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R v ROY SIDNEY BRUCE NICHOLS [2003] NZCA 106 (16 June 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA406/02

CA417/02

THE QUEEN

v

ROY SIDNEY BRUCE NICHOLS

SCOTT ANTHONY PIGGOTT

Coram: Blanchard J

McGrath J

Glazebrook J

Appearances: C P Comeskey for Appellant Nichols

C B Hirschfeld for Appellant Piggott

M F Laracy for Crown

Judgment (On the papers): 16 June 2003

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]Mr Nichols and Mr Piggott were convicted, following a jury trial in the Auckland District Court, of one count under s44(1) of the Trade in Endangered Species Act 1989 of trading in a threatened species, and one count under s154(f) of the Biosecurity Act 1993 of attempting to obtain possession of unauthorised goods.Mr Nichols was additionally convicted of one further count under s154(f) of the Biosecurity Act 1993 of possession of unauthorised goods.Mr Nichols was sentenced on 29 November 2002 to two and a half years’ imprisonment and Mr Piggott to eighteen months imprisonment.In Mr Piggott’s case leave to apply for home detention was declined.Mr Nichols and Mr Piggott appeal against their convictions and sentences.
[2]The appeal is being heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, including written submissions, which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001 have been considered by the members of the Court who have conferred and agreed upon this judgment.

Facts

[3]The convictions arose from an alleged attempt by Mr Nicols, Mr Piggott and an associate to smuggle parrot eggs into New Zealand from Bangkok.
[4]The Crown case was that Mr Piggott approached a woman known to himself and Mr Nichols, Ms Jackson, and enlisted her as a courier to carry birds’ eggs to New Zealand in return for an all expenses paid holiday in Thailand.On 9 March 2001 Ms Jackson and her husband travelled to Bangkok with Mr Nichols and Mr Piggott and checked into the same hotel.During the time they were in Bangkok Mr Nichols made contact with parrot breeders and arranged to purchase fertile eggs from them.Twenty-six eggs were purchased, taken to Mr Nichols’ hotel room and stored in a portable incubator.
[5]On 14 March 2001 the Crown alleged that Mr Nichols and Mr Piggott strapped the 26 eggs inside strands of stockings to Ms Jackson’s body underneath her breasts.Ms Jackson, her husband and Mr Piggott returned to New Zealand on the same flight later that day although Mr Piggott did not sit with the Jacksons.Mr Nichols remained in Bangkok until 16 March.
[6]Upon arrival at Auckland airport on 15 March 2001 Ms Jackson was intercepted and searched by Customs officers who found the 26 eggs, 15 of which were broken, strapped to her body.
[7]Ms Jackson, Mr Nichols and Mr Piggott were all charged with attempted possession of unauthorised goods.Mr Nichols’ additional charge of possession of unauthorised goods resulted from the seizure of a parrot (a crimson-bellied conure) from his house on 9 October 2001 following a search by Ministry of Agriculture and Fisheries investigators.Ms Jackson pleaded guilty to the charges against her and gave evidence at the trial of Mr Nichols and Mr Piggott.

