Arahanga v R
[2012] NZCA 480
•18 October 2012
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA718/2011 [2012] NZCA 480 |
| BETWEEN PATRICK STEVEN ARAHANGA |
| AND THE QUEEN |
| CA292/2012 |
| AND BETWEEN OWEN CARL WITHINGTON |
| AND THE QUEEN |
| Hearing: 1 August 2012 |
| Court: Glazebrook, Winkelmann and Rodney Hansen JJ |
| Counsel: A M Sceats for Appellant Arahanga |
| Judgment: 18 October 2012 at 12.00 pm |
JUDGMENT OF THE COURT
The appeals are dismissed.
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
| Para No | |
| Introduction | [1] |
| Background | [5] |
| Issues on conviction appeals | [16] |
| Unreasonable verdicts | [17] |
| Submissions of the parties | [17] |
| Our assessment | [22] |
| Direction on circumstantial evidence | [30] |
| Submissions of the parties | [30] |
| Our assessment | [32] |
| Lawful arrest and escaping from custody | [34] |
| Submissions of the parties | [34] |
| Evidence | [37] |
| Judge’s directions | [39] |
| Escaping lawful custody | [41] |
| Case law on arrest | [44] |
| The test | [53] |
| Application to this case | [57] |
| The sentencing remarks | [60] |
| Issues on sentencing appeals | [66] |
| Starting point | [67] |
| Submissions of the parties | [67] |
| Evidence on the knife | [69] |
| Section 24 of the Sentencing Act | [71] |
| Our assessment | [77] |
| Aggravating features of offending | [83] |
| Attribution of Mr Withington’s behaviour to Mr Arahanga | [84] |
| Submissions of the parties | [84] |
| Our assessment | [86] |
| Result | [88] |
Introduction
Following trial in the District Court at Gisborne, Mr Owen Withington was convicted of one count of unlawfully taking a motor vehicle, two counts of burglary, two counts of threatening to kill, two counts of threatening to do grievous bodily harm, one count of aggravated assault and two counts of threatening to damage property.
Mr Patrick Arahanga was convicted of one count of unlawfully taking a motor vehicle, two counts of burglary and one count of escaping lawful custody.
On 30 September 2011, Messrs Withington and Arahanga were both sentenced by Judge Roy Wade to five years’ imprisonment.[1]
[1]R v Arahanga DC Gisborne CRI-2010-082-803, 30 September 2011.
Messrs Withington and Arahanga appeal against their convictions and sentences.
Background
It was alleged at trial that, during the early morning of 26 December 2010, Messrs Withington and Arahanga broke into an unoccupied bach in Mahia. Mr Arahanga was armed with a carving knife. They entered through a window and stole a television, a DVD player, a stereo unit and various other items from the downstairs part of the property. They stacked the items on the deck at the rear of the property, some of which were later found stock-piled in bushes down the road. They then went upstairs and started rifling through the drawers in the bedrooms, pulling out items and throwing them onto the floor.
The two men then broke into another bach, while the occupants were asleep in bed. They stole electrical items, which they then took outside the house and stashed in nearby sand dunes. They then returned to steal more items and, in doing so, woke up one of the occupants, a teenage girl, who alerted her mother. Messrs Withington and Arahanga were carrying out a television when they were challenged by the occupants. They dropped the television and ran. The police were telephoned.
It was alleged that the two men carried on with their criminal spree by taking a van that was parked in the front section of another property. One of the occupants of that house was woken up by the sound of the van leaving. She assumed that it was her partner and that he was driving to work. Her partner was in fact returning home from a party at the same time as the van was heading out. He saw a person with a white shirt driving the van, went inside and told his partner, and they called the police.
Messrs Withington and Arahanga returned to the second house that they had broken into to recover the stolen property. The occupants were outside the house. Mr Withington, who was driving the van, started making sexual overtures to a teenage girl. Her father objected to his behaviour and language and told them to go away. Mr Withington responded by threatening to come back and slit his daughter’s throat.
By this time, Constable O’Sullivan had arrived at the scene in response to the emergency call. He pulled over the van and went to his own vehicle to check the details of the two men. He discovered that the van had been reported stolen and went back to the van and told Messrs Withington and Arahanga that they were under arrest.
Mr Withington jumped out of the van, grabbed hold of Constable O’Sullivan, and said he had done nothing wrong. Mr Arahanga got out of the van with what Constable O’Sullivan believed was a carving knife, as he saw a black handle and a partial bit of steel sticking up from Mr Arahanga’s waistband. Constable O’Sullivan believed Mr Arahanga was more of a threat than Mr Withington, so he walked forward, grabbed Mr Arahanga by the shirt, and repeated that they were under arrest. Mr Arahanga pulled away from him. While Constable O’Sullivan was attempting to pull him back towards him, Mr Withington grabbed him from behind, and began punching him about the head and body, causing him to drop to one knee. Mr Withington stamped hard on the constable’s calf. He then threatened to stab him.
