F v Police HC Auckland CRI-2004-404-531

[2005] NZHC 56

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-404-531

F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 April 2005

Appearances: M Bannan for the Appellant

N H Malarao for the Respondent

Judgment:      20 September 2005

JUDGMENT OF FRATER J

Solicitors:    M Bannan P O Box 33660 Takapuna for the Appellant

Meredith Connell P O Box 2213 Downtown Auckland for the Respondent

F V POLICE HC AK CRI-2004-404-531  20 September 2005

Introduction

[1]      On 14 December 2004,  after  a two day hearing in  the  District  Court  at Auckland, Mr F     was convicted on one charge of receiving.   Three days later he was sentenced by His Honour Judge Everitt to six months imprisonment with leave to apply for home detention and ordered to pay reparation of $2,995 in one sum within  28  days  of  his  release.    He  was  also  ordered  to  pay  $1,244  witnesses’ expenses and an order was made that, 28 days after his release, he be summonsed to appear in Court so that the payment of his outstanding fines, which were suspended while he was in prison, could be enforced.

[2]      He  appealed  against  his  conviction  and  the  sentence  of  imprisonment imposed.   Although he also appealed against the Judge’s refusal to defer the commencement of his prison term pending his application to the Parole Board for release on home detention, as he spent from 17 December 2004 until 4 February

2005 in custody, that aspect of his appeal was not pursued at the hearing before me.

The charge

[3]      Mr F     was charged that, between 1 and 20 August 2002 at Auckland, he committed an offence against s 258(1) of the Crimes Act 1961 in that he:

“received  a  2001  model  Ramco  6.8m aluminium runabout  with  150  hp Mercury outboard and Voyager boat trailer valued at $60,000 from persons unknown having been stolen knowing that Ramco runabout – Mercury outboard and Voyager trailer to have been dishonestly obtained.”

Mr F    ’s explanation

[4]      Mr F    , is a butcher – a trade which he has worked in, in the South Auckland area, over many years.  At the relevant time he owned and operated a butcher’s shop in Mangere.

[5]      When interviewed by the Police in June 2003 he said that he was given the boat by two Maori men who came into his shop.   He believed they were gang members but did not know which gang they belonged to.   Nor did he know or

endeavour to ascertain their names or addresses.  His contact with them began when he sold them about $1,000 worth of meat.  At the time he needed money to put into a property   development   with   his   friend,   Brian   Constable   (now   known   as Brian Garmonsway).   Accordingly, when the men paid the bill with cash from a briefcase full of money, he asked them if they wanted to get rid of some of it as he needed $40,000 in a hurry.  They declined.  However, on another visit to the shop, they told him that they had a boat they wanted to sell, and asked if he was interested in buying it.  He was not.  But, on their third visit, he asked if he could use it as security for a loan.  Although initially against the idea, they said that he could, if he could sell the boat.  Then, without any prior warning, it was delivered to the back of his shop.  He arranged for it to be taken to Grant Masters’ yard, for storage.

[6]      With some variations in the detail, Mr F     repeated this explanation, in Court.

[7]      He  admitted  to  the  interviewing  officer  that  he  told  Kevin  Petersen,  a mortgage broker, that he received the boat in lieu of a bad debt.  The officer was also told that he swapped it for some cattle.

[8]      Mr F     denied knowing or suspecting that the boat was “hot”.

Background

[9]      It is not disputed that the boat (which, unless they are referred to individually, is the term I shall use to refer collectively to the runabout, the outboard motor and trailer)  was  stolen.    It  was  built  in  2002  for  James  F  and  his  partner, Cheryl J.  The original registration number of the trailer was 8065Z.  The boat was stolen from the Fs’ home at Tokomaru Bay, on the  East Coast, on 27 May 2002.   They immediately reported it missing and, in the ensuing months, pursued every avenue in an endeavour to recover it.

[10]     The  first  reported  sighting  of  the  boat  in  Auckland  was  in  July  2002. Graham Higgins, a  former Ramco dealer, noticed it parked  in  a  locked  yard  in Allens Road, East Tamaki, on 18 July 2002.  After becoming aware that it had been stolen, he advised the Auckland Police maritime unit, who conducted ground and

aerial searches of the area on 31 July and 5 August 2002, but were unable to locate it.

