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Court of Appeal of New Zealand |
Last Updated: 11 January 2013
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CA 546/2012
[2012] NZCA 592 |
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BETWEEN LINDSEY ALLAN DRINKWATER
Appellant |
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AND THE QUEEN
Respondent |
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Hearing: 20 November 2012
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Court: Wild, Chisholm and Courtney JJ
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Counsel: P M Keegan for Appellant
K A L Bicknell for Respondent |
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Judgment: 17 December 2012 at 10.30 am
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JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] Asserting they are unfair and manifestly excessive, Mr Drinkwater appeals cumulative sentences totalling two years and nine months’ imprisonment imposed on him by Judge Roberts in the New Plymouth District Court on 24 August 2012.[1]
[2] Mr Drinkwater had pleaded guilty to charges of:
- (a) unlawfully taking a trailer;
- (b) burglary – breaking into a shed at a residential property with intent to commit a crime;
- (c) unlawful possession of a firearm; and
- (d) discharging a firearm with reckless disregard for the safety of others.
[3] The two dishonesty charges arose out of a first incident, the firearms charges out of a second, related incident the following day.
Factual background
[4] What follows is a minimal account of the factual background. It differs somewhat from the Judge’s view of what happened. We elaborate on the circumstances of the offending later in the judgment.
[5] Mr Drinkwater and his former partner, Ms Kelly Waiariki, owned a Harley Davidson motorbike. After Ms Waiariki and Mr Drinkwater split up, the motorbike
[5] ended up in the hands of a Mr Dave Toa. Ms Waiariki has given one version of how that happened, Mr Drinkwater another.[2] It matters not which version is correct, because both Ms Waiariki and Mr Drinkwater agree that they, and not Mr Toa, owned the Harley Davidson.
[6] Mr Drinkwater told the police that Mr Toa had “been changing it [the bike] around”. Mr Keegan told us from the bar that Mr Toa had also been riding around New Plymouth on the bike, he said to taunt Mr Drinkwater.
[7] On the night of 7 July 2011 Mr Drinkwater and a man called Mr Troy Soffe unlawfully took a trailer and drove to Mr Toa’s home. Mr Toa was out. They broke into the shed behind Mr Toa’s house and took the Harley Davidson motorbike. The police stopped Mr Drinkwater as he was driving home and, with Mr Drinkwater’s consent, detained the trailer and the motorbike, while they checked their ownership.
[8] In response to the taking of the motorbike five people arrived at Mr Drinkwater’s home around the middle of the following day, 8 July. Two men, Messrs Pouwhare and Maxwell, arrived in a van. Three women, two of them daughters of Mr Toa, arrived in a car at the same time.
[9] The two men and at least two of the women approached Mr Drinkwater’s home up the driveway. The women were yelling and swearing. Mr Drinkwater came out of the house armed with a baseball bat. When one of the men aimed a shotgun at Mr Drinkwater he fetched a firearm from his shed. In the fracas that ensued, shots were fired in both directions. No-one was hit by gunfire, but one of the women, Ms Hannah McLean, was seriously injured in one leg when she was set upon and bitten by Chopper, one of Mr Drinkwater’s pit bull terriers. The police were called, indeed Mr Drinkwater was one of the people who made an emergency call to the police. He then made a second emergency call about half an hour later to ask when the police were going to arrive.
The sentence under appeal
[10] The Judge’s sentencing remarks indicate that he took a dim and serious view of this offending. Dealing first with the dishonesty charges, the Judge made a number of contradictory statements about ownership of the Harley Davidson motorbike. First, he commented “of course, the bike has been moved on”.[3]
[11] The Judge then made these two observations about ownership of the Harley Davidson:
[12] Mr Keegan had spoken to his written submissions. He had focused on this concept of entitlement, contending that the bike, housed for the moment by Toa, was properly his client, Mr Drinkwater’s property and that all he sought was recovery.
And:
[14] I had read, too, within Mr Keegan’s submissions your claim of right, as it were, to that bike. It has, however, long since evaporated.
