Bennett v The Queen
[2015] NZHC 2311
•23 September 2015
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2015-441-000022 [2015] NZHC 2311
BETWEEN TYSON JOEL BENNETT
Appellant
AND
THE QUEEN Respondent
Hearing: 23 September 2015 Counsel:
M J Phelps for Appellant
F E Cleary for RespondentJudgment:
23 September 2015
JUDGMENT OF COLLINS J
Introduction
[1] This judgment explains why I am allowing Mr Bennett’s appeal against conviction in relation to a charge of aggravated burglary.1 I am allowing Mr Bennett’s appeal because I am satisfied District Court Judge Rea erred in law when he convicted Mr Bennett of aggravated burglary. The error caused a miscarriage of justice.
[2] The error was that Judge Rea did not undertake the analysis set out by the Court of Appeal in R v Keen when assessing whether or not Mr Bennett believed he had authority to enter the complainant’s premises at the time of the offending.2 In my assessment, the Judge conflated the mental element that Mr Bennett knew or was aware that his entry into the premises was without authority with his intention to commit an offence within the building. That error is fatal in the circumstances of
this case.
1 Crimes Act 1961, s 232(1)(a). Maximum penalty of 14 years’ imprisonment.
2 R v Keen [2008] NZCA 36 at [8].
BENNETT v R [2015] NZHC 2311 [23 September 2015]
[3] Judge Rea sentenced Mr Bennett to three years’ imprisonment in relation to the aggravated burglary charge. At the same time, Judge Rea sentenced Mr Bennett to one year’s imprisonment on two charges of possessing an offensive weapon and one charge of breaching release conditions. Mr Bennett was also sentenced to one month’s imprisonment for wilfully damaging property. All sentences were concurrent.
[4] This judgment explains why I have taken the following course of action: (1) I have allowed the appeal against conviction;
(2)I have substituted the conviction for the aggravated burglary for one of threatening to kill3 pursuant to s 234(2) of the Criminal Procedure Act 2011; and
(3)I have quashed the sentence imposed for the aggravated burglary conviction and sentenced Mr Bennett to 18 months’ imprisonment in relation to the substituted charge of threatening to kill.
(4)I have set aside the first strike warning given to Mr Bennett when he was convicted of the aggravated burglary charge.
Background
[5] Mr Bennett and the complainant Mr Johnson are known to each other through family and other criminal affiliations. Mr Bennett has been inside Mr Johnson’s house on previous occasions.
[6] On 30 May 2014 Mr Johnson was at his home address. He heard the sound of smashing glass coming from the front door of his flat and he came into the hallway to investigate. He saw that a panel of glass in his front door had been smashed and that Mr Bennett was standing outside the broken door with a knuckle duster in one of his fists. Mr Bennett was asking to be let into the house.
Mr Johnson told Mr Bennett to go around to the back door.
3 Crimes Act 1961, s 306. Maximum penalty of seven years’ imprisonment.
[7] According to Mr Johnson, he immediately went into his bedroom and shut the door using a knife as a wedge to keep the door shut. He also moved his bed across the door to act as a barricade. He said he feared for his safety. He then rang
111. By this time, Mr Bennett had entered Mr Johnson’s flat through the back door and went to the bedroom. The 111 call recorded Mr Johnson speaking to the operator and Mr Bennett is heard yelling in the background and threatening to kill Mr Johnson. Mr Bennett then attacked the bedroom door and caused damage to it. He was unable to get into the room. Mr Johnson then saw Mr Bennett leaving the property and join two associates on the footpath. Mr Johnson gave the 111 operator a description of Mr Bennett.
[8] Mr Bennett said that he was in Mr Johnson’s neighbourhood when he decided to go and see Mr Johnson because Mr Johnson is the uncle of a man he was trying to find. He believed Mr Johnson might know where that man was. He said he began knocking on the door and accidentally broke the glass pane while knocking. He said that he spoke to Mr Johnson at the front door and Mr Johnson told him to go around to the back door. When he did go around to the back door, the door was open so he walked through the flat into the hallway area. Mr Johnson was in the hallway area and they had a discussion which quickly became heated. Once Mr Johnson had gone into the bedroom, Mr Bennett acknowledged he was aggravated, abusive and began attacking the door. He also accepted that he was wearing a knuckle duster and carrying a knife.
