Stuart v The Queen - [2021] NZHC 710

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000546

[2021] NZHC 710

BETWEEN
KANE DONALD STUART

Appellant

AND

THE QUEEN

Respondent

Hearing: 29 March 2021

Appearances:

A Tupuola for the Appellant

D McGivern for the Respondent

Judgment:

9 July 2021

REASONS JUDGMENT OF HINTON J

This judgment was delivered by me on 9 July 2021 at 3:00 pm

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Meredith Connell, Auckland
Bloem & Associates, Auckland

STUART v R [2021] NZHC 710 [9 July 2021]

[1] On 29 March 2021 I dismissed this appeal with reasons to be provided. I also explained my reasons in full to counsel at the conclusion of the hearing because I was concerned that Ms Tupuola (for Mr Stuart) understand how I reached my conclusion in the face of the very good points she raised.

[2] Mr Stuart appealed against sentence. Judge Bouchier sentenced him to 30 months’ imprisonment for a number of Crown and police charges.1 The Crown charges were: two charges of theft, one over $1,000,2 one under $500;3 two charges of dishonestly using a document;4 one charge of burglary;5 and one charge of obtaining by deception.6 The Police charges were: two charges of dishonestly using a document;7 three charges of theft over $1,000;8 one charge of theft between $500 and
$1,000;9 one charge of possession of methamphetamine;10 one charge of breaching District Court bail;11 and six charges of theft under $500.12 Mr Stuart pleaded guilty to all charges.

[3] While the appeal was initially broader, by the time of the hearing the sole ground was that the Judge erred by not allowing discounts (totalling 20 to 25 per cent) for methamphetamine addiction, personal deprivation and rehabilitative prospects.

[4] Further, the Crown in fact accepted that it could have been open to the Judge to allow an additional discount of approximately 20 per cent for personal deprivation, not for the other factors. But the Crown submitted the sentence was still not manifestly excessive because the Judge was too generous in other regards and made an error in her calculations. In combination these would substantially offset any additional discount.

1      R v Stuart [2020] NZDC 24404.
2      Crimes Act 1961, s 223(b); maximum penalty seven years imprisonment.
3      Crimes Act 1961, s 223(d); maximum penalty three months imprisonment.
4      Crimes Act 1961, s 228(1)(b); maximum penalty seven years imprisonment.
5      Crimes Act 1961, s 231(1)(a); maximum penalty ten years imprisonment.
6      Crimes Act 1961, s 241(1); maximum penalty seven years imprisonment.
7      Crimes Act 1961, s 228(1)(b); maximum penalty seven years imprisonment.
8      Crimes Act 1961, s 223(b); maximum penalty seven years imprisonment.
9      Crimes Act 1961, s 223(c); maximum penalty one year imprisonment.
10     Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2)(a); maximum penalty 6 months imprisonment or a fine not exceeding $1,000.
11     Bail Act 2000, s 38(a); maximum penalty one year imprisonment or a fine not exceeding $2,000.
12     Crimes Act 1961, s 223(d); maximum penalty three…

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 The Queen

Details

AGLC: Stuart v The Queen [2021] NZHC 710
Case: [2021] NZHC 710
Decision Date: 9 July 2021

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Kane Donald Stuart against his sentence, which was imposed by Judge Bouchier at the District Court. Mr Stuart had pleaded guilty to multiple charges including theft, burglary, and obtaining by deception, among others. The appeal argued that the sentencing judge erred by not allowing discounts for methamphetamine addiction, personal deprivation, and rehabilitative prospects. The Crown accepted that a discount for personal deprivation could have been appropriate but contended that the sentence was still not excessive due to other factors.

The legal issues focused on whether the sentencing judge made an error in not awarding discounts for the appellant's methamphetamine addiction, personal deprivation, and rehabilitative prospects. The Court had to determine if such errors warranted a different sentence. The Court also examined whether the Crown's argument that the sentence was not manifestly excessive, despite these potential errors, was valid.

The Court found that a discount for methamphetamine addiction and personal deprivation should indeed have been applied, as the causal link between the appellant's addiction and his offending was clear. However, the Court concluded that the overall sentence of 30 months’ imprisonment was not manifestly excessive. The Court reasoned that the sentence imposed was within the range available to the sentencing judge, even after accounting for the potential discounts. Therefore, the appeal was dismissed.

Orders