Stewart v Police - [2014] NZHC 2026

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 Respondent

Judgment:

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…

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: [2014] NZHC 2026
Decision Date: 25 August 2014

CaseChat Overview and Summary

In this case, Michael James Stewart appeals against the sentence imposed by the District Court, arguing that the Judge erred in principle, leading to a manifestly excessive sentence. Stewart pleaded guilty to multiple charges, including burglary, theft, receiving stolen property, common assault, and unlawfully taking a motor vehicle. The court examines whether the sentence of two years and two months imprisonment is manifestly excessive. The appeal focuses on whether the Judge should have credited Stewart for admitting to additional offences unknown to the police and for his rehabilitative efforts.

The court considered whether the sentence was manifestly excessive, noting that the starting points and uplifts applied by the Judge were reasonable. The court emphasised that the critical factor is whether the end sentence is manifestly excessive, regardless of how the sentencer arrived at it. The Crown argued that the starting points were lenient and the imposed sentence was not manifestly excessive. The court agreed, finding that a sentence of two years and five months imprisonment was within the appropriate range, even after accounting for Stewart's cooperation with the police and his rehabilitative efforts.

The court dismissed the appeal, concluding that the sentence was not manifestly excessive and that the Judge's approach was justified. The court emphasised the seriousness of Stewart's offending while subject to an extended supervision order, warning that future similar offending could result in a minimum term of imprisonment. The appeal against sentence is dismissed, and the original sentence stands.

Orders