Constable O’Sullivan used a pepper spray on Mr Withington in an attempt to subdue him. He eventually succeeded in handcuffing Mr Withington, with the assistance of an off-duty police officer, Constable McMillan, who was on holiday and happened to be staying nearby. Meanwhile, Mr Arahanga ran off.
After a substantial struggle, Mr Withington was put in the back of a police car. Constable O’Sullivan then began patrolling the area in search of Mr Arahanga, while Constable McMillan sat in the back of the car with Mr Withington. They were alerted by residents to a nearby area where they saw Mr Arahanga running behind some houses. Constable O’Sullivan got out of the car and began to chase Mr Arahanga. He lost sight of him after a while, but shortly afterwards found him hiding in the tent of a holiday maker where he had covered himself with a sleeping bag.
Constable O’Sullivan handcuffed Mr Arahanga and placed him in the police car with Mr Withington. At this point, Mr Withington kicked out at a window frame of the car with such force that he bent the frame, and was removed from the vehicle and put back onto the ground. He then began issuing threats. He threatened to kill Constable O’Sullivan, attack his wife, and burn his house down. He also threatened to cause grievous bodily harm to Constable McMillan and his wife, and spat at him twice. When another police officer, Senior Sergeant Bates, arrived at the scene, he threatened to kill him and burn his house down. When he saw the women he thought had reported the burglaries to the police, he threatened to come back and rape them and slit their throats.
Due to Mr Withington’s continued violent demeanour, it was necessary for the police to call a prison van from Gisborne to enable his transport to a police station. Once he was placed in the van, he kicked the door, swinging it back and striking Senior Sergeant Bates.
As a result of the assaults inflicted on Constable O’Sullivan, he suffered a bruised ribcage, bruised kidneys and bruises to the head, neck and calf. He was hospitalised on two occasions and had to take 16 days off work.
Issues on conviction appeals
Messrs Withington and Arahanga both appeal against their conviction and sentence. The issues on appeal against conviction are:
(a)whether the jury verdicts on the burglary, unlawful taking and escaping custody counts should be set aside on the ground that they cannot be supported having regard to the evidence;
(b)whether Judge Wade erred in his direction to the jury on circumstantial evidence; and
(c)whether Judge Wade misdirected the jury as to the elements required for lawful arrest with respect to Mr Arahanga.
Unreasonable verdicts
Submissions of the parties
Counsel for Messrs Withington and Arahanga submit that the jury verdicts on the burglary counts (and, in respect of Mr Arahanga, the unlawful taking of a motor vehicle count) should be set aside as they cannot be supported having regard to the evidence.[2]
[2]A similar submission on the escaping lawful custody count will be dealt with at [35] below.
In relation to the burglaries, counsel argue that the time periods for the burglaries and the taking of the van were equivocal. They say that there was no forensic evidence and no evidence of them being in possession of any of the items taken in the burglary.
Further, counsel argue that a witness’s voice identification evidence was unreliable. The evidence was given by the teenage girl who had been woken up when the second house was being burgled.[3] She stated that she heard the voices of two men in the house, and that one voice was louder than the other. She said that she recognised one of the voices (the louder voice) when Messrs Withington and Arahanga returned to their house in a van, and that it seemed to come from the person in the driver’s seat. Counsel say that her evidence is unreliable because in cross-examination she accepted that the voices she had heard in the house were “typical Wairoa voices” and that it was possible that the voices she had heard in the house could have come from other people from Wairoa and not Messrs Withington and Arahanga.
[3] See at [6] above.
Counsel for Mr Arahanga also says that there is no identification or any other evidence to suggest that he took the van or assisted in its taking. He says that the only evidence connecting him with the van is that he was seen getting out of the van on the same street as the second burgled house, after it had been driven there by Mr Withington.[4]
[4] As mentioned at [7] above, only one person was seen taking the van.
The Crown submits that the appellants are essentially asking the Court to substitute any view it might have of the evidence for that of the jury based on points already made at trial. It submits that there was sufficient circumstantial evidence on which the jury could have been satisfied to the required standard that Messrs Withington and Arahanga were guilty. That the voice identification may have been unreliable or that there was an absence of typical forensic evidence ignores the collective nature of the circumstantial evidence.
Our assessment
We accept the Crown’s submissions. The jury were entitled to be satisfied beyond reasonable doubt that Messrs Withington and Arahanga were both identified as the burglars on the basis of the evidence led at trial.
Two houses in Mahia were burgled sometime in the early morning of 26 December 2010. The two houses were within a few hundred metres of each other. The second bach had been burgled by two people, as two voices were heard by one of the occupants of that bach and two people were seen running from the bach. Property that was stolen from the two houses was collected together and left out on the street. Not far from the two houses that were burgled, a van was unlawfully taken. A man with a white shirt was seen taking the van.
