Dey v R
[2021] NZCA 342
•28 July 2021 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA623/2019 [2021] NZCA 342 |
| BETWEEN | GRANT ALEXANDER DEY |
| AND | THE QUEEN |
| Hearing: | 22 June 2021 |
Court: | Collins, Thomas and Muir JJ |
Counsel: | P V C Paino for Appellant |
Judgment: | 28 July 2021 at 10.00 am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
Introduction
On 5 November 2019, Mr Dey was sentenced in the Wellington District Court to three years’ imprisonment for aggravated burglary and assault with a weapon, after having been found guilty by a jury.[1] He now appeals both his conviction and sentence, on the grounds that the District Court Judge erred in his handling of identification evidence, and took a starting point on sentencing that was too high and then made an insufficient deduction for Mr Dey’s mental health and alcohol issues.[2] The Crown opposes the appeal.
Background
[1]R v Dey [2019] NZDC 25785.
[2]The ground of appeal that a key witness for Mr Dey, Mr Patel, was not interviewed or called as a defence witness, despite Mr Dey instructing his trial lawyer to do so, was abandoned at the appeal hearing. Mr Dey had sought to call Mr Patel to prove that the victim had met him, thus disproving the victim’s evidence that he had never met the offender. Mr Patel has said on oath that he had not introduced Mr Dey to the victim and has not ever been present when they were together.
The evidence at trial was that, on 17 November 2018, Mr Dey was living at his address in Strathmore, Wellington and had been drinking since the early morning. At 3.00 pm, Mr Dey entered the next door flat where the victim was living in a downstairs bedroom. Mr Dey was carrying a 15 cm knife that had a grey handle and holes down the blade.
Mr Dey knocked on the victim’s bedroom door and, when the victim opened it, Mr Dey tried to push his way into the bedroom. The victim resisted. Mr Dey raised the knife above his shoulder and tried unsuccessfully to strike the victim with it. The victim was able to close the door and hold it shut. Mr Dey started shouting at him, saying, “Come outside. I’m not going to leave you”. The victim was on the telephone at the time. He told his friend what was happening and his friend called the police.
Eventually Mr Dey went upstairs and the victim went outside. When the victim was standing on the street, he saw Mr Dey at a window on the top floor of the block of flats. The police then arrived.
The victim told the police the offender had facial tattoos and long hair, and described the knife. Based on that description, the police arrested Mr Dey at the scene. The police located a knife matching the victim’s description of it in Mr Dey’s kitchen.
Did the District Court judge err in how he dealt with the issue of identification?
The victim said that he saw the offender three times: at his bedroom door, when he was outside and saw the offender at an upstairs window, and when the offender was being taken away by police.
Submissions
Mr Paino, for Mr Dey, made three submissions:
(a)The victim’s identification evidence was inadmissible as there had been no formal visual identification procedure and any identification he purported to make was contaminated by the victim seeing Mr Dey being taken from his address by the police in handcuffs following his arrest.
(b)A dock identification should not have been permitted.
(c)The Judge’s warning in the summing up did not mitigate the prejudice of the dock and post-arrest identification.
Mr Paino noted the evidence of Constable Mitchell, who arrested Mr Dey, to the effect that he considered there was no need to undertake an identification procedure as the police believed they found the right person at the scene. Mr Paino conceded that there may be good reason not to undertake a formal identification procedure when an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence occurred and in the course of that officer’s initial investigation.[3] But he questioned whether Mr Mitchell’s evidence met that test. If not, then the victim’s identification evidence was prima facie inadmissible. The onus was then on the prosecution to prove beyond reasonable doubt that the circumstances of the identification were reliable.
[3]Under s 45(4)(e) of the Evidence Act 2006 (the Act).
Mr Paino then submitted that the circumstances in which the victim saw the person he claimed committed the offence – namely in the custody of the police at the scene – were an unreliable basis on which Mr Dey could be identified as an offender. Furthermore, while the Judge cautioned the jury about the dock identification in his summing up, he did not discuss whether s 45 of the Evidence Act 2006 had been complied with. And there should have been, but there was not, a pre-trial application or ruling during the trial as to the admissibility of the victim’s identification evidence.
