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Burton v R [2018] NZCA 355 (11 October 2018)

Last Updated: 18 October 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA643/2017
[2018] NZCA 355



BETWEEN

IRAIA ARANGA NGAMOTU BURTON
Appellant


AND

THE QUEEN
Respondent

Hearing:

14 August 2018

Court:

Kós P, French and Miller JJ

Counsel:

Appellant in person
K S Grau and R K Thomson

Judgment:

11 October 2018 at 2.30 pm


JUDGMENT OF THE COURT


A The application for an extension of time to appeal is granted.


B The appeal against conviction is dismissed.

C The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

[1] Mr Burton was charged with a number of burglary and receiving offences, unlawful taking of a motor vehicle and assault with intent to injure. The latter charge arose out of an incident while he was in custody on remand for the dishonesty offending. The dishonesty offending was alleged to have all occurred between 11 September 2015 and 2 December 2015.
[2] There were in total four burglary charges relating to properties situated at Stansfield Street, Balmacewen Road, Lynn Street and Calvert Place in Dunedin. Mr Burton pleaded guilty to the Balmacewen Road burglary. The unlawful taking of a vehicle charge concerned a vehicle belonging to the Balmacewen Road occupiers which Mr Burton used to remove the property taken in the burglary. He pleaded guilty to that charge as well.
[3] There were three receiving charges, each of which concerned items stolen from three of the burgled properties, namely Stansfield Street, Calvert Place and Lynn Street. Each receiving charge was charged as an alternative charge to the associated burglary. On Mr Burton pleading guilty to all the receiving charges, two of the burglary charges — those relating to Calvert Place and Stanfield Street — were withdrawn. The Lynn Street burglary charge was not withdrawn.
[4] Mr Burton also pleaded guilty to the assault with intent to injure.
[5] The various guilty pleas, which were entered at different times, ultimately resulted in only one charge — the Lynn Street burglary — being defended. A judge alone trial of that charge was held before Judge Crosbie. The Judge found Mr Burton guilty of the Lynn Street burglary[1] and sentenced him on it and all the other offences to an overall term of imprisonment of five years and three months.[2]
[6] Mr Burton now appeals his conviction for the Lynn Street burglary and the sentence.
[7] The appeal was filed out of time. However, this was because of an understandable mistake over jurisdiction. The Crown did not oppose an extension of time being granted and we so order.

Appeal against conviction

The Judge’s decision

[8] At trial, it was not in dispute the Lynn Street property had been burgled between 22 and 26 October 2015. What was disputed was the identity of the burglar, the Judge describing the Crown case that the burglar was Mr Burton as being wholly inferential and circumstantial.[3]
[9] In finding the charge proven, the Judge identified the circumstances relied upon by the Crown linking Mr Burton with the Lynn Street burglary. Having considered and rejected the defence response to those circumstances, he concluded that the combination of them allowed him to infer and be satisfied beyond a reasonable doubt that Mr Burton had committed the Lynn Street burglary.[4] The circumstances listed were:[5]

Grounds of appeal

Did the Judge err in in his assessment of the evidence?

[10] Mr Burton submits the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. In support of this contention he advances four specific arguments:

Analysis

[11] Mr Burton’s DNA was found in the Balmacewen property but it was not found at Lynn Street. This was noted by the Judge as was the fact that Mr Burton was not identified as the driver of the car that drove down Lynn Street.[7] It is clear the Judge did take those matters into account but did not consider, in the light of all the other evidence, that they were sufficient to raise a reasonable doubt as to Mr Burton’s guilt. That was a view he was entitled to take. It does not amount to error.
[12] As regards the propensity evidence, the Crown’s original propensity application was filed at a time when Mr Burton was defending all the charges which were to be heard together. The application related to his previous convictions as well as cross-admissibility between charges.[8] Later, the Crown amended its application by removing the previous convictions as well as updating the Court that it now intended to rely on Mr Burton’s subsequent guilty pleas and convictions relating to the Balmacewen Road burglary and associated taking of the motor vehicle.
[13] The guilty pleas to the receiving charges were entered on the day of trial. That did not mean, as Mr Burton appears to suggest, that the receiving offences were no longer relevant and admissible. They remained relevant.
[14] We therefore do not accept that the Judge “overstepped the mark” in his reliance on the admitted offending.
[15] We also reject Mr Burton’s arguments relating to the Judge finding that he was associated with Carr Street. There was ample evidence to support that finding, most notably from a Mr Braines who was living at the Carr Street address and who said Mr Burton rented the sleepout where stolen property from all four burglaries was found. Mr Braines described the sleepout as Mr Burton’s own space and that nobody else had permission to use it. There was also evidence of a letter written by Mr Burton to Mr Braines’ partner advising he was in custody and asking her to pass on his apologies to the landlord of Carr Street.
[16] It was put to Mr Braines that the sleepout was insecure and could be accessed from the street. However, he said there was a lock on the door and although the window was ajar it had a security latch and that it would be difficult for anyone going to the sleepout without someone in the house knowing.
[17] Mr Braines also gave uncontested evidence that he had seen Mr Burton loading property at the time of the burglaries into the sleepout, some in boxes, some covered with blankets. The boxes included a firearm carton which Mr Burton gave him to understand was a container for an airgun he had purchased on Facebook. The carton was later found to contain a shotgun stolen from the Lynn Street burglary.
[18] We accept the Judge erred when he said it was “difficult to rationalise” defence claims someone else could have placed the property in the sleepout with the fact Mr Burton had pleaded guilty to receiving stolen property from Lynn Street located in the sleepout.[9] That was an error because Mr Burton had through counsel told the Judge at the time he entered his guilty pleas to the receiving charges, he did so on the basis he was only admitting to receiving the property found at Harrow Street and was disputing receiving the property at Carr Street.
[19] However, the evidence of Mr Braines, which the Judge was fully entitled to accept, was capable of amounting to proof beyond a reasonable doubt that Mr Burton had received the property found at Carr Street. The error did not therefore, in our view, create any risk of a miscarriage.
[20] Finally, we note that, having regard to the strength of the Crown case, the absence of recent possession evidence was not significant.

Was there operative trial counsel error?

[21] Mr Burton makes numerous allegations against trial counsel, Mrs Stevens. Most of his complaints involve alleged conduct that had no connection with the outcome of the hearing and we therefore do not address them, other than to observe that on the basis of the evidence before us, the allegations are not well founded.
[22] There are three complaints that are relevant. They are that Mrs Stevens failed to follow Mr Burton’s instructions about calling three witnesses, and failed to ask questions of witnesses that he wanted to be asked. The third complaint relates to issues surrounding the propensity evidence.
[23] One of the witnesses Mr Burton wanted to call was his probation officer, Mr Williams.[10] However, any evidence the latter might have been able to give was not relevant to the Lynn Street burglary. It was confined to the Balmacewen Road burglary and implicated Mr Burton in that burglary. According to Mrs Stevens’ evidence, which we accept, she appropriately advised Mr Burton the evidence was not relevant and would not assist him.
[24] Mrs Stevens had no recollection of Mr Burton asking for the other two witnesses to be called. One of them was Mr Keogh who was a victim of the Lynn Street burglary. His evidence was read by consent in accordance with an email Mrs Stevens sent at the time to the prosecutor saying Mr Burton agreed Mr Keogh was not required to give oral evidence. Mr Burton now says he wanted Mr Keogh to appear to give his evidence.
[25] It is not necessary for us to resolve this conflict because we are satisfied that calling Mr Keogh would not have made any difference. His statement was helpful to Mr Burton in that Mr Keogh was unable to identify Mr Burton and also mentioned another car not linked to Mr Burton driving suspiciously past the house. Calling Mr Keogh would not have improved on that evidence and there is no suggestion he could have added anything more that would have assisted Mr Burton.
[26] The other witness Mr Burton says he wanted to call was a Ms Wendy Powell. He did not however provide the evidence he says she would have given had she been called. The Crown says the only Powell involved in the case is a police constable, Judith Powell, who produced a spreadsheet listing items seized from Mr Burton’s address in Harrow Street. Mr Burton pleaded guilty to receiving items found at that address.
[27] As regards ignoring instructions about questions to be put to witnesses, Mrs Stevens said — and we accept — that Mr Burton never gave her questions to ask. His only instruction was that the police could not prove he committed the Lynn Street burglary and she focused her cross-examination on the areas that were available to create a doubt. That is borne out by the transcript. Mr Burton was unable to identify the questions he claims he instructed her to ask. We would add that questions to be asked in cross-examination are generally regarded in any event as a matter for counsel’s judgment.[11] What counsel must do is ensure through the questions that their client’s defence is fully put before the trier of fact. This Mrs Stevens did.
[28] In relation to the propensity evidence, Mrs Stevens deposed that she initially objected to the Crown’s application to adduce evidence of previous convictions. As already mentioned, by the time the case went to hearing, the propensity was reduced to cross-admissibility of the charges arising from the same set of offending. She advised Mr Burton correctly that, given the similarity of the offending and its probative value, its admissibility could not be successfully challenged and he accepted that advice.
[29] Mrs Stevens said further that when Mr Burton pleaded guilty on the morning of trial to the receiving charges, he knew and accepted that the Judge would be taking the other burglaries and receiving offending into account for the purposes of the one remaining charge. This is borne out by a discussion between counsel and the Judge in Mr Burton’s presence before he pleaded guilty to the receiving charges.
[30] The record of the discussion also refutes another of Mr Burton’s allegations namely that Mrs Stevens did not tell the Judge that he disputed receiving the property found at Carr Street. It is clear she did advise the Judge of that.
[31] We are satisfied Mrs Stevens represented Mr Burton with care and skill in difficult circumstances, and that this second ground of appeal based on trial counsel error also lacks merit. The appeal against conviction is accordingly dismissed.

