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The Queen v Mason [2006] NZCA 63 (11 April 2006)

Last Updated: 21 April 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA517/05

THE QUEEN

v

JOHN MAJOR MASON

Hearing: 11 April 2006

Court: William Young P, Chambers and O'Regan JJ

Counsel: R D Stone for Appellant
A Markham for Crown

Judgment: 11 April 2006

JUDGMENT OF THE COURT

A We substitute for the jury’s verdict a verdict of guilty of burglary.
B In substitution for the sentence imposed by the trial Judge, we sentence the appellant to 14 months imprisonment.
C We decline leave to apply for home detention.

REASONS

(Given by William Young P)

Introduction

[1] Late last year the appellant was found guilty by a jury in the Napier District Court of aggravated burglary. He was acquitted on a further charge of assault with intent to commit sexual violation. He was subsequently sentenced by the trial Judge (Judge Adeane) to 18 months imprisonment. Leave to apply for home detention was declined.
[2] He now appeals against conviction and sentence.

Background

[3] On 24 November 2004 the complainant was to commence working a late shift as a machine operator. In anticipation of this, she went to bed at about 3.00pm to have a sleep. She awoke at around 5.00pm to find a man standing in the doorway to her bedroom. He was carrying a broomstick and had a red bandanna across his face. He was wearing what are known as colours. The man said something to the complainant at which point she realised that it was the appellant (who lived nearby). He approached the bed and told her to move over so he could sit down. It is not clear whether he still had the broomstick at this point. The appellant asked the complainant for $20 and began rummaging on a shelf for money. The complainant grabbed her wallet and tried to hide it under the bedclothes. The appellant took the wallet from her, and removed $20. He also took her cellphone.
[4] The complainant also gave evidence of the appellant making sexual advances to her – evidence which formed the basis of the charge of assault with intent to commit sexual violation. As the appellant was found not guilty on that charge, we need say no more about this aspect of the case.
[5] The appellant eventually left the complainant’s house (according to her unchallenged evidence saying "Seig Heil" as he did so). He took with him her $20 note and cellphone. Not long afterwards he was found by police at his house with the complainant’s cellphone in his possession and her $20 note tucked into his shoe.
[6] The appellant did not give evidence at trial.

The offence of aggravated burglary

[7] Section 232 of the Crimes Act 1961 provides as follows:

232 Aggravated burglary
(1) Every one is liable to imprisonment for a term not exceeding 14 years who,--
(a) while committing burglary, has a weapon with him or her or uses any thing as a weapon; or
(b) having committed burglary, has a weapon with him or her, or uses any thing as a weapon, while still in the building or ship.

The expression "weapon" is not defined.

The summing up

[8] When the Judge summed up as to the offence of aggravated burglary, he addressed the elements of the offence in terms which included the following directions:

Now the law goes on to define a weapon. Some weapons are purpose made such as pistols. But there are many other items capable of being a weapon if the user so chooses. The test here is whether the stick, if you find that a stick was carried, is something capable of being used to cause actual bodily harm if the user so intended.
...
[The Crown needs to prove] that he intended to commit a crime when he went in, and that while he was in the house he had with him an item capable of being used as a weapon.
...
The suggestion that the stick was not used as a weapon in fact, is beside the point. The Crown does not need to prove that this man used the stick as a weapon. The issue is whether he had the stick in his possession and that it was something capable of use to inflict bodily injury if he so intended.

A misdirection

[9] The Crown accepts that the Judge’s directions to the jury were incorrect.
[10] The broomstick was not a purpose-made weapon and the issue for the jury was not whether it was capable of being used as a weapon, but whether the accused intended it to be used as such should the need arise. Support for this proposition can be found in R v Carroll [1975] 2 NZLR 474 (SC), a case concerning the meaning of "offensive weapon". Casey J said at 479:

These early authorities suggest a distinction between things which can be described as offensive weapons per se, and others which may or may not be used as a weapon, that is, to inflict bodily injury, and whose classification depends on the intention of their possessor.

Reference can also be made to R v Hamilton (1993) 66 A Crim R 573 and R v Palmer [1837] EngR 253; (1831) 1 M & Rob 70; 174 ER 25.

[11] One of the issues at trial which was raised on behalf of the appellant related to his purpose in having the broomstick with him. As at turned out he did not use it as a weapon and, indeed, it is possible that he left it at the door of the complainant’s bedroom when he went in. In those circumstances the misdirection was plainly material.

Substitution of conviction for burglary

[12] The Crown submits that this is an appropriate case for the substitution of a verdict of guilty on a charge of burglary. Jurisdiction to do this is provided by s 386(2) of the Crimes Act 1961 which provides:

Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal ... that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed as may be warranted in law for that other offence, not being a sentence of greater severity.