If the victim’s dock identification was inadmissible, and his other identification evidence was tainted by seeing Mr Dey arrested, then Mr Paino questioned whether there was sufficient evidence for Mr Dey to be convicted.
Ms Mildenhall, for the Crown, referred to the evidence of Constables Mitchell and Tolkun, who arrived at the scene in response to the emergency call. Upon arrival they could both see Mr Dey looking at them through the window of his property and then walking out towards the gate between his property and the victim’s. Meanwhile, another police officer had spoken to the victim, who described the offender as having facial tattoos and long hair. When this was transmitted over police radio, Mr Mitchell arrested Mr Dey.
Ms Mildenhall submitted that, while the police did not follow a formal identification procedure, there was good reason to not do so, s 45(4)(e) being “squarely applicable”. She said, in a situation where the police had promptly attended the scene and the alleged offender was effectively immediately identified to them, there was no purpose to be served by undertaking a formal procedure. The fact the victim saw Mr Dey after he was arrested did not undermine the reliability of the identification evidence.
Finally, Ms Mildenhall submitted that, while the Judge’s direction to the jury about the dock identification could have been firmer, there was no risk of a miscarriage in the circumstances because the Crown case did not rest on the victim’s identification of Mr Dey as the offender. Instead, the Crown case was based on a range of circumstantial factors, including that the knife found in Mr Dey’s flat matched the description given by the victim.
Discussion
The Act defines visual identification evidence as:[4]
(a) an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or
(b) an account (whether oral or in writing) of an assertion of the kind described in paragraph (a).
[4]Section 4(1).
The victim’s evidence that he saw the offender standing at an upstairs window and when arrested by the police is therefore visual identification evidence.
Section 45(1) and (2) of the Act provide:
(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.
(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
There is no dispute that a formal procedure was not followed.[5] Section 45(4) then provides a non-exhaustive list of circumstances that might constitute good reason for not following a formal procedure,[6] including, relevantly:[7]
(b) the singular appearance of the suspect (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):
…
(d)no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:
(e) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence occurred and in the course of that officer’s initial investigation:
…
[5]Evidence Act, s 45(3).
[6]R v Ryan [2021] NZCA 147 at [41]: “It has long since been accepted that the s 45(4) list of ‘good reasons’ is not closed; there may be other good reasons for not following the formal identification process”. In support of that statement, the Court cites R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 at [64]. See also Olsen v R [2020] NZCA 20 at [10]: “Section 45(4) sets out a non‑exhaustive list of circumstances that may constitute a ‘good reason’ for not following a formal procedure”.
[7]Evidence Act, s 45(4).
As discussed above, s 45(4)(e) provides that a formal identification procedure might not have to be followed when an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence occurred and in the course of that officer’s initial investigation. This recognises that, in some cases, a witness will identify an offender shortly after the occurrence of the offence, and report this to the police.[8]
[8]Adams on Criminal Law (online ed, Westlaw) at EA45.13(6).
The police officers arrived at the scene shortly after the reported aggravated burglary. Constable Mitchell arrested Mr Dey after hearing the description of the offender which the victim had given to another police officer and which was then conveyed over the police radio. However, we do not consider that the circumstances supported the application of s 45(4)(e) because the victim did not identify Mr Dey.
Mr Paino conceded that Mr Dey’s appearance is highly distinctive. Mr Dey participated at the appeal hearing by video link and we concur with that assessment. In saying that, we do not consider that Mr Dey’s appearance could be described as “singular” with the result that a formal procedure could not have been followed. While Mr Dey’s face is heavily tattooed, he is not alone in that. So s 45(4)(b) does not assist the Crown.