Appeal against sentence

Further details of the offending

[32] In order to explain the sentencing arguments, it is necessary to set out some further details of the offending.
[33] All of the houses burgled were dwelling houses. A large number of items including irreplaceable items were stolen. The details in relation to the specific offences committed by Mr Burton are as follows:
[34] As regards the assault with intent to injure, the victim was a fellow prisoner on remand. Mr Burton punched him in the head 20 times with a closed fist and kicked him four times in the leg and body. Mr Burton ignored a Corrections officer shouting at him to stop, walking away only when Corrections staff entered the room. The victim suffered swelling and bruising to his head and face as well as temporary headaches, dizziness and blurred vision.

Sentencing in the District Court

[35] The Judge identified the aggravating features of the burglary offending as being premeditation, the large number of items taken including items of sentimental value, the value of the items taken, the extent of the burglaries and the damage caused, as well as the taking of a firearm from secure storage. The Judge said further that the effect on the victims had been profound, one of the victims of the receiving wanted to sell their home.[12] The high value of the items taken was also identified as an aggravating factor of the receiving charges.[13]
[36] In relation to the assault, the Judge noted that it occurred in the prison environment and had involved significant violence including an attack to the head.[14]
[37] Having identified the aggravating factors, the Judge adopted a starting point in respect of the burglaries of four years’ imprisonment.[15] He then uplifted that by two years on account of the receiving charges (nine months) and the assault (15 months), arriving at an overall starting point of six years’ imprisonment.[16]
[38] Turning to aggravating factors personal to Mr Burton, the Judge increased the starting point by a further six months to reflect Mr Burton’s criminal history and the fact that at the time of the offending he was serving a sentence of intensive supervision.[17] Mr Burton, who was aged 29, had been committing burglaries since he was 14 years old. He had a total of 58 offences proven in the Youth Court, many for burglary and taking motor vehicles, and had been sentenced to imprisonment eight times in the District Court for 47 offences including aggravated robbery, assaults and burglary.
[39] It was common ground that Mr Burton was entitled to a 10 per cent discount for his guilty pleas, which the Judge accepted.[18] He also granted a further discount on account of the constructive approach taken at the hearing in terms of agreeing to evidence being read, a letter of apology Mr Burton had written, and his undertaking of programmes while in prison.[19]
[40] All of that resulted in a deduction of 15 months,[20] leaving an end sentence of five years and three months imposed in respect of the burglary charges, with concurrent sentences of 15 months on all the other sentences.[21] The Judge did not impose a minimum period of imprisonment.[22]

Analysis

[41] In contending the sentence was manifestly excessive, Mr Burton submits that the uplifts were a 90 per cent increase on the initial starting point. In fact, the uplift was a 50 per cent increase for the other offending and 62.5 per cent if the uplift for criminal history is included.
[42] We are satisfied the sentence was available. Substantial uplifts for aggravating factors, including previous convictions, may be necessary to respond to calculated offending by recidivists. As pointed out by the Crown, the two burglaries were major burglaries where the houses were cleaned out. One involved the taking of a vehicle and the other a firearm, making it consistent with comparator cases such as Arahanga v R.[23]
[43] We are also satisfied the uplifts were amply justified, appropriate credits given and totality properly taken into account.
[44] The appeal against sentence is accordingly dismissed.

Result

[45] The application for an extension of time to appeal is granted.
[46] The appeal against conviction is dismissed.

[47] The appeal against sentence is dismissed.







Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Burton [2017] NZDC 13558 [reasons for verdict].

[2] R v Burton [2017] NZDC 13924 [sentencing notes] at [4].

[3] Reasons for verdict, above n 1, at [4].

[4] At [20]–[23].

[5] At [19(a)–(l)].

[6] See Simon France (ed) Adams on Criminal Law – Offences and Defences (online ed, Thomson Reuters) at [CA219.09].

[7] At [20(c)] and [20(a)].

[8] R v Burton DC Dunedin CRI-2015-012-2918, 19 September 2016 (Minute) at [2].

[9] Reasons for verdict, above n 1, at [20(e)].

[10] Another of Mr Burton’s probation officers, a Mr Broughton, did provide evidence.

[11] Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [75].

[12] Sentencing notes, above n 2, at [24].

[13] At [25].

[14] At [26].

[15] At [30].

[16] At [31] and [34].

[17] At [35].

[18] At [37].

[19] At [38]–[41].

[20] A total discount of 19 per cent from the six years and six months.

[21] At [41].

[22] At [43].

[23] Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189. Although there may have been a greater risk of violence in Arahanga, it involved two burglaries of homes and theft of high value property. The Judge also referred to Shierney v Police [2014] NZHC 2963.

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