The Queen v Povey [2009] NZCA 362 (19 August 2009)

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The Queen v Povey [2009] NZCA 362 (19 August 2009)

Last Updated: 25 August 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA212/2009 [2009] NZCA 362THE QUEEN

v

GRANT SELWYN POVEY

Hearing: 10 August 2009

Court: Baragwanath, Randerson and Panckhurst JJ

Counsel: D J Allan for Appellant
H A Wrigley for Crown

Judgment: 19 August 2009 at 12 noon

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

JUDGMENT OF THE COURT

(Given by Baragwanath J)

[1] The appellant was convicted in the District Court of burglary of a property at Thames and sentenced by Judge Tompkins to three years imprisonment. The appeal is against conviction and sentence.

The appeal against conviction

[2] Several notified grounds of appeal were abandoned. Mr Allan’s ultimate submission was in effect two-fold:

• (a) That the Judge wrongly failed to direct the jury that an inference that the appellant had sustained injury falling from a ladder leading to the burgled premises, was not available;
• (b) That the Judge’s direction to the jury failed to warn them against accepting that part of the Crown case.

[3] The burglary was of an upstairs residential apartment in the former Lady Bowen Tavern in Thames at the intersection of Brown and Albert Streets. The main frontage is on the western side of Brown Street and it has a southern frontage to Albert Street. There are fire escape ladders at the southern and northern ends of the Brown Street frontage which give access to a balcony, which in turn gives access to the first floor apartment.
[4] The appellant was a passenger in a car driven by a Mr Moore which stopped outside the eastern frontage of the building at about 2 am. Mr Cassidy, the owner of a backpackers diagonally across Brown Street some 50 metres to the north east, heard the car arrive and went outside. There was little lighting other than cigarette lighters being lit by the two occupants of the car, who walked along the eastern frontage of the apartment building trying to look inside. The witness saw one of them climbing the ladder at the northern end of the building, climb on to the balcony at the top and go through a door into the building. He saw the other man disappear out of sight around the southern corner of the building into Albert Street. He then saw the first man return through the doorway and climb down carrying what looked like a stereo, go back to the car and meet his companion. The first man returned to the northern ladder to make a second entry. As he approached the top of the fire escape a police car drove west along Albert Street and right into Brown Street so that its headlights illuminated the eastern side of the building. The man on the northern fire escape dropped to the ground and lay down. The witness saw the other man trying to get away but he was hobbling. The officer recognised the latter as the appellant and asked “What’s happening Grant?” In the meantime Mr Cassidy heard a female voice screaming in the building and saying “Get out”. The man who had been seen on the northern fire escape walked out the front door. That was Mr Moore.
[5] Constable Smith received a call on his police cell phone about 2:15 am. On arrival Mr Cassidy drew his attention to the balcony on the eastern side of the apartment building. The constable heard a thud and what he called “a clatter, a plastic sound ... and what sounded like someone running off”. The man disappeared around the southern corner of the building into Albert Street. The constable shouted “Stop, police” and immediately saw the appellant who was hobbling towards him, limping. The officer administered a warning to which the appellant responded “I’m chasing someone”. The officer asked “Who?”. The appellant replied “Jason [Moore]. He’s up there”, indicating towards the balcony of the building. Asked “Why are you chasing him?”, the appellant replied “He’s done me over, I’m after him”. The officer noticed a pair of sunglasses and a short spear gun encased in a plastic cover at a point relatively close to the southern ladder. The appellant admitted that the sunglasses were his but denied ownership of the spear gun. The officer said “I heard you drop it”. The appellant replied “But I’ve never seen it before, it’s not mine”. He later admitted ownership of the spear gun. There was evidence that at the top of the southern ladder a plank leading to the balcony, which had previously been in good condition, had broken.
[6] A picnic table top was found tipped up under the southern fire escape. It had come from the area where the appellant had been seen. Mr Moore was seen only on the northern fire escape and was inside the house when the police arrived.
[7] Taken together with the fact of his glasses and spear gun being found adjacent to the southern fire escape, at the top of which the board had been broken, it was open to the jury to find that the appellant had been climbing the southern fire escape at the time Mr Moore was inside the apartment having used the northern fire escape.
[8] The Judge put perfectly fairly to the jury the competing Crown and defence versions: the Crown’s being that the appellant had moved the table top to a position underneath the southern fire escape, climbed up, broken the plank, fallen and broken his foot; the defence’s being that there was no evidence that he had climbed the southern fire escape and fallen.
[9] We are satisfied that it was well open to the jury to find the Crown’s contention borne out by reasonable inference from the evidence. The Judge’s direction was both adequate and fair. The appeal against conviction fails.

