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FOX v R [2005] NZCA 170 (28 June 2005)

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FOX v R [2005] NZCA 170 (28 June 2005)

Last Updated: 7 August 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA83/05

THE QUEEN

v

LISA KATARINA FOX

Hearing: 13 June 2005

Court: Glazebrook, Randerson and Williams JJ

Counsel: M I Sewell for Appellant
A Markham for Crown

Judgment: 28 June 2005

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS

(Given by Randerson J)

Introduction

[1] On 24 February 2005 the appellant was convicted before Judge Green (sitting without a jury) in the District Court at Christchurch on two counts of receiving stolen property, contrary to the then s 258 Crimes Act 1961. She was sentenced by the Judge on the same day to 100 hours of community work, cumulative upon a sentence of 80 hours of community work imposed by the High Court on 22 October 2004 on a charge of possessing methamphetamine.
[2] She now appeals against both conviction and sentence. The conviction appeal is brought on the grounds that the verdict should be set aside as unreasonable or on the basis that it cannot be supported having regard to the evidence. Reliance is also placed on alleged errors of fact. The sentence is appealed on the grounds that it was manifestly excessive.

Background facts

[3] The charges upon which the appellant was convicted arose upon the termination of Operation Crusade, a police operation targeting the drug activities of the Christchurch chapter of the Mongrel Mob. The police executed a search warrant on 3 September 2003 at the appellant’s home address where she lived with her partner, a Mr Beattie. The police located three items in the appellant’s bedroom valued in all at approximately $1,000. These were a Samsung television set, a video recorder and a DVD player. The items were all in new or near new condition. They were plainly engraved with the name and contact details of a Christchurch rental company known as "Mr Rentals".
[4] Count 1 related to the television set which was the subject of a rental agreement dated 21 October 2002 from Mr Rentals to a Mr Nukunuku. When Mr Nukunuku complained to the police about the theft in December 2002 he described the television set as a "Sigma". The discrepancy between the "Samsung" television rented to Mr Nukunuku and the "Sigma" he reported to the police as stolen, features in the grounds of appeal.
[5] The video player and DVD were the subject of count 2. The undisputed evidence is that these items were the subject of two separate rental agreements between Mr Rentals and a Mr Clarke dated 11 April 2002 and 17 October 2002 respectively. Mr Clarke’s evidence was that he had moved out of his flat around Christmas 2002 after a dispute with his partner. When he returned for a visit a couple of weeks later, he found that the goods were missing.

The Crown case

[6] The Crown called the office manager for Mr Rentals to prove the rental agreements for the items in question and the trade purchase value of the goods. The witness confirmed by reference to the serial numbers that the items recovered by the police were those which had been rented to Messrs Clarke and Nukunuku respectively. The witness also stated that the rental agreements were purely a renting arrangement and there was no element of renting to purchase. According to the evidence of the office manager, the rental payments on the television rented by Mr Nukunuku continued until 14 October 2003, some 10 months after he reported the theft of the television in December 2002. The payments on the video and DVD player rented by Mr Clarke continued until 29 January 2003, shortly after Mr Clarke stated the items had been stolen from his flat. Other than the cash deposit paid on one of the items, the payments on the video and DVD were by automatic payment from Mr Clarke’s bank account.
[7] In his evidence, Mr Nukunuku confirmed he had rented a Samsung television. In December 2002 there was a burglary at his address in which the television and remote were taken. On 4 December 2002 he reported the matter to the police. He said he had discovered the television was missing the day before and, as earlier indicated, he described the television as a Sigma. He agreed he kept paying for the television until October 2003 stating that he did not know the rental payments were continuing to be paid automatically from his bank account.
[8] In cross-examination, he agreed he was a glue-sniffer and a regular visitor to the Mongrel Mob headquarters. He also agreed he knew Mr Clarke. When asked about his complaint to the police, he agreed he had reported it as a Sigma. It was not suggested to him in cross-examination or in re-examination that he had made a mistake in that respect. The issue was simply not further pursued. In particular, it was not suggested to him that he had more than one television at the time. He denied having difficulty remembering things when he had been sniffing glue or taking drugs.
[9] Mr Clarke confirmed the dates of his rental agreements for the video and DVD. He stated that his partner at the time left him just before Christmas 2002 at which point he "went back onto the streets". He was depressed at the time and his father took him down to Ashburton. A couple of weeks later, he went back to the place where he had been living with his partner. He said he wanted to see his son. He thought it was just before or just after Christmas, he could not be sure. He found that the door at the address had been kicked in and all his property had gone. Initially, he thought his former partner had taken the items but she denied she had done so when confronted. The items rented from Mr Rentals were gone.
[10] In cross-examination, Mr Clarke accepted that he was a glue-sniffer and also consumed drugs, alcohol and methylated spirits. He described himself as a poly addict. He admitted taking drugs and alcohol heavily at the end of 2002 around the time he believed the items were stolen. He accepted he could not remember a lot of what took place around that time and that he had a completely blank memory about certain times during that period. He also agreed that he visited the Mongrel Mob headquarters from time to time. He did not deny that he went there for the purpose of obtaining alcohol and drugs. It was put to him that he would sell items rented from Mr Rentals in order to buy drugs. He denied that he did so adding "not as far as I remember". When it was put to him that he might have forgotten he again denied that suggestion and stated "I don’t remember doing that". Mr Clarke accepted that he thought he had a rent-to-buy scheme with Mr Rentals but said he did not recall telling Mr Beattie that. Mr Beattie’s account of the matter was then put to him in the following passage:

Right. And you told Rota Beattie that you were on this scheme and that you would continue to pay for the television and the video if he gave you money and or alcohol and drugs in return.
I don’t remember saying that.

You don’t remember say it.
No.

But you could have said it.
Yeah probably. Possibly, I don’t know, because I don’t know what I do half the time when I am wasted.

And you continued to actually make those payments, didn’t you, as you told him, until the 29^th of January 2003.
I know money was still going out of my account and that. And when I left home I just didn’t bother about it.

Yes, so when you spoke to Mr Beattie and said here is, will you buy this television, will you buy this video and I will continue to pay for them with Mr Rentals, you had an automatic payment coming out of your bank account, didn’t you.
Yeah, but I don’t remember talking to it, about paying money. That was automatic with Mr Rentals people.

But you did tell him that you were on a rent to buy scheme.
I don’t remember telling him that.

But you can see that you could have.
Yeah.

[11] At the end of his cross-examination it was put to him again that he might have sold the items to Mr Beattie. He accepted that while that was possible, he could not remember doing so. In re-examination Mr Clarke said that although he had difficulty remembering things at times, he was "pretty sure" that the items were still at his address in late 2002 at the time he left and he was "pretty sure" he would have remembered selling the goods to someone else if he had done so.
[12] Other evidence called by the Crown was of a formal nature other than the appellant’s statement to the police. When interviewed, the appellant stated she had been living at a different address when she acquired the items in question. That was, she said, about a year before. She said she had paid $50 or $60 each for the items. She did not get them all at the same time. The television and one of the recorders came first and then the other one a few days later through "a friend of a friend". She told the police that the person she obtained the items from was still paying them off and that he was to continue doing so. She did not know how much the items were worth but thought they might have been valued at about $100 each. She specifically denied that Mr Beattie had anything to do with the acquisition of the goods and was adamant it was she who paid for them.

The appellant’s case

[13] When she gave evidence at trial, she admitted lying to the police in an effort to cover for Mr Beattie who, she said, was the true purchaser of the goods. In cross-examination, she stated that she and Mr Beattie had moved to the address where the goods were found on 7 December 2002 and that they had had the goods for "a while before then". She agreed the goods looked pretty new and that they were each engraved with the words "Mr Rentals". She maintained each of the items had been purchased by Mr Beattie for sums varying between $40 and $60 plus, in each case, a packet of cigarettes. She denied knowing the goods were dishonestly obtained stating she believed the person who had sold the goods to Mr Beattie was going to continue to make the payments due to the rental company. She agreed that she did not contact the rental company to check whether this arrangement was acceptable. She understood that the goods were the subject of a "rent-to-own" scheme. So long as the person from whom the goods was acquired continued to pay them off, they would eventually belong to herself and Mr Beattie. In that respect, she said she believed everything Mr Beattie told her about the goods.
[14] Mr Beattie gave evidence that at "the end of 2002" he was approached by Mr Clarke at the Mongrel Mob pad. He described Mr Clarke as a person who often visited the pad to buy drugs. He bought the three items from Mr Clarke, paying $40 and a packet of cigarettes for the television, the same for the video recorder, and $60 and a packet of cigarettes for the DVD player and remote. At that time, he and the appellant were living at an earlier address. In cross-examination, he said that he had had the items for about a year before the warrant was executed in September 2003. That would have placed the purchase of the goods at around September 2002, a date which preceded the rental of the Samsung television on 21 October 2002 and the DVD rented on 17 October 2002. Mr Beattie also denied knowing that the goods were dishonestly obtained stating Mr Clarke was going to continue making payments for the goods.

