Fowler v R

IN THE COURT OF APPEAL OF NEW ZEALAND

CA90/2016
[2016] NZCA 233

BETWEEN	NEIL JAMES FOWLER Appellant
AND	THE QUEEN Respondent

Hearing:	11 May 2016
Court:	Kós, Courtney, Gilbert JJ
Counsel:	R M Gould for Appellant D J Boldt for Crown
Judgment:	27 May 2016 at 12.00 pm

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed.
CThe sentences of 12 months’ imprisonment on the charge of possession of a restricted weapon and six months’ imprisonment on the charge of possession of explosives are set aside and replaced with concurrent sentences of 50 hours’ community work and six months’ supervision with a special condition that Mr Fowler is to attend any alcohol or drug rehabilitation programme as may be directed by the supervising probation officer.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

Following a trial by jury in the Blenheim District Court, Mr Fowler was found guilty of unlawful possession of a restricted weapon (a military-style semi-automatic firearm, MSSA), possession of explosives (260 rounds of ammunition), and possession of 77 grams of cannabis. Judge Zohrab convicted Mr Fowler on these charges and sentenced him to 12 months’ imprisonment on the lead charge of possession of a restricted weapon and concurrent prison sentences of six months on the charge of possession of explosives and one month on the charge of possession of cannabis.[1] Mr Fowler appeals against both conviction and sentence.

Grounds of appeal

[1]R v Fowler [2016] NZDC 2256.

Mr Fowler contends that the Judge misdirected the jury in two respects:
(a)the onus of proof in a reverse onus case; and
(b)the need to distinguish between credibility and reliability when assessing the complainant’s evidence.
Mr Fowler argues in support of his appeal against sentence that the Judge erred:
(a)by imposing a sentence of imprisonment without the benefit of a full pre-sentence report; and
(b)by failing to impose the least restrictive outcome appropriate in the circumstances, being a sentence of home detention combined with post-detention conditions requiring counselling for alcohol abuse to address Mr Fowler’s rehabilitative needs.

Background

On the evening of 10 December 2014, Mr Fowler was at home drinking with a female friend, the complainant. After both became heavily intoxicated, the complainant agreed to pose in a negligee holding the MSSA which Mr Fowler produced from his garage. Mr Fowler used the complainant’s mobile phone to take a number of photographs of her holding the gun. An argument developed after the complainant declined to have sex with Mr Fowler. A window was broken and the complainant cut her hand before leaving and returning to her own home.
Mr Fowler called the police. The police constable who was despatched to the complainant’s address found her intoxicated, upset and covered in blood. She reported that there had been an altercation and mentioned the firearm. Another police constable visited Mr Fowler and found him heavily intoxicated. The constable advised Mr Fowler that he proposed to search the property given the information received about the firearm. In response, Mr Fowler produced a BB gun and the constable left.
The following day, another police constable visited the complainant to check on her welfare. The complainant showed the constable the photographs Mr Fowler had taken of her posing with the firearm. Three police officers returned to Mr Fowler’s address that evening. Mr Fowler maintained that the only firearm he had was the BB gun he had shown the police constable the night before. The police searched the property and found an unsecured firearms safe in the garage area. This contained the ammunition, including 180 live 7.62 millimetre rounds suitable for use with the MSSA which was found under a pile of other items in the garage.
Mr Fowler held a firearms licence and an MSSA endorsement more than 10 years earlier but he maintains his denial that any of these items were his. He claims that they were planted there by the complainant, as was the cannabis.

Appeal against conviction

Did the Judge misdirect the jury regarding the onus of proof?

