Steele v R [2015] NZCA 170 (14 May 2015)

Last Updated: 28 May 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA623/2014 [2015] NZCA 170
BETWEEN	MARCUS JAMES STEELE Applicant
AND	THE QUEEN Respondent

Hearing:	20 April 2015
Court:	White, Keane and Wylie JJ
Counsel:	Applicant in person Z R Hamill for Respondent
Judgment:	14 May 2015 at 12:30 pm

JUDGMENT OF THE COURT

Application for leave to bring a second appeal against conviction and sentence declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

Introduction

[1] The applicant, Mr Steele, has applied to this Court for leave to bring a second appeal against his conviction and sentence in the District Court at Kaikohe on one charge of misusing a telephone device in breach of s 112(1) of the Telecommunications Act 2001. Mr Steele pleaded guilty to the charge and was sentenced by Judge Thorburn to 100 hours’ community work and supervision for nine months.^[1]
[2] It is necessary for Mr Steele to apply for leave to appeal because he has already appealed unsuccessfully to the High Court.^[2] Mr Steele must now establish either that his proposed appeal to this Court “involves a matter of general or public importance” or that “a miscarriage of justice may have occurred, or may occur unless the appeal is heard”.^[3]
[3] The charge of misusing a telephone device related to an alleged abusive and obscene voicemail message left for a case worker at Work and Income New Zealand. Mr Steele originally pleaded not guilty to the charge, but on 5 June 2014, after asking for and receiving a sentence indication, he vacated his not guilty plea and entered a guilty plea.
[4] Mr Steele, who represented himself, argued that the application for leave should be granted on the grounds that:

• (a) the police had failed in their duty to disclose their case to him in a timely way and that he was prejudiced by this;
• (b) Judge Thorburn took into account an affidavit by the complainant case worker as a victim impact statement without disclosing it; and
• (c) Judge Thorburn imposed a sentence that differed from the sentence indication.

[5] Like Toogood J in the High Court, we approach Mr Steele’s application on the basis that he is seeking to vacate his guilty plea and to have his conviction and sentence set aside. In essence, his case is that unless he is granted leave to appeal a miscarriage of justice will have occurred.
[6] To determine his application, it is necessary to describe in some detail the events in the District Court that led to the sentence indication, the change of plea and the sentencing. For this purpose we have reviewed the transcript of the hearing before Judge Thorburn on 5 June 2014.

District Court conviction and sentence

[7] The charge was set down for a defended hearing before Judge Thorburn on 5 June 2014. Just as that hearing was about to begin Mr Steele, who had been representing himself, enlisted counsel, who had acted for him before, to invite the Judge to give him a sentence indication. Judge Thorburn gave counsel the opportunity to speak to Mr Steele and to the prosecuting sergeant.
[8] After having spoken to both, counsel confirmed that Mr Steele did want a sentence indication. The police wanted Mr Steele to do community work, to be made subject to a non-association order and to make an emotional harm payment. Mr Steele opposed that proposed sentence. But he was willing to undergo supervision, a term of which might be that he not associate with the complainant, and he was able to meet a fine.
[9] Judge Thorburn acknowledged the summary of facts was brief and that counsel quite correctly withheld the defence arguments. Mr Steele’s counsel had not wished to go further into the merits of the defence because that may prejudice Mr Steele if the matter were to proceed. The case, the Judge said, was simple but had taken a long time to come to hearing. It had to be resolved that day. He then asked whether there was a victim impact statement.
[10] The prosecuting officer replied that a victim impact statement had yet to be prepared but that the complainant had made an affidavit for a mode of evidence application that set out the impact of the offence on her. Mr Steele’s counsel asked to see the affidavit so that he could advise Mr Steele. The prosecuting sergeant objected. He said that Mr Steele had yet to enter a plea and, that being so, neither Mr Steele nor his counsel were entitled to see the affidavit. The Judge agreed, evidently intent on doing nothing to jeopardise his ability to hear the case if he had to.
[11] It is then apparent from the transcript of the hearing that the Judge read the complainant’s affidavit before giving the sentence indication. In the High Court Toogood J also accepted that the Judge had read the affidavit at this stage.^[4]
[12] The Judge indicated that a community order and a non-association order would be appropriate. The Judge then said that, if the case did go to hearing, and the facts the police alleged were established on the evidence, Mr Steele’s offence warranted a sentence of 200 hours community work. But, he said, if Mr Steele pleaded guilty he could expect to serve “significantly less” community work hours and to be made subject to a nonassociation order. He stood the case down again and Mr Steele’s counsel obtained instructions in writing to accept the indication given. Mr Steele, his counsel told the Judge, accepted that he had acted in a “wholly inappropriate way”.
[13] Mr Steele then vacated his not guilty plea and entered his guilty plea. Judge Thorburn convicted and sentenced him to 100 hours community work. The Judge did not make a non-association order. Instead, he placed Mr Steele under supervision for nine months.