The Judge’s findings

[15] After reciting the undisputed background and the legal elements the Crown was required to prove, the Judge dealt with the evidence and then made findings as to credibility. Critically, the Judge stated:

Having regard to the glue-sniffing of both Clarke and Nukunuku and Clarke’s multiple addictions, one has to be circumspect in relying upon their evidence. This is particularly so in the case of Clarke with his multiple addictions and the need to finance them and also in his case his acknowledged lapses of memory are another factor. I do not place any weight on his acceptance that he may have done things crucial to the case but does not now remember. That was to merely acknowledge a possibility rather than an actuality.

[16] In relation to count 1, the Judge was satisfied that he could rely on the evidence of Mr Nukunuku as a truthful witness. He accepted that the television had been stolen on 10 December 2002. (It is common ground that the Judge was mistaken in referring to the date of 10 December 2002. The correct date was 3 December 2002 but we do not consider this discrepancy to be material). The Judge also accepted that the television set found in the home of the accused by the police was the television stolen in the burglary from Mr Nukunuku’s home. In making this last finding, the Judge did not refer to the evidence from Mr Nukunuku that, when reporting the theft of the television he described it as a Sigma. Judge Green also observed that no suggestion was made to Mr Nukunuku that he had sold the television set to anyone.
[17] The Judge then went on to deal with the evidence given by the appellant and Mr Beattie to the effect that Mr Clarke had sold all three items to Mr Beattie. If so, the Judge observed, then Mr Clarke was likely to have been the burglar of Mr Nukunuku’s home. While that may have been a possibility, we simply observe that other possibilities also existed. Again however this aspect of the Judge’s decision is not material in our view.
[18] The Judge concluded:

I have carefully evaluated Clarke as a witness of the truth and notwithstanding his failings, I am satisfied that I can accept his evidence that he did not sell the television or the two recorders to Beattie.

[19] The Judge then rejected the evidence of both the appellant and Mr Beattie. In particular, he rejected their account that Mr Clarke had sold the items to Mr Beattie. He accepted nevertheless that Mr Beattie was "the purchaser". We assume that the Judge’s finding was that Mr Beattie had purchased the goods from someone but not from Mr Clarke. The Judge observed that Mr Beattie appeared to have chosen Mr Clarke as a convenient "fall-guy".
[20] The Judge also rejected the evidence of the appellant to the effect that she believed the person who had sold the goods to Mr Beattie would continue to make payments under a rent to buy agreement. He found that the appellant had overwhelming material before her to indicate that the goods had been dishonestly obtained by Mr Beattie and that she went along with his actions by allowing the items to be brought into the home and allowing them to remain there.

