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Stuart v R

Stuart v R

Case [2021] NZCA 539 18 October 2021

Appeal

Sentencing

Miscarriage of Justice

Guilty Plea Discount

Previous Convictions

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA455/2021
[2021] NZCA 539

BETWEEN	KANE DONALD STUART Applicant
AND	THE QUEEN Respondent

Court:	Brown, Venning and Cull JJ
Counsel:	A W Slipper and A T Tupuola for Applicant R E King for Respondent
Judgment: (On the papers)	18 October 2021 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Mr Stuart seeks leave to bring a second appeal against a sentence of two years and six months’ imprisonment imposed in respect of 20 charges of drug and dishonesty offending to which he pleaded guilty.

Background

All but two of the 20 charges to which Mr Stuart pleaded guilty arose from a spate of thefts and dishonesty offending between June and August 2019. Over the course of two months Mr Stuart broke into 11 cars taking items worth around $13,000. According to the Crown, he accrued approximately $850 worth of transactions on stolen bankcards, stole $100 worth of petrol and unlawfully entered a residential carpark where he took a bike worth $500. He also obtained $4,500 by deception following the sale of a stolen car. In addition he faced one charge of possession of a class A drug and one charge of breaching District Court bail.

Sentencing in the District Court

In the District Court Judge Bouchier adopted a starting point of 15 months’ imprisonment for the lead charges of burglary and dishonestly using a document.[1] The Judge applied an uplift of 15 months for the remainder of the charges and applied a further uplift of 12 months for Mr Stuart’s previous convictions. This resulted in 42 months’ imprisonment. The Judge then allowed a discount of 25 per cent for the guilty plea. This was deducted from the final starting point of 42 months, resulting in a final sentence of 30 months’ imprisonment.[2]

Appeal to the High Court

[1]R v Stuart [2020] NZDC 24404.

[2]At [13]–[14].

Although the appeal was initially broader, by the date of hearing the sole ground of appeal was that the sentencing Judge erred by not allowing discounts (totalling 20 to 25 per cent) for methamphetamine addiction, personal deprivation and rehabilitative prospects.[3] Hinton J agreed that a causal link between Mr Stuart’s offending and his methamphetamine addiction could be inferred and that there was also a clear link with his history of systemic deprivation. Her Honour considered that he should have received a discount of 7.5 months for these factors, calculated as 25 per cent of 30 months (the adjusted starting point).[4]
[3]Stuart v R [2021] NZHC 710.
[4]At [17] and [23].
However, because his guilty plea was not entered at the first opportunity, the Judge considered that 20 per cent was the appropriate level of discount. Furthermore she considered that the sentencing Judge had erred in applying the discount to the uplifted sentence of 42 months rather than to…

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 R

Details

AGLC: Stuart v R [2021] NZCA 539
Case: [2021] NZCA 539
Decision Date: 18 October 2021 at 10.30 am

CaseChat Overview and Summary

The case of Stuart v R involved an application by Kane Donald Stuart for leave to bring a second appeal against a sentence of two years and six months' imprisonment imposed on him for 20 charges of drug and dishonesty offences. The Crown Court of New Zealand, consisting of Brown, Venning, and Cull JJ, declined the application for leave. Stuart's argument for leave to appeal was based on whether personal discounts should be offset against personal uplifts or whether they should be applied globally to a starting point adjusted upwards as a result of those personal uplifts. The Court found that the methodology applied by the High Court was correct and that no refinement to the Moses methodology was required. The Court also found that the imposition of a 20 per cent discount for the guilty plea did not give rise to a miscarriage of justice. As a result, the application for leave to bring a second appeal was declined.

The Court noted that the High Court's adoption and usage of the first method resulted in an imprisonment sentence above 24 months. The second method, which was proposed by Stuart, could have resulted in a non-custodial sentence provided the Court was minded to exercise its jurisdiction to impose an electronically-monitored sentence as an alternative. However, the Court found that there was no indication in Hessel or Moses about which method was correct and that authorities in New Zealand currently leave both methods open for use. The Court ultimately found that the second method was mathematically sound and would allow for consistency across all Courts. However, the Court agreed with Ms King's submission for the Crown that it was clear that contemporaneous offending was to be taken into account at step 1 and previous offending was to be taken into account at step 2. No refinement to the Moses methodology was required as the submissions for Stuart proposed. The Court found that the methodology applied by Hinton J was correct and that the proposed appeal did not satisfy the s 253(3)(a) requirement. The Court also found that the imposition of a 20 per cent discount for the guilty plea in the circumstances did not give rise to a miscarriage of justice.

The Court concluded that 30 months' imprisonment was appropriate for the totality of Stuart's offending and that there was no proper basis for the Court to interfere. The Court found that the sentence was plainly not manifestly unjust. As a result, the application for leave to bring a second appeal was declined. The Court's decision was based on the fact that the proposed appeal did not satisfy the s 253(3)(a) requirement and that the sentence was not manifestly unjust.

Orders