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Watene v R [2014] NZCA 357 (5 August 2014)

Last Updated: 14 August 2014

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
24 July 2014
Court:
O’Regan P, Goddard and Andrews JJ
Counsel:
M B Meyrick for Appellant H W Ebersohn for Respondent
Judgment:


JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction

[1] The appellant was tried by a jury and found guilty of aggravated robbery pursuant to s 235(b) of the Crimes Act 1961.[1] The trial judge, Judge Dawson, sentenced him to nine years’ imprisonment. He now appeals against conviction and sentence.
[2] The appeal against conviction is advanced on the grounds that:
[3] The appeal against sentence is advanced on the grounds that:

Factual background

[4] In the early hours of 8 November 2011 the appellant and three associates, one of them armed with a shotgun, entered the front door of an Auckland address and confronted the three occupants who were in the process of leaving for the hospital. One of the occupants, Ms Linda Gov, was in labour at the time. The other occupants were her husband and brother.
[5] All four offenders had disguised their appearance and were wearing gloves. The complainants described the offender who did all of the talking and the giving of orders as having been “noticeably” shorter than his co-offenders.
[6] The offender with the shotgun demanded to know where the occupants kept their money and the short offender threatened to hit Ms Gov’s brother over the head with a stone pestle. The complainants were then moved into a bedroom where they were kept at gun point. Ms Gov was able to dial 111 on her cell phone and police were immediately dispatched to the address. When the short offender discovered police had been called, he threatened to kill Linda Gov and aimed a kick at her head, which was deflected by her husband.
[7] The offenders then left the address, taking with them approximately $1,500 of cash, two cell phones, a laptop, an iPod and various items of jewellery.
[8] A police officer attending the incident gave evidence of observing a motor vehicle leaving from the adjacent street and of pursuing it. The tyres of the fleeing vehicle were spiked and all four occupants then fled on foot into a bush reserve.
[9] A police dog unit located the appellant in the bush reserve. A single barrel shotgun and various other items including clothing were recovered from the reserve. The offenders’ car was searched and police found in it clothing, gloves and socks with latex gloves inside them. DNA found on the latex gloves was linked to the appellant.
[10] When first arrested the appellant said he was only the driver of the vehicle, and he did not know the names of the other offenders. He said his daughter had gotten into some trouble with the other offenders and they came to him and asked if he wanted to earn some money to pay them back, so he went along with them. During his police interview he said “the guy who used to go [out] with my daughter asked if I wanted to make some money. I didn’t know they had a gun, I was only the driver”.
[11] Police identified a cell phone number which was attributed to the appellant. Several incriminating texts had been made to and from that number in the period immediately preceding the robbery.

First ground of appeal against conviction: denial of the right to counsel

[12] The appellant was initially represented by Mr Tucker, who prepared submissions for a sentence indication hearing on 9 February 2012. However, Mr Tucker withdrew at the hearing, with the leave of the Court, after the appellant elected to represent himself so that he could pursue a Maori sovereignty defence. Subsequently, the appellant was advised by two McKenzie friends and represented himself at trial with the assistance of a Court-appointed amicus curiae, Mr Wharepouri.
[13] After the morning adjournment on the first day of the trial, 26 August 2013, the Judge was advised that one of the jurors had a conflict. The Judge discharged the jury and adjourned the trial to the following day. The next morning, the appellant applied for an adjournment to allow him time to instruct counsel. The Judge declined the application, as the trial had already been delayed and the appellant had been given ample opportunity throughout the course of proceedings to instruct counsel and had declined to do so.
[14] Mr Meyrick submitted nevertheless that the appellant had been prevented from obtaining counsel, thereby suffering a miscarriage of justice. The leading case in this area is the Supreme Court decision of R v Condon, in which the Court held that:[2]
[15] Mr Meyrick accepted, however, that there can be no miscarriage of justice where a person has a proper understanding of the implications of not instructing counsel and opts to represent him or herself. His essential submission was that the appellant did not have such an understanding. He said the trial Judge was aware that a competent defence would not be presented and that the appellant was being poorly advised by his two McKenzie friends to persist with a defence that had no chance of success. As it had already been necessary to adjourn the trial for other reasons, it was in the interests of justice to grant a further adjournment to allow the appellant time to instruct counsel. It was the refusal to do so that had caused a miscarriage of justice.
[16] The fundamental problem with this submission is that the appellant has not waived privilege in respect of any legal advice he received from either Mr Tucker or Mr Wharepouri. As a result, it is impossible for the Court to properly assess the circumstances in which he came to be unrepresented. It is entirely possible that the appellant received detailed legal advice in relation to the decision to represent himself. However, in the absence of an affidavit from his former counsel, the Court has no way of knowing whether this is so and cannot draw any inference in the appellant’s favour in circumstances where he has declined to make such critical evidence available to the Court.
[17] The appellant was in any event well-informed of his right to instruct a lawyer. Prior to trial he received the standard form memorandum informing him of his right to be represented at trial and further advice that if he could not afford a lawyer one would be assigned to him. It is not irrelevant that the appellant has prior experience in the courts and is therefore likely familiar with the court’s processes. In relation to this aspect, we note the following observation of this Court in Whitelaw v R:[3]