Appellants’ submissions

[8]Mr Comeskey on behalf of Mr Nichols submits first that the District Court Judge was unfairly biased against the defence case and second that the defence was not properly put to the jury.
[9]In terms of bias Mr Comeskey submitted that, while the judge’s summing up ran to 22 pages and the Crown case occupied some six pages, the defence case only occupied two pages.He took issue with the trial judge’s comment to the jury that he could take less time over the defence case because it was not very lengthy.He submitted that this approach was dismissive of the defence advanced.Mr Comeskey also criticised the judge for praising the investigator in charge of the case for his preparation and presentation of the exhibits when no similar praise was given to the defence who also produced exhibits.
[10]In terms of the allegation that the defence was not put to the jury in the summing up process it was submitted that at trial Mr Nichols had put forward a positive defence to all the charges against him and that this was not properly put before the jury.He had given evidence that the intended destination of the eggs was Australia and not New Zealand and that it was a Mr Ackroyd who was the principal offender and who had strapped the eggs to Ms Jackson.In respect of the charges alleging he had an unauthorised good, namely the crimson-bellied conure, he had given evidence and called supporting evidence that birds of that type had earlier been present in New Zealand prior to the enactments coming into force and therefore could not have been imported unlawfully in the way the Crown alleged.
[11]In regard to sentence Mr Comeskey submitted that Mr Nichols had spent 14 months on bail prior to trial under excessively stringent conditions which effectively amounted to home detention.Mr Nichols was confined for the greater part to his home, wore a bracelet, for which he had to pay $10,000 to Chubb Security Services to fit and monitor, and was prohibited from using a telephone or leaving his township.Because his computer and associated records had been removed he was unable to operate his business.
[12]Mr Comeskey submitted that a sentencing court should, as part of the balancing approach required to reach the appropriate sentence, recognise that Mr Nichols was no less serving a prison sentence than if he had been in custody on remand, in which case his time spent in custody would have come off the sentence as time served awaiting trial. Instead Mr Nichols is in effect serving a 44-month sentence which is manifestly excessive.Mr Comeskey submitted that, if the appeal against conviction was unsuccessful, then the sentence should be reduced by 14 months and leave to apply for home detention be granted.
[13]Mr Piggott’s appeal against conviction was also advanced on the basis that the judge’s summing up to the jury was unfairly biased and that as a result the guilty verdicts returned by the jury amount to unsafe convictions.Mr Hirschfeld for Mr Piggott also pointed to the praise the judge bestowed upon the prosecution exhibits without commenting on the defence exhibits that were also of a high standard.Mr Hirschfeld submitted that the judge also bestowed “fulsome praise” upon the way the investigation had been conducted and it is not for the Court to influence the jury in this way.
[14]Mr Piggott’s appeal against sentence was on the basis that 18 months imprisonment is manifestly excessive and out of line with the established tariff for a crime of this nature.Mr Hirschfeld referred to R v Nichols CA 26/98, 7 July 1998 in which this Court upheld a sentence of 18 months imprisonment imposed on Mr Nichols as the organiser of an attempt to smuggle tortoise and chameleon eggs into New Zealand.Mr Hirschfeld also referred to R v Angell HC TIM T4/95, 20 September 1995 in which a sentence of 15 months imprisonment was imposed after a guilty plea to a charge of attempting to obtain possession of unauthorised goods arising out of a consignment of lizards, skinks and a turtle that the defendant had arranged to be sent to New Zealand.The defendant had been the principal offender and had previous convictions for similar offending.The sentencing judge found a deliberate course of conduct involving deception for the purpose of profit.
