Stewart v R - [2018] NZCA 375

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA163/2017
[2018] NZCA 375

BETWEEN	KELLY WILLIAM STEWART Appellant
AND	THE QUEEN Respondent

Hearing:	29 August 2018
Court:	Miller, Mallon and Gendall JJ
Counsel:	J F Mather for Appellant B D Tantrum and O M Klaassen for Respondent
Judgment:	18 September 2018 at 11.00 am

JUDGMENT OF THE COURT

A The appeal is allowed. The sentence of reparation is quashed.

BThe issue is remitted to the District Court for reconsideration of whether a sentence of reparation should be imposed and, if so, the conditions of any order.
COrder under s 33 of the Sentencing Act 2002 that a reparation report is to be prepared for the purpose of sentencing in the District Court.

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REASONS OF THE COURT

(Given by Gendall J)

Introduction

Mr Stewart was convicted in the Auckland District Court on 11 January 2017 following a trial before Judge Ronayne and a jury on one charge of burglary.
On 27 February 2017, Judge Ronayne sentenced Mr Stewart to four years and four months’ imprisonment and ordered him to pay reparation of $21,946.55.[1]
[1]R v Stewart [2017] NZDC 5046.
Mr Stewart appeals against the sentence of reparation on the grounds that it was manifestly excessive and that the reparation order should be quashed.

Background facts

Mr Stewart burgled the commercial premises of Warehouse Stationery in Mount Wellington, Auckland, on the night of 1 and 2 November 2014. He gained entry by sawing through the exterior wall of the building and through an internal steel cage in the storeroom containing electronic items. He stole electronic items to the value of $15,094.30, which were not recovered. Warehouse Stationery was required to repair the damage to its building and the cage and pay for the building to be guarded while it was repaired, a total cost of $6,852.25.
Mr Stewart was able to be identified as the offender because he opened and drank a bottle of Gatorade, leaving it at the scene. A DNA swab taken from the empty bottle matched with Mr Stewart.

Sentencing and reparation order

During Mr Stewart’s sentencing hearing, Judge Ronayne remarked on his concerning recidivist pattern of burglary and dishonesty offending.[2] Mr Stewart had seven burglary convictions between 2000 and 2007.
[2]At [4].
In the Provision of Advice to Courts report it was recorded that Mr Stewart had a strong desire to make amends for his actions and although “honest in admitting he was not in a position to financially reimburse the victim at present”, he stated he would be able to make reparation “as he has a number of business ventures with which he has approached investors”. The report writer concluded however that “concern remains about the likelihood of Mr Stewart being able to reimburse his victim through this means”.
At the time, Mr Stewart also had $6,496.17 owing in fines which pre-dated the reparation order.
At his sentencing on 27 February 2017, Mr Stewart sought an adjournment. The purpose of…

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 Stewart v R

Details

AGLC: Stewart v R [2018] NZCA 375
Case: [2018] NZCA 375
Decision Date: 18 September 2018 at 11.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Kelly William Stewart appeals against his conviction for burglary and the sentence of reparation imposed by Judge Ronayne of the Auckland District Court. Mr. Stewart was sentenced to four years and four months' imprisonment and ordered to pay reparation of $21,946.55. The appeal focuses on the reparation order, which Mr. Stewart claims was manifestly excessive. The legal issues in this case revolve around whether the reparation order was imposed correctly under the Sentencing Act 2002 and whether the court followed due process in determining the amount of reparation. The Court of Appeal found that the reparation order was made without sufficient consideration of Mr. Stewart's financial circumstances, and no reparation report was prepared. Consequently, the Court allowed the appeal and quashed the reparation sentence. The matter is remitted back to the District Court for reconsideration of the reparation order, with an order made under s 33 of the Act that a reparation report be prepared.

Orders