[11]     There is no dispute that the boat was stored in Mr Masters’ yard for a period. His evidence was that, some time in July 2002, he gave Mr F    ’s son permission to store a boat there.  He told him that it belonged to a mate of his father.  As far as Mr Masters could recall, it was in the yard for no more than two weeks.

[12]     Mr Masters’ employee, Ms Pierce, also remembered the boat being dropped off in the yard in the winter of 2002.  She said that the vehicle that delivered it was dark green or blue in colour and was square in shape, similar to a landrover or jeep. The boat was in the yard for a few weeks; she did not see it leave.

[13]     Mr  F     said  that,  on  17  August  2002,  he  arranged  for  an  acquaintance, John Bracken, from Matawai, near Gisborne to collect the boat from Masters’ yard and bring it back to his shop so that David Barton, an investment banker from whom he had sought finance, could inspect it, with a view to it being used as security for an advance.   The inspection took place in the  presence  of  Mr  F    ,  Mr  Constable, Mr Barton and his partner, Ms Dennis, Mr Bracken and Daniel Tumataroa, also from Gisborne.   The photos, which Ms Dennis took that day, showed the runabout and outboard, on a trailer displaying registration plate 340AS, attached to a dark green four-wheel drive vehicle, identified as being leased by Mr Bracken.

[14]     According  to  LTSA  records,  registration  plate  340AS  was  issued  to Mr Bracken on 20 July 2002.  On 10 February 2003, he reported it missing, and was issued with a new one:  A663W.  However, plate 340AS was on the trailer when it was recovered by the Police.

[15]     At  the  request  of  Mr  Barton,  the  boat  was  towed  to  the  premises  of Crown Relocations in Albany where it was viewed by Frank Salmons, who actually put up the finance which Mr F     obtained from Mr Barton.  Mr Salmons advanced

$54,000 on the security of the boat for a three month term.  Subsequently, however, a second mortgage was taken over Mr Constable’s development property at Beachhaven.

[16]     In the event, loan repayments were not kept up to date and there was a dispute  as  to  who  was  entitled  to  the  boat.     Eventually,  on  7  May  2003, Crown Relocations released the boat to Mr F     and Mr Constable, against the wishes of Messrs Barton and Salmons.  Mr F     wrote out a cheque to cover the storage fee of $1,350, but stopped payment before the cheque was presented.

[17]     Earlier  in  the  year  Mr  F      had  approached  Mr  Peterson  with  a  view  to borrowing about $30,000 to purchase land in Pokeno.  Later, he offered the boat as security.   However, according to Mr Peterson, because of Mr F    ’s poor credit rating, his financier required the boat to be put into his name and for him to be responsible for the loan.   He therefore arranged for the boat to be moved to a property in Silverdale and for it to be inspected there by a boat valuer.   He also instructed Mr F     to change the registration of the boat into his name.  But instead, on 16 May 2003, Mr F     changed it from the Consway Family Trust, which was the name it had been changed to on 17 April 2003, to his own name.

[18]     When Mr Good, the valuer, inspected the boat and noted the attempts that had been made to disguise it by repainting it and  removing serial numbers, he contacted the Police.  They executed a search warrant and recovered it.  Later it was returned to the insurers, who had, by then, satisfied Mr Forrester’s claim in respect of it.

Grounds for appeal against conviction

[19]     Mr F     put forward three grounds for his appeal against conviction:

a)       That the Judge made “numerous findings of fact that were incorrect or not supported by the evidence ...”

b)That the Judge “attributed characteristics to the [appellant] and other witnesses that were without foundation”.    Accordingly, the defendant’s credibility was unjustifiably questioned, leading to an unsafe conviction.

c)        That the Police had failed to adduce sufficient evidence to prove the elements of the offence beyond reasonable doubt.

Incorrect findings of fact and credibility

[20]     The first two grounds of appeal overlap.  Accordingly, I will deal with them together.