[15]Mr Hirschfeld submitted that in both of these cases the offenders were found to be the principal organisers and financiers and stood to gain most, monetarily, from the failed importation attempts.In contrast the Crown had accepted at Mr Piggott’s trial that his role in the importation had been less than that of Mr Nichols and there had been no evidence led that he stood to make any monetary gain from the importation of the birds’ eggs.
[16]Mr Hirschfeld also submitted that the judge erred in not granting Mr Piggott leave to apply for home detention.Mr Hirschfeld referred to the decision of this Court in R v Barton [2000] 2 NZLR 459 which held that the threshold for granting leave to apply for home detention should not be set too high.Where the profile of the offences and the offender suggested that home detention was a realistic option then leave should be granted in the knowledge that the final decision rests with the Parole Board.Noting that Barton was determined under the Criminal Justice Act 1985 and that the presumption that leave should be granted was established in the Sentencing Act 2002, Mr Hirschfeld submitted that it was Parliament’s intention that leave should now be granted more readily than under the previous Act and that the presumption was a strong one and was not to be overturned unless clearly inappropriate.
[17]The judge had referred to the presumption in favour of granting leave to apply for home detention unless the nature and seriousness of the crime or the circumstances of the offender indicate another approach or that there are other relevant factors that can be considered by the sentencing Court.The judge also accepted that home detention should be regarded as containing a punitive element and that the granting of leave should not be regarded as an indulgence.He had then gone on to refuse leave to apply for home detention.He said one of the most compelling factors was the nature and seriousness of the offences.He also took into account Mr Piggott’s previous convictions and the need to ensure parity with Mr Nichols.
[18]While accepting that the judge had properly directed himself as to the presumption Mr Hirschfeld submitted that, when determining the nature and seriousness of the offence, the judge should have concerned himself with elements that would make home detention clearly inappropriate, for example, where home detention would allow the offender to continue with the offending they have been convicted of, where the nature and seriousness of the crime would constitute a threat to the safety of others in the community, and where the nature and seriousness of the crime warrants the need for the element of deterrence to be present within the sentence.
[19]In light of these considerations Mr Hirschfeld submitted that home detention would not allow Mr Piggott to continue with the offence he was convicted of, there was no threat to the safety of others in the community since there were no aggravating features within the offence such as violence that would give rise to a need to protect the community, and that home detention would adequately address the need for the element of deterrence.Home detention is defined as a sentence of imprisonment and therefore contained a strong deterrent element within it.
[20]In regard to the relativity of sentence between Mr Piggott and Mr Nichols, Mr Hirschfeld submitted that the distinction would be entirely appropriate because Mr Nichols had a previous conviction for the same offence and was the organiser and financier of the operation.In contrast there was no evidence that Mr Piggott stood to gain anything from the attempted importation and had no previous convictions for similar offences.Mr Hirschfeld further submitted that the denial of leave to apply for home detention had itself created a disparity since Mr Nichols, under s84(1) of the Parole Act 2002, would be eligible for parole in 10 months and Mr Piggott in 9 months according to s86(1).

