The Queen v Tucker [2008] NZCA 120 (6 May 2008)

Last Updated: 17 May 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA330/07

[2008] NZCA 120

THE QUEEN

v

GRAEME STEPHEN TUCKER

Court: Hammond, Chambers and O'Regan JJ

Counsel: Appellant in person
M E Ball for Crown

Judgment: 6 May 2008 at 11.30 am

(On the Papers)

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] This appeal against conviction and sentence has been heard on the papers under s 392B of the Crimes Act 1961. The relevant materials, including written submissions which have been received in accordance with r 29 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.

Offence

[2] The appellant was convicted after a jury trial in the District Court of contravening a restraining order without reasonable excuse (s 25(1)(a) of the Harassment Act 1997). He was sentenced by the trial Judge, Judge Garland, to imprisonment for 12 months. He appeals against both conviction and sentence.

Grounds of appeal

[3] The grounds of the appeal against conviction as outlined in the notice of appeal filed by Mr Tucker and the “statement in support of appeal” filed with it are:

(a) That the trial be declared a “mistrial” on the basis that the restraining order itself was and is invalid;

(b) As there was no hearing regarding the restraining order and no documents were filed by either party, the restraining order is a forgery or should not have been issued;
(c) If the appellant had been given the opportunity to respond to the application for a restraining order, he would have called numerous witnesses and produced documents to challenge the making of the order;
(d) The tenant, a witness at the trial, should be required to prove his identity as no evidence was given by him at trial proving who he was or proving he rented a property from the complainants;
(e) The complainants should be required to give evidence and tell the truth as they both claimed they had a restraining order when they had never applied for one.
[4] The appellant indicated in his notice of appeal that he wished to call a number of witnesses in support of his appeal. These included the two complainants, a couple who were former landlords of the appellant, the person then occupying the flat which the appellant had formerly rented from the complainants and the Registrar of the District Court. All but the last gave evidence at the trial. There is no proper basis for any to be called in support of the appeal as their evidence is not fresh and, in the case of the Registrar, not relevant to the issues before the Court at the trial.
[5] No grounds for the sentence appeal are specified in the notice of appeal or the statement in support of appeal.

Submissions

[6] The Court has been assisted by written submissions from the Crown but the appellant has not, despite reminders from the Court, filed submissions in support of his appeal or in reply to those of the Crown, apart from the statement referred to earlier.

Facts

[7] The facts are summarised in the sentencing notes of Judge Garland as follows:

On 27 October 2004 a restraining order was made against you in the Levin District Court. The protected persons were [the complainants], the victims in this matter. The order was served on you on 18 November 2004. On or about 7 September 2005 you sent a letter addressed to the tenant at the cottage at 312 Arapaepae Road, Levin. That is the address of the complainants. The cottage is a separate building at that address of which you were previously the tenant. Both the cottage and the complainant’s house share the same letterbox as you well know. When the complainant emptied the letterbox on 8 September 2004 he saw that the letter was addressed to the tenant but he knew that you had clearly intended that letter for the [complainants]. He was suspicious because the letter was not addressed to anyone by name and it was similar in appearance to previous letters which you had sent to the [complainants]. He opened it and discovered that in fact it was a letter from you and in that letter you made it clear that you had no intention whatsoever of complying with the restraining order. The letter was produced at trial. It was clearly a threatening letter and it was clearly intended by you to intimidate the [complainants]. On the reverse side of the letter you had written out in words a song entitled ‘If you want blood you have got it”. Below which you stated the letter was dedicated to [the male complainant]. Not unreasonably that letter caused the complainants to fear for their safety.

Conviction appeal

[8] We deal with the grounds of the conviction appeal in the same order as they appear in [3] above.

(a) The restraining order was invalid

[9] Just before sentencing which, for reasons which we will come to, took place almost ten months after the jury’s verdict, the appellant instructed his lawyer to make an “Application to whatever Court is appropriate, requesting that my conviction...be set aside and the Hearing be declared a Mistrial on the basis that the Restraining Order itself is invalid”. His lawyer declined to do so. The appellant then represented himself at the sentencing. Such an application could only be made by way of appeal, and that is what has now occurred.
[10] At the trial, it was conceded that the restraining order was valid and that it had been served on the appellant. In his summing up the Judge said, when outlining the elements of the offence:

[22] The first element must be proven is that at the material time the Accused was subject to a Restraining Order in favour of the Complainants,... . Well, in this case as you have heard, there is no dispute that that is so. That is accepted.

[23] The second essential element must be proved is that the Accused was aware of that order. And again, in this case, there’s no dispute that that was so. That’s accepted.

[11] The officer in charge of the case, Sergeant Taylor, gave evidence that the appellant admitted that he knew there was a restraining order in place when questioned by the police.
[12] There was clearly a proper basis for the jury’s finding that there was a restraining order, that it had been served on the appellant and that the appellant knew he was bound by it. There was no basis for the trial to be declared a mistrial and there is no reason for this Court, on appeal, to find that any miscarriage occurred.

(b) The restraining order is a forgery

[13] Having admitted at trial that the order was valid it is now not open to the appellant to assert in this Court that it is a forgery.