The District Court Judge’s decision
[9] The District Court Judge heard evidence from the following witnesses: (1) Mr Johnson;
(2) Constable Black; and
(3) Mr Bennett.
[10] There was also the transcript of the 111 call that was played for the Court. It
recorded Mr Johnson telling the operator that he was “having trouble” and the
Mongrel Mob was there “trying to beat him up”. He told the operator the man did not have weapons on him. He identified the man as Mr Bennett. There was yelling and swearing by Mr Bennett recorded in the background.
[11] The principal issue on appeal is whether the Judge Rea could have concluded beyond reasonable doubt that Mr Bennett knew or was aware that his entry into the premises was without authority. It required Judge Rea to reject Mr Bennett’s evidence and accept Mr Johnson’s evidence on that point.
[12] The critical parts of Judge Rea’s decision for the purposes of this appeal are
as follows:4
The case for the Defendant is that by inference, at least, the Defendant was invited into Mr Johnson’s flat by being told to go around to the back door and finding that door open. As a result he did not enter the flat without authority and when he did enter it he had no intention of committing any imprisonable offence as all he wished to do was to discuss the whereabouts of Mr Johnson’s nephew with him.
I am quite satisfied on the evidence that I heard that the Defendant went to Mr Johnson’s property to make enquiries about the Complainant’s nephew and when he encountered Mr Johnson after the glass pane was broken he decided to enter the flat and assault Mr Johnson. I do not accept that the Defendant broke the glass pane in the front door accidentally. His behaviour and demeanour throughout the entire incident and encounter with Mr Johnson shows that he was extremely angry and single minded in his desire to confront Mr Johnson.
I reject the Defendant’s evidence that he had a discussion with the Complainant in the hallway of the flat. I far prefer the evidence given by Mr Johnson that no such discussions took place and he was busy barricading himself in his own bedroom to avoid the aggressive intentions of the Defendant.
When you stand back and look at the overall circumstances as they occurred it is clear that at the time of the initial encounter between the Defendant and the Complainant through the broken glass panel in the door the Complainant immediately formed the view that he needed to protect himself from the Defendant by barricading himself in the bedroom. Equally the Defendant was single minded in entering the flat and confronting the Complainant through the bedroom door. The yelling, abuse and threats that can be heard from the Defendant on the 111 call speak volumes for his intention and purpose at the time.
4 Police v Bennett [2015] NZDC 10111 at [16]-[19].
[13] While Mr Johnson was giving evidence, the point of whether Mr Bennett believed he had authority to be on the property was put in issue. The critical parts of the transcript of the hearing relating to that issue are:5
Q. Now Mr Johnson did you give Mr Bennett any permission to be in your house that day?
A. I did say go to the back door.
Q. Did you give him permission to be inside your house that day?
A. Um, well I thought the back door was shut, maybe it was open
because I didn’t hear the front door get opened.
Q. Did you give him permission to be inside your house that day?
A. Well I did say, he asked me to let him in, he could have reached through the front door and opened the door and come in if he wanted to.
Q. Did you want him in your house that day?
A. Not after they smashed the window and had a knuckle duster on but my first thought was, the way he was clearing through the door he could have just, he could have opened the door and come straight in if he wanted to.
THE COURT:
Q. Would you have telephoned the police on 111 if you had wanted him in your house?
A. Well I thought he was out to get me yeah but that still—
Q. Would you have rung the police on 111 if you wanted him in your house?
A. – no, I already had a couple, I already had been beaten up and I didn’t want to get beaten up, no. I felt, I feared for my safety, yeah. But he could still have came in, I felt that if he – I couldn’t work out why he was just looking through the hole in the door and not coming straight in, he could have reached through the hole in the door and come straight in if he wanted to.
Q. I will just be pretty clear if I can. At any point did you say to
Mr Bennett that he had your permission to enter your house?
A. Well, I said go to the back door, the back door could have been open,
‘cos I didn’t go, I presumed the back door was shut but I, I quite
often leave it open without remembering.
…
5 R v Bennett DC Napier CRI-2014-41-1072, 5 June 2015, Notes of Evidence, at 12-14 and 20-21.
CROSS EXAMINATION: MR SNELL
...
Q. Would you agree that when you’d asked what he wanted, with somebody that you knew, and they’d said they wanted to be let in and your response is to go around to the back door, that that’s effectively an invitation to go around to the back door to come in, would you agree with that?