We are of the view that s 45(4)(d) is potentially engaged. Constable Mitchell, who arrested Mr Dey, said in evidence that he gave no thought to undertaking a formal visual identification procedure because:
There were no other suspects and it seemed quite a clear-cut link, in my mind at that time. …
I believed we had the right person, given the victim’s description of the defendant.
We agree with Mr Paino that this issue should have been addressed pre-trial. The difficulty in which we find ourselves is that we do not have evidence as to what the victim told the police when he was interviewed at the police station that day. We do not know what, if anything, he then told the police about the two other occasions when he saw Mr Dey. That would have assisted us to conclude whether there was good reason not to undertake a formal identification procedure.
The victim’s evidence about what happened after the incident is an important part of the narrative. Not only did the victim say he saw the same person who assaulted him but he described the person acting consistently with his previous behaviour. He said:
… I went to [my friend] across the road when I saw my house and on the top window I saw the same guy and he’s abusing me again.
This abusive behaviour continued when the victim saw the offender the third time. He said in response to a question asking if he saw the offender again:
Yeah, when the police captured him, then I saw him and he was still abusing me after that …
He was just saying, “I’m not going to leave you”. And I said, “Like I don’t even know you, I’ve just seen you for the first time”.
Had the police been aware of this information, then we are in no doubt that there would have been good reason why a formal identification procedure was not undertaken. And, indeed, the circumstances would have been covered by s 45(4)(e). Even if we proceed on the basis this evidence was not before the police at the time, we are nevertheless satisfied that there was good reason not to undertake a formal procedure in the circumstances.
There were compelling reasons to believe Mr Dey was the offender. The victim described a man with long hair and his whole face covered with tattoos. Mr Dey fits that description. Mr Dey lived right next-door to the victim. Mr Dey was present at the scene when the police arrived around 15 minutes after they were called. They believed the offender was still at the property. The knife found in Mr Dey’s kitchen fitted the description of the knife the victim gave to the police.
For these reasons, we are satisfied that there was good reason not to follow an identification procedure and Mr Dey has not proved, on the balance of probabilities, that the victim’s identification evidence, being the evidence of his two sightings of Mr Dey very closely in time after the incident, was unreliable. And, in any event, even if there were no good reason, there is no doubt the Crown proved beyond reasonable doubt that the circumstances in which the identification was made had produced a reliable identification for the same reasons.
And, while we can accept that, in the usual course, an identification made on the basis of seeing the offender having been arrested would cause concern, in this case the evidence was important because it was consistent with the victim’s other descriptions of the offender’s behaviour, that is, the offender abused him in the same way as he had during the assault.
As to directions to the jury on identification, the Judge said:
You will also recall then when [the victim] was being cross-examined he referred to Mr Dey in the dock here in court as the person that came to his door. I need to tell you that you should approach that particular piece of evidence with considerable caution. Little, if any, weight can be given to that evidence because you will appreciate that it is hardly surprising that [the victim] would pick out the person in the dock seated between two Corrections officers. Such an identification therefore provides no real value.
I am also required to and do warn you that there is a special need for caution before finding Mr Dey guilty on the basis of visual identification evidence. The reason for this warning is that experience has shown that it is quite possible for a perfectly honest witness to be mistaken about identification. If such a mistake is acted on miscarriages of justice can and have occurred. Remember that a mistaken witness may be convincing. I have referred you to those factors that the Crown relies on to suggest that Mr Dey has been correctly identified as the person that entered the house with a knife and you will take those to account.
However, the defence asks you to consider carefully the fact that [the victim] had never seen the person that came to his house before and his door, and only observed him in a stressful situation for a matter of seconds. [The victim] admitted that his room was dark because the curtains were pulled. The defence also asks you to consider whether the description of the knife given by [the victim], which included a description of small holes, fitted the knife that was found in Mr Dey’s kitchen. The defence reminds you that [the victim] was not sure that the knife in the photographs was the same knife.
Section 126 of the Act dictates that:
(1) In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.
