Williams v R [2011] NZCA 510 (30 September 2011)

Last Updated: 6 October 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA394/2011 [2011] NZCA 510

BETWEEN NICHOLAS AUERIANA WILLIAMS Appellant

AND THE QUEEN Respondent

Hearing: 28 September 2011

Court: Harrison, Fogarty and Simon France JJ

Counsel: R A B Barnsdale for Appellant R J Collins for Respondent

Judgment: 30 September 2011 at 11.45 am

JUDGMENT OF THE COURT

1. The application for an extension of time to file an appeal against conviction is granted.
2. The appeal against conviction on the charge of aggravated robbery is allowed and the conviction is quashed.

100. The proceeding is remitted to the District Court at Rotorua for rehearing.

4. Any questions of bail are to be determined in the District Court.
   

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] The appellant, Nicholas Williams, pleaded guilty in the District Court at Rotorua to one charge of aggravated robbery, one charge of burglary and breaches of sentences of supervision and community work. It was not disputed before us that his plea followed his committal. On 27 May 2011 Judge Ingram sentenced Mr Williams to a term of six years and three months’ imprisonment, being five years and three months for the aggravated robbery cumulative upon 12 months for the burglary.[1] Concurrent sentences of one month were imposed for breaches of the Court orders.

Facts

[2] We are concerned solely with the charge of aggravated robbery. Mr Williams pleaded guilty on a summary of facts presented to the District Court. The summary recited that Mr Williams walked into the Kawerau branch of the Bank of New Zealand on 8 March 2011. Two of his associates waited outside. On his way in Mr Williams pulled up his hood and tied it tightly under his chin. He wrote on a bank deposit slip words similar to “100s and 50s only, don’t say a word or I’ll shoot”. His left hand remained inside the pocket of his jacket in a manner suggesting that he was holding a gun.
[3] Mr Williams slid the note on the counter through to a teller. She responded by giving him some cash. He requested more money in a voice signifying a higher level of anger. The teller gave him more money. In all, Mr Williams received about $4,000 which has not been recovered. He left the bank and was driven away by his two associates.

Appeal

[4] Mr Williams filed an appeal against his sentence. He was represented by Mr Barnsdale who did not appear for him in the District Court. The appeal was set for hearing on 28 September.
[5] After receiving Mr Barnsdale’s submissions, Mr Collins responsibly accepted that Mr Williams could not have been guilty of aggravated robbery as charged pursuant to s 235(b) of the Crimes Act 1961. The summary of facts does not allege either that Mr Williams was armed when committing the robbery or that his two associates entered the bank or provided active assistance. Mr Collins also accepted that, if the decision R v Bentham[2] correctly represented the law in New Zealand pursuant to s 235(c), Mr Williams could not be guilty of aggravated robbery at all. He invited Mr Williams through Mr Barnsdale to file an appeal against conviction.
[6] Mr Williams filed an amended notice of appeal on 23 September against conviction on the charge of aggravated robbery alone. When the appeal was called before us, Mr Collins did not oppose Mr Barnsdale’s application for an extension of time to file the amended notice. We granted leave accordingly.
[7] Mr Collins also advised that the Crown does not oppose Mr Williams’ substantive appeal against conviction for aggravated robbery. Both counsel agreed that the appropriate course would have been for this Court to substitute a conviction for the lesser offence of robbery and then hear the sentence appeal. However, it is common ground that we have no jurisdiction to follow that course; a conviction for a lesser offence can only be substituted following a verdict of guilty.[3] Mr Williams’ appeal against conviction on the charge of aggravated robbery must be allowed and the proceeding be remitted for rehearing in the District Court.

Result

[8] In the result:

• (a) Mr Williams’ application for an extension of time to file an appeal against conviction is granted;
• (b) Mr Williams’ appeal against conviction on the charge of aggravated robbery is allowed and his conviction is quashed;
• (c) the proceeding is remitted to the District Court at Rotorua for rehearing; and
• (d) any questions of bail are to be determined in the District Court.
  

Solicitors:
Crown Law Office, Wellington, for Respondent

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[1] R v Williams DC Rotorua CRI-2011-063-1331, 27 May 2011.
[2] R v Bentham [2005] UKHL 18, [2005] 1 WLR 1057 (HL).
[3] Crimes Act 1961, s 386(2); Watts v R [2011] NZCA 41 at [70] and [71].