A. I was going to let him in, yeah.
Q. Thank you. And there were no threats made to you at the front door were there?
A. No.
Q. And would you agree that if he wanted to go into the front door, if he wanted to open that up rather than waiting for you and talking to you, he could have just reached in and unlocked it because of where the break was, couldn’t he?
A. I did say that, yes.
Q. So he had every opportunity if he’d wanted to enter the house to enter it through the front door if he’d wanted?
A. Pretty much, yeah.
Q. But he didn’t, he simply asked you to let him in and you said to go around to the back which you accept was an invitation to come in the back door?
A. Yeah.
…
RE-EXAMINATION: MR MANNING
Q. Mr Johnson you were asked some questions about whether you had any threats from Mr Bennett. I want to talk to you about when you first saw him outside on the front porch and the window had been broken, and you saw him standing there with a knuckle duster. Did you feel any threat at that point?
A. Because he just said, he could have reached in and opened the door if he wanted to.
Q. You told us before that you wanted to tell him to go to the back door to give you time to go to your bedroom?
A. Yeah.
Q. Why did you do that if you didn’t feel any threat?
A. Well I did feel threatened because he had a weapon.
Q. Right. So can we just confirm that at that point, you did feel threatened because he had a weapon, is that correct?
A. Yeah.
Q. Okay. So is it right or wrong to say you didn’t feel any threat?
A. I would say it is right to say I did. Q. So you did feel threatened?
A. Yeah.
…
Q. Now Mr Snell has repeatedly to you that, I will use his words, “You invited him in.” That’s Mr Snell’s words. Can you tell us please, after you’d seen him with the knuckle duster and the broken window, and then when you went into your bedroom and barricaded yourself in there and called 111 and said it was a home invasion. Did you want him inside your house at that point?
A. No. Q. No. THE COURT:
Q. Did you want him inside at any point? A. No.
[14] Mr Bennett’s evidence on that point reads as follows:6
Q. Okay. Was there any response to the window breaking, did anybody come to the door or anything like that?
A. [Mr Johnson] came, [Mr Johnson] must have heard it and came up to the door and I could see him through the hole.
Q. Yes.
A. Where it had broke.
Q. And did he say anything to him or you to him?
A. First thing he said was something like, along the lines of “What the fuck are you up to mate” or “What’s going on mate” obviously he was surprised or shocked that I just broke his front window. And he just seemed a bit agitated in the way he said it.
Q. At any stage when you were at the front door there did you ask if you could come in?
6 R v Bennett, above n 5, Notes of Evidence, at 27-28, 36-39 and 41-42.
A. Yes I did.
Q. Did he respond to that?
A. Yes he did, he said come around the back, come around the back door.
Q. What did you understand that to mean?
A. Oh the way he said it and the fact that we were talking, and nothing was actually wrong to an extent at that stage I understood, come through the back door, ‘cos by the time, when I got to the back door, it was already open.
Q. Okay.
A. So I just walked through.
Q. Is that what you believe he had wanted you to do?
A. Well when we were talking through the front door, I just said to him, oh well let me in, let me in anyway because there was no point talking through the front door, it would be better off talking face to face and he was, oh yeah come round the back or come to the back door or something like that, I can’t remember word for word but it was along the lines of what he said earlier. And then I came round the back door and the door was already open probably by like six inches, the door wasn’t even shut. I didn’t even have to turn the handle to go in, it was already open, I just had to push it. And it was open like, by that file or something.
…
CROSS-EXAMINATION: MR MANNING
…
Q. And [Mr Johnson] took off and hid in his bedroom didn’t he?
A. No he was still in the hallway when I started to go round the back door.
Q. Well—
A. He was still standing when I left because he told me to come through the back door or come round to the back door or whatever word it was and when I left that actual front door, he was still standing where he’d said it.
Q. He didn’t tell you to come in the back door did he?
A. I just said I can’t remember what words exactly were used but he
said something about coming to the back door.
Q. Exactly.
A. And the door was already open. Q. Go to the back door.
A. I said let me in and we will talk about or something like that and he said come to the back door or come through the back door or something like that.
Q. He did not say come through the back door, did he?
A. I just told you I can’t remember word by word. All I know is it
seemed like an invitation to me.
Q. You know very well that having already smashed his window, being kitted up in your Mongrel Mob outfit, with your knuckle duster, this man was hardly going to invite you in for a chat was he?