Later, the Judge noted Ms Waiariki’s acceptance that she and Mr Drinkwater had bought the bike together, and her statement that “it was given to Toa to do up and sell”.[4] The Judge then said:
[24] You have a slightly different take on it. It was in fact your bike. There was a process of transfer worked through to circumvent a Court order that you not have an interest in any sort of motor vehicle. You contend the bike was passed over and underneath with possibly the benefit of drugs, not, however, for you.
[12] Although the Judge did not expressly reject Mr Drinkwater’s claim of ownership, he was entitled to because he was sentencing Mr Drinkwater for a burglary charge that alleged Mr Drinkwater entered Mr Toa’s shed “without authority and with intent to commit a crime in the building, namely theft”. That crime could only have been the theft of the Harley Davidson. And Mr Drinkwater had pleaded guilty to that charge.
[13] The Judge certainly took the view that the burglary had precipitated the armed fracas the following day. The Judge said these things:
[3] ... You provided an explanation [to the police at the time you were stopped by them] ... that you had recovered the bike, that it belonged to you and your partner. That of course would never, ever be the end of the matter.
...
[17] These offences have at their heart a fall-out between previous associates. A fall-out over money, money’s worth and entitlement. You offended, you contend, initially out of a sense of entitlement. You must have, as I indicated to Mr Keegan, known that the fall-out and the consequences of the burglary would include subsequent confrontation. Those people, your victims and their immediate associates, would not have allowed that entry and that taking to have occurred without retribution. That retribution extended to include armed Black Power member or members. Their trial is yet to occur.
[18] Reading between the lines you correctly anticipated that eventuality. Why else prior to leaving your address at 7.30 and travelling across town would your partner, at the time, your partner of some 15 years, record in her brief, “Lindsey walked into the garage and he was carrying a green coloured gun bag. He put it on the table, unzipped the bag and pulled out a long gun, loaded it up, put bullets in his pockets and then left. I would describe the gun, a long gun like a rifle. It was about as long as my dining table” (approximately a meter long). “When he loaded it, it looked like he cracked it in half and put bullets in. The way he put bullets in was like he was forcing them into the gun. The bullets were quite large and long and they had a shiny brass looking bit at the end.”
[14] Although in [18] the Judge drew on Ms Waiariki’s “brief”, the same facts are recorded in the summary, which we assume was agreed for sentencing purposes. In short, before setting out to take the trailer and recover the motorbike on the evening of 7 July, Mr Drinkwater armed himself with “a long firearm of some description”.
[15] Later in his sentencing remarks the Judge recorded Mr Keegan contending that the injuries to Ms McLean “were as a consequence of the dog Chopper attacking and biting”.[5] Still later, the Judge said this:[6]
Thus, the shoot-out followed. Injury was occasioned. The potential for wider repercussions was at an elevated level. The offending is serious.
[16] It seems very likely that the Judge sentenced on the basis that Mr Drinkwater had shot Ms McLean in the leg. If he did, then that was not correct because the summary of facts recorded:[7]
The victim Hannah received a serious wound to her leg which at this early stage appears to be from a dog bite, not a gunshot wound.
[17] The Judge took a starting point of one year and nine months’ imprisonment on the two dishonesty charges. His starting point on the firearms charges was two years’ imprisonment, making a cumulative total of three years and nine months. He then made reductions to allow for totality, to reflect the strict conditions on which Mr Drinkwater had been bailed for a lengthy period of time, and to acknowledge that Mr Drinkwater had “done something about turning [his] life around”.[8] The Judge then allowed a further three months discount for Mr Drinkwater’s guilty pleas entered on the morning of trial. Thus, he arrived at the effective end sentence of two years and nine months’ imprisonment, which comprised cumulative sentences of nine months’ imprisonment on the burglary and two years on the discharge of a firearm. Lastly, the Judge gave Mr Drinkwater a warning (his first) under the three strikes law.
The dishonesty charges
[18] In the course of fixing an appropriate sentence for the unlawful taking of the trailer and the burglary, the Judge said this:[9]
I see and view the claim of interest in the bike [as] serving to reduce the start point from what otherwise might have been appropriate from two years to the one year, nine [months] mark I had indicated.