[13] We note that similar powers (albeit expressed in slightly different terms) arise under s 335. In the present context, however, it is sufficient to note that the case falls comfortably within s 386(2).
[14] Mr Stone argued that we should not exercise the s 386(2) jurisdiction. He advanced two reasons in support of this argument.
[15] The first was alleged prejudice to the appellant. Mr Stone maintained that the appellant might have given evidence had the indictment alleged burglary rather than aggravated burglary. We see such speculation (ie as to whether the appellant might have given evidence) as being of little significance. Given the way the case was run, the Judge should have left to the jury the possibility of finding the appellant guilty of the included count of burglary, see s 339. In saying this, we recognise that there would have been a discretion not to do so, but in the circumstances we can see no sensible basis upon which that discretion could have been exercised against leaving the included count to the jury.
[16] The second reason relied on by Mr Stone relates to a mis-statement in the indictment of the elements of the offence of burglary. In the indictment the appellant’s entry was alleged to have been "unlawful" as opposed to having been "without authority", see s 231. So Mr Stone made the submission that it would not have been open to the jury to have found the appellant guilty of burglary on the indictment, given the infelicities in the way in which it was expressed.
[17] When the Judge summed up he did not pick up the error in the indictment. He told the jury that the element of unlawfulness would be satisfied if the appellant went into the complainant’s house without invitation or excuse. It is not satisfactory that the Judge summed up by reference to the infelicitously expressed indictment rather than the Crimes Act. But in the context of the case, what the Judge said was near enough. To put it another way, it could not credibly be argued that the Judge’s error had led to a miscarriage of justice, substantial or otherwise.
[18] We are satisfied that it would have been open to the jury to find the appellant guilty of burglary on the indictment, an offence which the jury necessarily concluded he had committed. Accordingly we substitute for the jury’s verdict a verdict of guilty of burglary.

Re-sentencing

[19] We are thus required to re-sentence the appellant.
[20] In the circumstances of this case, there are two components to this exercise: first the fixing of an appropriate prison sentence and secondly a decision whether to grant the appellant leave to apply for home detention.
[21] At the time of the offence the appellant was 21. Although he had never previously been to prison he had accumulated a substantial list of previous convictions. His previous offending included offences of theft (three), possession of a knife, fraud, demanding with menaces and assault. He had also been convicted of offences which indicate an unwillingness to comply with official requirements, including two bail offences and breach of a community work sentence. On the other hand, between the date of the offence and trial (a period of 12 months), the appellant had complied with bail terms and had remained offence-free, a feat he had not achieved over such a long period since he first began offending in August 2001.
[22] The Judge fixed a sentence of 18 months imprisonment. In doing so he noted:

Given that the weapon was not used the Crown ... accepts that the charge is more akin to one of burglary in the circumstances emerging in evidence.

The Judge thus proceeded on a view of the appellant’s culpability which is closely akin to the culpability which we must address. We are not, however, approaching this issue by way of appeal but rather as a re-sentencing process.

[23] It is true, as Mr Stone stressed, that the appellant is a first time burglar but the offence was still serious. First, he was far from being a first offender. Secondly his behaviour was extremely intrusive (as it involved him going into the complainant’s bedroom). Thirdly his behaviour was intimidatory - the wearing of the bandanna as a disguise, the sitting on the complainant’s bed, the snatching of her wallet, and the search of her room. Fourthly there was an element of direct confrontation with an occupier (in this case a young woman) which is a serious aggravating feature. A worrying aspect is that the appellant knew the complainant (and knew that she knew him) and yet continued with the burglary. The inference is that he thought that she would not dare to complain. In this regard we note that there are loose gang connotations to the case, indicated by the wearing of colours and the "Seig Heil" remark which the appellant made when he left. The complainant in her victim impact report makes the sort of comments which might be expected given the intrusive nature of the offending.
[24] In those circumstances, we propose to impose a sentence of 14 months imprisonment.
[25] The Judge declined leave to apply for home detention. He gave the following reasons:

In view of the various previous convictions, the wide-ranging nature of them and the essential gravity of this offending, in my view leave to seek home detention would not be appropriate and it is declined in this case.

[26] We emphasise that this is not an appeal against the refusal to grant leave to apply for home detention and that it is our duty to approach this issue afresh. But, as it turns out, we see this aspect of the case in the same way as the Judge did.
[27] Despite the appellant having complied with his bail conditions for the approximately 12 months which elapsed between the offending and his trial, he is nonetheless not an obvious candidate for home detention. There was an offending at home component to the burglary, as he and the complainant lived in close proximity, a consideration which, we accept, could be partly addressed by appropriate home detention conditions. Further, the appellant has many convictions for offences involving failure to comply with court orders or similar lawful requirements. As well, the utility of us granting leave is questionable given the reduction in sentence and the time that it would take for an application for home detention to be addressed.

Result

[28] Accordingly:

(a) We substitute for the jury’s verdict a verdict of guilty of burglary.

(b) We sentence the appellant to 14 months imprisonment.

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[1]	Late last year the appellant was found guilty by a jury in the Napier District Court of aggravated burglary. He was acquitted on a further charge of assault with intent to commit sexual violation. He was subsequently sentenced by the trial Judge (Judge Adeane) to 18 months imprisonment. Leave to apply for home detention was declined.
[2]	He now appeals against conviction and sentence.