Messrs Withington and Arahanga were pulled over in the van in the early hours of the morning of 26 December on the same street where some of the property stolen from the second bach had been stashed. The number of occupants of the van coincided with the number of people who had burgled the second house. The van was being driven by Mr Withington, who was wearing a white shirt, and Mr Arahanga was in the passenger seat.
The geographical and temporal proximity of the three properties and the crimes committed there made it implausible that Messrs Withington and Arahanga were simply responsible for the unlawful taking of the motor vehicle and not the burglaries. Further, no explanation for their presence in the van on the same street where the stolen property was stashed was put forward by counsel for Mr Withington or Mr Arahanga for the jury to consider. It was open for the jury to conclude that it would be a highly unlikely coincidence that two men who were driving down a street in a stolen van and making threatening remarks to residents[5] were not the same two burglars who had stashed the property on the same street.
[5] See at [8] above.
There was also the voice identification evidence that, of the two people who burgled the second bach, one was louder than the other.[6] This was consistent with the somewhat contrasting presentation of Messrs Withington and Arahanga in the van and after arrest. As to the voice identification generally, Judge Wade in his summing up warned the jury that there was a special need for caution before finding either Mr Withington or Mr Arahanga guilty on the basis of that voice identification evidence, as the witness could have been mistaken about identification. He also reminded the jury that the witness had acknowledged in cross-examination that there was a reasonable possibility that she was mistaken about the voices that she heard.
[6] Referred to at [19] above.
Regarding the appellants’ submission that the time periods for the burglaries and the taking of the van were equivocal, this was a point that was made at trial, particularly in the closing address of counsel for Mr Arahanga. We agree with the Crown’s submission that it is not for this Court to substitute any view it might have of that evidence for that of the jury.
In respect of the unlawful taking charge, it was open to the jury to conclude that the same people who burgled the houses would come back and collect the stolen property in a vehicle that would fit the items, such as a van, and that the burglars may wish to do this in a stolen vehicle to prevent the tracing of the vehicle’s registration back to them.
We accept the Crown’s submission that, if it was accepted that Mr Arahanga participated in the burglaries and was later found in the van with Mr Withington, then the jury were entitled to conclude that in the hour and a half between the second burglary and the taking of the van, Mr Arahanga at least encouraged or aided Mr Withington in the taking of the van. In his summing up, Judge Wade directed the jury that they needed to be sure that Mr Arahanga either personally took the van or deliberately assisted or encouraged Mr Withington to do so.[7]
Direction on circumstantial evidence
Submissions of the parties
[7] The Judge also gave a party direction.
Counsel for Messrs Withington and Arahanga submit that Judge Wade erred in his direction to the jury on circumstantial evidence. They submit that the Judge did not inform the jury of the possibility of an innocent inference being drawn from the circumstantial evidence, namely that the jury were entitled to draw an inference that the people who entered the properties at the two bachs would not have stayed in the area afterwards.
The Crown submits that the Judge did not make any error of law in his summing up on circumstantial evidence. It submits that the Judge’s direction was orthodox and proper, and along similar lines to the direction given in R v Quayle,[8] which was approved by this Court as an appropriate direction to give to a jury on drawing inferences.
Our assessment
[8]R v Quayle CA39/03, 3 July 2003.
We accept the Crown’s submission that Judge Wade’s direction to the jury on circumstantial evidence was orthodox. The Judge told the jury that they were entitled to draw inferences that were simply logical sensible conclusions based on the facts the jury found to be proved. He specifically endorsed trial counsel’s caution against speculation. The Judge said that, when a series of reliably established facts connect with each other, that carries conviction in the minds of the jury, that can result in proof beyond reasonable doubt. He also said that, if the cumulative effect of the individual facts did not reach that standard and still left gaps, then the evidence did not amount to proof beyond reasonable doubt.
The directions to the jury could not have left them in any doubt as to their task in respect of the elements that had to be proved beyond reasonable doubt. We also accept the Crown’s submission that, as in Quayle, defence explanations and interpretations of the circumstantial evidence were appropriately summarised by the Judge. For example, the Judge referred to a suggestion made by Mr Withington’s trial counsel that Christmas time was an opportune time to burgle houses, as they were likely to have valuable presents inside them, so other people may have committed the burglaries. He also reminded the jury that counsel for Mr Arahanga had pointed out that there was no fingerprint or DNA evidence. The Judge was not required to do more.
Lawful arrest and escaping from custody
Submissions of the parties
Counsel for Mr Arahanga submits that Judge Wade misdirected the jury as to the elements required to constitute a lawful arrest. He submits that traditionally an arrest, as a basis for lawful custody, requires arresting officers to pronounce words of arrest and, either submission to the arrest by the person arrested, or a restraining or touching of that person by the arresting officer.[9]
[9]Referring to Police v Thompson [1969] NZLR 513 (SC).