The High Court appeal

[14] Mr Steele appealed his sentence to the High Court. He contended that his guilty plea should be vacated on the basis that the prosecution failed to supply him with the complainant’s statement prior to the defended hearing, and the statement once received was false and misleading and was deliberately used by police to pervert the course of justice. Further, the transcript of the hearing had been withheld from Mr Steele, as had the affidavit from the complainant.
[15] Justice Toogood recognised that as Mr Steele had not applied formally to vacate his guilty plea and to have his conviction and sentence set aside he could not do so by the ordinary statutory path.^[5] He had already been sentenced, and therefore the only avenue to challenge his entry of a guilty plea was an ordinary appeal against conviction.^[6] But he had not entered his plea under a mistake, and had not in any other way established a miscarriage of justice.^[7] As he had no basis to appeal his conviction, the Judge declined him leave and dismissed his appeal against sentence.
[16] In declining to allow the appeal against conviction, Toogood J held that it was “abundantly clear” that Mr Steele’s decision to enter a guilty plea was “fully informed and reached with the benefit of counsel’s advice”.^[8] No miscarriage of justice had been established.
[17] Justice Toogood also held that Mr Steele’s sentence was not manifestly excessive. The message he had left the complainant was “extremely offensive” and “expletive-laden” and its effect on her had been considerable. The Judge observed that, according to her affidavit:^[9]

... she was shocked and shaken by the vicious and aggressive intensity of the appellant’s voice ... the words used were disgusting and offensive and she felt they were a direct personal attack on her which left her scared for her safety and for the safety of her colleagues and her children.

[18] A measure of the effect on the complainant, Toogood J said, was that, as she described, she had been instructed not to answer her telephone or to have any contact with clients during that week, and over the next month saw only women clients. The Court, he said, had a duty to protect those who are offended against in the course of their employment in the service of the public.^[10] Judge Thorburn might reasonably have imposed a more punitive sentence.
[19] Justice Toogood accepted that Judge Thorburn had not told Mr Steele in his sentence indication that if he pleaded guilty he could expect a sentence of supervision. But, he said, supervision was a positive alternative to the order the Judge said he would make, a non-association order.^[11] The intent of a supervision order is rehabilitative. That order was not an error requiring the imposition of a different sentence.

Application for leave

[20] Mr Steele continues to contend that before the defended hearing set down for 5 June 2014 the police had failed in their duty to disclose their case to him in a timely way, and that he had been prejudiced. Like Toogood J, however, we see nothing in this complaint. By 5 June 2014, which was the second fixture allocated to the case, Mr Steele had all that he was entitled to; his concern then was not to defend the case but to resolve it by obtaining a sentence indication, by pleading guilty to the offence, and by receiving a sentence he considered proportionate.
[21] Mr Steele’s primary point remains rather, as it was on his appeal in the High Court, that because Judge Thorburn took the complainant’s affidavit into account as a victim impact statement for the purpose of giving the sentence indication, he and his counsel were entitled to access that affidavit and the Judge was wrong to deny it to them. He contends also that the affidavit was highly material to his decision whether to plead guilty to the offence and to adhere to that plea.
[22] Mr Steele goes further. He contends that in his decision on the appeal Toogood J was incorrect to say that Judge Thorburn took the affidavit into account before giving his sentence indication. The Judge, he says, only saw the affidavit afterwards and before imposing sentence. A further and perhaps related feature of his proposed appeal is that the Judge imposed on him a sentence that differed from the sentence indication.