[21]     Mr Bannan identified a number of statements and findings of credibility in the Judge’s oral decision, which, he said, were not supported by the evidence.  While conceding that these varied in importance, he submitted that their cumulative effect was to render the conviction unsafe.

[22]     It is undeniable that the Judge made several findings which were contrary to the evidence, where the evidence was equivocal or where there was insufficient evidence to substantiate his findings.

[23]     An example is the date the boat was taken to and removed from Masters’ yard.  The Judge said that it was there on or about 16 July and that it was taken there by the appellant’s son, whereas, in fact, Mr Higgins said he had seen it on 18 July. And although the arrangements to store it there were made by the appellant’s son, Mr F    ’s evidence was that it was taken there by a wrecker, to whom he paid $50.

[24]     Secondly, there was the Judge’s statement that Mr Bracken registered the trailer in his name in South Auckland on 20 July.   Mr Bannan challenged this, pointing out that the certificate of registration records the place as “Albany”.  On the other hand, Senior Constable Phillips’ evidence was that, from information received from LTSA, he established that plate 340AS was issued from the South Auckland Vehicle Testing Station.

[25]     On any view of this evidence, however, these were very minor discrepancies, and had no bearing whatsoever on the final outcome.

[26]     Mr Bannan also criticised the inference drawn by the Judge that the boat trailer registered by Mr Bracken on 20 July was one and the same as that stolen two

months earlier and that, accordingly, the boat was in his possession on that date. Mr Bannan submitted that the plate could have been obtained for any boat trailer and that the only time that Mr Bracken towed the boat was when he collected it from Masters’ yard and took it to the appellant’s shop for Mr Barton to inspect, and that that was when he placed the plate 340AS on the trailer.  But the only evidence to support that submission was that of Mr F    , whose evidence the Judge clearly did not believe.  Mr F     did not see Mr Bracken fix the plate, and Mr Bracken did not give evidence, as he could not be found.  In fact the evidence of Ms Pierce suggested that  the  boat  was  delivered  to  Masters’  yard  by Mr  Bracken’s  vehicle.    Given Mr Higgins’ evidence, this would have had to be before 18 July 2002.

[27]     Another criticism concerned the Judge’s finding that the boat was removed from Masters’ yard shortly after Mr Higgins saw it, some time between 16 and

19 July.  Mr Bannan submitted that it could have been there until 5 August, when the Police checked the yard.  I accept that that may be so – but cannot see the relevance of the point.

[28]     On the other hand, while I accept that the Judge’s findings as to credibility were of critical importance to the outcome of the prosecution, I do not accept that they are without foundation.

[29]     There is no doubt that, quite apart from simply not believing the appellant, the Judge was not impressed by his associates.  He said:

“There is a lot of shifty and unsavoury characters involved in this business with the boat.”

[30]     He described Mr Bracken as:

“A shadowy background figure.”

[31]     And of Mr Barton, who was called by the prosecution, but, because of his alleged illness and an incident at the Court, refused to co-operate and give evidence apart from affirming what he said in his brief, the Judge said:

“Mr Barton was in my estimate a shady character who was trying to hide something and relying on illness.  He tried to rely on being insulted by the

Police gaoler to refuse to give evidence, he refused to answer questions and accordingly I attach no weight to his evidence.   A thoroughly unreliable untrustworthy person who has opened himself up to those findings because of his refusal to co-operate with the Court for his own advantage.  But I do note that Mr Barton was a man that Mr F     and Mr Brian Constable were very happy to deal with.”

[32]     Then there was Mr Peterson, who the Judge said was:

“another shady character ... who is said to be a financier but is prepared to borrow money for clients in his own name.  I find that to be incredible.  In May/June the boat is taken to Silverdale at the request of the financier, Mr Peterson who wants it hidden, he is going to put his name on the boat as security, he wants it out of the way.”

[33]     Finally, he commented on Mr Constable (Garmonsway).  As well as finding that the appellant and Mr Constable were:

“inextricably entangled and enweaved with each other in business dealings”

the Judge said:

“I am not sure about Mr Constable.  I do not need to be sure about him, he is on the outside of this.  He has given evidence but it was very guarded, it was not open, it was not clear and he was unwilling to volunteer anything, it had to be forced out of him by frequent references to  a  video  statement  or statement he had made to the Police. He clearly in my estimate was trying to cover up something or somebody and the person I find he was attempting to cover up for was Mr F    , his mate and business partner.  But that does not mean to say I make any finding about Mr Constable as being involved in dishonest receiving of this boat, that is solely down to Mr F     who had the dealings with the person who stole it.”

