Stewart v The King - [2025] NZCA 290

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA717/2024
[2025] NZCA 290

BETWEEN	CODY MORRIS STEWART Appellant
AND	THE KING Respondent

Hearing:	14 May 2025
Court:	Woolford, Jagose and Powell JJ
Counsel:	M J English and K R Borich for Appellant K S Li for Respondent
Judgment:	2 July 2025 at 2 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Jagose J)

Cody Stewart appeals the 22 October 2024 decision of Judge S Bonnar KC in the District Court at Auckland,[1] sentencing him to six years’ imprisonment concurrently on charges of aggravated robbery (six years),[2] receiving property (one year),[3] assaulting police (one year),[4] unlawfully getting into a vehicle (six months)[5] and third or subsequent driving while suspended (x 2) (six months).[6] The Judge also imposed a firearms prohibition order[7] and disqualified Mr Stewart from driving for two years.[8]

Background

[1]R v Stewart [2024] NZDC 27733 [sentencing notes].

[2]Crimes Act 1961, s 235(a). Maximum penalty: 14 years’ imprisonment.

[3]Sections 246 and 247(a). Maximum penalty: seven years’ imprisonment.

[4]Section 192(2). Maximum penalty: three years’ imprisonment.

[5]Section 226(2). Maximum penalty: two years’ imprisonment.

[6]Land Transport Act 1998, s 32(1)(c) and (4). Maximum penalty: two years’ imprisonment and mandatory licence disqualification.

[7]Arms Act 1983, s 39A.

[8]Sentencing notices, above n 1, at [45]–[46].

Among a long list of past convictions, Mr Stewart previously was sentenced in July 2019 to five years’ imprisonment for an October 2017 aggravated robbery committed while he was remanded on bail. At that time, having driven to the scene in a car Mr Stewart stole, he and a co‑offender—both wearing balaclavas, the co‑offender armed with a shotgun—robbed a bar near midnight when only two staff remained on the premises, using the shotgun’s presence to obtain the workers’ compliance.[9]
[9]R v Stewart [2019] NZDC 14852 [2019 sentencing notes].
While again on bail for the lesser present index offences and awaiting assessment for admission to the Alcohol and Other Drug Treatment Court, Mr Stewart and a co‑offender, driving a vehicle Mr Stewart stole the previous day, robbed a members‑only sports bar and snooker hall (to which access only was obtainable by private swipe card) in Auckland’s Glen Eden on 23 October 2023.[10]
[10]Sentencing notes, above n 1, at [8]–[10].
At about 11.30 pm, Mr Stewart and his co‑offender—both wearing balaclavas and gloves, the co‑offender carrying a shotgun—pushed past the last departing patrons to enter the premises.[11] Mr Stewart jumped onto the bar behind which a staff member was working (and talking to a friend seated at the other side of the bar) and demanded money. When the worker said she could not open a time‑locked safe, Mr Stewart told his co‑offender “just shoot the bitch” and the co‑offender fired a shot into the air causing a window to shatter, then repeatedly pointed the shotgun at the worker.[12] Mr Stewart took bank notes from a till the worker opened at his instruction and uplifted a second unopened till…

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 The King

Details

AGLC: Stewart v The King [2025] NZCA 290
Case: [2025] NZCA 290
Decision Date: 2 July 2025 at 2 pm

CaseChat Overview and Summary

Cody Morris Stewart appeals against his six-year imprisonment sentence for multiple charges, including aggravated robbery, imposed by Judge S Bonnar KC in the Auckland District Court. The appeal focuses on the starting point of the sentence for the aggravated robbery charge and the adequacy of the discounts applied for mitigating factors. Stewart argues that the starting point of six years for the aggravated robbery charge was too high and that the Judge gave inadequate discounts for mitigating factors. The Crown contends that the starting point was within the range of accepted sentencing principles and that the discounts applied were sufficient.

The Court considered the starting point for the aggravated robbery charge, noting that the use of a loaded firearm and actual violence in the commission of the crime justified a higher starting point. The Court found that an eight-year starting point would have been within the acceptable range given the circumstances. However, the Judge's decision to apply a six-year starting point was influenced by the Crown's reliance on guideline judgments. The Court acknowledged that while the starting point might have been generous, the overall sentence, after applying discounts for mitigating factors, was appropriate.

Regarding the discounts, the Court endorsed the Judge's assessment of the mitigating factors, including Stewart's background, addiction, rehabilitative efforts, remorse, and ill-health. The Court concluded that the global discounts of approximately 40% were adequate and that any larger discount would risk diminishing the purposes of sentencing unrelated to Stewart's personal circumstances. The Court found that the sentence, after applying the appropriate discounts, was not excessive.

The appeal is dismissed, and the original sentence is upheld.

Orders