(2)The warning need not be in any particular words but must—
(a) warn the jury that a mistaken identification can result in a serious miscarriage of justice; and
(b) alert the jury to the possibility that a mistaken witness may be convincing; and
(c) where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.
…
At a minimum, if an unintended dock identification occurs, the judge must give a properly tailored direction to the jury in terms of s 126.[9] The factors in subs (2) are mandatory, and a failure to expressly instruct a jury about the risk of miscarriage is an error of law which may lead to a retrial.[10]
[9]Ake v R [2015] NZCA 334 at [10].
[10]Fukofuka v R [2013] NZSC 77, [2014] 1 NZLR 1 at [38] and [40].
We are satisfied that the dock identification, unexpected and prompted by defence counsel’s cross-examination as it was, was appropriately dealt with by the trial Judge in his summing up, set out above. The Judge then appropriately dealt with the visual identification evidence, referring to the s 126(2) factors and stressing the risk of a miscarriage of justice.
There was no error in respect of the visual identification evidence.
Was the starting point on sentencing too high and the discount inadequate in respect of Mr Dey’s mental health and alcohol addiction issues?
Sentencing decision
In sentencing Mr Dey, Judge Hobbs considered how Mr Dey’s personal circumstances might impact both the starting point and end sentence. He noted Mr Dey’s addiction to alcohol, and the fact that Mr Dey was heavily affected by alcohol at the time of the offending. The Judge referred to a psychological report, which confirmed Mr Dey had an extensive history of substance abuse, a difficult upbringing, and mental health and substance abuse issues.
The Judge disagreed with the Crown’s position that there was no causal nexus between Mr Dey’s addiction and mental health issues, and his offending. While the Judge acknowledged that drunken intent is still intent, Mr Dey’s addiction to hard liquor (with his mental health issues being inextricably linked to that addiction) justified in his view a starting point of three years’ imprisonment. He said that, absent those factors, a starting point of three and a half to four years’ imprisonment would have been appropriate.
The Judge said he did not uplift the starting point in respect of Mr Dey’s extensive criminal history because his last conviction for burglary was almost five years ago.
There being no discounts available, the end sentence was three years’ imprisonment on both charges.
Submissions
In Mr Paino’s submission a starting point prior to any deduction for mental health issues of less than three and a half years was appropriate, due to Mr Dey’s lack of premeditation and motive, the short duration of the incident, Mr Dey’s retreat and withdrawal after the encounter, and that there was no property damage done or injury caused to the victim.
Mr Paino suggested that R v Mako could be distinguished, given Mr Dey’s lack of motive.[11] He said the case relied on by the Crown, R v Patrick,[12] where a starting point of three years and nine months was taken, could also be distinguished given it concerned more serious offending.
[11]R v Mako [2000] 2 NZLR 170 (CA).
[12]R v Patrick [2008] NZCA 115.
Mr Paino then submitted that the Judge should not have indicated a starting point range because that made it difficult to assess the mental health discount. Taking the starting point as three and a half years, the discount in respect of Mr Dey’s extensive history of substance abuse and mental health issues was 15 per cent. In Mr Paino’s submission, it should have been greater given the matters discussed in Mr Dey’s psychiatric report.
Mr Paino’s approach would have seen an end sentence of no more than two years and five months’ imprisonment.
The Crown’s position was that the starting point was in range, and that the discount for Mr Dey’s mental health and addiction factors was appropriate in the circumstances.
Discussion
We consider that the starting point imposed by the Judge in this case was within range. While four years’ imprisonment is at the higher end of the range for a case that did not involve violence in addition to that inherent in the offence, or much premeditation, we note that this Court, in Stratton-Pineaha v R, indicated that starting points of between three and a half to four years’ imprisonment are often imposed in cases for offending involving the theft of property from private dwellings when threats of violence are used.[13]
[13]Stratton-Pineaha v R [2020] NZCA 50 at [13]. In that case, the Court also referred to the decision of Marsh v R [2019] NZCA 220, where the Court of Appeal held that an aggravated robbery of a drug dealer at an apartment with threats of violence (but no actual violence occurring) justified a starting point of three and a half years.