In respect of the escaping lawful custody count, he also submits that the evidence adduced was insufficient to support a guilty verdict, as he had not been lawfully arrested. In counsel’s submission, Mr Arahanga did not submit to the arrest. Nor did Constable O’Sullivan touch him. In counsel’s submission, the evidence on this point was disputed, and there was no corroboration of Constable O’Sullivan’s evidence that he had touched Mr Arahanga by the other civilian witnesses.
The Crown submits that, on the current state of the law, the Judge was entitled to omit the requirement of touching from his direction. The Crown says that, in the circumstances of this case, touching was not required, as there cannot have been any doubt on the part of Mr Arahanga as to whether he was under arrest. Even if the grabbing of the shirt can be put to one side, Mr Arahanga had twice been told by Constable O’Sullivan in unambiguous and clear language that he was under arrest.
Evidence
The evidence on the escaping custody charge was that, although Constable O’Sullivan told Mr Arahanga at an earlier point that he was under arrest for being unlawfully in a motor vehicle, he made a “second” arrest at a later point. This came after Mr Arahanga got out of the van with a knife.[10]
[10] Discussed at [10] above.
Constable O’Sullivan’s evidence was that he walked forward, grabbed Mr Arahanga by the shirt, and said “you’re under arrest”. He maintained that he had touched Mr Arahanga in cross-examination. The submission for Mr Arahanga is that the jury could not have been satisfied to the relevant standard that there had been an occasion when Constable O’Sullivan had touched Mr Arahanga, there being no corroboration of this point by civilian witnesses. One of the witnesses, who was about 20 metres down the street, said that she saw “one guy get out of the passenger seat and take off down the road”, with no mention that she saw Constable O’Sullivan touch him. Another two civilian witnesses’ accounts were to the same effect.
Judge’s directions
When Judge Wade directed the jury on the elements required for a lawful arrest, he said that there is no magic formula as to the words that have to be used to constitute an arrest; what is essential is that the person being detained is told in no uncertain terms that he is detained (that is, no longer free to go about his business); and it is a good idea to use the word “arrest” but it is not absolutely essential. The Judge said that, if the jury accepted Constable O’Sullivan’s evidence, arrest was the word used.
The Judge said that the important issue for the jury was whether Mr Arahanga knew that he was no longer free to leave. He went on to say that it was for the jury to decide if the prosecution had proved the point but said “here comes a comment from me, ignore it if you like. If he did think he was free to leave why was he hiding in a tent later on? There we are, it is a matter for you.”
Escaping lawful custody
The offence of escaping from lawful custody is contained in s 120 of the Crimes Act 1961. In relevant part the section provides:
120 Escape from lawful custody
(1)Every one is liable to imprisonment for a term not exceeding 5 years who,—
(a) Having been convicted of an offence, escapes from any lawful custody in which he may be under the conviction; or
(b) Whether convicted or not, escapes from any prison in which he is lawfully detained; or …
(c) Being in lawful custody otherwise than aforesaid, escapes from such custody.
(2)For the purposes of this section, custody under an illegal warrant or other irregular process shall be deemed to be lawful.
There are two major classes of cases covered by s 120: those where the person is in custody pursuant to a court order or sentence and those where the person is under lawful arrest.[11] Mr Arahanga was charged under s 120(1)(c), the allegation being that his custody arose from the making of an arrest.
[11] Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CA120.01].
There is no question in this case as to the legality of any arrest. The issue for the jury was whether there had been an arrest. In any event, lawfulness is a question to be determined by the Judge.[12]
Case law on arrest
[12]R v Taylor [2008] NZCA 558, [2009] 1 NZLR 654 at [73]–[74].
In Police v Thomson,[13] it was held that an “arrest” requires an actual seizure or touching of a person’s body with a view to his or her detention or alternatively words of arrest and submission by that person to the arrest.
[13]Above n 9. See also Coster v Police (1993) 10 CRNZ 54 (HC) at 58.
Thomson is consistent with the English decision of Alderson v Booth,[14] which was delivered shortly after Thomson. In that case, Lord Parker CJ, with whom Blain and Donaldson JJ agreed, noted that there were a number of cases, both ancient and modern, as to what constitutes arrest. He said that, while there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it was quite clear that that was no longer the law.[15] Lord Parker CJ said that there may be an arrest by mere words, by saying “I arrest you” without any touching, provided that the defendant submits and goes with the police officer. Alderson v Booth is still considered to be good law in England on what constitutes an arrest.[16] It was cited with approval by this Court in Ahmed v R.[17]
[14]Alderson v Booth [1969] 2 QB 216.
[15]At 220.
[16]See for example Halsbury’s Laws of England (online ed) vol 11(1) Criminal Law, Evidence and Procedure at [910].
[17]Ahmed v R [2009] NZCA 220, [2010] 1 NZLR 262 at [37].