Because the firearm and the ammunition were found at Mr Fowler’s home, he was deemed to be in possession of both unless he proved on the balance of probabilities that they were not his property and were in the possession of some other person.[2] The jury was therefore obliged to convict Mr Fowler of possession of these items unless he proved on the balance of probabilities that the complainant had planted them in his garage.
[2]Arms Act 1983, s 66.
The Judge directed the jury on this issue in these terms:
In a case such as this, when a defendant has the burden of proving something, I suggest that there are three possible conclusions you might come to in considering his evidence on the things that he has to prove:
(a)The first possibility is that you accept what he has said as being more likely than not to be true. If that is so, he has rebutted the presumption and should be found not guilty.
(b)The second possibility is that you do not accept his explanation as being more likely [than] not to be true. If that is so, he has not rebutted the presumption and he should be found guilty.
(c)Now, the third possibility is you cannot decide one way or the other whether his explanation is more likely than not to be true. If that is so, then again he has not rebutted the assumption and he should be found guilty.
Ms Gould submits that the third possibility identified in this direction may have misled the jury into thinking that unanimity was not required on this issue. In other words, if some of the jurors thought that Mr Fowler had discharged his onus but others did not, the jury would nevertheless be obliged to convict Mr Fowler on these charges because he had failed to convince all of them on the balance of probabilities.
This submission cannot stand in view of the Supreme Court’s decision in R v Siloata which unanimously rejected an appeal against conviction based on an identically worded direction.[3] While not approving the direction, describing it as a complication, the Supreme Court considered that there was no risk that any juror could have misinterpreted it in the way suggested by Ms Gould. Tipping J, writing on behalf of himself, Blanchard and Gault JJ, observed:
[48] We can see no basis for concluding that the jury might have thought that the Judge’s general directions about unanimity and working collectively together did not apply when they were considering whether the accused had satisfied the reverse onus. The words the Judge used in explaining the third possibility do not in themselves give rise to any real risk the jury might have been misled. They are directed to an inability to decide, not to an inability to agree. That is the position whether the words are construed as addressed to individual jurors or to the jury as a whole or are read as carrying both connotations.
[49] The Judge was focusing the attention of the jury on the possibility that they could not decide “one way or the other”. The decision he was speaking about concerned “whether” the accused had rebutted the presumption. There was, in terms of this language, and in the context of the summing-up as a whole, no realistic possibility that the jury or any member of it might have thought the Judge was talking about lack of unanimity as opposed to an inability to decide whether the accused had satisfied the onus resting on him. There was no real risk that a juror favouring a not guilty verdict would have construed the Judge’s direction as requiring him or her to fall in with the view of other jurors that the accused was guilty.
[3]R v Siloata [2005] 2 NZLR 145 (SC).
In their concurring judgment, the Chief Justice and Keith J stated:
[14] We agree with Tipping J, whose judgment we have had the advantage of reading in draft, that the Judge’s directions were not misleading on the requirement of jury unanimity. Like him, we consider that the tripartite direction (which attempted to deal with the case where the jury is not carried over the onus of proof and is undecided) is unhelpful. What needed to be conveyed to the jury was that if they were not convinced on the balance of probabilities that the presumption had been rebutted, the defence had not discharged the onus and a conviction should be entered. The possible outcomes were in reality only two: that the persuasive burden had or had not been discharged. In context, however, we are satisfied that the complication did not obscure the choice to be made. And since we are of the view that the jury can have been in no doubt that its task was to come to one of the two possible verdicts unanimously, we would dismiss the appeal.
While it would have been better if the Judge had avoided reference to the “third possibility”, we are satisfied that his directions could not have misled the jury. The jury required only a little over one hour to reach unanimous verdicts on all charges. The reverse onus did not apply in relation to the cannabis charge but Mr Fowler’s defence to it was essentially the same as for the other possession charges, namely that all of these items had been planted by the complainant. The jury clearly had no difficulty unanimously rejecting Mr Fowler’s evidence that the complainant had planted the cannabis and accepting that the Crown had excluded this as a reasonable possibility. It is not surprising that the jury rejected this prospect, which was, as the Judge said at sentencing, hopelessly implausible.

Did the Judge misdirect the jury by failing to distinguish between credibility and reliability when assessing the complainant’s evidence?

