Stone v R - [2011] NZCA 558

IN THE COURT OF APPEAL OF NEW ZEALAND

CA549/2011
[2011] NZCA 558

BETWEEN ROBERT SHANE STONE
Appellant

AND THE QUEEN
Respondent

Hearing: 1 November 2011

Court: Harrison, Miller and Asher JJ

Counsel: K Holden for Appellant
K A L Bicknell for Respondent

Judgment: 7 November 2011 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Robert Stone was found guilty following trial before a Judge and jury in the District Court at Auckland on one count of assault with a weapon. He pleaded guilty to a separate count of intentional damage. He was discharged on a count of wounding with intent to cause grievous bodily harm.
Mr Stone was convicted and sentenced by Judge Hubble, who presided at trial, to a total of 18 months imprisonment on the two charges.[1] He appeals against his sentence on the ground that it was manifestly excessive or wrong in principle.

Facts

[1] R v Stone DC Auckland CRI-2009-044-7255, 18 August 2011.

Some confusion surrounds the facts and their sequence. We have attempted to reconstruct those facts relevant to Mr Stone’s sentence appeal as follows.
Mr Stone shared a flat with two couples in Glenfield. They had a party there one evening in August 2009. The occupants were joined by a number of guests. Mr Stone consumed a considerable amount of alcohol. As the evening wore on, he became increasingly aggressive towards some guests. At one stage he brandished a club type weapon before placing it in his pants.
A group of guests associated with Mr Modrich, one of Mr Stone’s flatmates, became sufficiently concerned about Mr Stone’s behaviour to decide to leave. Messrs Stone and Modrich became involved in an argument. Mr Stone removed a thin and narrow ornamental pale from a wooden fence from which a nail protruded. He struck Mr Modrich about the head with this implement causing localised bruising and wounds. When sentencing Mr Stone, Judge Hubble proceeded on the premise that Mr Modrich’s injuries required stitches. Ms Holden advises that the wound was glued. We do not see a material difference between the two types of treatments. This event was the subject of the charge of assault with a weapon.
Subsequently Mr Modrich was attacked with a knife. One blow almost severed his right arm. The wound began to bleed profusely. This event was the subject of the count of wounding with intent to cause grievous bodily harm on which Mr Stone was acquitted at trial. When sentencing Mr Stone, Judge Hubble expressed his satisfaction from the evidence given at trial that Mr Stone had in fact inflicted the injury. The Judge surmised that the jury acquitted Mr Stone because he was acting in self defence. Ms Holden who represented Mr Stone at trial advises that he did not raise this defence and that it was not the subject of a judicial direction to the jury. Whatever is the case, the Judge was careful to recite that this…

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 Stone v R

Details

AGLC: Stone v R [2011] NZCA 558
Case: [2011] NZCA 558
Decision Date: 7 November 2011

CaseChat Overview and Summary

In the case of Stone v R, Robert Shane Stone, the appellant, sought to appeal against his sentence imposed by Judge Hubble in the District Court at Auckland. Stone was convicted on one count of assault with a weapon and one count of intentional damage, while being acquitted on a count of wounding with intent to cause grievous bodily harm. Stone was sentenced to a total of 18 months imprisonment for the two charges. Stone appealed against his sentence on the ground that it was manifestly excessive or wrong in principle. The appeal was heard by Harrison, Miller, and Asher JJ, and the judgment was given by Harrison J.

The legal issues in this case were whether the sentence imposed by Judge Hubble was appropriate, taking into account the totality of Stone's offending, the aggravating features of his propensity for violence and the charge of intentional damage, and whether there was an error in not allowing a discount for mitigating factors and in declining to impose a sentence of home detention. The court needed to determine if the sentence was manifestly excessive or wrong in principle.

The court found that the sentence imposed by Judge Hubble was appropriate. The court noted that Judge Hubble was uniquely placed to evaluate Stone's culpability having presided at the trial. The court found that the starting point of 12 months imprisonment for the charge of assault with a weapon was appropriate, and the Judge could properly have adjusted the starting point upwards by three months to take account of Stone's propensity for property and violence offences. The court also found that the Judge was not wrong in not giving Stone's personal circumstances mitigating weight, as he had not committed any further offences in the two years between August 2009 when he offended and August 2011 when he was sentenced. Finally, the court found that the Judge's approach in declining to impose a sentence of home detention was appropriate, considering the circumstances of the offending, the degree of violence demonstrated by Stone, and the prospect that he would be living at an address with his partner when the police had expressed concerns for her safety if he was confined with her for a lengthy period.

In conclusion, the appeal against the sentence was dismissed, and the court upheld the sentence imposed by Judge Hubble.

Orders