In Ballantyne v Police,[18] Simon France J suggested a third means of effecting arrest: words of arrest, combined with the ability at the relevant time to give physical expression to the arrest should the person not submit.[19] In that case, Simon France J also held that, if a person appeared to submit, this constituted submission.[20]
[18] Ballantyne v Police HC Auckland CRI-2005-404-110, 27 July 2005.
[19]At [27]–[29], relying on dicta in Coster v Attorney-General HC Wellington CP 144/95, 5 March 1998 at 6.
[20]At [30]. See also Hotene v Police HC Wellington CRI-2009-485-34, 27 May 2009 at [21].
This means that, under the case law to date relating to escaping from custody charges, there are three alternative means of effecting an arrest:
(a)the actual seizure or touching of a person’s body with a view to his or her detention; or
(b)words of arrest and submission to arrest, including apparent submission; or
(c)words of arrest and the ability at the relevant time to give physical expression to the arrest (absent submission).
In order to sustain a charge of escaping lawful custody, the Crown must also prove intent (as well as the absence of any defences raised by the person charged such as a defence of unconscious or involuntary action).[21] Intent would be impossible to prove unless the prosecution proved that the arrested person knew that he or she was no longer free to leave.
[21]Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CA120.04].
In the context of the New Zealand Bill of Rights Act 1990 (Bill of Rights), in R v Goodwin,[22] this Court defined arrest more widely than it had previously been understood. In Goodwin, it was held that an arrest can occur through words alone, without submission (real or apparent) or even the ability to give physical expression to the arrest. The Court defined arrest as the communication or the physical manifestation of an intention to apprehend and to hold the person concerned in the exercise or purported exercise of authority to do so. The arrester must make it plain that the subject has been deprived of the liberty to go where he or she pleases.[23]
[22] R v Goodwin [1993] 2 NZLR 153 (CA).
[23]At 174 per Cooke P, at 190 per Richardson J, at 197 per Casey J, at 200–201 per Hardie Boys J, and at 205 per Gault J. See also R v P [1996] 3 NZLR 132 (CA) at 136. An arrest will generally be made with a view to laying a charge or to bringing the person concerned before the Court: Goodwin at 200 per Hardie Boys J. In Goodwin, Richardson, Casey, Hardie Boys and Gault JJ were not prepared to accept Cooke P’s earlier conclusion in R v Butcher [1992] 2 NZLR 257 (CA) at 264, that a de facto detention, without more, was an arrest or a detention within the meaning of s 23 of the New Zealand Bill of Rights Act 1990 (Bill of Rights). While the distinction between detention and arrest is not important for present purposes, we note that the developing jurisprudence under ss 22 and 23 of the Bill of Rights since Goodwin has defined detention and arrest in broadly similar terms. See for example R v Fukushima CA128/04, 13 September 2004, Everitt v Attorney-General [2002] 1 NZLR 82 (CA) at 87 and the discussion in Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [BC9.03] and [BC9.05].
Three of the judges in Goodwin referred to the comments of Lord Devlin in Shaaban Bin Hussien v Chong Fook Kam,[24] which we also adopt:
An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.
[24]Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942, [1970] 2 WLR 441 (PC) at 947, referred to in Goodwin at 169 per Cooke P, at 184 per Richardson J, and at 200–201 per Hardie Boys J.
While we accept that a wider concept of arrest may be applicable in the Bill of Rights context in order to ensure that the rights conferred in it are not frustrated,[25] we consider that the definition of arrest in Goodwin is an appropriate test for an escaping from lawful custody charge. The test is simple and effectively encompasses the earlier tests set out at [47].
[25] Such as the right to counsel under s 23(1)(b) of the Bill of Rights.
There are good public policy reasons (including safety of arresting officers) to use the Goodwin test as to whether there has been an arrest. It cannot be right that a person can avoid an escaping lawful custody charge if he or she runs away, knowing full well that he or she is under arrest and no longer free to leave.
The test
We therefore hold that the test for whether there has been an arrest, as the basis of an escaping lawful custody charge, is:
(a)the arrester, by words or conduct, makes it clear to the person being arrested that he or she is no longer free to go where he or she pleases; and
(b)the person being arrested knows that he or she is no longer free to leave.
Whether a person is arrested or not is a matter of fact. Where words are used to arrest a person, no particular form of words is required.[26] However, any words used must clearly bring home to a person that he or she is under compulsion and preferably the word arrest should be used.[27]
[26]R v Kirifi [1992] 2 NZLR 8 (CA) at 11; R v Butcher, above n 23.
[27] See Alderson v Booth, above n 14, at 221.
Where the arrest is effected by physical conduct only, the conduct must unequivocally convey to the person being arrested that he or she is no longer free to leave. We would expect that words of arrest would accompany any physical manifestation of an intention to arrest in all but exceptional cases.