Ms Gould takes no issue with the general directions the Judge gave to the jury regarding the difference between credibility and reliability:
It is for you, working collectively together as a team, to decide whether you accept or reject the whole of a witness’ evidence, and whether or not there are parts of their evidence that you accept and other parts that you reject. You decide what evidence you regard as credible and reliable in the circumstances of the case. Now, credibility is honesty and sincerity. Reliability is different. You know, from your knowledge of the real world and the way people work and your own personal experience, that a witness may be entirely honest about something but they may nevertheless be mistaken and, therefore, unreliable about what they are talking about.
However, Ms Gould submits that the Judge ought to have again drawn the jury’s attention to this distinction when he discussed the complainant’s evidence, particularly because the complainant said that she was “plastered” at the time. In particular, Ms Gould submits that no clear distinction was drawn between reliability and credibility in the following paragraphs in the Judge’s summing-up where he summarised what Crown counsel had said in his closing address:
[Crown counsel] urged you to reflect upon the Crown evidence, which consisted of what was found by the police officers in the house and also the complainant’s evidence as well, [the complainant]. He characterised her, notwithstanding the issues that she has got as far as alcohol and drugs, her hazy recall and matters of that sort, whilst those factors are relevant to an assessment of reliability, overall, in his submission, she was a very credible witness, in fact “brutally honest” was how he characterised her evidence. She did not seek to overstate the position, in his submission. There was no sugary coating of anything.
Also, [Crown counsel] asked you to reflect upon the fact not only about what she said about what happened and suggested that it had the ring of truth, but it was clear, in his submission, that she was not going out of her way, as it were, to get stuck into the defendant. He has suggested to you that if you reflected upon the content of her evidence, that she went out of her way to say good things about Mr Fowler, and how she described that before all of this blew up or happened, once again if you take the drugs and alcohol out of the picture, “We were mates. We got on well. We shared a love of animals. We got on really well, and it upsets me that this happened.” “So does that sound like somebody who is making up false allegations?” is effectively what he was submitting to you. You could conclude that she was not trying to get at Mr Fowler. She was just simply telling you, in her own brutally honest way, affected by alcohol and drugs, what actually happened to her.
[Crown counsel] acknowledged, on the Crown’s behalf, that she was completely plastered, that she was a drug fiend, and how does the Crown know that?, because she told you that. She was being brutally honest, and she told you where this gun came from. You have seen the photographs. She has told you about this. Does this sound like something that she has made up, given all of these good things that she has had to say about the defendant? Sure, she was a little bit uncertain about some of the details, but he reminded you the Crown only have to prove the ingredients of the offences to that high standard of proof beyond reasonable doubt. They do not have to prove every little detail to that high standard.
We are not persuaded that the Judge misdirected the jury or that there is any risk of a miscarriage of justice on this ground. The Judge explained the distinction between credibility and reliability in fairly standard terms at the commencement of his summing-up. In the passages set out above, he reminded the jury of the evidence that the complainant was “completely plastered” and “uncertain” about some of the details. The jury apparently accepted that although she was a credible witness, her evidence was not reliable in all respects. This no doubt explains why they found Mr Fowler not guilty on the two charges of male assaults female which were dependent upon the accuracy and reliability of her evidence.
The issue for the jury on the possession charges was whether there was any realistic prospect that the complainant planted the cannabis, the MSSA and 260 rounds of live ammunition in Mr Fowler’s garage. The fact that she was heavily intoxicated will have affected the reliability of her evidence about what happened that evening. However, it is unrealistic to suggest that she planted all of these items in Mr Fowler’s garage at some stage during that evening but was so intoxicated that she could not recall doing so.
For these reasons, the appeal against conviction must be dismissed.