[23] Common sense and authority suggest that the entitlement under s 24(f) [of the New Zealand Bill of Rights Act 1990] is subject to the defendant taking the necessary steps to obtain legal assistance under the Legal Services Act [2000] ... the appellant is not a stranger to the courts and it is clear that he had a general understanding of the existence of the legal aid scheme. ...

[18] As Mr Ebersohn submitted, the notion that the appellant is a person so unfamiliar with the process that he did not understand his rights to a lawyer is untenable.
[19] Nor does the late application for an adjournment on the morning of the resumed trial alter the situation of fairness. The appellant left his request for an adjournment in order to instruct counsel until the morning of the trial resuming. As Mr Ebersohn put it, to allow as a matter of course an adjournment so late in a proceeding “would permit the system to be gamed and manipulated.”
[20] Overall we are satisfied that an assessment of the overall fairness of the trial leads to the conclusion that no miscarriage of justice occurred. The ultimate decision of whether to have legal counsel was eminently a matter for the appellant and reached on a fully informed basis. This ground of appeal fails.

Second ground of appeal against conviction: the question trail

[21] In support of this ground, Mr Meyrick submitted there was a real risk of the jury having been confused by the question trail formulated by the Judge in relation to the charge of aggravated robbery. Section 235(b) requires only that a person, being together with any other person or persons, robs any person. The question trail was worded as follows:

Step 1: “Are you sure. ... Ture Watene together with (that is, with a joint purpose) other persons entered the house ... and stole items ...”

Step 2: “Are you sure that as part of the joint purpose the accused or another of his associates ... assaulted or threatened to assault ...”

Step 3: “Are you sure that the joint intention in assaulting or threatening to assault ... was to facilitate the robbery.”

[22] Mr Meyrick focussed on the wording of step one. He submitted that the phrase “that is, with a joint purpose” used as a synonym for “together with”, had left it open to the jury to find the appellant guilty solely on the basis of being present in the house during the robbery, but without any intent to participate.
[23] We do not find that the wording of the question trail would have given rise to any miscarriage of justice. The phrase “joint purpose” qualifies the use of the words “together with” and clarified for the jury that merely being physically present with offenders committing a robbery was insufficient to found guilt and the jury had to be satisfied the appellant was intentionally acting with the other offenders towards a common goal.
[24] It is extremely unlikely the jury found the question trail confusing in the context of the trial. The main issue was whether the appellant was present in the house at all. The appellant’s case was that he did not participate in the robbery; that he did not know the others had a gun or what they were going to do at the property; and that he had simply driven the car and waited for them outside in the car. The issue for the jury, therefore, was simply whether the appellant was present in the house at all. If they found he was, the evidence strongly implicated him as the shortest of the four offenders who jointly carried out the robbery.
[25] As this Court has recently noted, the question trail and summing-up must be considered together.[4] We consider the Judge’s summing-up would in any event have eliminated any possible confusion over the wording of the first question. In the present case, the Judge directed the jury that they had first to be satisfied the appellant was a “participant” in the robbery with the other three persons; and that if the jury accepted the appellant’s claims that he did not enter the house or know of the planned robbery then they must find him not guilty. The Judge then noted that the Crown was inviting the inference that the appellant and three others had a “joint enterprise” to enter the property and carry out the robbery and correctly directed the jury on how to determine questions of intent or state of mind and that it was for the jury to decide whether to draw this inference, as it was on all matters.
[26] This ground of appeal also fails.