We have summarised the test for arrest as it is relevant to this case. Additional issues may arise in other escaping lawful custody cases; for example, whether the person being arrested did in fact escape from custody. In some cases too there may be additional issues in relation to intent; for example, whether a defence of unconscious or involuntary action is available to the defendant.
Application to this case
Judge Wade’s directions[28] were clearly correct and in accordance with the test for lawful arrest that we have outlined. The Judge told the jury that Constable O’Sullivan needed to have told Mr Arahanga “in no uncertain terms” that he was no longer free to go about his business. The Judge then told the jury that the prosecution needed to prove that Mr Arahanga knew that he was no longer free to leave.
[28] Described at [39]–[40] above.
Even if touching had been required, however, there was evidence from the constable upon which the jury could have been satisfied as to touching. No corroboration was needed for Constable O’Sullivan’s evidence. There was also evidence that the jury was entitled to accept that words of arrest had been used.
Further, the jury was entitled to infer that Mr Arahanga knew that he was no longer free to leave. Even without the evidence of Mr Arahanga being found hiding in a tent (which, as the Judge noted, was powerful evidence that he knew of the arrest), the jury would have been entitled to infer that Mr Arahanga knew he was not free to leave from the evidence of the clear words of arrest. In addition, it could have been inferred from the manner of his departure. The evidence of one witness was that Mr Arahanga “bolted” after Mr Withington had told him to “Run bro run”.
The sentencing remarks
At sentencing, Judge Wade considered sentences in cases involving dwelling house burglary,[29] while noting that there was no tariff for burglary cases. He said that, although Messrs Withington and Arahanga were not charged with aggravated burglary, that was “plainly what it was”. He recognised, however, that he was not permitted to impose a sentence that exceeded the statutory maximum for burglary simpliciter.
[29]R v Columbus [2008] NZCA 192, Shedden v Police HC Auckland CRI-2010-404-34, 22 June 2010, Arps v Police HC Christchurch CRI-2010-409-167, 2 September 2010 and Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010.
Judge Wade identified the following aggravating features of the offending: it involved two dwelling house burglaries as well as the taking of a van; the victims were asleep upstairs in one of the houses; the intruders were armed; and the brazen behaviour of the two men after they had been detected that made it clear that they were prepared to use gross violence against anyone who got in their way. The Judge said that the offences were “very much akin to home invasions”. He therefore adopted a starting point of four years’ imprisonment.
The Judge then had regard to the pre-sentence reports. He noted that Mr Arahanga, who was then 26 years old, had abused alcohol and drugs regularly, and still claimed that he was innocent. His record showed that, on numerous occasions, he had failed to comply with community work orders, supervision orders and prison release conditions. He had three previous convictions for burglary and 11 convictions for violent offending. The present offending had been committed while Mr Arahanga was still subject to a sentence for previous offending. Judge Wade considered that these factors warranted a nine month uplift from the starting point.
The Judge noted that Mr Withington, who was also 26 years old, had previously committed offences of male assaults female and offences of dishonesty. He appeared to have responded satisfactorily to earlier community sentences, and was not subject to those sentences at the time of committing the present offending. He was in a longstanding relationship despite an earlier assault he committed on his partner, with whom he had a baby. Mr Withington stated that he had given up his gang connections and had given up drugs and alcohol shortly before the burglaries were committed. The Judge noted that Mr Withington claimed to be remorseful in a letter that he wrote to the Court, but doubted the sincerity of his remorse given that Mr Withington had thought it appropriate to take the matters to trial. The Judge did not apply any uplift in relation to Mr Withington’s sentence for the burglaries.
The Judge then considered the behaviour of Messrs Withington and Arahanga after their arrest. He imposed a cumulative sentence of three months’ imprisonment for Mr Arahanga’s escaping from custody, bringing his end sentence to five years’ imprisonment. Judge Wade imposed a cumulative sentence of 12 months’ imprisonment for the offences that Mr Withington committed after his arrest, bringing his end sentence to five years’ imprisonment.
Judge Wade did not specify a sentence (or uplift) for the unlawful taking of the motor vehicle in relation to either Mr Arahanga or Mr Withington. Rather, he appeared to treat the unlawful taking as an aggravating feature of the burglaries.
Issues on sentencing appeals
The issues on appeal against sentence are:
(a)whether Judge Wade took too high a starting point in sentencing Messrs Withington and Arahanga;
(b)whether Judge Wade double counted aggravating features in sentencing Messrs Withington and Arahanga; and
(c)whether Judge Wade wrongly attributed Mr Withington’s behaviour to Mr Arahanga in sentencing him.
Starting point
Submissions of the parties
Counsel for Messrs Withington and Arahanga submit that Judge Wade took too high a starting point in sentencing them. They point to the fact that no evidence was presented at trial of Mr Arahanga possessing a knife at the time of the alleged burglaries. Nor was any evidence presented of Mr Withington possessing a knife, or having knowledge of Mr Arahanga possessing a knife, during any of the offending. They submit that, in order to rely on possession of the knife as an aggravating feature, the issue of whether the two men possessed (or knew of the possession of) a knife should have been raised at trial and proven beyond reasonable doubt.[30] They also submit that the other aggravating features listed by the Judge are features that are common in dwelling house burglary cases, where much lower starting points have been adopted.
