business workshop and stole equipment and alcohol. He gave the equipment to an associate, who sold it on his behalf. The associate also sold the iPod taken from the unlocked motor vehicle earlier in the evening. Mr Stewart received the sum of $85 in cash for these items. The police
later recovered the iPod and some of the equipment, but the alcohol, wallet and contents from the unlawfully entered motor vehicle were never recovered.
[11] On the evening of 29 March 2014, Mr Stewart drove to the Orepuki area in the stolen motor vehicle. He came across a diesel fuel bowser located outside an address within the township. He uplifted 20 litre plastic containers from a nearby property and filled them with diesel. He then placed the full containers of diesel in the rear of his motor vehicle. He then drove to an area where tourists were camping in a tent. He began to search through saddlebags attached to one of the tourist’s bicycles. This disturbed the tourists, and they left their tent in order to phone the police. Mr Stewart then entered the tent and stole their passports, camera, iPad and a quantity of personal belongings including cash. The tourists were able to take the registration number of Mr Stewart’s vehicle and the police stopped it as he drove back to Invercargill. The property Mr Stewart had stolen from the couple was recovered as a result, as were the containers of diesel.
[12] Mr Stewart subsequently admitted stealing the tourists’ property, but he denied taking the motor vehicle. He said he had borrowed it from a friend, and he also said he had no knowledge of the containers of diesel found in the vehicle. Later, when other information relating to that offending was put to him, he admitted he had stolen the diesel.
[13] The final charge arose as a result of another incident in March 2014 in which Mr Stewart entered an unlocked vehicle within the city of Invercargill and took musical equipment from it having a value of approximately $200. This ultimately proved to be of no use to him, so he threw it away. Those items have never been found.
[14] When Mr Stewart was questioned by the police about the reasons underlying his offending, he told them he had been addicted to synthetic drugs to the point where he needed to commit dishonesty offences in order to fund his habit. He told the police he was pleased to have been finally caught, because it gave him a chance to break free from these drugs.
The sentence
[15] The sentencing exercise was necessarily complicated as a result of the large number of charges and their different types. The Judge took a starting point for the burglaries and major thefts of 28 months imprisonment. He added a four month uplift to reflect the other dishonesty offences, together with an uplift of three months to reflect the charge of common assault. This led to an adjusted sentence of 35 months imprisonment. The Judge added three months to reflect the fact that Mr Stewart has numerous previous convictions for burglaries and offences involving dishonest and violence. Mr Stewart was also subject to an extended supervision order at the time of this offending.
[16] The Judge then gave Mr Stewart credit of three months to reflect rehabilitative efforts he had undertaken since being arrested. He had also involved himself in restorative justice conferences with some of the victims. From that adjusted starting point, the Judge gave further credit of 25 per cent to reflect guilty pleas. This produced the end global sentence of two years two months imprisonment.
The appeal
[17] Counsel for Mr Stewart does not challenge the starting points the Judge adopted, or the levels of uplift he applied to reflect additional offending and aggravating factors personal to Mr Stewart. Nor does she take particular exception to the level of discount the Judge applied in respect of rehabilitative efforts, including those made in relation to the victims. She points out, however, that Mr Stewart had voluntarily advised the police he had committed four offences that they were not aware of. These related to the theft of the diesel, the receiving of the stolen bicycle, the theft of the musical equipment and the burglary of his former employer’s business workshop. Early in his sentencing remarks, the Judge said he would give credit to Mr Stewart for those matters, but ultimately he did not do so.
[18] Counsel for Mr Stewart submits that, on its own, this factor was sufficiently significant to warrant a further reduction of around four months. She acknowledges, however, that this would take the sentence down to below two years imprisonment
and this was probably inadequate to reflect the overall offending. For that reason, she submitted that an appropriate end sentence would have been one of two years imprisonment. Although this would only be two months less than the Judge imposed, nevertheless it would bring Mr Stewart within a completely different parole regime. For that reason she submitted that this Court would not be tinkering if it reduced the sentence by just two months.
Decision
[19] In any case where an appellate court reviews the length of a prison sentence imposed by a lower court, the issue of how the sentence is constructed is largely irrelevant. The important factor is whether the end sentence can be said to be manifestly excessive. How the sentencer arrives at the end sentence is largely immaterial.
[20] Counsel for the Crown submits that the starting points the Judge selected can be regarded as extremely lenient. For that reason she submits that the end sentence cannot be regarded as manifestly excessive notwithstanding the fact that it does not appear to have taken into account the fact that Mr Stewart cooperated with the police in relation to some of the charges.
[21] I find this argument to be compelling. Viewing the matter afresh, any one of the burglary charges standing on its own would easily justify a starting point of at least 12 months imprisonment. A further 18 months imprisonment could also easily be justified to reflect the remaining four burglaries. This would leave an end starting point on the burglary charges alone of two years six months. An uplift of at least six months would be required to reflect the remaining dishonesty charges. This would produce an end sentence on those charges of three years imprisonment.
[22] It would then be necessary to apply a further uplift to reflect the charge of common assault. Although the maximum sentence on this charge was just 12 months, it must be considered as being a serious example of offending of its type. The assaults were completely unprovoked and resulted in serious physical harm to the victim. I consider that an uplift of six months could easily have been applied to reflect this factor, even taking into account totality principles.
[23] Mr Stewart was subject to an extended supervision order and has a lengthy list of previous convictions for dishonesty offending and also for violence, including common assault and assaulting females. An uplift of around 15 to 20 per cent would be justified to reflect that factor. If an uplift of eight months was applied, the sentence would be one of four years two months imprisonment.
[24] I consider that a discount of no more than four months would have been appropriate to reflect the efforts that Mr Stewart has made to rehabilitate himself since his arrest and the efforts he has made to make amends to his victims.
[25] A further discount would also be justified in relation to the fact that Mr Stewart admitted to four offences that the police were not aware of. Of these, however, only one was a burglary charge, and the others were at the lower end of the scale. I do not consider that a discount of more than four months would be warranted to reflect his cooperation.
[26] After applying a discount of eleven months, or 25 per cent, for guilty pleas the end result, a sentence of two years five months imprisonment, demonstrates that the sentence the Judge ultimately imposed was well within the available range. For that reason, although I have some sympathy with the grounds on which the appeal is brought, I am satisfied that the end sentence was not manifestly excessive. It is not open to this Court to interfere with the sentence the Judge imposed.
[27] As I have already recorded, one of the aggravating aspects of Mr Stewart’s offending was the fact that he was subject to an extended supervision order at the time of this offending. There has been no suggestion that the Judge ought to have imposed a minimum term of imprisonment as a means of protecting the community against offending by Mr Stewart in the future. Mr Stewart needs to realise, however, that the fact that he continues to offend whilst subject to an extended supervision order is a serious matter. Should he offend again in a similar way in the future, he must accept that this is a sentencing option that the Court may well consider appropriate.
Result
[28] The appeal against sentence is dismissed.
Lang J
Solicitors:
Crown Solicitor, Invercargill
AWS Legal, Invercargill
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