That case concerned aggravated robbery rather than aggravated burglary which is the charge here. However, the principles articulated in R v Mako (which concerned an aggravated robbery) may equally apply to aggravated burglary cases.[14]
[14]See R v Watson CA224/03, 24 October 2003 where this Court at [27] accepted that the principles stated in Mako are equally applicable to the crime of aggravated burglary. See also Pohutuhutu v R [2017] NZCA 501 at [61].
The offender in R v Patrick broke into his estranged wife’s home at night using a metal pipe.[15] He picked up a knife and wielded it while the occupants barricaded themselves behind a door. We view that case as marginally more serious than Mr Dey’s offending but still analogous. Importantly, there was no attempt to harm physically the inhabitants of the house, in stark contrast to Mr Dey’s actions.[16]
[15]R v Patrick, above n 12.
[16]Two analogous High Court decisions are worth noting. In Melgren v R [2016] NZHC 2482, the defendant and an associate went to a house at night, slashed the tyres of a car, stole electronic devices and then went to another house, slashed the tyres of a car there and tapped on the window with a knife. On appeal, a starting point of three years six months’ imprisonment for the aggravated burglary charge was upheld. In Maxwell v Police HC New Plymouth CRI-2009-443-6, 4 March 2009, the High Court on appeal held that a starting point of three years six months’ imprisonment was appropriate for offending which involved Mr Maxwell, while under the influence of alcohol, smashing his way into a house using a crowbar and threatening the occupants, but where no actual injury or taking of property occurred.
The facts of the present offending engage several of the factors set out in the Mako guidelines. This includes the presence of a weapon which Mr Dey used in his attempt to strike the victim (we note the Court in Mako explicitly referred to the “danger of knives in the hands of nervous or aggressive offenders”),[17] the impact of the offending on the victim who was described as significantly affected,[18] and the fact that the offending occurred in the victim’s own home.[19]
[17]R v Mako, above n 11, at [39].
[18]At [46].
[19]At [58].
For these reasons, we consider that a starting point of between three and a half to four years’ imprisonment for the aggravated burglary charge was not out of range.
Turning now to the discount for mental health issues and substance abuse. In Nuku v R, this Court observed that mental impairment may be a mitigating factor that justifies a reduction in a sentence when:[20]
(a)there is evidence of a causal relationship between the defendant’s mental impairment and his or her offending;
(b)the effects of the defendant’s mental impairment would make a prison sentence more severe; or
(c)there is a real risk of a prison sentence having a significant adverse effect on the defendant’s mental health.
[20]Nuku v R [2019] NZCA 319 at [14]; and R v A, B, C [2021] NZHC 502 at [65].
The rationale for the discount was discussed recently in Orchard v R.[21] This Court explained that mental health issues may diminish a defendant’s moral culpability for the offending, and thereby also diminish deterrence, accountability and denunciation as sentencing concerns.[22]
[21]Orchard v R [2019] NZCA 529.
[22]At [46].
Where mental health deficits substantially diminish moral culpability, discounts in the realm of 12 to 30 per cent have been considered appropriate, depending on the evidence supporting the contention that the condition contributed causally to the offending.[23]
[23]At [48].
In this case, we consider that the Judge had appropriate regard to the causal nexus between Mr Dey’s offending and his mental health and addiction issues. He explicitly disagreed with the Crown’s submissions that there was no connection between these issues and the offending, saying those factors/issues were “inextricably linked” to the offending. As the Judge took a starting point range, the discount he applied was between 15 to 25 per cent. Even at the lower end of 15 per cent, we consider the discount appropriate in the circumstances.
For these reasons, we do not consider there was an error in the sentence and that a different sentence should have been imposed.[24]
Result
[24]Criminal Procedure Act 2011, s 250.
The appeal is dismissed.
Solicitors:
Paino and Robinson, Upper Hutt for Appellant
Crown Law Office, Wellington for Respondent
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