[30]Referring to s 24(2) of the Sentencing Act 2002.
The Crown submits that the Judge did not err in adopting a starting point of four years’ imprisonment. It submits that there were a number of aggravating features present in the current case: the offending involved domestic burglaries and there was a clear risk of violence; the offenders had a knife with them; and high value items were taken from the houses including electronics.[31] The Crown says that there was a need for deterrence in relation to Mr Arahanga in particular, given his previous dishonesty convictions. The Crown says that the Judge was entitled to accept as proved facts disclosed in evidence.[32]
Evidence on the knife
[31]The Crown refers to Senior v Police (2000) 18 CRNZ 340 (HC) at [19], where the theft of items of high monetary value was identified as an aggravating feature.
[32]Referring to s 24(1)(a) of the Sentencing Act 2002.
The evidence that there was a knife involved in this offending was from Constable O’Sullivan, who saw a black handle in Mr Arahanga’s waistband, which looked like a carving knife, when Mr Arahanga got out of the stolen van. In cross-examination, Constable O’Sullivan accepted that he could not be sure that it was a carving knife, because he did not see the whole thing.
As Judge Wade pointed out, Mr Withington also threatened to stab Constable O’Sullivan, from which it could be inferred that Mr Withington either had a knife himself or knew that Mr Arahanga did.
Section 24 of the Sentencing Act
In terms of whether the presence of a knife could be seen as an aggravating feature of the offending, the Sentencing Act 2002 provides that the Court may accept as proved any fact that was disclosed by the evidence at the hearing or trial. If the Court is of the view that an aggravating factor may be present that is relevant to the determination of a sentence and that fact is disputed, the Court has an obligation to indicate to the parties the weight likely to be attached to the disputed fact and its significance on sentence.[33] The prosecution must prove the aggravating fact beyond reasonable doubt.[34]
[33]Sentencing Act 2002, s 24(2)(a); George v Police HC Whangarei CRI-2010-488-38, 2 September 2010 at [9].
[34]Sentencing Act 2002, s 24(2)(c).
In the present case, despite the Crown not relying on the presence of a knife in their sentencing submissions, Judge Wade treated it as an aggravating feature of the appellants’ offending.
Judge Wade referred to the knife several times in his sentencing remarks. He said that Mr Arahanga had armed himself with a carving knife, the size of which meant that the handle stuck out “so that it was visible to all and sundry”. He did not expressly state that it was proved beyond reasonable doubt that the knife was present. However, he said that the evidence “was never challenged in the course of the trial” and that the two men had “plainly” committed an aggravated burglary despite not having been charged with that offence.
The fact that the presence of the knife before and during the burglaries was not challenged in the course of the trial is unsurprising, as it was not at issue at trial (as the Crown had not charged the appellants with aggravated burglary). A dispute about the knife was only signalled in relation to its presence after the burglaries were committed, when Constable O’Sullivan was cross-examined on this point.
Judge Wade was not entitled to assume that the presence of the knife during the burglaries had been proved beyond reasonable doubt and to treat it as an aggravating feature of the offending. The Judge was required to provide an indication to the parties that he would treat the presence of the knife as an aggravating factor so as to give the appellants an opportunity to dispute that fact prior to sentencing being undertaken.
While s 24(2)(b) of the Sentencing Act allows a judge to conclude that an aggravating or mitigating fact has been proved to the requisite standard at trial, despite it not being an element of the charge, it cannot be the case that an accused, despite having no obligation to call evidence, is precluded from putting forward contrary evidence that is relevant to sentencing if that evidence was not led at trial.[35] In the circumstances of the present case, the Judge should not have assumed that the presence of the knife had been established without giving the parties an opportunity to hold a disputed facts hearing.
Our assessment
[35]R v Allan [2009] NZCA 439 at [44]–[46], referring to John v Rees [1970] 1 Ch 345 (QB) at 402.
As Judge Wade was not entitled to treat the presence of a knife as an aggravating feature, it is necessary to undertake the sentencing exercise afresh. We do not consider it appropriate to remit the matter to the District Court for a disputed facts hearing with regard to the presence or otherwise of the knife as the Crown had not sought to rely on that as an aggravating factor at sentencing.
This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied.[36] Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants.[37] Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’[38] to two years and six months’[39] imprisonment.
[36]As noted in Sunnex v Police HC Christchurch CRI-2010-409-43, 17 June 2001 at [7].
[37]Senior v Police, above n 36, at [19].