[34]     While the use of such strong language to describe these witnesses may not have been absolutely necessary, given the evidence as a whole, and the fact that he saw and heard the witnesses, there can be no criticism of the Judge for reaching these conclusions.  Indeed, in my view, they appear entirely warranted.

[35]     Nor do I accept Mr Bannan’s criticism of the Judge’s conclusions in respect of the appellant.

[36]     Mr Bannan criticised the Judge’s statement that:

“Mr F     puts himself in the category of dealing with criminal gangs and he believes that is quite normal from what he tells me.”

[37]     Clearly Judge Everitt was not saying that by entering into legitimate business transactions with gang members, in the course of his usual business i.e. by selling them meat, Mr F     was somehow of dubious character.  What the Judge was critical of was Mr F    ’s alleged business relationship with gang members, outside of his normal trade as a butcher.   In my view, the Judge was right to question the bona fides of someone who would accept a valuable boat from gang members he did not know and did not try to find out about, and then use it as his own.  Even if the Judge accepted the veracity of the appellant’s story (which he obviously did not), it would still have been open to him to question the honesty of a person who would do business in this way.

[38]     Accordingly, I reject the first two grounds of the appeal against conviction.

Proof of elements of the charge

[39]     Mr  Bannan’s  third  submission  was  that  the  prosecution  could  not  prove anything more than that the appellant had possession of the boat and that it was stolen.  Mr F     denied knowing that it was stolen or dishonestly obtained at the time he received it.

[40]     And that was the primary issue for determination by the Judge.  In this regard he said at [28]:

“I do not believe for one minute Mr F    ’s explanation.  I reject it as being untrue and I have to decide however, whether, having heard all the totality of the evidence to decide whether the Police have proved this case beyond reasonable doubt notwithstanding that I have rejected Mr F    ’s explanation. I  am  satisfied  that  they  have.    There  is  more  than  sufficient  evidence garnered here to link a stolen boat with Mr F    .   His explanation given is untrue.  The circumstances even if they were true of his receiving the boat from those people indicates that he was at the very least reckless as to the possibility of it being stolen or dishonestly obtained.  If what he says is true, to receive such property in such circumstances clearly is reckless in the meaning of the section that I am required to determine under.  However, I find that he believed the vessel had been stolen because of his connections with these underworld figures Bracken and Dan Tumataroa.  Those are the people, not two unknown Maoris.  I find the charge proved.”

[41]     Mr Malarao accepted that the Judge was wrong when he said recklessness was  an  element  of  the  offence.    That  only  came  in  with  s  15  of  the  Crimes

Amendment Act 2003, which took effect on 1 October 2003.  But quite apart from that, he submitted, it was clearly open to the Judge to find, as he did, that the appellant had a guilty mind at the time of receiving the boat.  Nor did minor mistakes of fact detract from the soundness of the Judge’s reasoning and ultimate finding in that regard, Mr Malarao said.  It was not so much the actions of others, but the action or  inaction  of  the  appellant,  which  convinced  the  Court  of  his  guilt.    In  his submission the Judge rightly considered the appellant’s explanation for how he came to have the boat as “incredible”, and his subsequent behaviour to be highly determinative.  And I agree.

[42]     I am satisfied that the Judge’s finding that Mr F     was guilty of the offence with which he was charged was inevitable, given the implausibility of his story about the gang members.  As Judge Everitt said, it was a “pack of lies”, it was “vague and fanciful”, and there was no means of checking it.

[43]     But the strength of the verdict does not depend on the assessment of the story alone.   There was ample other evidence from which to infer  guilty knowledge. There was Mr F    ’s different, and admittedly false, explanation to Mr Peterson;  his actions in dealing with the boat as if it was his own when, even on his account, he had not paid anything for it;  and stopping the cheque for storage, immediately he recovered the boat, to give but a few examples.

