Sylva v R - [2017] NZCA 567

IN THE COURT OF APPEAL OF NEW ZEALAND

CA345/2017
[2017] NZCA 567

BETWEEN	STEVEN IHAKA SYLVA Appellant
AND	THE QUEEN Respondent

Hearing:	16 November 2017
Court:	Harrison, Lang and Ellis JJ
Counsel:	N M Dutch for Appellant A J Ewing for Respondent
Judgment:	6 December 2017 at 10 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Mr Sylva was found guilty by a jury in the District Court at Rotorua on charges of aggravated robbery and burglary. On 26 May 2017, Judge Snell sentenced him to an effective term of seven years and eight months’ imprisonment on both charges.[1] He now appeals against conviction and sentence.

Background

[1]R v Sylva [2017] NZDC 11097 [Sentencing notes].

The charges were laid as a result of an incident that occurred on the night of 19 April 2016. Earlier that day Mr Sylva and an associate had been present at the complainant’s house for several hours during the late morning and early afternoon. The complainant, who was 17 years old at the time, had seen Mr Sylva on several previous occasions and believed his name was Stevie.
Several persons entered the complainant’s address that night whilst he was asleep in his bedroom. The complainant woke up and went upstairs to investigate noises he could hear in the room above his bedroom. As he did so, he observed a person on the stairs. That person was wearing a Black Power gang patch. The complainant told the police he recognised the person on the stairs as being the person he knew as Stevie.
When the complainant went into the living room of the address, he found several persons searching the house. They had disguised themselves by covering their faces with bandanas. When the complainant went into his mother’s bedroom, he found an unknown male person wearing his puffer jacket. The complainant confronted this person about stealing his jacket and other members of the group became involved. One of those persons produced a pistol and pointed it at the complainant. Another of the intruders threatened him with a barstool and wanted to know the location of any drugs and money.
The complainant was traumatised and agreed to show the intruders items of value in his bedroom. He was then escorted downstairs with either a knife or a screwdriver pressed to the back of his neck. Fortunately, he was able to escape and took refuge in a toilet where he locked the door. The intruders left the address taking several items of the complainant’s property with them.
The police believed the person the complainant knew as Stevie to be Mr Sylva. They therefore compiled a montage of eight photographs comprising Mr Sylva and seven other persons of similar appearance. The complainant identified Mr Sylva as the person he had seen on the stairs of his address.

Grounds of appeal

Mr Dutch advances five grounds of appeal on Mr Sylva’s…

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 Sylva v R

Details

AGLC: Sylva v R [2017] NZCA 567
Case: [2017] NZCA 567
Decision Date: 6 December 2017 at 10 am

CaseChat Overview and Summary

Steven Ihaka Sylva was convicted of aggravated robbery and burglary in the Rotorua District Court and subsequently appealed both his conviction and sentence to the Court of Appeal of New Zealand. Counsel for the appellant, Mr Dutch, advanced five grounds for appeal against the conviction: the complainant's identification of Mr Sylva was not reliable; the Crown should not have been permitted to recall the complainant to give evidence; the trial Judge erred in his response to a question posed by the jury; the Crown unfairly criticised the defence in its closing address; and the trial Judge ought to have given the jury a Papadopoulos direction. The Court found that the complainant's identification of Mr Sylva was reliable, the Crown was entitled to recall the complainant, the trial Judge properly responded to the jury's question, the Crown's comments in its closing address were not unfair, and the trial Judge's decision not to give a Papadopoulos direction was within his discretion. In relation to the sentence, Mr Dutch submitted that the starting point was too high given there was no evidence that Mr Sylva possessed a weapon or became involved in using or making threats of violence. The Court found that the Judge had properly applied the guideline judgment in R v Mako and had adopted a starting point within the available range for the offending.

The appeal against conviction was dismissed. The appeal against sentence was dismissed. The Court did not make any further orders.

Orders