(c) The appellant would have challenged the issuing of the restraining order

[14] Whether the appellant would have challenged the issuing of the restraining order or not, the fact remains that, as the appellant admitted at the trial, the restraining order had been granted and was binding on him. Even if there had been a basis on which the appellant could have challenged the issuing of the restraining order (and there is nothing in the material before us, other than assertions by the appellant, to indicate that there was) the fact is the order was issued and it remained in force until set aside. The appellant was obliged to comply with it, and was well aware of that obligation.
(d) The tenant should be required to give evidence proving his identity
[15] The tenant, who lived in the property adjacent to that of the complainants that had formerly been occupied by the appellant, gave evidence at the trial. He was asked by the prosecutor to give his full name and did so. He was asked if he lived in the flat owned by the complainants at the relevant address and answered: “yes”. Not surprisingly, he was not cross-examined on those replies. Nothing more was required.
(e) The complainants should be required to give evidence
[16] The complainants did give evidence on oath at the trial. It goes without saying that they were required to tell the truth. The appellant says they should now give evidence to this Court and tell the truth because both claimed they had a restraining order against him when they had never applied for one. There is no basis for that assertion: the evidence they gave on that topic at the trial was consistent with the documentary exhibits and the appellant’s own admissions.

Conclusion

[17] We dismiss the conviction appeal.

Sentence appeal

[18] The Judge recorded in his sentencing notes that he had deferred sentence on the present charge when the appellant first appeared for sentence on that charge and an additional charge of threatening to kill. He explained this as follows:

[2]...I sentenced you on [the threatening to kill] charge to a sentence of two years supervision. At that time when I sentenced you I said that it had been suggested that there was now at least some hope that you would accept the professional help which you need to treat your conditions and resolve your present issues. Having read all the material helpfully gathered by your Counsel Mr Surridge and having had the benefit of hearing from him as to how matters had progressed, I had reached the view that you should be given the opportunity to obtain treatment with a view to rehabilitation. I told you then that I did not for one moment want to give you the impression that I did not regard your offending as serious. The plain fact of the matter is that your offending was serious. However, in my view, it was in the best interests of your victim and of the community and for you that the issues at the Court of your offending were addressed at that time to ensure that your offending did not continue. I indicated however that it was important that the Court maintained a supervisory role for a lengthy period of time. I said that that could be achieved by a lengthy period of supervision coupled with special conditions on that charge. In relation to the charge of breach of the Harassment Order I adjourned the sentencing on that charge for a period of six months and I directed an updated pre-sentence report at that time to see how you were progressing with the rehabilitative initiatives which had been planned.

[19] Having received the updated report at the resumed sentencing hearing, the Judge summarised the position as follows:

[4] I have read the probation reports before the Court, the first of which was prepared on 21 May 2007 and the last which was prepared at my request on 18 June 2007. I note that the Probation Officer describes you as agitated during the interview, using abusive language and in fact terminating the interview when you were told the purpose of the report. Mr Stillwell of the Capital Coast Mental Health Unit was contacted for preparation of the report. He informed the Probation Officer that the last time that he worked with you was in the year 2000 when you were in prison. He thought you diagnosed yourself with adult attention deficit hyperactivity disorder and said that you had been taking Ritalin for that. Mr Stillwell said he believed that you had paranoid personality disorder although you avoid any contact with the Forensic Mental Health Services. You also have Kleinfelter syndrome and that you have regular injections of testosterone for that. The Probation Officer is your supervising Probation Officer for the sentence and supervision that I mentioned earlier. It is confirmed that you were compliant with your sentence and you showed motivation to access psychological counselling. You had begun to see Mr Roose of the psychological service although you were remanded in custody after one appointment. Mr Roose had raised concerns with the Probation Officer regarding your state of mind at the time of the assessment and had recommended that you see a psychiatrist. Unfortunately you did not attend your psychiatric assessment. The Probation Officer assesses you as being at medium to high risk of reoffending. A sentence of imprisonment is seen as the only option available at this time. It is recommended that release conditions the same as that imposed on the sentence of supervision be imposed.

[20] The Judge noted numerous aggravating features:

(a) The offending contained threats of violence;

(b) The offending occurred when the appellant was subject to a sentence of supervision;
(c) The impact on the victims was substantial;
(d) There was considerable premeditation;
(e) The appellant’s significant criminal history: 16 previous convictions including two charges of failure to comply with a restraining order in 2005, which involved the same complainants.
[21] The only mitigating factor which the Judge could identify was the appellant’s diminished capacity to behave appropriately due to his medical and psychological conditions. He noted that the appellant showed no remorse.
[22] The maximum penalty for the offence is two years imprisonment. The Judge compared the present case to the facts of R v Cartwright CA175/02 28 August 2002, in which a sentence of eight months imprisonment, after guilty pleas, was upheld (this was one component of cumulative sentences totalling two years imprisonment). Having done so, the Judge took a starting point of 15 months, including allowance for aggravating factors, and reduced that by three months to reflect the mitigating factor, leaving a sentence of 12 months imprisonment. He imposed special conditions of release.
[23] The Judge observed:

[11] Sadly you have abandoned the efforts made by your Counsel and by the mental health authorities to assist with your rehabilitation. The Crown at your last appearance drew to my attention the fact that you had renewed your letter writing activity to the victims, in breach of your bail conditions. You also wrote a letter to the Court indicating your intention to continue harassing the victims.

[24] The sentencing approach of the Judge was correct. His initial merciful and rehabilitative approach unfortunately did not lead to the outcome hoped for. The appellant left the Judge with no option. The sentence was within the range of sentences open to the Judge. It was not excessive, let alone manifestly excessive.
[25] We dismiss the appeal against sentence.

Solicitors:
Crown Law Office, Wellington