[19] In the course of his submissions Mr Keegan took issue with this three months discount for what he termed the “claim of right in respect of the motorbike”. In response we asked Mr Keegan whether he had considered whether Mr Drinkwater had committed the crime of burglary, because the crime stipulated in the burglary charge was “theft”. As we have said, that could only have been the theft of the Harley Davidson which Mr Drinkwater and Ms Waiariki owned. Mr Keegan told us that he had not considered that, and thus had not advised Mr Drinkwater that he had or may have had a defence to the charge of burglary.
[20] As the Judge based his sentencing remarks on material ranging beyond any agreed summary of facts, it is appropriate that we refer to two other items placed before us by Mr Keegan. We are unsure whether the Judge had these. The first is the summary of facts upon which Mr Soffe[10] was sentenced, as we understand it on 28 July 2011. Of Mr Drinkwater’s claim that the Harley Davidson belonged to him, this summary states:
Enquiries reveal that this is not correct, and the motorbike has been returned to the rightful owner ...
The summary does not identify who that rightful owner was or is.
[21] The second is the summary of facts prepared for the hearing, on 18 August 2011, of firearms charges against Messrs Maxwell and Pouwhare. This summary reads:
... a family member of the defendant Pouwhare had their shed burgled and a Harley Davidson was stolen. The Harley Davidson was property in dispute and was being stored in the shed. ...
The firearms charges
[22] The summary of facts upon which the Judge sentenced stated:[11]
The defendant stormed out of his house carrying a bat, towards the people who had arrived. The males within the van produced a shotgun and pointed it at the defendant. The defendant then obtained his own firearm from the shed and began firing shots in the direction of the people at the front of his driveway, including the two named females in the attached information.
[23] Toward the end, the summary stated:[12]
When spoken to by Police the defendant denied having a firearm and claimed that he had a bat only to protect himself from the occupants of the van who had a firearm. Police do not accept this. To date both firearms are outstanding.
[24] In his sentencing remarks on the armed fracas, Judge Roberts’ focus was on whether the weapon Mr Drinkwater had was a firearm or a slug gun. The Judge specifically stated that he sentenced Mr Drinkwater on the basis that he had and discharged a firearm as opposed to a slug gun.[13] The Judge made no finding as to whether it was Mr Drinkwater, or Messrs Pouwhare and Maxwell, who fired first. The Judge appears not to have thought that important. Rather, his view was that Mr Drinkwater’s actions the previous night in breaking into Mr Toa’s shed and taking the Harley Davidson had brought about the incident, and Mr Drinkwater had correctly anticipated that Mr Toa’s supporters would arrive armed, because Mr Drinkwater had (according to Ms Waiariki) armed himself. It seems to us that the Judge considered Mr Drinkwater must take the lion’s share of criminal responsibility for the armed fracas.
[25] We pause here to comment that we think that who fired the first shot was an important point. It was relevant to sentencing, because the culpability of a person responding to gunfire would be less than that of a person who fired first. Indeed, this point was probably one requiring an indication from the Judge pursuant to s 24(2) of the Sentencing Act 2002.
[26] Although the Judge may not have thought it important, the summary of facts from which we have quoted in [22] above, though equivocal, appears to have Mr Drinkwater firing the first shots. As Mr Keegan pointed out, that is not the position stated in the summary of facts prepared for the hearing of the charges against Messrs Maxwell and Pouwhare. [14]at states:14
The defendant MAXWELL and the defendant POUWHARE exited the van and a verbal altercation began. The defendant Maxwell produced a shotgun and pointed it in the direction of the victim and fired a number of shots in an attempt to intimidate the victim Drinkwater whilst the females accused him of the burglary.
The victim DRINKWATER had two large pit-bull dogs with him. On seeing the two defendants with a firearm the victim returned to a shed and came out with his own firearm and began firing shots in the direction of the two defendants and their family members. During the melee one of the dogs bit a family member of the defendant causing a deep and serious wound to her calf muscle.
Both defendants POUWHARE and MAXWELL threw their firearm into the van and left the scene in a hurry.
[27] We mentioned that Mr Drinkwater made an emergency call to the police. We do not have the transcript of that call. We do have the transcript of the further call Mr Drinkwater made to the police about half an hour later. It began with these exchanges:[15]
CO Police where is your emergency?
