Stewart v The Queen - [2020] NZHC 60

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-041-570

[2020] NZHC 60

BETWEEN
BODIE (AKA BRODIE) STEWART

Appellant

AND

THE QUEEN

Respondent

Hearing: 3 February 2020

Counsel:

A J Willis for Appellant L M Marshall for Crown

Judgment:

3 February 2020

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 5 December 2019, Mr Stewart was sentenced by Judge Rea in the Napier District Court to one year four months’ imprisonment after the defendant pleaded guilty to a charge of assault with intent to injure.1 The maximum penalty for this offence is three years.

[2] Mr Stewart appeals the sentence on the ground that the Judge made an error of law in imposing a sentence of imprisonment as opposed to home detention and placed too much weight on deterrence and punishment, and not enough weight on Mr Stewart’s rehabilitative progress and requirements.

1 The Queen v Brodie Stewart, Miharo Papa and Eddie Teunuku Paul [2019] NZDC 24535; Crimes Act 1961, s 193.

STEWART v R [2020] NZHC 60 [3 February 2020]

[3] The Crown opposes the appeal, submitting that the Judge did not err and that a sentence of imprisonment rather than home detention is appropriate in the circumstances of this case.

Factual background

[4] On 21 October 2017, Mr Stewart, Mr Papa, Mr Paul and two others were involved in an assault in Hawkes Bay Regional Prison. All five were affiliated with the Mongrel Mob and there had been rising tensions in the particular unit of the prison due to the presence of rival gang members.

[5] At 10:45 am, prison officers noted that a particular cell in the unit occupied by an inmate affiliated to Black Power was closed and guarded by Mr Paul. They moved towards the cell to investigate but Mr Paul would not let them open the door to the cell. They were able to see through the window that Mr Papa, Mr Stewart and another were kicking the complainant, Mr Nathan, in the head while he was lying on the floor.

[6] After a passage of time, the group carrying out the assault moved away from the cell, after which the complainant came out of the cell, making further challenges to the group. This led the group to rush back towards the cell in response to the complainant’s challenges, while Corrections officers tried to prevent the group from entering back into the cell. In this altercation, Mr Papa rushed the Corrections officers to try to get back into the cell, causing one officer to suffer a broken finger. The complainant suffered multiple facial lacerations, significant bruising to his eyes, and concussion.

[7] Mr Stewart, Mr Paul and Mr Papa all pleaded guilty to assault with intent to injure, while Mr Papa also pleaded guilty to the additional charge of assaulting a prison officer in the execution of her duty.

[8] While Mr Stewart was in prison at the time of the offending (21 October 2017), he was…

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 Queen

Details

AGLC: Stewart v The Queen [2020] NZHC 60
Case: [2020] NZHC 60
Decision Date: 3 February 2020

CaseChat Overview and Summary

Bodie (aka Brodie) Stewart appeals against his sentence, imposed by Judge Rea in the Napier District Court, of one year and four months’ imprisonment for the offence of assault with intent to injure. The appeal is against the imposition of imprisonment as opposed to home detention, and the weight given to deterrence and punishment rather than rehabilitative progress and requirements. The Crown opposes the appeal on the basis that the Judge did not err in imposing a sentence of imprisonment rather than home detention. The appeal raises issues concerning the appropriate approach to sentencing for offences that occur in a prison environment, and whether the Judge correctly exercised his discretion in imposing a sentence of imprisonment rather than home detention. The court found that while the Judge did not specifically refer to Mr Stewart’s rehabilitative potential, he did acknowledge that for the offenders in this case who had recommendations of home detention, this sentence would not be adequate to meet the seriousness of the conduct, or properly denounce it. The court concluded that the Judge did not err in imposing a sentence of imprisonment rather than one of home detention. The appeal is dismissed.

Orders