Crown submissions

[21]The Crown submitted that the summing up was appropriate in the circumstances of the case.The judge had put the essence of Mr Nichols’ case to the jury and canvassed in some detail the closing submissions made by his counsel.The Crown submitted that in this case the critical factor was that the judge directed the jury clearly and correctly with respect to their approach to Mr Nichols’ evidence in general.The Crown submitted that the primary issue for the jury on the first two counts was not complicated, largely resting on what they made of the credibility of the courier, Ms Jackson, and Mr Nichols, but with the addition of compelling circumstantial evidence.The judge had emphasised the credibility contest as crucial to the case and repeated throughout his summing up that matters of fact and credibility were for the jury.
[22]Additionally the Crown submitted that the way the evidence emerged at trial made it difficult for the judge to deal with Mr Nichols’ evidence.Central aspects of Mr Nichols’ version of events had not been put to Ms Jackson in cross-examination. It was not put to her that she and her husband volunteered to import eggs into Australia for Mal Ackroyd, that Mr Ackroyd alone tied the eggs to her body, that she was meant to deliver the eggs to a person at Sydney airport or that her husband knew of the scheme and was present at the time the eggs were attached.The judge was restrained in his summing up when it came to Mr Nichols’ evidence, merely telling the jury that it was unfortunate that evidence about the mysterious Mal Ackroyd, the keystone of the defence, had not been put to Ms Jackson and that it might make the jury consider Mr Nichols’ credibility.The Crown submitted that the judge had correctly noted the Crown submission that the only evidence about Mr Ackroyd had come from Mr Nichols himself and from questions put to Ms Jackson from the defence.
[23]In regard to the possession of unauthorised goods count, the Crown’s case was that crimson-bellied conures are extremely rare in New Zealand and that, given the age of the bird found at Mr Nichols’ property, the inference could be drawn that Mr Nichols imported the conure egg into New Zealand on 16 March 2001 in order to salvage something from the trip to Bangkok after learning that Ms Jackson had been intercepted with the eggs.The Crown also relied on evidence of telephone calls to a bird farm in Thailand by Mr Nichols.The judge summed up Mr Nichols’ submissions on that issue and then recalled the jury, after they had retired, to remind them of the evidence of Mr Crisp, a witness called by Mr Nichols.The judge said that the essence of Mr Crisp’s evidence was that he had not seen any crimson-bellied conures in New Zealand since 1989.It was submitted that Mr Crisp’s evidence did not establish any more than that; the evidence from both parties on this issue was fairly limited and the judge adequately set out that evidence and covered the submissions of both counsel.
[24]The Crown further submitted that criticism of the judge’s comments concerning the exhibits was misconceived.The judge did not direct the jury’s attention solely to the Crown’s exhibits.Instead it is clear from the judge’s direction that the jury were to examine all exhibits with proper care.The brief words of praise to the investigator merely commended the relevant officer for the exhibits’ standard of preparation and in no way indicated bias, lack of balance or a suggestion to the jury as to how they should interpret the evidence.The judge was commenting on the readily understandable way in which the exhibits were prepared rather than suggesting any weight that the jury ought to put on the exhibits.In the Crown’s submission the remarks were entirely innocuous.
[25]Turning to Mr Nichols’ appeal against sentence, the Crown submitted that the sentence of two and a half years was, if anything, lenient.This was Mr Nichols’ second conviction for the same type of offending, committed within approximately two years of being released from his previous term of imprisonment.The pre-sentence report and the judge’s observations in the sentencing remarks confirmed Mr Nichols’ refusal to acknowledge culpability for the offending.In respect of Mr Nichols’ earlier offending, this Court in R v Nichols CA 26/98, 7 July 1998, commented that there was a high potential for harm which, if realised, might be irreversible and that therefore it was an area for deterrent sentences.A deterrent sentence of 18 months had been imposed and had failed to serve its purpose.In the circumstances, given that for a second offence a starting point of four years was available and that the aggravating features identified by the judge outweighed any personal circumstances put forward in mitigation, the sentence was merciful.
[26]Additionally it was submitted that the fact of Mr Nichols’ bail did not require any adjustment to the term of his sentence.Mr Nichols had offered the Court the option of bail under electronic surveillance.He did face stringent restrictions on his liberty but did not appear to be confined to his home and had freedom to travel within his township. The Crown accepted that the Court could take account of time spent on bail restricted by electronic surveillance during the remand period in the context of the home detention scheme.However the decision in R v Faisandier CA185/00, 27 September 2000, where the offender was confined to the home for 24 hours a day, suggested a unique situation and confirmed that the practice is not to make adjustments to prison sentences to take account of periods spent on bail on remand, even where bail conditions have been restrictive.If, in the Court’s discretion, account was to be taken of the time spent on bail the Crown submitted that there was no reason in principle to treat the bail as being directly equivalent to remand time.
[27]In relation to Mr Piggott’s appeal against sentence, the Crown noted the seriousness of the offending and the fact that Mr Piggott had significant previous offending, albeit none for this particular type of offending.It submitted that the judge was entitled to determine that a distinctly deterrent sentence was required adequately to respond to this latest instance of offending.
[28]The Crown also submitted that there was no basis for interfering with the judge’s discretion not to allow Mr Piggott leave to apply for home detention.The judge had taken account of the nature and seriousness of the offence, the need for general deterrence and personal deterrence and the need to maintain parity with Mr Nichols’ sentence on this occasion as well as the previous sentence imposed on Mr Nichols.
[29]In terms of parole eligibility introducing a disparity the Crown submitted that a difference in parole eligibility was not an appropriate basis on which to consider issues of sentence disparity for there is no guarantee that any given offender who is eligible for parole will in fact get parole at a particular point and referred to R v Maihi CA 221/00, 16 August 2000 on this point.The Crown recognised that the courts will occasionally adjust a sentence to achieve parity in terms of actual time to be served.The test for adjustment of sentence to achieve parity in terms of the actual time to be served was whether a reasonably minded independent observer aware of all of the circumstances of the offence and the offender would think that something had gone wrong with the administration of justice.The alleged disparity in this case did not, the Crown submitted, cross that threshold.