A. I’ve known him on and off for years, he’s a criminal himself so at the end of the day, I don’t think the fact that I had weapons or a Mob t-shirt on me. Like he said, he knows other mobsters, he’s a criminal himself, I don’t think the fact that I look like a criminal is going to intimidate him when he’s used to being around people like that himself.
…
Q. That the problem for you is if you go into someone’s house with a
weapon you face a serious charge you now that, don’t you?
A. I have been in his house before with those knuckle dusters on and those weapons with me, when I’ve gone over there and everything has been all good, I have had those on me. You should have asked him that. I’ve had those on me, he knows himself that I have had those on me.
…
RE-EXAMINATION: MR SNELL
…
Q. The last point I want to raise with you is that it has been put to you that you were not invited to come into the house at all? What was your interpretation and I know that you’ve said repeatedly that you don’t know the exact words that were used, but what was your interpretation of the words that were said to you, about coming round to the back?
A. Well usually when someone says that, usually in the world we live in, it means come in through the back door because like I said, he’s a criminal himself so a lot of dodgy things happen at criminals’ houses, right. So it’s not rare for someone to come in through the back door instead of the front, plus I clicked that maybe he said come in through the back door because there was glass from where it had smashed, so I thought, obviously he’s telling me to come
through the back because the glass or I don’t know but it was an
invitation to me, it was already open.
Principles governing appeal against conviction
[15] I can only allow Mr Bennett’s appeal if I conclude Judge Rea erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred, or if for any other reason a miscarriage of justice has occurred.7
[16] A miscarriage of justice is defined to mean:8
… any error, irregularity, or occurrence in or in relation to or affecting the
trial that–
(1) has created a real risk that the outcome of the trial was affected; or
(2) has resulted in an unfair trial or a trial that was a nullity.
[17] The test contained in s 232 of the Criminal Procedure Act 2011 involves, in part, an assessment of whether the Judge in the court below made an error of such a nature that there is a real risk that the outcome of the trial was affected.
[18] An appeal against conviction proceeds by way of rehearing. I am therefore required to carefully consider all matters that were before Judge Rea, but ultimately I must reach my own decision on the merits. The weight I give to the evidence is a matter for my judgement. If I conclude that the Judge below was wrong I must act on my own view of what the outcome should be.9
“Without authority”
The law
[19] Section 232 of the Crimes Act states:
232 Aggravated burglary
(1) Every one is liable to imprisonment for a term not exceeding 14
years who,−
7 Criminal Procedure Act 2011, s 232(2)(b) and (c).
8 Section 232(4).
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
(a) while committing burglary, has a weapon with him or her or
uses any thing as a weapon …
…
[20] Section 231 states:
231 Burglary
(1) Every one commits burglary … who—
(a) enters any building … or part of a building or … without authority and with intent to commit an imprisonable offence in the building …
…
(3) For the purposes of this section and section 232, –
(a) entrance into a building … is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by that person, is within the building
…; and
(b) every one who gains entrance to a building … by any threat or artifice used for that purpose is to be treated as having entered without authority.
[21] In R v Lyttleton (No 2) Wylie J said:10
I appreciate that the actus reus of some offences includes mens rea to an extent, in particular, where mens rea is a definitional feature of the offence
… The actus reus of the offence [of aggravated burglary] requires proof that the accused knew or was aware that the entry was without authority. There
is a mental element to the actus reus, which is distinct from the intention to commit an offence in the building, which forms part of the mens rea.
[22] In Keen the Court of Appeal held that where there is an issue as to authority raised, the Judge should address the issue in the following manner:11
(1) What is the authority asserted?
(2) What is the extent of that authority? (3) Was it exceeded?
10 R v Lyttleton HC Auckland CRI-2008-044-9466, 4 November 2009 at [41].
11 R v Keen, above n 2, at [8].
[23] Judge Rea heard competing accounts on the issue. He was entitled to choose between the competing accounts given by the two witnesses. However, he based his conclusion that Mr Bennett knew he did not have the authority to enter Mr Johnson’s property on his assessment that Mr Bennett was angry as soon as he reached the property and wished to assault Mr Johnson. That conclusion does not satisfy the first limb of s 231(1)(a), namely whether Mr Bennett knew he did not have the authority to enter the property. That element is entirely separate to the issue of whether Mr Bennett intended to assault Mr Johnson.