Withheld affidavit

[23] There are two facets to Mr Steele’s primary proposed ground of appeal concerning the complainant’s affidavit, which Judge Thorburn withheld from him and his counsel. The first is that he was entitled to access to the affidavit as a matter of law. The second, which he appears to have advanced for the first time in this Court, is that the affidavit was material to his decision to enter and then adhere to his guilty plea.
[24] There is some merit to Mr Steele’s first point. With one significant exception, the complainant’s affidavit did qualify as a victim impact statement. It was information given to and received by the Judge for the purpose of the sentence indication, and that is one of the prescribed purposes such a statement serves.^[12] Furthermore, if it is considered a victim impact statement, one of its further prescribed purposes was to inform Mr Steele himself about the impact of the offence on the complainant, seen from her perspective.^[13] Ordinarily, therefore, Mr Steele’s counsel would have been entitled to see the affidavit in order to advise him whether to accept the indication.^[14] The affidavit did not, however, fully qualify as a victim impact statement because the complainant made it for a mode of evidence application. She did not make it knowing that it was to be used as a victim impact statement.^[15]
[25] Strictly, that might have meant that the Judge ought not to have taken the affidavit into account as a victim impact statement. Once he chose to do so, however, he could only withhold it from Mr Steele and his counsel if that was “necessary to protect the physical safety or security” of the complainant.^[16] That was not the reason why the Judge withheld it. He did so because, if Mr Steele declined his sentence indication, he wished not to disqualify himself from hearing and deciding the case.
[26] The Judge was right to be concerned about that issue, which does not normally arise on a sentence indication. But it could not be decisive. Once he decided to rely on the affidavit, Mr Steele and his counsel were entitled to see it. The affidavit might have proved relevant to Mr Steele’s decision whether to plead guilty, or to adhere to that plea.
[27] That being so, we turn to Mr Steele’s second point, that had he known the content of the affidavit he would never have pleaded guilty, or would have vacated that plea. The affidavit, he says, was misleading. It did not disclose why he left the voicemail message. In the hours before, he contends, the complainant and another person, on drugs and intoxicated, followed him into his property and threatened him with a knife unless he apologised for having looked at her. He alleges that is why he responded as he did.
[28] We are unconvinced. In her affidavit the complainant, as is usual in victim impact statements, spoke mainly about the effect the message had on her and that was not relevant to Mr Steele’s decision to plead guilty. The most that he can now rely on is that the complainant said that she did not know who had left the message for her. He contends that she knew very well who he was because of the encounter just before on which he relies. But that cannot assist him either.
[29] If Mr Steele believed the earlier encounter he asserts gave him a defence to the charge, why did he not hold to his existing plea and go to hearing? If he believed rather that it explained his offence and made him less culpable, why did he not raise it on the sentence indication? The complainant’s affidavit had no bearing on either of those decisions. He is fixed with the fact that he took neither decision.

Indication – sentence inconsistency

[30] The only other ground that Mr Steele may still pursue was the one Toogood J identified on the appeal: that, in the sentence he imposed, Judge Thorburn departed in one respect from his sentence indication. Here too, however, we do not accept that this gave rise to any injustice.
[31] The community work sentence Judge Thorburn imposed was consistent with his indication and was lenient. It was half the community work sentence the Judge had indicated was proper if Mr Steele were found guilty after trial. Despite the fact that Mr Steele pleaded guilty on the day of hearing and it was the second fixture given, the Judge allowed him a discount double that permitted for a guilty plea entered at the earliest time after charge.^[17]
[32] Then, in imposing nine months’ supervision instead of a non-association order, the Judge differed from his indication. But in doing so, he took up Mr Steele’s own submission when inviting the indication. As Toogood J said, that order was a positive alternative to the further order the Judge had proposed to make in the sentence indication: a non-association order. His sentence remained proportionate and was arguably lenient.

Conclusions

[33] We are satisfied that Mr Steele pleaded guilty to his offence because he was unable to deny it. The voicemail message left for the social worker was highly abusive and obscene and Mr Steele accepted at the hearing that he was unable to deny that he had left it. The effect on the complainant, as she described it in her affidavit, was not material to Mr Steele’s decision to plead guilty to the offence or to adhere to his plea. His sentence was proportionate and arguably lenient.
[34] We conclude that Mr Steele has not established any miscarriage of justice, or the likelihood of one, if he is denied leave to appeal. Nor has he raised any matter of general or public importance warranting a second appeal.
[35] The application for leave to bring a second appeal against conviction and sentence is therefore declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v Steele DC Kaikohe CRI-2013-027-1254, 5 June 2014.

^[2] Steele v Police [2014] NZHC 2626.

^[3] Criminal Procedure Act, ss 237(2) and 253(3).

^[4] Steele v Police, above n 2, at [14].

^[5] Ibid. The usual procedure is found in the Criminal Procedure Act 2011, s 115. See also R v Kihi CA395/03, 25 March 2004 at [14].

^[6] Marino v Police HC Napier CRI-2007-441-27, 14 May 2008 at [10]–[11]; and R v Kihi, above n 5, at [14].

^[7] R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [16].

^[8] Steele v Police, above n 2, at [17].

^[9] At [19].

^[10] At [20].

^[11] At [21].

^[12] Victims Rights Act 2002, ss 17AA(1)(a)(ii)(A) and 21AA.

^[13] Section 17AB(c).

^[14] Section 23.

^[15] Section 19.

^[16] Section 25.

^[17] See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].