[3]	On 24 November 2004 the complainant was to commence working a late shift as a machine operator. In anticipation of this, she went to bed at about 3.00pm to have a sleep. She awoke at around 5.00pm to find a man standing in the doorway to her bedroom. He was carrying a broomstick and had a red bandanna across his face. He was wearing what are known as colours. The man said something to the complainant at which point she realised that it was the appellant (who lived nearby). He approached the bed and told her to move over so he could sit down. It is not clear whether he still had the broomstick at this point. The appellant asked the complainant for $20 and began rummaging on a shelf for money. The complainant grabbed her wallet and tried to hide it under the bedclothes. The appellant took the wallet from her, and removed $20. He also took her cellphone.
[4]	The complainant also gave evidence of the appellant making sexual advances to her – evidence which formed the basis of the charge of assault with intent to commit sexual violation. As the appellant was found not guilty on that charge, we need say no more about this aspect of the case.
[5]	The appellant eventually left the complainant’s house (according to her unchallenged evidence saying "Seig Heil" as he did so). He took with him her $20 note and cellphone. Not long afterwards he was found by police at his house with the complainant’s cellphone in his possession and her $20 note tucked into his shoe.
[6]	The appellant did not give evidence at trial.

[9]	The Crown accepts that the Judge’s directions to the jury were incorrect.
[10]	The broomstick was not a purpose-made weapon and the issue for the jury was not whether it was capable of being used as a weapon, but whether the accused intended it to be used as such should the need arise. Support for this proposition can be found in R v Carroll [1975] 2 NZLR 474 (SC), a case concerning the meaning of "offensive weapon". Casey J said at 479:

[13]	We note that similar powers (albeit expressed in slightly different terms) arise under s 335. In the present context, however, it is sufficient to note that the case falls comfortably within s 386(2).
[14]	Mr Stone argued that we should not exercise the s 386(2) jurisdiction. He advanced two reasons in support of this argument.
[15]	The first was alleged prejudice to the appellant. Mr Stone maintained that the appellant might have given evidence had the indictment alleged burglary rather than aggravated burglary. We see such speculation (ie as to whether the appellant might have given evidence) as being of little significance. Given the way the case was run, the Judge should have left to the jury the possibility of finding the appellant guilty of the included count of burglary, see s 339. In saying this, we recognise that there would have been a discretion not to do so, but in the circumstances we can see no sensible basis upon which that discretion could have been exercised against leaving the included count to the jury.
[16]	The second reason relied on by Mr Stone relates to a mis-statement in the indictment of the elements of the offence of burglary. In the indictment the appellant’s entry was alleged to have been "unlawful" as opposed to having been "without authority", see s 231. So Mr Stone made the submission that it would not have been open to the jury to have found the appellant guilty of burglary on the indictment, given the infelicities in the way in which it was expressed.
[17]	When the Judge summed up he did not pick up the error in the indictment. He told the jury that the element of unlawfulness would be satisfied if the appellant went into the complainant’s house without invitation or excuse. It is not satisfactory that the Judge summed up by reference to the infelicitously expressed indictment rather than the Crimes Act. But in the context of the case, what the Judge said was near enough. To put it another way, it could not credibly be argued that the Judge’s error had led to a miscarriage of justice, substantial or otherwise.
[18]	We are satisfied that it would have been open to the jury to find the appellant guilty of burglary on the indictment, an offence which the jury necessarily concluded he had committed. Accordingly we substitute for the jury’s verdict a verdict of guilty of burglary.

[19]	We are thus required to re-sentence the appellant.
[20]	In the circumstances of this case, there are two components to this exercise: first the fixing of an appropriate prison sentence and secondly a decision whether to grant the appellant leave to apply for home detention.
[21]	At the time of the offence the appellant was 21. Although he had never previously been to prison he had accumulated a substantial list of previous convictions. His previous offending included offences of theft (three), possession of a knife, fraud, demanding with menaces and assault. He had also been convicted of offences which indicate an unwillingness to comply with official requirements, including two bail offences and breach of a community work sentence. On the other hand, between the date of the offence and trial (a period of 12 months), the appellant had complied with bail terms and had remained offence-free, a feat he had not achieved over such a long period since he first began offending in August 2001.
[22]	The Judge fixed a sentence of 18 months imprisonment. In doing so he noted:

[23]	It is true, as Mr Stone stressed, that the appellant is a first time burglar but the offence was still serious. First, he was far from being a first offender. Secondly his behaviour was extremely intrusive (as it involved him going into the complainant’s bedroom). Thirdly his behaviour was intimidatory - the wearing of the bandanna as a disguise, the sitting on the complainant’s bed, the snatching of her wallet, and the search of her room. Fourthly there was an element of direct confrontation with an occupier (in this case a young woman) which is a serious aggravating feature. A worrying aspect is that the appellant knew the complainant (and knew that she knew him) and yet continued with the burglary. The inference is that he thought that she would not dare to complain. In this regard we note that there are loose gang connotations to the case, indicated by the wearing of colours and the "Seig Heil" remark which the appellant made when he left. The complainant in her victim impact report makes the sort of comments which might be expected given the intrusive nature of the offending.
[24]	In those circumstances, we propose to impose a sentence of 14 months imprisonment.
[25]	The Judge declined leave to apply for home detention. He gave the following reasons: