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High Court of New Zealand Decisions |
Last Updated: 26 December 2018
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IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
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CRI-2015-404-360
[2016] NZHC 1336 |
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BETWEEN
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SABRINA MOANNA PATUWAI
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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12 April 2016
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Appearances:
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V D Heather for Appellant I S Ko for Respondent
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Judgment:
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20 June 2016
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JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 20 June 2016 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
PATUWAI v POLICE [2016] NZHC 1336 [20 June 2016]
Solicitors:
Kayes Fletcher Walker, Auckland
Introduction
[1] This is a case where confusion has arisen by the prosecution laying alternative charges in relation to the same alleged offending. The Judge began by first dealing with the less serious charge of receiving which she considered to be proven, but then went on to convict the appellant of the more serious alternative charge of conversion without properly addressing the elements of that more serious offence.
[2] The question for me to decide is whether, in the circumstances, the Court should direct that a conviction for the less serious offence should be entered and substituted for the more serious offence.
Background
[3] On 19 February 2015, Ms Patuwai was in the front passenger seat of a stolen vehicle that was stopped by the Police. The driver was her cousin. Ms Patuwai admitted having earlier driven the stolen vehicle.
[4] Later that same day, Ms Patuwai was charged with receiving stolen property (the receiving charge) and failing to comply with a lawful requirement by driving while being disqualified from holding or obtaining a driver licence. Ms Patuwai defended the receiving charge but pleaded guilty to the driving while disqualified charge.
[5] On 1 October 2015, the Police laid a further charge of unlawfully using a motor vehicle (the conversion charge). Ms Patuwai entered a plea of not guilty to this charge.
[6] At a Judge-alone trial in the District Court on 2 October 2015, the prosecution proceeded with both charges on the basis that they were laid in the alternative. Judge Simpson found that the receiving charge was proven, and indicated she intended to dismiss the charge of conversion.
[7] During legal discussion, the Police prosecutor informed the Judge that the Police regarded the conversion charge as being “better fitted” to the facts of this case. Following that indication, the Police were granted leave of the Court to withdraw the receiving charge and Ms Patuwai was convicted and sentenced on the conversion charge. She was sentenced to 12 months’ supervision, 175 hours’ community work and reparation of $418.25.
District Court decisions
[8] There are effectively two oral decisions. Prior to the first decision, the Police had called one witness and the statements of the three others were read. Both Ms Patuwai and her cousin then gave evidence.
[9] Judge Simpson rejected Ms Patuwai’s version of events, saying “I think it is likely she did realise the vehicle was stolen”. The Judge went on to say:
[16] I have already made observations about the damage that might be expected with older motor vehicles especially vehicles that have not been kept in good condition, but I do not believe that it is ordinarily the case that an older vehicle even one in poor condition would have the ignition barrel removed. I think Ms Patuwai was immediately on inquiry when she was told that the vehicle was needing a knife to start it. ...
[17] I am satisfied that she knew or ought to have known that the vehicle was a stolen one and that she was reckless in taking possession of it. It follows that the charge of receiving has been proved in the case of Sabrina Patuwai as well.
[10] In the second oral judgment, the Judge made the following findings:
(a) “It is also my clear understanding that they knew that the vehicle was stolen and that they nevertheless got into it and each of them drove it at various stages of the day on 19 February”;
(b) “By driving a motor vehicle which they knew was stolen, I am satisfied that in fact they had acted dishonestly. There is no question that they were responsible for the actual stealing of the car but, when they drove it they in fact used it as described”; and
(c) “I think that the using is included in the receiving”.
[11] Judge Simpson then entered a conviction on the conversion charge, and gave leave for the receiving charge to be withdrawn.
Submissions
[12] Ms Patuwai appeals her conviction on the basis that the Judge:
(a) reached her conclusion by applying elements of the wrong offence. Specifically, the Judge applied a standard of recklessness which is the mens rea requirement for the receiving charge; and is inapplicable in relation to the conversion charge.
(b) did not consider the appropriate burden of proof, with the consequence that the offence was not established to have been proven beyond reasonable doubt; and
(c) erred in finding that Ms Patuwai had taken the vehicle with dishonest intent or in the absence of a claim of right in circumstances where she maintains that she had mistakenly and honestly believed that the vehicle was owned by her cousin’s partner.
[13] Ms Patuwai appeals her sentence on the same basis and seeks an order that the sentence be set aside and a new sentence imposed.
[14] The respondent accepts that the appeal against conviction should be allowed on the grounds that Judge Simpson, having earlier found (in relation to the receiving charge) that the appellant had been reckless as to whether the car was stolen, did not adequately articulate or explain in relation to the conversion charge how or why she was satisfied beyond reasonable doubt that Ms Patuwai was in fact dishonest. However, counsel for the respondent submits that the Court should exercise its power under s 234 of the Criminal Procedure Act 2011 to substitute a conviction for receiving, since it is not disputed that Judge Simpson found that charge proven.