The appellant’s submissions on appeal

[21] Specifically in relation to count 1, Ms Sewell for the appellant submitted there was no basis on the evidence for the Judge to conclude that the television reported as stolen was the one found in the appellant’s possession. In that respect, Ms Sewell relied on the unchallenged evidence that Mr Nukunuku had described the stolen television to the police as a Sigma.
[22] We accept that it would have been preferable for the Crown to have dealt with this matter in re-examination and, if not, the Judge should desirably have mentioned it in his findings. However, reviewing the evidence as a whole we are satisfied that it was a mistake on the part of Mr Nukunuku and that the error on his part in reporting it to the police was not material. There is the undisputed evidence that the television rented to Mr Nukunuku and found at the appellant’s address was the same television and that it was a Samsung. There is no evidence that Mr Nukunuku had any other television at the time and it was not put to him that he did. Nor was there any evidence before the court that there is a Sigma brand of television.
[23] Ms Sewell raised a number of other points which she submitted were relevant to the convictions on both counts. She submitted that it was not open for the Judge to reject Mr Beattie’s evidence to the effect that he had purchased the items about a year before the warrant was executed in September 2003. If that evidence were accepted, then Mr Beattie would have purchased the items before the television and DVD were rented. In that case, there would have been no or insufficient evidence that the items had been stolen.
[24] Again we are of the view that it would have been preferable for the Crown to have challenged the evidence of Mr Beattie on that point. Nevertheless, we are satisfied that it was open for the Judge to reject the evidence of both the appellant and Mr Beattie whether or not this particular aspect of this evidence was challenged. Having rejected that evidence, it was established on the basis of the Crown evidence, accepted by the Judge, that all three items had been stolen in late 2002.
[25] Ms Sewell’s principal submission was that, even on the Crown case, it was not open for the Judge to accept Mr Clarke’s evidence on the crucial matter of the time and nature of the theft of the items relating to count 2 or to find that it was not reasonably possible that Mr Clarke had sold the items to Mr Beattie. Ms Sewell referred to Mr Clarke’s acknowledgement of his poor memory, his evidence that he was only "pretty sure" about the timing of the theft and his acknowledgement that it was "possible" that he had told Mr Beattie he would continue to pay for the items in return for money or alcohol and drugs. Ms Sewell was critical of the Judge’s conclusion that these acknowledgements were possibilities rather than actualities.
[26] We find that the Judge was well aware of the deficiencies in Mr Clarke as a witness. He approached his assessment of Mr Clarke’s credibility with circumspection which was appropriate. The assessment of the credibility of a witness is quintessentially for the trial Judge. It is trite to say that the trial Judge has the benefit of seeing and hearing the witnesses. Notwithstanding the acknowledgement by a witness of the possible truth of propositions put to him, it is for the Judge to assess the evidence as a whole and to determine the weight which should be attached to the evidence or to specific parts of it.
[27] Here, the Judge found that he could rely in certain important respects on the evidence of Mr Clarke notwithstanding some obvious shortcomings in his reliability. We accept the submissions made by Ms Markham on behalf of the Crown that it was open for the Judge to do so and there is no proper basis on which we could interfere with the Judge’s finding.
[28] It follows, that the appeal against conviction cannot be sustained in relation to either of the two counts.

Sentence appeal

[29] Ms Sewell submitted that the sentence of 100 hours community work was excessive in so far as it was made cumulative upon the existing sentence of 80 hours imposed in the High Court. She submitted that the two sentences should have been made concurrent.
[30] We are not all persuaded that the sentence was excessive, let alone manifestly excessive. The appellant had two previous convictions for theft and shoplifting in 2001 and 1998 respectively and we consider the appellant was fortunate not to have received a custodial sentence. We are not persuaded that the sentences should have been made concurrent. It was entirely appropriate that the sentences were made cumulative given the discrete nature of the drug offending for which the appellant was sentenced in the High Court and the receiving charges the subject of this appeal.
[31] The sentence appeal must also be dismissed.

Solicitors:
Crown Law Office, Wellington

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[3]	The charges upon which the appellant was convicted arose upon the termination of Operation Crusade, a police operation targeting the drug activities of the Christchurch chapter of the Mongrel Mob. The police executed a search warrant on 3 September 2003 at the appellant’s home address where she lived with her partner, a Mr Beattie. The police located three items in the appellant’s bedroom valued in all at approximately $1,000. These were a Samsung television set, a video recorder and a DVD player. The items were all in new or near new condition. They were plainly engraved with the name and contact details of a Christchurch rental company known as "Mr Rentals".
[4]	Count 1 related to the television set which was the subject of a rental agreement dated 21 October 2002 from Mr Rentals to a Mr Nukunuku. When Mr Nukunuku complained to the police about the theft in December 2002 he described the television set as a "Sigma". The discrepancy between the "Samsung" television rented to Mr Nukunuku and the "Sigma" he reported to the police as stolen, features in the grounds of appeal.
[5]	The video player and DVD were the subject of count 2. The undisputed evidence is that these items were the subject of two separate rental agreements between Mr Rentals and a Mr Clarke dated 11 April 2002 and 17 October 2002 respectively. Mr Clarke’s evidence was that he had moved out of his flat around Christmas 2002 after a dispute with his partner. When he returned for a visit a couple of weeks later, he found that the goods were missing.