CO Did you call on this number did you?
CO Whereabouts are you?
CA In Okato.
CO What’s the address?
CA 16 Cummings St.
CO Cummings St?
CA Yes ... I rang half an hour ago um.
CO Yep.
CO Yeah.
[28] Later in that call Mr Drinkwater said these things to the police:
CA And and they they shot at me. They shot at me about three times.
...
...
...
...
CA I ... I don’t know I think it was just intimidation.
CO Yeah
...
CO Yeah and do and do you have any firearms with you Lindsay?
CA No I I don’t own firearms.
CO You don’t own firearms?
CA No.
[29] Mr Keegan also provided us with the statements the police had taken from independent eye witnesses to the fracas on 8 July. A neighbour, Mrs Phillips, was inside her house when she said she heard three loud gunshots. She looked out and saw Mr Drinkwater and two other people. Mr Drinkwater was standing with his back to the car shed facing the road. She said he “was waving his right hand around telling them to fuck off”.
[30] Mr Phillips had walked out to his gate to say goodbye to Mr McNeil, a visiting friend. Mr Phillips stated:
... I could hear yelling come Lindsays house. I then heard three very loud gun shoots. I got a fright and heard a girl yell out “My sisters been shot”. The shots definitely came from Lindsays house but I’m unsure exactly where. I then heard Lindsay yelling “fuck off, fuck off get off my driveway”.
The girl that was doing all the yelling was half way up Lindsay’s driveway. I am sure Lindsay had a gun by his leg. I am unsure what kind of gun it was.
Then, after describing the women he saw, Mr Phillips stated:
The girl that was halfway up the driveway and Lindsay continued to yell at each other.
Two guys then left Lindsay’s house and went to the van.
One male ran to the van and threw a gun into the van, which still had the sliding door open. The gun looked like a shot gun, it definitely had a single barrell. ...
...
Both males got in and drove off ...
[31] Mr McNeil, the friend that Mr Phillips was saying goodbye to, also made a statement. He said he saw two men get out of the van parked on the street. One was carrying a baseball bat. The second was carrying a gun – carrying it with the barrel down the side of his right leg as if he was trying to hide it. He said he thought it was an old single barrel break open shotgun. The two men went through the gate “into the neighbour’s place”. His view of what then happened on the neighbour’s property was obscured, but he heard a commotion with yelling, dogs barking and, after about 30 seconds, two gunshots in quick succession. Then about 10 seconds later he heard a third shot. He said the third shot did not seem as loud and he believed it had come from a different gun. About 30 seconds after the last shot he saw the two men come out the gate, put the gun in the van, get in and drive off.
[32] Another neighbour, Ms Kruger, heard a gunshot, and then another about 30 seconds later. Then, while she was on her cellphone making a 111 call to the police, she heard a third gunshot. When she looked over into Mr Drinkwater’s place she saw a female about halfway up the driveway inside his property repeatedly yelling “Don’t point that fucking thing at me”. She said about five seconds elapsed from the time she heard the third shot to the time she heard the female yelling “Don’t point that fucking thing at me”. Ms Kruger said that about 10 to 20 seconds after the last gunshot, she heard this female begin screaming in pain.
[33] Yet another neighbour, Mr Manukonga, heard two gunshots, then a lot of shouting followed by two more shots, before two people ran out the gate, initially hiding behind the white van before jumping into it and driving off. Mr Manukonga explained that while he did not own a firearm, he had done in the past, and spent enough time around firearms to know what one sounds like. He stated:
I don’t think the gun was either a 22 or a shotgun, it just had a different sound to it.
[34] Although doubting her reliability, Judge Roberts also quoted in his sentencing remarks the following passage from the brief of evidence the police had taken from Ms Hannah McLean:
[20] ... “I saw Lindsey run inside the shed and seconds later he came back out with a gun and fired it. He fired the first one down into the ground but the second one he shot in our direction. The third went past us and then after all that he kept firing into the ground. There were more than three shots, five like they say in the paper. After that he aimed the gun at us. I was yelling at him to put it down and stop pointing at us.”