[44]     In addition, there was objective evidence that the boat had been stolen.   It was inexpertly repainted, the serial numbers had been removed and, according to Mr F    , there were no registration plates.  Given those attempts to disguise it, even if, contrary to the evidence, it had been moved during the day and stored in an open yard, that would not prove, as Mr Bannan submitted, that his client had nothing to hide.

[45]     I therefore dismiss the appeal against conviction.

Appeal against sentence

[46]     Mr Bannan listed seven reasons why, he said, the sentence of six months imprisonment imposed on Mr F     was manifestly excessive:

“(a)     The Judge attributed unfavourable characteristics to the appellant without foundation;

(b)The Judge did not give sufficient weight to the fact the appellant is a first offender;

(c)      The Judge should have found limited involvement on the part of the appellant;

(d)       The Judge incorrectly found attempts at sophistication;

(e)      The appellant’s request  to have  a  person  address  the  Court  was denied by the Judge without sufficient reason;

(f)       The  Judge  treated  the  absence  of  some  mitigating  features  as aggravating features;  and

(g)      The  sentence  is  manifestly  excessive  in  comparison  to  decided cases.”

[47]     In order to address these criticisms in context reference needs to be made to the Judge’s sentencing notes.  He said:

“[3]      It has taken the Police some considerable time and effort to untangle the web of conceit constructed by F     and his associates.   The evidence clearly reveals a cast of shifty characters who were only too willing to conspire in shady deceitful dealings with the boat and moneylenders.  Lies are a stock in trade for Mr F     who came up with a number of very implausible, untrue explanations for his involvement as I found.

[4]      The dishonest dealing with this boat involves some attempts at sophistication with a number of changes to the registration of the trailer on which the boat was situated, with the boat being shifted about Auckland to various locations and hidden in Crown Storage and at Silverdale with, in my view, Mr F     playing a leading role.

[5]       It is also my view that at least five other persons were involved in this receiving and could properly face charges.

[6]       A  sentence  of  imprisonment  must  be  considered  as   a   most appropriate sentence for Mr F    .  He has continued to deny his culpability in the  face  of  overwhelming  evidence.    He  has  instructed  his  counsel,  in writing, to say that he does not accept his conviction and he would appeal.  I note that it is irrelevant.   He continues to invent further lies by way of explanation, the latest one being that it was an insurance scam.  He refuses to

feel any remorse or compassion for the owners of the boat who suffered both financially and emotionally.   He states he will not pay reparation if it is ordered and I note he has already refused to pay his outstanding fines of

$3923.

[7]       He is a man who is clearly used to being involved in unconventional deals with various groups.   He uses bent financiers.   He claims financial expertise which he does not have.  He uses advisers to protect his assets by Trusts and feels secure that his business is protected from the payment of reparation orders and the like, and fines.

[8]       The magnitude and audacity of this crime, the value of the goods, the lack of remorse, the attempts to continue to blame others and to invent further explanations, refusal to face up and be accountable, all call in my view for a deterrent sentence to denounce and condemn such outrageous conduct on the part of Mr F     and his group of associates.  We must send a clear message to that group and others who are like minded to deal on such a scale with stolen property, that when discovered they will be dealt with sternly.

[9]       There  are  no  mitigating  circumstances,  Mr  Bannan  has  been instructed virtually to say nothing this morning on sentence, other than to point out Mr F    ’s age, his alleged unblemished record (which I do not accept), he has no record of similar criminal offending (I accept that), and the probation officer’s assessment on the tools used that has a low risk of re-offending.  He sought leave to have Mr Garmonsway address the Court for   some   reason,   which   I   refused,   I   don’t   want   to   hear   from Mr Garmonsway, I have heard enough from him when he gave his evidence.

[10]     I  have  determined  that  making  allowance  for  the  lack  of  any previous criminal history, that six months’ imprisonment will be sufficient deterrent and to call Mr F     to account.”

[48]     In my view, Mr Bannan’s submissions (a), (c) and (d) above, are simply variations on the points already made in attacking the Judge’s factual findings.  As I have said, I am satisfied both that the Judge was right to find the charge made out and that his adverse findings against Mr F    , both as to his character and his involvement in the operation, were entirely justified by the evidence.