[6]	The Crown called the office manager for Mr Rentals to prove the rental agreements for the items in question and the trade purchase value of the goods. The witness confirmed by reference to the serial numbers that the items recovered by the police were those which had been rented to Messrs Clarke and Nukunuku respectively. The witness also stated that the rental agreements were purely a renting arrangement and there was no element of renting to purchase. According to the evidence of the office manager, the rental payments on the television rented by Mr Nukunuku continued until 14 October 2003, some 10 months after he reported the theft of the television in December 2002. The payments on the video and DVD player rented by Mr Clarke continued until 29 January 2003, shortly after Mr Clarke stated the items had been stolen from his flat. Other than the cash deposit paid on one of the items, the payments on the video and DVD were by automatic payment from Mr Clarke’s bank account.
[7]	In his evidence, Mr Nukunuku confirmed he had rented a Samsung television. In December 2002 there was a burglary at his address in which the television and remote were taken. On 4 December 2002 he reported the matter to the police. He said he had discovered the television was missing the day before and, as earlier indicated, he described the television as a Sigma. He agreed he kept paying for the television until October 2003 stating that he did not know the rental payments were continuing to be paid automatically from his bank account.
[8]	In cross-examination, he agreed he was a glue-sniffer and a regular visitor to the Mongrel Mob headquarters. He also agreed he knew Mr Clarke. When asked about his complaint to the police, he agreed he had reported it as a Sigma. It was not suggested to him in cross-examination or in re-examination that he had made a mistake in that respect. The issue was simply not further pursued. In particular, it was not suggested to him that he had more than one television at the time. He denied having difficulty remembering things when he had been sniffing glue or taking drugs.
[9]	Mr Clarke confirmed the dates of his rental agreements for the video and DVD. He stated that his partner at the time left him just before Christmas 2002 at which point he "went back onto the streets". He was depressed at the time and his father took him down to Ashburton. A couple of weeks later, he went back to the place where he had been living with his partner. He said he wanted to see his son. He thought it was just before or just after Christmas, he could not be sure. He found that the door at the address had been kicked in and all his property had gone. Initially, he thought his former partner had taken the items but she denied she had done so when confronted. The items rented from Mr Rentals were gone.
[10]	In cross-examination, Mr Clarke accepted that he was a glue-sniffer and also consumed drugs, alcohol and methylated spirits. He described himself as a poly addict. He admitted taking drugs and alcohol heavily at the end of 2002 around the time he believed the items were stolen. He accepted he could not remember a lot of what took place around that time and that he had a completely blank memory about certain times during that period. He also agreed that he visited the Mongrel Mob headquarters from time to time. He did not deny that he went there for the purpose of obtaining alcohol and drugs. It was put to him that he would sell items rented from Mr Rentals in order to buy drugs. He denied that he did so adding "not as far as I remember". When it was put to him that he might have forgotten he again denied that suggestion and stated "I don’t remember doing that". Mr Clarke accepted that he thought he had a rent-to-buy scheme with Mr Rentals but said he did not recall telling Mr Beattie that. Mr Beattie’s account of the matter was then put to him in the following passage:

[16]	In relation to count 1, the Judge was satisfied that he could rely on the evidence of Mr Nukunuku as a truthful witness. He accepted that the television had been stolen on 10 December 2002. (It is common ground that the Judge was mistaken in referring to the date of 10 December 2002. The correct date was 3 December 2002 but we do not consider this discrepancy to be material). The Judge also accepted that the television set found in the home of the accused by the police was the television stolen in the burglary from Mr Nukunuku’s home. In making this last finding, the Judge did not refer to the evidence from Mr Nukunuku that, when reporting the theft of the television he described it as a Sigma. Judge Green also observed that no suggestion was made to Mr Nukunuku that he had sold the television set to anyone.
[17]	The Judge then went on to deal with the evidence given by the appellant and Mr Beattie to the effect that Mr Clarke had sold all three items to Mr Beattie. If so, the Judge observed, then Mr Clarke was likely to have been the burglar of Mr Nukunuku’s home. While that may have been a possibility, we simply observe that other possibilities also existed. Again however this aspect of the Judge’s decision is not material in our view.
[18]	The Judge concluded:

[21]	Specifically in relation to count 1, Ms Sewell for the appellant submitted there was no basis on the evidence for the Judge to conclude that the television reported as stolen was the one found in the appellant’s possession. In that respect, Ms Sewell relied on the unchallenged evidence that Mr Nukunuku had described the stolen television to the police as a Sigma.
[22]	We accept that it would have been preferable for the Crown to have dealt with this matter in re-examination and, if not, the Judge should desirably have mentioned it in his findings. However, reviewing the evidence as a whole we are satisfied that it was a mistake on the part of Mr Nukunuku and that the error on his part in reporting it to the police was not material. There is the undisputed evidence that the television rented to Mr Nukunuku and found at the appellant’s address was the same television and that it was a Samsung. There is no evidence that Mr Nukunuku had any other television at the time and it was not put to him that he did. Nor was there any evidence before the court that there is a Sigma brand of television.
[23]	Ms Sewell raised a number of other points which she submitted were relevant to the convictions on both counts. She submitted that it was not open for the Judge to reject Mr Beattie’s evidence to the effect that he had purchased the items about a year before the warrant was executed in September 2003. If that evidence were accepted, then Mr Beattie would have purchased the items before the television and DVD were rented. In that case, there would have been no or insufficient evidence that the items had been stolen.
[24]	Again we are of the view that it would have been preferable for the Crown to have challenged the evidence of Mr Beattie on that point. Nevertheless, we are satisfied that it was open for the Judge to reject the evidence of both the appellant and Mr Beattie whether or not this particular aspect of this evidence was challenged. Having rejected that evidence, it was established on the basis of the Crown evidence, accepted by the Judge, that all three items had been stolen in late 2002.
[25]	Ms Sewell’s principal submission was that, even on the Crown case, it was not open for the Judge to accept Mr Clarke’s evidence on the crucial matter of the time and nature of the theft of the items relating to count 2 or to find that it was not reasonably possible that Mr Clarke had sold the items to Mr Beattie. Ms Sewell referred to Mr Clarke’s acknowledgement of his poor memory, his evidence that he was only "pretty sure" about the timing of the theft and his acknowledgement that it was "possible" that he had told Mr Beattie he would continue to pay for the items in return for money or alcohol and drugs. Ms Sewell was critical of the Judge’s conclusion that these acknowledgements were possibilities rather than actualities.
[26]	We find that the Judge was well aware of the deficiencies in Mr Clarke as a witness. He approached his assessment of Mr Clarke’s credibility with circumspection which was appropriate. The assessment of the credibility of a witness is quintessentially for the trial Judge. It is trite to say that the trial Judge has the benefit of seeing and hearing the witnesses. Notwithstanding the acknowledgement by a witness of the possible truth of propositions put to him, it is for the Judge to assess the evidence as a whole and to determine the weight which should be attached to the evidence or to specific parts of it.
[27]	Here, the Judge found that he could rely in certain important respects on the evidence of Mr Clarke notwithstanding some obvious shortcomings in his reliability. We accept the submissions made by Ms Markham on behalf of the Crown that it was open for the Judge to do so and there is no proper basis on which we could interfere with the Judge’s finding.
[28]	It follows, that the appeal against conviction cannot be sustained in relation to either of the two counts.

[29]	Ms Sewell submitted that the sentence of 100 hours community work was excessive in so far as it was made cumulative upon the existing sentence of 80 hours imposed in the High Court. She submitted that the two sentences should have been made concurrent.
[30]	We are not all persuaded that the sentence was excessive, let alone manifestly excessive. The appellant had two previous convictions for theft and shoplifting in 2001 and 1998 respectively and we consider the appellant was fortunate not to have received a custodial sentence. We are not persuaded that the sentences should have been made concurrent. It was entirely appropriate that the sentences were made cumulative given the discrete nature of the drug offending for which the appellant was sentenced in the High Court and the receiving charges the subject of this appeal.
[31]	The sentence appeal must also be dismissed.