Third ground of appeal against conviction: the appellant’s opening address

[27] The Judge stopped the appellant addressing the jury on the issue of the Court’s jurisdiction to try him, on the basis that his Maori sovereignty claim had been dismissed before the trial. It is not clear this occurred at the resumed trial but even if it had we do not consider there was any error on the Judge’s part. It was not for the jury to make a decision on jurisdiction and addressing the jury on the issue was therefore inappropriate.
[28] This ground of appeal also fails.

Appeal against sentence

[29] There are two aspects to the appeal against sentence. The first is that the Judge sentenced the appellant on the basis of findings of fact that were not open to him, namely that the appellant had tried to kick Ms Gov, had kicked her husband, and had threatened to hit her brother with a pestle.
[30] There is no merit in this argument. A judge, having heard evidence in a jury trial is entitled, where the evidence supports it, to reach his or her own view of the facts relevant to sentencing provided such a view is not inconsistent with the verdict.[5] In the present case, the appellant is shorter than his co-offenders, and this allowed his specific actions to be identified. All three complainants gave evidence as to those actions. It was therefore open to the Judge to conclude on the basis of this evidence that the appellant had perpetrated specific acts during the robbery and to sentence him accordingly.
[31] The second aspect of the appeal is that the starting point of nine years adopted by the Judge was out of step with the decisions referred to in R v Mako.[6] In R v Mako, this Court said:

[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

[32] At the time R v Mako was decided, the amendments made by the Crimes (Home Invasion) Amendment Act 1999 were in force. Pursuant to that Act, the maximum penalty for an aggravated robbery involving a home invasion was 19 years’ imprisonment. The maximum penalty is now 14 years’ imprisonment,[7] and the Court must treat the fact that an offence was committed during a home invasion as an aggravating factor in sentencing.[8]
[33] Mr Ebersohn referred to the case of Tiori v R, in which this Court observed that “a “home invasion” element is a seriously aggravating factor in aggravated burglary cases justifying a significantly higher starting point than would otherwise be appropriate”.[9] However, given the repeal of the home invasion legislation, the Court considered that the starting point should be assessed by reference to similar cases, rather than by directly applying the starting point suggested for a home invasion case in R v Mako.[10]
[34] A number of the cases cited in Tiori v R involved serious offending and correspondingly high starting points ranging between ten and eleven years.[11] In Currie v R, the offender, armed with a shotgun, entered the victim’s home after being invited in by the victim. He hit the victim several times in the face with the barrel and butt of the gun before driving off in the victim’s car. On appeal, the starting point of eight years, with an uplift of two years, was upheld.[12]
[35] A consideration of these authorities satisfies us that the starting point of nine years identified in the appellant’s case was well within the Judge’s discretion. The offending in this case was clearly more serious than that in Currie v R. The number of offenders and the significantly aggravating factor of the attempt by the appellant to kick a heavily pregnant woman in labour would justify a higher starting point than was adopted in that case.
[36] The appeal against sentence is also dismissed.

Conclusion

[37] The appeal against conviction and sentence is dismissed.







Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Watene DC Auckland CRI-2011-044-7913, 30 October 2013.

[2] R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [76]–[82].

[3] Whitelaw v R [2008] NZCA 307.

[4] Singh v R [2014] NZCA 306 at [12].

[5] Sentencing Act 2002, s 24(1)(a); R v Heti (1992) 8 CRNZ 554 (CA) at 555.

[6] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).

[7] Crimes Act 1961, s 235.

[8] Sentencing Act, s 9(1)(b).

[9] Tiori v R [2011] NZCA 355 at [15].

[10] At [16].

[11] R v Fenton [2008] NZCA 379; R v Royal [2009] NZCA 65; Manuel v R [2010] NZCA 285.

[12] Currie v R [2010] NZCA 449.

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