[38]See Wilson v R HC Auckland CRI-2011-404-445, 7 February 2012, Dudley v Police HC Christchurch CRI-2009-409-1, 26 February 2009 and Police v Vincent DC Palmerston North CRI-2008-054-4634, 21 April 2009.
[39]See Arps v Police, above n 34, and Snowden v Police, above n 34.
There were a number of aggravating features that accentuated the gravity of the burglaries in the present case and that brought the offending within the more serious end of the scale: there were two dwelling house burglaries; the burglaries occurred in the early hours of the morning;[40] there were two burglars, so there was a heightened risk of violence;[41] one of the burglaries took place while the victims were asleep in the house; the offending involved the unlawful taking of a motor vehicle; and, as the Crown points out, the burglaries involved the taking of high value items from the houses.[42]
[40]Wilson v R at [18].
[41]R v Povey [2009] NZCA 362 at [15].
[42]Senior v Police at [19].
The Crown refers to two decisions of this Court, R v Drewett[43] and R v Kaukau,[44] where starting points of four years and six months and five years were adopted respectively. R v Drewett is not a particularly apt comparison, as it involved the imposition of a sentence for aggravated burglary in circumstances where the offender used violence against the complainant with a weapon. Similarly, in R v Kaukau the appellant was sentenced for aggravated burglary “at the lower end of the scale”, but the five year starting point was seen as appropriate to factor in the appellant’s other offending, which included ten burglaries and three charges of unlawfully taking a motor vehicle.
[43]R v Drewett [2007] NZCA 48.
[44]R v Kaukau [2007] NZCA 66.
This Court’s decision in Skipper v R[45] is of more assistance. In that case, the appellant was convicted of two counts of burglary. The appellant and his co-offender had burgled two flats in the early hours of the morning. During the burglary of the second flat, the appellant’s co-offender had assaulted the occupant with a wooden baton. Initially, the appellant had been charged with one count of aggravated burglary, but this was reduced to burglary simpliciter at the conclusion of the Crown case. This Court held that the four years and six months starting point adopted by the sentencing judge was perhaps too high, but that the end sentence of four years was within range. The Court said that the presence of actual violence was a highly significant aggravating feature of the offending, as it facilitated the offending.
[45]Skipper v R [2011] NZCA 250.
While the present offending did not involve the use of actual violence, the risk of danger to or confrontation with others was high. The risk of violence throughout the burglaries was demonstrated by the brazen behaviour of the appellants, both in returning to the second bach and issuing threats to the occupants (which also would have exacerbated the harm to the occupants), and by their violent behaviour upon arrest. Thus while the appellants had been charged with burglary simpliciter, not aggravated burglary, the risk of violence remained highly relevant as an aggravating feature of the offending. We consider that the starting point of four years adopted by Judge Wade was an appropriate one for this offending and we adopt it also.
Aggravating features of offending
Contrary to the submission of counsel for Messrs Withington and Arahanga, having regard to the brazen behaviour of the appellants as an aggravating feature of the burglaries does not amount to “double counting” features of the offending. That behaviour was the subject of discrete charges for which cumulative sentences were imposed. As the Crown says, the behaviour of the two men after they had been detected supported a conclusion about their state of mind at the time of the burglaries in terms of the risk that they posed to the occupants of the houses. The Judge was entitled to treat the greater risk of harm to the occupants as an aggravating feature while imposing cumulative sentences for the conduct itself.
Attribution of Mr Withington’s behaviour to Mr Arahanga
Submissions of the parties
Counsel for Mr Arahanga submits that Judge Wade wrongly attributed Mr Withington’s behaviour to Mr Arahanga in sentencing him, by saying that Mr Arahanga’s behaviour was “some of the worst I have ever heard about”.[46]
[46]At [29].
The Crown concedes that the Judge wrongly attributed Mr Withington’s behaviour to Mr Arahanga. However, it submits that the sentence was nonetheless within range.
Our assessment
We do not consider that Judge Wade’s wrongful attribution of Mr Withington’s behaviour to Mr Arahanga by describing his behaviour as “some of the worst [he had] ever heard about” is of any consequence. Judge Wade made this remark in the context of imposing a sentence for the escaping lawful custody count, not in the context of setting a starting point for the burglary counts. The cumulative sentence of three months’ imprisonment that he imposed for the escaping lawful custody count is not specifically challenged as being excessive by Mr Arahanga.
In any event, there were aggravating features in Mr Arahanga’s behaviour after his arrest, which were recorded by the Judge.[47] It was necessary for Constable O’Sullivan to arm himself with a firearm because he believed that Mr Arahanga had a knife. Even when Constable O’Sullivan discovered Mr Arahanga in the tent and informed him that he was armed, he had to call on him three times before he eventually surrendered.
Result
[47] At [17]–[18].
The appeals are dismissed.
Solicitors:
A M Sceats, Gisborne for Appellant Arahanga
Woodward Chrisp, Gisborne for Appellant Withington
Crown Law Office, Wellington for Respondent
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