[35] This Court is in no position to make findings of fact, and nor is that our task on an appeal against sentence. But from all this material there emerges a general picture characterised by these points:
- (a) Two men and three women arrived together at Mr Drinkwater’s home. The men were armed, one with a shotgun, the other with a baseball bat.
- (b) The two men and at least two of the women went up Mr Drinkwater’s driveway toward his house. The women were swearing and yelling abuse.
- (c) Mr Drinkwater was heard by neighbours yelling at the intruders to “fuck off” and was seen by one neighbour standing with his back against his garage waving his right hand around as he yelled at the intruders to “fuck off”.
- (d) Several gunshots were then heard coming from Mr Drinkwater’s property, seemingly from different weapons.
- (e) Shortly after the last gunshot a neighbour saw a woman halfway up Mr Drinkwater’s driveway pointing toward the house and yelling repeatedly “Don’t point that fucking thing at me”. This neighbour also saw a dog and then heard the woman begin screaming in pain.
- (f) The two men then left Mr Drinkwater’s property. They put the shotgun in the van, got in and drove off at speed.
[36] Despite Mr Drinkwater’s denials that he had a firearm, the summary of facts stated that Mr Drinkwater, when he saw one of the intruders had a shotgun, “obtained his own firearm from the shed”. Mr Keegan accepted that, but pointed out that no firearm was found at Mr Drinkwater’s property, although a slug gun was later found at Mr Drinkwater’s brother’s house.
[37] In the light of all this material, we asked Mr Keegan if he had considered whether Mr Drinkwater may have had a defence to the firearms charges also, under s 48 of the Crimes Act 1961 (self-defence), or under s 55 (defence of a dwelling house). Mr Keegan told us he had not.
What courses are open?
[38] The prospect that defences to the charges were open to Mr Drinkwater places this Court in a difficult and unsatisfactory position on this appeal against sentence. In R v Fonotia[16] this Court exercised its inherent power to quash convictions which it considered were nullities (because they did not refer to a valid offence), and sentenced afresh on the remaining convictions in the indictment. Fonotia was a Solicitor-General’s appeal against sentence. The convictions here relate to valid offences, so they are not nullities. Rather, the position is that we think Mr Drinkwater may have had defences to those offences, or at least to the most serious of them.
[39] While Mr Drinkwater may not have committed the crime of burglary, in breaking into Mr Toa’s shed it seems he did commit a crime under s 269(2)(a) or (b) of the Crimes Act (intentional damage), or under s 11 of the Summary Offences Act 1981 (wilful damage). However, we cannot exercise the powers afforded to this Court by s 386(2) of the Crimes Act, because a conviction for a lesser offence can only be substituted following a verdict of guilty: Williams v R.[17]
[40] In that most unsatisfactory position, the best we can do is assess, in the circumstances as they currently stand, whether the effective sentence imposed on the four charges is manifestly excessive. We think there are nine main considerations. First, Mr Drinkwater undoubtedly unlawfully took the trailer. The culpability involved in that is tempered by the fact that the trailer was returned to its owner undamaged.
[41] Secondly, the point already made: that in breaking into Mr Toa’s shed Mr Drinkwater at least committed a lesser crime than burglary.
[42] Thirdly, Mr Soffe, who committed the dishonesty crimes with Mr Drinkwater, was dealt with summarily and sentenced (on the burglary charge only) to community work. Mr Keegan told us that Judge Roberts was not aware of that when he sentenced Mr Drinkwater. This is a parity of sentences point.
[43] Fourthly, self-defence or defence of a dwelling house may have been open to Mr Drinkwater in respect of the firearms charges.
[44] Fifthly, Mr Keegan told us that Messrs Pouwhare and Maxwell pleaded not guilty to the firearms charges laid against them. At the start of their trial Judge Behrens indicated to their counsel that he would grant them bail pending sentence and look favourably at electronically monitored sentences (in other words, home detention) if they pleaded guilty. Both men then pleaded guilty and were remanded on bail for sentencing to a date just before Christmas. We add to this consideration, that the Court on 13 November declined Mr Keegan’s request that the hearing of this appeal be adjourned until after Messrs Pouwhare and Maxwell had been sentenced, so that Mr Keegan could advance any parity argument that may be available to Mr Drinkwater.