Conviction appeals

[30]We are satisfied that both Mr Nichols’ and Mr Piggott’s appeals against conviction must fail.In Mr Nichols’ case the judge did put the essentials of the defence case to the jury.He directed the jury clearly and correctly as to the approach they were to take.The primary issue for the jury, with respect to the attempted importation of the eggs, was as the judge stressed, whether they believed Ms Jackson.The judge summarised Mr Nichols’ evidence that he had nothing to do with the importation of the eggs and that he did not strap them onto Ms Jackson’s body.Given the circumstances we accept the Crown submission that the way the evidence about Mr Ackroyd was dealt with was appropriate.
[31]We are also satisfied that in neither case has it been shown that the trial judge was unfairly biased against the defence case.This Court has often stated that the trial judge is not obliged to recite every defence argument and need only canvass the critical issues.That there was a disparity in the length of space devoted to the Crown and defence cases in the summing up does not reflect bias but rather the fact that the onus of proof in a criminal trial rests on the Crown from beginning to end requiring proof of all of the elements of the charges.
[32]Turning now to the criticism levelled at the judge’s praise for the investigator in charge of the case for his preparation and presentation of the exhibits, we agree with the Crown submission that the judge in fact directed the jury to examine all exhibits with proper care.We accept the Crown submission that the praise for the investigator was only a brief comment on the way the exhibits had been prepared and did not suggest to the jury how they were to be interpreted.

Mr Nichols’ sentence

[33]This is Mr Nichols’ second conviction for the same type of offence, the only difference this time being in the species of creature Mr Nichols attempted to import.This Court, in upholding Mr Nichols’ eighteen month sentence for his first offence (R v Nichols CA 26/98, 7 July 1998), agreed that it was an area for deterrent sentences since the potential for harm to New Zealand’s biosecurity was high, and if realised, irreversible.It is obvious that the sentence imposed did not act as a deterrent.In the circumstances a sentence of two and a half years’ imprisonment is in no way inappropriate and perhaps even light.
[34]The only question therefore is whether, as Mr Nichols submitted, the 14 months he had spent on bail prior to trial should have been counted as time served as it was akin to home detention and should have been equated with a remand served in custody.
[35]This Court considered the issue of pre-conviction detention in R v Faisandier CA 185/00, 12 October 2000. After her arrest on fraud charges, the appellant, at her request, had been admitted to a form of home detention, although at that time home detention was not recognised as a form of custody and nor was it part of what is now a statutory based means by which some offenders may serve sentences of imprisonment.At trial she was sentenced to three and a half years’ imprisonment with a six-month deduction for the time spent on home detention.On appeal against sentence this Court characterised her detention as bail with conditions, the conditions requiring her to remain in her home under electronic surveillance for ten and a half months.The Court noted that the sentencing judge had said that she had done the country some service by pioneering the home detention scheme at her own expense while accepting the Crown’s proposition that the credit given should not be on a day for day basis.Six months had been deducted from her sentence on the basis that home detention was a significant penalty in itself, although mitigated to some extent by the fact that a person did not have to live in unfamiliar and unpleasant surroundings as would be the case in prison.This Court, bearing in mind the nature of the offending in the case and the likelihood that the appellant would serve substantially less than the nominal sentence imposed, increased the deduction by six months.The members of the Court stressed however that, although they were satisfied that some allowance should be made having regard to the restrictive nature of home detention and its length, they were not persuaded that the detention should be treated as the equivalent of remand in custody.Nor were they disposed to attempt a calculation including speculation on the likely release date of the offender.
[36]We acknowledge that Mr Nichols faced restrictions on his liberty for fourteen months.He wore an electronic wrist bracelet monitored by a security company at all times.Although he was able to travel within his township, he could not travel further except to see his lawyers and to appear in Court.He was subject to a curfew between 9pm and 6am but was able during that time to move anywhere on his farm without a response to activation of the bracelet alarm if he returned to the zone of his house within one and a half hours.Mr Nichols was also required to report to the Police Station weekly and was not permitted to use a telephone except for medical emergencies or to telephone his lawyers, his home or his wife at a specified mobile number.
[37]While Mr Nichols faced significant restrictions he was on bail with conditions and not on remand in custody.He was in the comfort of his own home, with his family and with the freedom to move around his farm day and night, and around his township during the day.In contrast the appellant in Faisandier was confined to her home for 24 hours a day for ten and a half months.Ms Faisandier’s situation was therefore quite different.We do not consider the sentence of two and a half years should be disturbed, even given his bail conditions.