[49]     Mr Bannan’s other submissions merit further attention.

[50]     This offence carries a maximum sentence of seven years imprisonment.

[51]     As, at the time of sentence, no others had been convicted in connection with the theft of the boat, the prosecution sought full reparation from Mr F    , and that was ordered.   But because of the value of the property involved, the officer was not

prepared to recommend whether or not a sentence of imprisonment should be imposed.

[52]     In the event, the Judge focused on the whole history of the dealing with the boat and, emphasising the need for deterrence, effectively held Mr F     responsible, not only for his own actions, but also those of his associates.

[53]     It was not appropriate to do so.

[54]     I accept Mr Bannan’s points (b), (e) and (f) are well made.

[55]     At the time of sentencing Mr F     was 55 years old.   He had no previous criminal convictions, although he had been convicted and fined in 2000 for various offences in relation to the sale and storage of food.  He also had outstanding fines of

$3,923 (including substantial enforcement fees for various minor traffic offences entered in the period since 2001).

[56]     Given  his  age,  Mr  F      was  entitled  to  some  considerable  credit  for  his previous  good  character.    At  the  Court  of  Appeal  said  in  R  v  Howe  [1982]  1

NZLR 618 (CA at 629):

“Persons who have shown themselves generally law abiding citizens of good character are usually entitled to invoke their creditable record in mitigation when they come before the Courts, even for quite serious offences.”

[57]     The Judge also declined to hear from Mr Garmonsway (formerly Constable)

concerning Mr F    ’s personal background and good character saying:

“The [appellant] sought leave to have Mr Garmonsway address the Court for some reason, which I refused, I don’t want to hear from Mr Garmonsway, I have heard enough from him when he gave his evidence.”

[58]     Section 27(2) of the Sentencing Act stipulates that:

“(2)      The court must hear a person or persons called by the offender under this section on any of the matters specified in subsection (1) unless the court is satisfied that there is some special reason that makes this unnecessary or inappropriate.  (emphasis added)

(3)      If the court declines to hear a person called by the offender under this section, the court must give reasons for doing so.

...”

[59]     Although  the  Judge  was  obviously  not  impressed  with  Mr  Garmonsway either, I do not believe that that is sufficient basis for declining to hear from him on matters outside the ambit of the defended hearing.   By failing to do so, the Judge deprived the appellant of the opportunity of persuading him that the strong views which he had formed about him, on the basis of the lies he told at the hearing, could, perhaps, be mitigated.

[60]     Obviously, if Mr F     had shown genuine remorse, that would have been another factor in his favour.   But its absence does not constitute an aggravating factor.

[61]     In my view, the Judge failed to give adequate recognition to the fact that this was a one-off incident, albeit that Mr F     retained the boat over a period of a year and during that time dealt with it as his own.  It was by an offender who had reached

55 with no previous criminal convictions.  This was not an ongoing operation such as the car ringing operation considered by the Court of Appeal in R v Dane Moule CA 203/00 2 November 2000 where the appellant, who had a substantial list of previous convictions and was described as “almost a professional criminal” was sentenced to 18 months imprisonment for five offences of dishonesty where the value of the goods involved approached $80,000.   By comparison Mr Moule’s brother, who had no previous convictions for dishonesty, was sentenced to five months periodic detention in relation to the same operation.

Result

[62]     In the end result, I am satisfied that the Judge did not, as he was required to do, impose the least restrictive outcome appropriate in the circumstances (s 8(g) of the Sentencing Act) where an offender is sentenced after a long line of similar offending and/or where the offending arises in the course of an ongoing operation, involving several transactions, a substantial sentence of imprisonment is justified.  In this case it was not.

[63]     Taking into account the fact that Mr F     has already spent almost one and a half months in prison, I will allow the appeal against the sentence of imprisonment and substitute a sentence of 150 hours community work.  However, that part of the sentence relating to reparation and the payment of fines is to continue and to be enforced.

[64]     The appeal against conviction is dismissed.

M A Frater J