Appeal against sentence

At the time of sentencing, Mr Fowler was 58 years of age and lived alone in his own home in Blenheim. He was employed as a machine operator at a quarry and worked 12 hours a day, six days a week. In a letter provided to us for the purposes of this appeal, his former employer states that he was a conscientious and reliable worker. Another letter provided to us, but not available to the Judge, was from Mr Fowler’s neighbour of 10 years. She describes Mr Fowler as a man who likes his privacy but who is always pleasant and willing to help if needed. Mr Fowler has no prior convictions other than for driving offences. These were driving dangerously and refusing a blood specimen in 2011 and dangerous driving in 1975. He was fined and disqualified from driving for these offences.
Given this background, Mr Fowler would ordinarily be considered a good candidate for a community-based sentence. It is likely that he would have received such a sentence had he shown reasonable cooperation in the sentencing process, but he did not.
The Judge was placed in a difficult position on the day initially set for sentencing, 11 February 2016. Mr Fowler had failed to keep appointments with the Probation Service on 18 November, 2 December and 18 December 2015. This meant that the Judge did not have the benefit of any report from the Probation Service, despite having directed that such a report be prepared.
The only report that the Judge had was from a specialist addiction clinician who had carried out an alcohol and drug addiction assessment of Mr Fowler. This report recorded that Mr Fowler had failed to attend an appointment for an assessment in December 2015 but had then turned up two weeks early for his second appointment requesting that he be assessed that day. He had been drinking. He was breathalysed and found to have a breach alcohol level of 250, rising to 350 at the end of the analysis. A blood test was taken before he left and he was told that he was not able to drive but he nevertheless did so. When confronted about this at his next appointment, he became abusive about the breathalyser process and the requirement not to drive.
The clinician concluded her report with the following summary and recommendation:
Neil is a 58 year old male who presents with a history of heavy periods of alcohol use, and would meet DSMIV criteria for Alcohol Dependence. Neil presents with an angry and aggressive manner, often blaming others for his current situation and frequently speaking in a loud voice and swearing. Any alcohol use is likely to exacerbate his anger and volatility. Neil describes a pattern of disengagement from Services and refusal to acknowledge his own part in situations.
It appears that Neil has struggled to maintain positive social relationships, and this may impact on his ability to deal proactively with Services he is involved with, or to resolve issues that arise. It is unlikely that Neil will co‑operate willingly with an[y] intervention proposed to him. At this stage while it is recommended that AOD interventions would be of benefit to Neil, this benefit would only occur if he was willing to participate with the process. From current presentation, this is unlikely. Neil said he “doesn’t want any help” and “want(s) to be left alone”.
The Judge was not prepared to proceed with sentencing in the absence of a probation report and, accordingly, he remanded Mr Fowler in custody until the next day to enable a report to be prepared. Unfortunately, this did not allow sufficient time for a full pre-sentence report to be prepared incorporating all of the information that would normally be expected in accordance with s 26(2) of the Sentencing Act 2002. The report that was prepared following a brief consultation with Mr Fowler comprises five short paragraphs, including the introduction, and contains no information about Mr Fowler’s personal background or current circumstances. The report recorded that Mr Fowler continued to deny the offending and disputed that his bail conditions required him to attend a pre-sentence interview. The probation officer noted Mr Fowler’s claim that he does not have any current issues with alcohol and would be able to comply with a special condition that he not possess or consume alcohol or drugs. However, the probation officer considered that this response was disingenuous and was an attempt to avoid a custodial sentence. He concluded:
Mr Fowler’s continuing denial of the firearm convictions and his assertion someone planted them is concerning. He portrays himself as a victim in the current matters and reports everyone is against him. His lack of insight, aggressiveness and unwillingness to engage with Services leads me to the view he is unsuitable to undertake a community based sentence.
While this report did not add materially to the information available the previous day, the Judge declined Mr Fowler’s counsel’s request for the sentencing to be postponed again to enable a more complete probation report to be prepared. The Judge explained his reasons for declining this request and imposing a prison sentence as follows:
So in my view, whilst I would like to consider imposing a sentence which is designed to help you, in my view the aims and objectives of sentencing in a case such as this can be met only by a short term of imprisonment. You hopelessly maintain your innocence. You clearly have a raging problem as far as alcohol is concerned, but are unwilling to acknowledge it, even in the face of a clear report which demonstrates palpably your ongoing issues as far as alcohol is concerned. The aims and objectives of sentencing in a case such as this, which has to be deterrence and denunciation, and protection of the public in terms of s 16(1) Sentencing Act 2002, cannot be met by a sentence of home detention. I can have no confidence that you would co‑operate with the monitoring of such a sentence, or any special conditions, or that you would not pose a risk to the people who would have to monitor such a sentence.

