Cresswell v Police

[2017] NZHC 1940

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2017-416-8 [2017] NZHC 1940

BETWEEN

WADE LAWRENCE CRESSWELL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 July 2017
Counsel:	B Shackell for Appellant C R Stuart for Respondent
Judgment:	15 August 2017

JUDGMENT OF ELLIS J

[1]      On  21  July  I  issued  a  results  judgment  allowing  Mr  Cresswell’s  appeal against conviction on a charge of demanding with intent to steal, effectively by consent.  I noted that the Crown would not be seeking a retrial.  It is necessary now to record my reasons, albeit briefly.

Background

[2]      The demanding with intent charge related to events in the early morning of

15 October 2016 when Mr Cresswell and his co-defendant Matt Stevens went to a house in Gisborne.  They banged on the front door, waking the residents, who called the Police.

The summary of facts

[3]      The summary of facts to which Mr Cresswell eventually pleaded guilty stated that Mr Creswell Mr Stevens kicked in the front door of the house, breaking the dead

bolt.    They  entered  the  house  and  began  demanding  money.    Mr  Stevens  was

CRESSWELL v POLICE [2017] NZHC 1940 [15 August 2017]

recorded as saying: “I want fucking money, give me fucking money. You fucked with my daughter, I’m going to fucking get you.”

[4]      The pair stayed in the house for several minutes before leaving the house and waiting outside the address.   Police arrived and found Mr Cresswell hiding in the neighbouring property.   Mr Stevens and a third co-defendant were located in the driveway.

[5]      Mr Stevens stated to police that he had gone to address because someone who lived  there  had  sold  his  daughter  a  tinnie.    He  denied  going  inside  the  house. Mr Creswell said he was there as a support person.

The criminal process

[6]      Mr Cresswell and Mr Stevens were originally charged with burglary.  They were both denied bail.  In Mr Cresswell’s case it seems that his arrest had led to his partner refusing to have him return to their home.

[7]      The Police later reduced the charges to one of demanding with intent to steal.

[8]      By 24 January 2017 Mr Cresswell had been in custody for three months.  He requested a sentence indication but this was declined.

[9]      Mr Cresswell did not accept aspects of the summary of facts and instructed his lawyer to try and get it amended.  Although she emailed the prosecuting sergeant on 13 February 2017 no reply was ever received.  In April, frustrated by the lack of response, and upset at remaining parted from his young child, Mr Cresswell decided that  he  should  he  “just  wanted  to  get  it  over  with”.    He  pleaded  guilty  on

15 May 2017 and the following day he was sentenced to 25 months’ imprisonment.

[10]     This sentence was higher than Mr Cresswell had expected.   He filed an appeal against sentence, which was scheduled to be heard by me on 11 July 2011.

[11]     The  day  before  the  hearing  of  Mr  Cresswell’s  appeal,  Mr  Stevens’ judge-alone trial before Judge Raumati took place.  Mr Stevens was acquitted.1   The findings of fact by Judge Raumati made it clear that the events of 15 October 2016 were, indeed, not quite as alleged in the Police summary.  The Judge did not believe the complainants’ account of events.  By contrast, he thought Mr Stevens a credible and forthright witness.

[12]     The  Judge  found  that  Mr  Stevens  had  gone  to  the  complainants’ home because he was angry that the occupants had sold his 13 year old daughter a tinnie. His intention was to return what was left of the tinnie and to ask to be reimbursed the

$20 that his daughter had paid for it.  Upon Mr Stevens’ and Mr Cresswell’s arrival at the address, the occupants set their dogs on them.  This provoked Mr Stevens to kick the door, at which point he threw the remains of the tinnie down the hallway. He was shouting that he wanted his daughter’s money back.  It does not appear that either man entered the house.

[13]     In any event, Judge Raumati found that the charge against Mr Stevens was not made out because it was not proved that he had any intent to steal.  Rather he was seeking the return of his daughter’s $20, believing that he had a claim of right in that regard.  The Judge found that Mr Stevens believed that there could be no lawful contract between an adult and a child for the sale of drugs and that he was entitled to have the money back.

[14]     It was never suggested that Mr Cresswell’s role in the above events had ever

been anything greater than providing Mr Stevens with moral support.

Mr Cresswell’s appeal

[15]     At the time of the hearing of Mr Cresswell’s sentence appeal Judge Raumati’s judgment in Mr Stevens’ case had not been typed up. Although it was known that he had been acquitted, little detail was available.   But it was clear that the decision might well be relevant to Mr Cresswell’s case, notwithstanding that he had not

appealed his conviction.  Ms Sheckel advised the Court of her earlier, unsuccessful,

1      Police v Stevens [2017] NZDC 15155

efforts  to have the summary of facts amended.  Mr Cresswell (who attended from prison by AVL) confirmed what had been his instructions in that regard.

[16]     It was agreed that the sentence appeal should be adjourned, pending delivery of Judge Raumati’s written judgment, which the Court subsequently directed to be provided to the parties.  It was suggested that Mr Cresswell might wish to consider appealing against conviction, rather than his sentence.

[17]     Judge Raumati’s judgment was duly received.  Mr Cresswell filed an affidavit setting out the circumstances giving rise to his guilty plea.  Mr Stuart for the Crown then very properly accepted that a miscarriage had occurred and that the Crown would not oppose the appeal.

[18]     The appeal was allowed accordingly.

Rebecca Ellis J