Stuart v Police - [2023] NZHC 2867

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-161

[2023] NZHC 2867

BETWEEN
ROBERT JAMES STUART

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 October 2023

Appearances:

M J Smit for Appellant

G E R Alloway for Respondent

Judgment:

13 October 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 13 October 2023 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

STUART v NEW ZEALAND POLICE [2023] NZHC 2867 [13 October 2023]

Introduction

[1] Robert Stuart has been convicted with assault on a person in a family relationship,1 threatening to kill,2 and assault.3

[2] He was sentenced in the District Court to 18 months’ imprisonment.4 He appeals this sentence on the ground that it was manifestly excessive.

Facts

[3] On 1 February 2023, Mr Stuart was at the victim’s home. Also present was the victim’s caregiver. A verbal argument occurred between Mr Stuart and the victim who was in a wheelchair. The caregiver called her employer to report the verbal abuse. In response to this, Mr Stuart struck her cell phone out of her hand, using his fist in a hammer like motion. He then threatened to kill the victim stating “You’re dead. I’ve had enough of you”, whilst making a cutting gesture with his finger across his neck.

[4] Subsequently, on 17 April 2023, Mr Stuart was in a vehicle with his partner, the third victim. While driving, they had an argument and Mr Stuart pinched the skin of the victim’s right leg multiple times. Mr Stuart then grabbed the victim’s left hand, holding it with one of his hands and punching it with the other hand around five times before pulling over.

District Court decision

[5] Judge McMeeken adopted the charge of threatening to kill as the lead charge. A starting point of 18 months’ imprisonment was taken and she included the assault charge within this. The Judge accepted that Mr Stuart would be eligible for home detention but that there was no available address.

[6] She noted that with the starting point of 18 months, there would then be deductions to be made (the nature of which she does not specify). She then notes that

1      Crimes Act 1961, s 194A – maximum penalty: two years’ imprisonment.
2      Section 306 – maximum penalty: seven years’ imprisonment.
3      Summary Offences Act 1981, s 9 – maximum penalty: six months’ imprisonment or fine not exceeding $4000.
4      Police v Stuart [2023] NZDC 16101.

she would have to add time for the April offending, resulting in an end sentence of 18 months’ imprisonment.

[7] The Judge also imposed various release conditions for six months after the expiry of the sentence. These were to not possess, consume or use alcohol and drugs, to not have any form of contact with any of the victims at all without prior consent of the probation officer, to attend and complete an appropriate non-violence programme and…

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 Stuart v Police

Details

AGLC: Stuart v Police [2023] NZHC 2867
Case: [2023] NZHC 2867
Decision Date: 13 October 2023

CaseChat Overview and Summary

The appellant, Robert Stuart, has appealed against his conviction and sentence for assault on a person in a family relationship, threatening to kill, and assault. The District Court sentenced Stuart to 18 months’ imprisonment, which he argues is manifestly excessive. The primary issue before the High Court was whether the sentence imposed was appropriate and justified under the relevant sentencing principles. The appellant argued that the sentence was too high and that a starting point of 12 months for the lead charge of threatening to kill would have been more appropriate. The Crown argued that the sentence was within the range and the appeal should be dismissed.

The High Court found that the starting point of 18 months for the lead charge of threatening to kill was too high. The Court noted that while Mr Stuart's offending was serious, it was not as severe as other cases where an 18-month starting point was adopted. The Court also found that the uplift for the April assault on a person in a family relationship was appropriate at three months, while an uplift of three months for prior offending was also justified. The guilty plea discount of 20 per cent was considered appropriate, which would ultimately cancel out the uplifts. The Court concluded that a sentence of 15 months’ imprisonment was appropriate.

The appeal was allowed, and the sentence of 18 months’ imprisonment was quashed. In its place, a sentence of 15 months’ imprisonment was imposed. The Court noted that while no home detention address was available, it was unclear whether the Judge intended to preclude home detention being applied for. The Court decided not to grant leave for home detention, given Mr Stuart's history of non-compliance with Court orders, drug use, and anti-social behaviour.

Orders