The first reason given by the Judge for imposing a prison term without seeking further information was that Mr Fowler “hopelessly” maintained his innocence. That may be so but Mr Fowler is entitled to deny his offending and to pursue the present appeal against his conviction. This does not necessarily mean that a term of imprisonment must be imposed or that it was appropriate to proceed with sentencing without adequate information.
The Judge next referred to Mr Fowler’s alcohol problem, which he described as “raging”. The Judge stated that Mr Fowler was unwilling to acknowledge this. However, it appears from the addiction clinician’s report that Mr Fowler freely acknowledged that he drank heavily from the time he was in his teens and has suffered health problems as a result. He reported that his heaviest use of alcohol was before he was diagnosed with diabetes about 10 years ago and that he has moderated his drinking since that time and no longer drinks spirits. Mr Fowler’s alcohol consumption at the time of the offending did not prevent him from working 12 hour days, six days a week and impressing his employer as a conscientious and reliable worker. Although the Judge found that Mr Fowler has a serious ongoing problem with alcohol abuse, we do not consider that this is a sufficient reason to send him to prison.
The Judge stated that the purposes and principles of sentencing, particularly denunciation, deterrence and protection of the public, could not be met by a community-based sentence. Such sentences are commonly imposed in cases like the present, particularly with people of Mr Fowler’s age presenting with almost no criminal history. However, the Judge excluded this prospect because of his concern that Mr Fowler would not cooperate and would pose a risk to anyone monitoring such a sentence. While the Judge was justified in concluding that Mr Fowler was unwilling to cooperate, there was little evidence to support his conclusion that Mr Fowler would pose a risk to anyone monitoring his sentence. He has no convictions for assault or violence of any kind and there is no suggestion that either of the report writers felt at risk during any of the three consultations Mr Fowler attended.
While we can understand why the Judge proceeded as he did in the difficult circumstances he faced, we consider that in all of the circumstances of this case he ought to have insisted on a full pre-sentence report before imposing a sentence of imprisonment on Mr Fowler. The importance of obtaining such a report was explained over 70 years ago by Myers CJ in Re Moulin:[4]
… I think I am right in saying that, except where a sentence is fixed by law, a Judge of the Supreme Court never sentences a prisoner to a term of imprisonment or reformative detention without having a Probation Officer’s report before him. The reason is simple. No matter what the prisoner’s previous criminal record may be, and no matter what the Police or Crown Prosecutor may say of the offender’s character as gleaned from the Police records, there is always the possibility of the careful inquiry which the Probation Officer is expected to make resulting in the obtaining of some information which might dispose the mind of the Court to a more lenient sentence than might have been imposed without such information. It is not right, in my opinion, that any Court should sentence a person to a long term of imprisonment — in this case twelve months’ imprisonment with hard labour to be followed by twelve months’ reformative detention — without having had the opportunity of considering a report from the Probation Officer.
[4]Re Moulin [1943] NZLR 325 at 327 (SC).
The continuing applicability of this general rule has been confirmed in a number of subsequent decisions of this Court.[5] In R v Harriman, the Court stated that a custodial sentence should only be imposed in rare circumstances without the benefit of a pre-sentence report.[6] The Court emphasised the importance of the pre‑sentence report in the sentencing process:[7]
The purpose of a pre-sentence report is to ensure that a sentencing Judge has adequate information about an offender, before imposing a sentence of imprisonment or deciding whether a non-custodial sentence is sufficient to respond to particular offending. Given that purpose, it is inappropriate to sentence unless the Judge can rule out any reasonable possibility that further information might come to light that could affect the credit to be given to mitigating factors.
