Piwari v R; Singh v R [2010] NZCA 19 (22 February 2010)

Last Updated: 2 March 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA400/2009 [2010] NZCA 19

BETWEEN CHANEL AROHA PIWARI
Appellant

AND THE QUEEN
Respondent

CA401/2009

AND BETWEEN JANIL SINGH
Appellant

AND THE QUEEN
Respondent

Hearing: 15 February 2010

Court: Hammond, Panckhurst and Keane JJ

Counsel: N Levy for Appellant Piwari
V C Nisbet for Appellant Singh
K A L Bicknell for Respondent

Judgment: 22 February 2010 at 10 am

JUDGMENT OF THE COURT

1. Ms Piwari’s conviction for aggravated robbery is quashed, and a conviction for robbery substituted.
2. Her sentence of seven years’ imprisonment is quashed and four and a half years’ imprisonment is substituted.

100. Mr Singh’s sentence of seven years’ imprisonment is quashed and six years’ imprisonment is substituted.
     

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REASONS OF THE COURT

(Given by Panckhurst J)

Introduction

[1] On 22 May 2008 a pharmacy at Hataitai in Wellington was robbed. Two males, partially disguised, entered the premises one armed with an imitation pistol. They stole cash and drugs (thought to contain pseudoephedrine) to a value of about $2,600.
[2] The main offender, David Haddon, pleaded guilty to aggravated robbery. The appellant Janil Singh and his partner, the appellant Chanel Piwari, were convicted following a District Court trial. The jury accepted the Crown case that Mr Singh was the other principal offender and that Ms Piwari was the getaway driver.
[3] Ms Piwari appeals against both conviction and sentence. She complains that the trial Judge both failed to adequately put the defence case to the jury and erred in declining to leave the included count of robbery to the jury in the course of their deliberations.
[4] Both appellants appeal against sentence on the grounds that the starting-point adopted by the trial Judge was too high and that insufficient allowance was made for mitigating personal factors.

Some further background

[5] The robbery was committed at about 6.30 pm. Some minutes earlier Ms Piwari entered the pharmacy and purchased a pair of latex gloves valued at 60 cents. She then returned to a nearby Nissan car where Messrs Haddon and Singh were waiting.
[6] A short time later they left the car, donned partial disguises and entered the pharmacy. Mr Haddon was armed with an imitation pistol. After obtaining drugs and cash the two men left the premises and ran back to the car. Ms Piwari drove away from the area.
[7] The owner of the pharmacy followed the offenders, observed the departure of the getaway vehicle and took a note of its registration number. Minutes later police officers sighted the Nissan car and followed it. A chase ensued. This ended when the police stopped the vehicle at a road block at one end of the Mount Victoria tunnel.
[8] The appellants stood trial over three days commencing 29 April 2009. The indictment charged aggravated robbery on the basis that the offenders were armed with an imitation pistol. Reliance was not placed upon the circumstance that two offenders acting together entered the pharmacy.

Was the defence case for Ms Piwari adequately put to the jury?

The defence case

[9] At trial Ms Piwari did not dispute that she had entered the pharmacy premises in order to purchase the latex gloves. She also conceded that she was the driver of the getaway vehicle. Her defence was that Mr Haddon and her partner Mr Singh did not reveal their intention to rob the pharmacy before they left the vehicle. Accordingly, she contended she was not a party to the crime. A secondary defence was that, even if Ms Piwari was a party to robbery, there was no evidence that she was aware an imitation pistol was to be used and, hence, she should not be convicted of aggravated robbery.
[10] The appellant did not give evidence in her own defence, but she called her mother as a witness. She gave evidence concerning her daughter’s use of latex gloves for protection from spiders when gardening.
[11] In support of the main line of defence trial counsel raised several arguments, including:

(a) that the purchase of latex gloves was innocent and inconsistent with a “casing” of the premises in that it occurred at some minutes prior to the robbery;

(b) that observations of the appellant in the Nissan car during the course of the robbery suggested that she was talking on a cellphone, relaxed and that the car engine was not running;

(c) that when the principal offenders left the pharmacy they initially ran in one direction, before changing path in order to go to the Nissan car; which was suggested to be inconsistent with a pre-existing plan;

(d) that the appellant’s conduct in driving the car after the event should not be viewed as determinative because, by then, it must have been clear to her that the two men had been involved in a criminal enterprise of some sort;

(e) that the appellant had made arrangements to spend the evening socialising in town and she was suitably dressed for this purpose at the relevant time, and

(f) there was no evidence to suggest that the imitation firearm could have been seen by the appellant prior to the commission of the robbery.

The summing-up

[12] In summing-up the trial Judge, Judge Behrens, gave standard directions concerning the legal principles relevant to the case and as to the elements of the offence. By reference to a written memorandum which the Judge gave to the jury he said that Ms Piwari could not be found guilty as a party to the crime unless the jury was sure that before the aggravated robbery was committed she had actively assisted the offenders by “describing the layout of the chemist shop” or by agreeing to assist them “by driving the getaway car”, or both. He added that the jury would also need to be sure that the appellant was aware that the imitation pistol was to be used in the robbery. No criticism is made of the summing-up to this point.
[13] With regard to the Crown and defence cases the Judge observed that the jury had just heard the addresses of counsel and added “I do not think I need to cover those matters”. The summing-up ended on this note.

The submissions

[14] Ms Levy submitted that the Judge’s failure to identify and adequately remind the jury of the defence case meant that there was a fundamental deficiency of process and that as a consequence the appellant had not received a fair trial. She relied upon the observations of this Court in R v Shipton.[1]
[15] Ms Bicknell, while acknowledging the abbreviated nature of the summing-up, submitted that it was adequate in the particular circumstances. The evidence concluded on the morning of 1 May 2009 and the closing addresses of counsel were completed by about midday. The Judge immediately summed up the case to the jury, completing his address somewhat before the scheduled lunchtime break.
[16] Reference was not made to any of the addresses. His approach, therefore, was even-handed. Importantly, by reference to the memorandum or issues sheet with which the jury was provided, the Judge explained the only basis upon which the appellant could be found guilty. The jury were required to be sure that Ms Piwari, before the robbery was committed, agreed to assist and did assist the main offenders by describing the layout of the chemist shop, and by driving the getaway car, or both. Similarly, he explained that the jury were required to be sure she was aware that the imitation pistol was to be used in the course of the robbery. Ms Bicknell submitted that in a short and simple trial there was no need for the Judge to then rehearse the points made in each closing speech.

Evaluation

[17] In the language of Shipton the Judge did in this case identify and remind the jury of the two central lines of defence, namely Ms Piwari’s denial that she had any advance knowledge of the plan to rob the pharmacy and, in the alternative, the contention that there was no evidence to show she had knowledge of the imitation pistol. The difficulty is the commonplace one: whether the Judge summarised the nature of the evidence or, put another way, defence counsel’s arguments directed to the evidence. As to this aspect there can be but one answer. The Judge did not seek to grapple with the evidence in any shape or form. He abdicated that responsibility and instead commended the addresses of counsel to the jury’s consideration.
[18] This was in error. As the discussion in Shipton confirms, even in a straight-forward case there is a duty on the trial Judge to deal with the facts, typically by reference to the arguments of counsel. Often this can be done succinctly, by a brief bullet point summation of the contentions. In other cases the facts will give rise to complexities which require that the Judge provide greater assistance to the jury. While error occurred in relation to the summing-up in this case, the more difficult question is whether it incurred the risk of a miscarriage.
[19] We are satisfied that it did not. This was a straight-forward case. The evidence occupied a little over two days. The Judge in a crisp manner identified two issues which the jury had to answer in order to reach a verdict in Ms Piwari’s case. Against the background of this framework, which is not susceptible of criticism, he deferred to the closing addresses and had nothing further to say. His approach was even-handed. The Crown case, and both defence cases received equal treatment.
[20] In accordance with recent practice, copies of the closing addresses were included in the case on appeal. We have considered these. Counsel did marshal their factual arguments in a persuasive and coherent manner. We are satisfied that the jury, in the circumstances of this case, received as much assistance as they required. In short, the risky shorthand which the Judge adopted did not, in the event, imperil a fair trial on this occasion.

Should robbery have been left to the jury as an included charge?

[21] The alternative line of defence could at best reduce aggravated robbery to simple robbery. At an early stage in their deliberations the jury asked these questions:

1. If the defendant (Piwari) knew that some threat or force would be used in the robbery but did not specifically know that a gun was the particular type of weapon or force used, would the “aggravated robbery” apply?

2. Could we have a definition of aggravated robbery vs robbery?

There is no verbatim record of the answer.

[22] However, Judge Behrens supplied a report for the purposes of the appeal. It includes this:

[6] When the jury question arrived, defence counsel were of the view that the answer to question 1 was no and that I should not define robbery. Despite Mr O’Donoghue’s “all or nothing” statement he suggested that I might direct on robbery in effect as an included verdict. Although I did not think I should do so, I suggested to Mr Ewen that if the jury did bring back a verdict of guilty of robbery against Ms Piwari then she would be better off than facing sentence for aggravated robbery. After getting instructions Mr Ewen indicated that Ms Piwari wished to proceed on the basis that question 1 was answered no and that the jury should not be directed on robbery.