[15] The respondent opposes the appeal against sentence, submitting that the sentence imposed was appropriate in light of Ms Patuwai’s previous convictions for
shoplifting and breach of community work, as well as the recommendations contained in the pre-sentence report that Ms Patuwai might benefit from “attending a short motivational programme” and from an alcohol assessment.
Relevant law on appeal against conviction
[16] Section 229 of the Criminal Procedure Act sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge alone trial.
[17] Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a) in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[18] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.1 The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b).
[19] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”2 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.3
Should Ms Patuwai’s appeal against conviction be allowed?
[20] The parties are in agreement that the appeal against conviction should be allowed on grounds (a) and (b) identified at paragraph [12] above. I accept that this is the appropriate course. Neither of the judgments delivered by Judge Simpson addressed the requisite elements of the conversion charge and, on that basis, there is a material error in the Judge’s decision. A miscarriage of justice has occurred.
[21] The respondent submits that, pursuant to s 234 of the Criminal Procedure Act, a conviction for receiving ought to be substituted for a conviction for conversion. That section provides:
234 Conviction and sentence for different offence may be substituted
(1) Subsection (2) applies if a person was found guilty at trial of an offence (offence A) and the first appeal court allows the convicted person’s appeal against conviction for that offence.
(2) The first appeal court may direct that a judgment of conviction for a different offence (offence B), including an offence that the trial court could, in accordance with section 136(1), have substituted for offence A, be entered if satisfied that—
(a) the person could have been found guilty, at the person’s trial for offence A, of offence B; and
(b) the trial judge or the jury, as required, must have been satisfied of facts that prove the person guilty of offence B.
2 R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
3 At [110].
...
(5) On making a direction under subsection (2) ... the first appeal court may—
(a) impose a sentence for offence B (whether more or less severe) that is allowed by law; or
(b) remit the proceeding to the court that imposed the sentence for offence A and direct that court to take the action described in paragraph (a).
[22] Receiving is an offence created by s 246(1) of the Crimes Act 1961, which provides:
Every one is guilty of receiving who receives any property stolen or obtained by any other imprisonable offence, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained.
[23] The Court of Appeal considered the requirement of recklessness in Cullen v R, holding:4
If an accused does not know that property has been stolen, to be guilty of receiving stolen property, he or she must be “reckless as to whether or not the property had been stolen or so obtained”. In context, the element of recklessness does not appear to have been considered judicially by this Court. Generally, the concept of the term “recklessness” is regarded, in New Zealand criminal law, as the conscious taking of an unreasonable risk. A complete indifference about whether goods were or were not stolen would, itself, be enough. It seems reasonably clear that if someone receives property, the source of which is unknown, then a conscious risk is taken in determining not to make further inquiries.
[24] It is clear that Judge Simpson considered that Ms Patuwai was at least reckless as to whether or not the car had been stolen. It is also clear that Judge Simpson was satisfied that Ms Patuwai was guilty on the receiving charge.
[25] On that basis, I consider that it is appropriate that I apply s 232(2) and substitute a conviction for receiving in place of the conviction on the charge of conversion.
[26] I note briefly that, in my assessment, the appellant’s third ground of appeal (set out at paragraph [12(c)] above) does not succeed. The Judge’s assessment was made
4 Cullen v R [2012] NZCA 413 at [23] (footnotes omitted).
on findings of credibility, and I see no basis upon which I should differ from those findings.5
Approach to Ms Patuwai’s appeal against sentence
[27] Ms Heather submits that a new sentence should be imposed, but has not made any submissions regarding the nature of that new sentence.
[28] The respondent submits that it would be appropriate to uphold the sentence that was originally imposed by Judge Simpson.
[29] My concern is that the two charges carry significantly different maximum sentences. The conversion charge is the more serious, carrying a maximum sentence of seven years’ imprisonment. The receiving charge carries a maximum sentence of one year’s imprisonment in respect of receiving goods valued between $500 and
$1000.6
[30] In the absence of any submissions on behalf of Ms Patuwai regarding sentencing, I consider that the appropriate course is to remit the proceeding to the District Court for sentencing.
Conclusion
[31] I allow Ms Patuwai’s appeal against conviction for conversion, and direct that a conviction for receiving be entered.
[32] Arrangements should be made to require the filing of submissions in relation to the outstanding issue of the appropriate sentence to be imposed in light of the substituted conviction on the receiving charge.
6 The charging document describes the stolen vehicle as being valued at $500.
Paul Davison J
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