[5]See for example R v Spring CA221/85, 18 November 1985; R v Johansen (1997) 15 CRNZ 111 (CA); R v Bellingham (2005) 21 CRNZ 561 (CA); R v Harriman [2009] NZCA 156.
[6]R v Harriman, above n 5, at [19].
[7]At [21].
This reasoning applies wherever the information available to the sentencing Judge is inadequate to make a properly informed decision about whether to sentence someone to imprisonment. A limited pre-sentence report will usually not suffice.[8] Other considerations aside, the Judge is required by s 8(i) of the Sentencing Act to take into account the offender’s personal, family, whanau, community and cultural background in imposing a sentence which best meets the rehabilitative purposes of sentencing. This cannot be done without an adequate report covering these matters.
[8]See for example Sorenson v New Zealand Police HC Rotorua CRI 2009-463-43, 30 June 2009; Rameka v New Zealand Police HC Rotorua CRI 2009-463-000112, 14 December 2009.
In the present case, the Judge did not have any information from anyone who knew Mr Fowler well, such as family members, associates, his employer, or neighbours. This type of information would normally be provided in a full pre‑sentence report and would have assisted the Judge at sentencing. The absence of this information meant that the Judge was unable to make an adequately informed assessment of the mandatory considerations set out in ss 7 and 8 of the Act, particularly Mr Fowler’s rehabilitative needs and the need to impose the least restrictive appropriate outcome.
The letters provided to this Court from the employer and neighbour offer some reassurance that Mr Fowler does not pose such a risk to the community that a custodial sentence was required. This is consistent with his lack of criminal history.
Mr Boldt responsibly acknowledged that a full pre-sentence report should have been obtained in this case before the Judge concluded that nothing short of a sentence of imprisonment was required. Mr Boldt agreed with Ms Gould that such a sentence was unlikely to be the best way to address Mr Fowler’s rehabilitative needs.
In these circumstances, we invited counsel to confer to see whether they could reach agreement on the most appropriate way of disposing of this appeal. Because Mr Fowler has already been in prison for three months, the option of remitting the matter to the District Court for re-sentencing is unattractive. Counsel agreed that the sentence ought to be set aside but could not agree on what it should be replaced with. Mr Boldt submitted that it would be appropriate to impose a period of intensive supervision. Ms Gould opposed this and submitted that the matter should be disposed of by reducing the sentence to one of six months’ imprisonment or imposing a sentence of community work coupled with ordinary supervision.
We rule out the option of simply reducing the term of imprisonment. Had imprisonment been the appropriate sentencing option, the starting point adopted by the Judge would also have been appropriate. Indeed, Ms Gould did not challenge it. Further, simply reducing the term of imprisonment now would not address Mr Fowler’s need for rehabilitation.
We are not persuaded that intensive supervision is required in Mr Fowler’s case. His rehabilitative needs are not overly complex and do not warrant the frequency of reporting required under such a sentence.
Bearing in mind the term of imprisonment already served, we consider that the most appropriate outcome is to set aside the sentence of 12 months’ imprisonment and replace it with a sentence of 50 hours’ community work and six months’ supervision with a special condition that Mr Fowler is to attend any alcohol or drug rehabilitation programme as may be directed by the supervising probation officer.

Result

The appeal against conviction is dismissed.
The appeal against sentence is allowed.
The sentences of 12 months’ imprisonment on the charge of possession of a restricted weapon and six months’ imprisonment on the charge of possession of explosives are set aside and replaced with concurrent sentences of 50 hours’ community work and six months’ supervision with a special condition that Mr Fowler is to attend any alcohol or drug rehabilitation programme as may be directed by the supervising probation officer.

Solicitors:
Crown Law Office, Wellington for Respondent

[2016] NZCA 233

27 May 2016 at 12.00 pm