[7] In that circumstance I decided that I would direct as defence counsel asked me and indeed as I myself thought I should and accordingly did so.

Hence, the included count was not left to the jury.

[23] We consider that the approach taken gave rise to a material error. Section 339(1) of the Crimes Act 1961 contemplates that an included charge will be left to the jury, where appropriate. The Judge has a discretion in this regard which is to be exercised in the interests of justice.[2] The interests of justice test mandates that an included charge should not be put if there is no adequate evidential foundation to support it; nor if to do so would be prejudicial to an accused because the defence may have been conducted differently had the included charge been on the table earlier.
[24] Here, however, the Judge faced an orthodox situation where it was plainly appropriate to leave the included charge to the jury. Regardless of the views of defence counsel robbery should have been put. There was an evidential foundation in support of robbery and no suggestion of prejudice.
[25] Moreover, we consider that this was a case where the failure gave rise to the risk of a miscarriage of justice. There is no direct evidence capable of showing that the appellant was aware of the presence of the imitation pistol in the build-up to the robbery. Nor do we think an inference to that effect was available. It follows that the failure to put robbery as an included charge was a causative error. We quash the conviction for aggravated robbery and substitute one for simple robbery.

The sentence appeals

[26] The co-offender, David Haddon, was sentenced by a different Judge to five years’ imprisonment. That term was arrived at from a starting-point of seven years’ imprisonment, which the Judge said “also recognises your significant criminal history”. The end sentence was five years’ imprisonment following a two year reduction for Mr Haddon’s guilty plea and a personal mitigating factor. We have not seen this offender’s criminal history, but we were told it is extensive and includes 10 previous sentences of imprisonment.
[27] In sentencing the appellants Judge Behrens noted the starting-point adopted in the case of Mr Haddon, and observed:

I cannot differ from that starting point. Neither of you can get credit for previous good behaviour although I do not increase the starting point because of previous convictions.

The Judge then considered whether he should recognise “restrictive bail conditions” in fixing the end sentence, but decided against it on the basis that Ms Piwari was for sentence on charges of dangerous driving and failing to stop, and Mr Singh on charges of breach of community work and a breach of bail. Concurrent terms were imposed in relation to these offences. Each prisoner was sentenced to seven years’ imprisonment. No reference was made to personal factors, save for an observation that both appellants continued to deny their involvement which meant there could be no allowance made for remorse.

[28] Ms Bicknell candidly acknowledged that the sentencing exercise suffered from two deficiencies. First, she felt constrained to accept that in terms of the guideline judgment in R v Mako the case justified a starting-point of six years’ imprisonment.[3] We agree. This is not inconsistent with the approach of Judge Davidson who, in sentencing Mr Haddon, adopted a starting-point of seven years’ imprisonment, but after an uplift made on account of the prisoner’s criminal history.
[29] Secondly, Ms Bicknell accepted that the personal circumstances of the appellants were not adequately considered. Again, we think that this concession was a proper one.
[30] Ms Piwari was 29 years at the date of sentencing. She had a number of previous convictions for driving offences and for offences of dishonesty, predominantly using a document with intent to defraud. On these matters she received community-based sentences. The pre-sentence report revealed that she had three children in her care aged 10 to three years; and that she was pregnant and due to give birth to a fourth child in November 2009. Mr Singh was the father of the three younger children.
[31] The six year starting-point derived from Mako was for aggravated robbery of a pharmacy. In Ms Piwari’s case a reduction is now appropriate in recognition of the lesser charge. Also, we consider that some allowance may be made in this instance for her personal circumstances. The appellant has now given birth to her fourth child. We quash the sentence of seven years’ imprisonment and substitute a term of four and a half years’ imprisonment.
[32] Mr Singh is 33 years of age. He has a number of previous convictions, some of which are for theft; but none for violent offending and none approaching the seriousness of the present matter. Prior to this occasion he has received community-based sentences.
[33] In his case we adopt the six year starting-point recognised in Mako, but conclude that there is no basis to budge from this figure. Neither an uplift, nor a reduction for personal factors, is indicated. The sentence of seven years’ imprisonment is quashed, and six years’ imprisonment substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Shipton [2007] 2 NZLR 218 (CA) at [33]-[39] (Shipton).
[2] R v Mokaraka [2002] 1 NZLR 793 (CA).
[3] [2000] 2 NZLR 170 (CA) at [56] (Mako).