Mr Piggott’s sentence

[38]In sentencing Mr Piggott to eighteen months imprisonment the District Court Judge considered this sentence appropriate because it equated with the sentence imposed on Mr Nichols as a first time offender.In that case Mr Nichols had been treated as a first offender and note had been taken of supporting references to his good character. Although in this case it was accepted that Mr Piggott played a lesser role, the judge found as a compelling factor the nature and seriousness of the offences, and also took into account, as he was entitled to, Mr Piggott’s background and previous convictions, although they were for different offences.In the other case we were referred to, R v Angell HC TIM T4/95, 20 September 1995 which followed a guilty plea, the judge considered that the total effective term was to be eighteen months imprisonment.The sentence of fifteen months imprisonment was cumulative upon a three month sentence imposed in the District Court for a charge of causing unnecessary suffering to animals.Mr Piggott has also submitted that there is disparity between his sentence and Mr Nichols’ because of parole eligibility.It is normally the nominal length of the sentence of imprisonment and not the parole eligibility date that is relevant and there is no reason to depart from that principle in this case.We therefore do not consider the sentence imposed on Mr Piggott manifestly excessive.
[39]We now turn to whether the District Court Judge was entitled to refuse Mr Piggott leave to apply for home detention.The judge correctly directed himself by noting the presumption in favour of granting leave.He went on to say that one of the most compelling factors in this case was the nature and seriousness of the offences committed by Mr Piggott.The judge had earlier noted the aggravating factors of the offending, in particular the potential risk to New Zealand’s biosecurity, the extensive premeditation and planning involved by both offenders and the fact that they took advantage of the courier in carrying out their plan.He found it difficult to find any mitigating factors, particularly taking into account the Impact Report.This report set out the risk to New Zealand from the illegal importation of birds which may be carriers of a number of avian diseases, including Newcastle’s Disease, an outbreak of which had recently caused havoc and resulted in enormous cost to the poultry industry of New South Wales.
[40]The judge also, as he was entitled to do, took into account Mr Piggott’s previous background and previous convictions.He noted that a further reason for not granting Mr Piggott leave to apply for home detention was the fact that this would result in an inappropriate distinction between Mr Piggott and Mr Nichols if the Parole Board were to grant leave to Mr Piggott.
[41]We consider that the decision whether or not to grant home detention should normally not be tied to the question of disparity (either favourably or unfavourably to Mr Piggott) but should be considered on its own merits.Home detention as a possibility is a consequence of a sentence of not more than two years.A sentence of less than that was justified in this case because of Mr Piggott’s lesser role.But the judge had to consider the question of sentences and parity in the round.The main factor taken into account as weighing against home detention was the nature and seriousness of the offence.Offending of this type, even in a lesser role, is serious and a strong deterrent is appropriate.Mr Piggott’s previous convictions are also relevant. In the circumstances we consider that the judge’s decision not to grant leave should not be disturbed.In our view the seriousness of the type of offence, with its potential economic consequences, combined with Mr Piggott’s previous convictions would have justified a refusal of leave whether or not the disparity point had arisen.

Result

[42]For the reasons given above, Mr Nichols’ appeals against conviction and sentence are dismissed.
[43]Mr Piggott’s appeal against conviction and sentence are likewise dismissed.

Solicitors:

Crown Law Office, Wellington


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