The appeal against sentence

[10] At sentencing counsel then appearing for the appellant said his client had had an eleventh hour change of mind and accepted not only the jury’s verdict but also his culpability for the offending as described in the summary of facts. That recounted that the appellant and his co-offender had parked the motor vehicle, the appellant had in his possession a torch and a pair of gloves, he stayed and acted as a look out while his co-offender climbed the northern fire escape and removed a compact disc player which he placed in the boot of the vehicle. The appellant then went around the side of the building, uplifted a table top he leaned against the side of the building and used it as a step to reach the southern fire escape. He climbed to the top of the fire escape and on to the balcony, where the plank was later found to be broken. As the appellant was preparing to enter the dwelling he was disturbed and fell from the first storey. He tried to escape but was apprehended a short distance away.
[11] Judge Tompkins recorded that, during a 40 year criminal history, the appellant has experienced a full range of sentences available in the criminal justice system, with a number of sentences of imprisonment being served in the 1980s and 1990s. More recently, he has a long list of dishonesty offending and 22 convictions for burglary, together with other convictions for theft, robbery and other associated dishonesty offences. He is a recidivist burglar. Noting the Crown submission based on R v Columbus CA608/2007 27 June 2008, the Judge adopted a starting point of two years imprisonment for what was clearly a premeditated burglary in which the appellant had set out with Mr Moore to enter an occupied residential property. Although the appellant did not himself enter the property, that was because the balcony plank broke. The Judge applied an uplift of one year from the starting point and imposed a term of three years imprisonment.
[12] In support of the appeal against sentence, Mr Allan emphasised the appellant’s diagnosis as a drug addict who had been on a methadone programme for the previous ten years following an addiction to heroin. He submitted that the appellant’s role was only as a look out, and therefore as a secondary offender, and did not climb the second ladder. We have rejected that submission. He submitted that the value of the property removed was small and that it had been recovered. He submitted that the appellant should have credit for the reduction in time in his offending when there had been a seven year, three month gap between his 20th and 21st burglaries. He further submitted that there should have been parity with the sentence of his co-offender who, having pleaded guilty, was sentenced by Judge Tompkins to six months community detention and 18 months intensive supervision.

Discussion

[13] In Columbus, the offender had forced open a vehicle access door of a garage, causing damage costing $672 to repair, and stole a mountain bike together with gardening tools and a tool box. He stole from another residential property a lawn mower, which cost $479 to replace. While on bail he pumped $68 of petrol into his vehicle and departing without paying. When his property was searched, a cannabis pipe and some loose cannabis leaf were found. He was charged with being in possession of both.
[14] This Court adopted a starting point of one year for the burglary, which was increased by six months to recognise the other property offending. An increase of a further year was made to recognise the appellant’s 89 previous convictions, 13 for burglary and another 34 for property related offences. The total sentence was two and a half years imprisonment before discount for a plea of guilty.
[15] In this case the gravity of the burglary was accentuated by the factors:

• (a) entry by night into a woman’s apartment;
• (b) the presence of two offenders;
• (c) the element of premeditation evidenced by gloves and a scarf for concealment;
• (d) importantly, the addition to the property element of the spear gun, a compact weapon the presence of which injected a very real risk of injury to the occupant.

[16] These factors together fully justified the starting point of two years. An additional year to recognise the appellant’s previous convictions was also appropriate.
[17] The consideration listed in the first sentence of [12] might have been significant if accompanied by evidence of remorse and the prospect of rehabilitation. As it is, the continuation of the appellant’s record and the presence of the spear gun entitled the Judge to place weight on the deterrence purpose of s 7(1)(f) of the Sentencing Act 2002 and also 7(1)(g), the need to protect the community from him.
[18] The appeal against sentence is also dismissed.

Solicitors:
Crown Law Office, Wellington