[24] The last point I make in relation to authority is whether entry was gained by threat or artifice for the purposes of s 231(3)(b). Mr Johnson accepted under cross- examination that Mr Bennett had not threatened him at the front door and he had invited Mr Bennett to go around and meet him at the back door. Under re- examination he said that he did feel threatened at the time. Regardless of what Mr Johnson was feeling at the time, it was not put to Mr Bennett that he was aware of Mr Johnson being fearful. Instead, Mr Johnson said he told Mr Bennett to meet him at the back door.
[25] On that basis, I am satisfied that Judge Rea erred in law when he based his conclusion that Mr Bennett knew he did not have the authority to enter the property on evidence relating to Mr Bennett’s intention to assault Mr Johnson when he arrived at Mr Johnson’s property.
Was it a material error?
[26] Irregularities “which plainly could not, either singly or collectively, have
affected the result of the trial” are not properly miscarriages of justice.12
[27] In my assessment, by not addressing the issue of authority in the manner set out by the Court of Appeal in Keen, Judge Rea made a material error. There were significant inconsistencies in both Mr Johnson and Mr Bennett’s evidence throughout the hearing. It was critical for Judge Rea to reach a conclusion based on the evidence before him on whether or not Mr Bennett knew he did not have
authority to enter the property. It is not an issue that I can resolve on appeal as it would require me to assess the credibility of the witnesses and accept or reject their evidence.
[28] It is also not a situation in which there is a conclusive inference I can reach based upon the evidence. Mr Bennett’s explanation concerning his belief that he had the authority to enter the property is an equally available conclusion to Mr Johnson’s explanation that he felt threatened when he told Mr Bennett to go to the back door of the property.
[29] The conviction for aggravated burglary must therefore be quashed.
Substitution for different offence
[30] Section 234(2) of the Criminal Procedure Act allows on a first appeal the substitution of a conviction for another offence:13
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.
…
(5) On making a direction under subsection (2) or (4), 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).
[31] The relevant alternative charge is threatening to kill. Section 306 of the
Crimes Act provides:
306 Threatening to kill or do grievous bodily harm
(1) Every one is liable to imprisonment for a term not exceeding 7 years who—
(a) threatens to kill or do grievous bodily harm to any person;
…
[32] I must be satisfied Mr Bennett could have been found guilty of threatening to kill and that Judge Rea would have been satisfied Mr Bennett was guilty of that offence.
[33] The transcript of the 111 call made by Mr Johnson demonstrates beyond any doubt that Mr Bennett did threaten to kill Mr Johnson.
[34] Mr Phelps properly accepted that the evidence of threatening to kill was unanswerable.
Conclusion
[35] Accordingly, pursuant to s 234(2) of the Criminal Procedure Act, I quash the conviction under s 232(1)(a) of the Crimes Act, but substitute a conviction under s 306 of the Act. The first strike Mr Bennett received for the conviction for aggravated burglary is set aside as a consequence because threatening to kill is not an offence that attracts a first strike warning.
Sentence
[36] As the nature of the charge has changed and the maximum penalty for threatening to kill drops to a seven year maximum from a 14 year maximum for aggravated burglary, the sentence which Mr Bennett received has to be adjusted.
[37] I invited counsel to provide submissions on what sentence should be imposed if I were to find Mr Bennett guilty of threatening to kill. Ms Cleary suggested a two year sentence of imprisonment. Mr Phelps suggested 18 months’ imprisonment.
[38] I have assessed Mr Bennett’s offending and reached the conclusion he should be sentenced to 18 months’ imprisonment in relation to the charge of threatening to kill. In my assessment, this sentence:
(1)holds Mr Bennett accountable for the harm done to Mr Johnson and the community by his offending;14
(2) promotes in Mr Bennett a sense of responsibility for his offending;15
(3) denounces Mr Bennett’s conduct;16 and
(4)deters Mr Bennett and others from committing the same or a similar offence.17
It is also the least restrictive outcome available in the circumstances.18
[39] All other sentences and orders made by Judge Rea remain in force.
D B Collins J
Solicitors:
Crown Solicitor, Napier
14 Sentencing Act 2002, s 7(1)(a).
15 Section 7(1)(b).
16 Section 7(1)(e).
17 Section 7(1)(f).
18 Section 8(g).
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