[45] Sixthly, the Judge characterised Ms McLean as a victim of Mr Drinkwater’s offending. It seems, from the way the Judge juxtaposed the shootout and the occasioning of injury to Ms McLean, that he sentenced Mr Drinkwater on the basis that Mr Drinkwater had shot her. That was not the position. Mr Keegan told us that no charges had been laid against Mr Drinkwater in respect of the serious bite Chopper the dog inflicted on Ms McLean. It is thus not correct to view Ms McLean as a victim of Mr Drinkwater’s offending, at least not in respect of the injury to her leg inflicted by Chopper.
[46] Seventhly, Mr Keegan informed us that Mr Drinkwater had been remanded in custody for two months before he was released on bail pending trial. Mr Drinkwater has been in prison since he was sentenced on 24 August. So, to date, Mr Drinkwater has been in prison for a little over five months in respect of these charges. In addition, as the Judge noted,[18] Mr Drinkwater was released on “strict bail conditions” with which he had complied over a lengthy period of time, with only one breach.
[47] Eighthly, as the Judge noted, the recommendation in the pre-sentence report was a sentence of community detention and community work.
[48] Ninthly, Mr Keegan submitted to us that the pre-sentence report was positive about Mr Drinkwater. It noted that he had obtained employment with Tegel as a welder. Mr Keegan told us that Tegel had provided an excellent reference and had also taken the unusual step of attending at Court to support Mr Drinkwater. Mr Keegan added that Mr Drinkwater “had left a toxic relationship, cleaned up his act in respect of drugs, was working and behaving himself”. The Judge noted this in his sentencing remarks.[19]
[49] In all the circumstances, particularly the nine we have spelt out, we consider that the appropriate course is to allow the appeal, quash the sentences under appeal, and substitute a sentence of six months’ home detention on the following special conditions:
- (a) Upon being released from prison, Mr Drinkwater is to travel directly to 96 Bayley Road, New Plymouth and there is to await the arrival of the probation officer and the representative of the security company.
- (b) Mr Drinkwater is to abstain from alcohol or illicit drugs for the duration of the sentence of home detention.
[50] We impose that sentence on the burglary and on each of the firearms charges concurrently. On the unlawful possession of a firearm charge, no sentence is substituted. For the avoidance of doubt, we stipulate that the sentence we have substituted is to run from the date on which Mr Drinkwater was sentenced, 24 August 2012.
[51] Leave to apply for any further directions required in respect of the substituted sentence is reserved to both the appellant and the respondent.
[52] Further, we direct Mr Keegan to ensure that the appellant receives a copy of this judgment.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v Drinkwater DC New Plymouth CRI-2011-043-2136, 24 August 2012.
[2] Ms
Waiariki’s version is set out in an unsigned formal statement she made to
the police, pursuant to s 162 of the Summary
Proceedings Act 1957. Essentially,
Ms Waiariki claimed she had put the motorbike into Mr Toa’s hands for
repair, so she and
Mr Drinkwater could sell it, after they separated.
Mr Drinkwater’s version is recorded at pp 4–9 of the transcript
of
a second emergency call he made to the police on 8 July 2011. He told the
police that he had ridden the Harley Davidson to a party
at the home of Mr
Toa’s daughter Roxanne about three or four months earlier. He had been
attacked by a number of people at
the party and forced to leave without the
bike. He had said “and then when I went back the next morning to get my
bike it
was
gone”.
[3] At
[6].
[4] At
[23].
[5] At
[15].
[6] At
[21].
[7] Case on
Appeal at 10.
[8] At
[32].
[9] At
[26].
[10] We
refer to Mr Soffe at the start of [7].
[11]
Case on Appeal at
9.
[12] Case on
Appeal at 10.
[13]
At [28].
[14]
Summary of facts at
2.
[15] CO =
Police Communications; CA =
caller.
[16] R
v Fonotia [2007] NZCA
188.
[17]
Williams v R [2011] NZCA 510 at
[7].
[18] At
[32].
[19] At
[16].
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