The Queen v Stewart - [2009] NZCA 89

IN THE COURT OF APPEAL OF NEW ZEALAND
CA802/2008
[2009] NZCA 89
THE QUEEN
v
ERIC BARRY STEWART
Hearing:24 February 2009

Court:William Young P, Chisholm and Heath JJ
Counsel:S J Shamy for Appellant

S B Edwards for Crown

Judgment:25 March 2009 at 10 am

JUDGMENT OF THE COURT

AWe extend time for the filing of the second appeal.
BWe allow the appeal, quash the sentence of three years’ imprisonment and substitute a sentence of 18 months’ imprisonment.

____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
Introduction
[1]       Following a lengthy trial in the District Court at Timaru in 2007 before Judge Abbott and a jury, the appellant was found guilty of defrauding the ACC scheme. He was subsequently sentenced to three years’ imprisonment. He filed an appeal against his conviction and sentence but when this was heard in May last year, only the conviction was challenged. On 2 September 2008, this Court delivered a judgment recording that the appeal was dismissed: R v Stewart [2008] NZCA 341.
[2]       Subsequently the appellant filed in this Court what purports to be an appeal against sentence, and an associated application for an extension of time for filing the appeal. This is the appeal which is now before the Court. Issues as to whether bail ought properly to be granted (associated with whether this was an illegitimate second appeal) were, in the end, superseded when the Supreme Court, having given the appellant leave to appeal against the dismissal of his conviction appeal, granted him bail pending the hearing of that appeal.
Background
[3]       The fraud charges against the appellant covered the period 10 April 1992 to 20 February 2004 and each alleged the fraudulent use of medical certificates on ACC forms. Counts 1 – 57 were laid under the former s 229A of the Crimes Act 1961 and counts 58 and 59 under the new and corresponding s 228.
[4]       Up until late 1989 the appellant had been employed as a butcher. At that time, he was diagnosed with bilateral tenosynovitis of the wrists. He was subsequently treated for this condition and returned to work in April 1990. On 13 December 1991 he was issued with a medical certificate which referred to recurring problems with his tenosynovitis condition and he made a further claim for ACC benefits. While this claim was being assessed, he left work (on 10 April 1992) and associated with this he submitted a C15 medical certificate, which declared he was fully unfit for work. With the exception of a brief return to work on a trial basis and a longer period when he operated a doughnut stand, the appellant remained off work for the entire period relevant to the case.
[5]       The appellant’s position throughout was that he suffered chronic pain associated with his wrists to such an extent that he was unfit for work.
[6]       The medical certificates which were the subject of the charges evolved over time. They all certified the appellant as being unfit…

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 The Queen v Stewart

Details

AGLC: The Queen v Stewart [2009] NZCA 89
Case: [2009] NZCA 89
Decision Date: 25 March 2009

CaseChat Overview and Summary

The case of The Queen v Stewart involved the appellant, Eric Barry Stewart, who was convicted of defrauding the Accident Compensation Corporation (ACC) scheme. The appeal focused on the sentence imposed by the District Court, which sentenced Stewart to three years' imprisonment. The Court of Appeal of New Zealand was tasked with reviewing the sentence and determining if it was appropriate.

The primary legal issue the Court of Appeal had to address was whether the District Court judge had sentenced Stewart on a mistaken basis. The appeal also questioned whether the Court of Appeal had jurisdiction to hear an appeal against sentence after the initial appeal against conviction had been dismissed. The Court considered whether the sentence imposed was manifestly excessive and whether the judge had erred in calculating the loss to the ACC due to Stewart's fraudulent actions.

The Court of Appeal found that the District Court judge had sentenced Stewart on a basis that was not available to him, as the judge had implicitly concluded that Stewart had defrauded the ACC of approximately $171,000, a conclusion that was not supported by the jury's verdicts. The Court held that it would be inappropriate to regard this as a finding of fact. Furthermore, the Court determined that in the unusual circumstances of this case, it was appropriate to exercise its recall jurisdiction to consider the current appeal against sentence. The Court of Appeal allowed the appeal, quashed the original sentence of three years' imprisonment, and substituted a sentence of 18 months' imprisonment. This new sentence effectively accounted for the time Stewart had already served in prison.

In summary, the Court of Appeal allowed Stewart's appeal against sentence, quashed the original sentence, and substituted a sentence of 18 months' imprisonment, finding that the original sentence was imposed on an incorrect basis and was manifestly excessive.

Orders