Gollan v R
[2013] NZCA 29
•25 February 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA580/2012 [2013] NZCA 29 |
| BETWEEN JAMES PATRICK GOLLAN |
| AND THE QUEEN |
| Hearing: 14 February 2013 |
| Court: Ellen France, Ronald Young and Dobson JJ |
| Counsel: Appellant in person |
| Judgment: 25 February 2013 at 10 am |
JUDGMENT OF THE COURT
A Appeal against conviction dismissed.
B The time for filing the appeal against sentence is extended and the appeal against sentence allowed.
CAll sentences are quashed and the following sentences of imprisonment are substituted:
(1)On each charge of assault with a weapon
eight months (concurrent); and
(2)On each charge of threatening to do grievous bodily harm four months (concurrent).
All sentences to be served concurrently.
DThe standard release conditions apply for a period of six months beyond the expiry date.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dobson J)
Table of Contents
Para No
Introduction [1]
Mr Gollan’s pursuit of his appeals [2]
Background [6]
The Judge’s reasoning [12]
Grounds for challenge [15]
Errors in respect of evidence of the 111 call[15]
Relative audibility of police communications, and Mr Butcher[20]
Wrongful admission of rebuttal evidence [25]
Exclusion of Constable Jones’ job sheet[27]
Exclusion of article from Police Association journal[32]
Inadequate consideration of a photograph of the premises[39]
Rejection of Ms Gollan’s written statement[43]
Scope of statutory defences raised: ss 53, 55 and 56 of the
Crimes Act[48]
Reasonableness of the force used[58]
The complainants should have been recognised as trespassers from
the outset[60]
Summary on appeal against conviction [63]
Appeal against sentence [66]
Introduction
In July 2012, James Gollan defended two counts of assault with a weapon and two counts of threatening to do grievous bodily harm in a Judge alone trial in the District Court at Hamilton. On 17 August 2012, Judge Ruth delivered reasons for his verdicts, finding that Mr Gollan was guilty of each of the four counts.[1] He was sentenced to 12 months’ imprisonment on each of the convictions for assault with a weapon, and to concurrent sentences of six months’ imprisonment on each of the convictions for threatening to do grievous bodily harm.[2] Mr Gollan has appealed against both the convictions and sentence.
Mr Gollan’s pursuit of his appeals
[1] R v Gollan DC Hamilton CRI-2011-019-2337, 17 August 2012 [the reasons].
[2] R v Gollan DC Hamilton CRI-2011-019-2337, 11 October 2012.
Mr Gollan acted for himself both in the District Court, and in this Court. He filed detailed notices of appeal dated 14 September and 22 November 2012, but then advised the Court in writing prior to the hearing that he would not be filing written submissions because the Department for Corrections had not supplied “adequate facilities” for him to do so. The inadequacy of facilities for him to prepare arguments for his appeal had earlier been raised by Mr Gollan as a ground for seeking bail pending his appeal. The point was considered, but not treated as contributing sufficiently to reasons for granting bail in this Court’s decision of 13 December 2012.[3]
[3] Gollan v R [2012] NZCA 586.
At the hearing, Mr Gollan was invited to address each of the criticisms of the Judge’s reasons for verdicts that he had identified in his two notices of appeal. In the course of the hearing, Mr Gollan occasionally resisted giving the Court specific references to passages in the notes of evidence and to parts of other documents in the case on which he was supposedly relying, on the ground that he had not been provided with copies. In fact, it transpired he did have copies of everything that the Court had. Having heard relatively discursive oral argument from Mr Gollan in support of his appeal, we are satisfied that he has been afforded adequate opportunity to research and present argument on all points that might be raised in challenging the reasons for his convictions, and also the considerations going to the sentences imposed.
Although Mr Gollan did not relate the various grounds of his appeal to the tests for an appeal against conviction in s 385(1) of the Crimes Act 1961, it is tolerably clear that they are advanced on the grounds that the Judge’s verdict was unreasonable or could not be supported having regard to the evidence.
Whether the verdicts were unreasonable involves an analysis of whether, having regard to all the evidence, the fact-finder could not reasonably have been satisfied to the required standard that Mr Gollan was guilty of the charges. The notion of unreasonableness is just that, and the task is not helped by qualifying or embellishing what it might involve.[4] Mr Gollan appeared to appreciate that it was not our function to substitute our own view of the evidence for one that was reasonably open to the Judge, and in considering the grounds he has raised we have undertaken a qualitative analysis of the evidence.
Background
[4]R v Munro [2007] NZCA 510, [2008] 2 NZLR 87; Owen v R [2007] NZSC 102, [2008] 2 NZLR 37; and see generally Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA385.02].
The incident giving rise to the offending took place on 30 March 2011. On that evening, Wayne Butcher called at Mr Gollan’s residential address in Hamilton for the purpose of repossessing a Subaru motor vehicle. Mr Butcher was accompanied by his brother, Tony. Wayne Butcher was representing a finance company to whom Mr Gollan owed money and Mr Gollan was in default of his obligations under an agreement with that company. Mr Gollan disputed Mr Butcher’s entitlement to take the vehicle, primarily on the ground that it belonged to Mr Gollan’s son, and was therefore not covered by the agreement with the finance company. There was some suggestion that the Butchers were also seeking to take possession of personal chattels that they might find inside Mr Gollan’s house. That additional purpose for the Butchers’ visit to the property was not focused on at the trial, and it seems Mr Gollan has made more of it in arguing the appeal than any significance attributed to it at the trial.
The complainants’ evidence was to the effect that when Wayne Butcher knocked at the front door of Mr Gollan’s property, it was answered by Mrs Gollan. She initially indicated that Mr Gollan was not at home, but after Mr Butcher indicated that he had come to repossess the Subaru vehicle, which was in the driveway of the property, Mr Gollan appeared at the door and was, from the outset, aggressive in insisting that Mr Butcher leave the property, and that he had no entitlement to repossess the Subaru vehicle. Mr Gollan was armed with a baseball bat which he swung, initially at Wayne Butcher and subsequently also at Tony Butcher. In addition, during his confrontation with Wayne Butcher, he called to his wife, who was inside the house, to bring him out a 12 gauge shotgun and, in connection with that request, included within the threats he made that he would “blow [the complainants] off the property”. In fact, it appears there was no shotgun on the premises.
Tony Butcher had initially remained in the vehicle in which the Butchers had arrived at the scene, but at some point he got out of the vehicle and also had a confrontation with Mr Gollan, during which, on his evidence, Mr Gollan also swung the baseball bat at him. The confrontation included Mr Gollan insisting that the Butchers move their car, and at one point he attempted to get into the Butchers’ vehicle and was at least in part caught in the driver’s door when one of the Butchers pushed it shut to prevent him getting into the driver’s seat.
When Wayne Butcher was confronted with Mr Gollan swinging a baseball bat at him, he used his cell phone to call 111. The evidence at the trial included the transcript of Wayne Butcher’s telephone discussion with the operator in the police communications centre who received Mr Butcher’s call and maintained a conversation with him whilst the confrontation between Wayne Butcher and Mr Gollan continued. As a result of the 111 call, a number of police officers attended the scene and five of them gave evidence.
Mr Gollan was charged with one count of assaulting Wayne Butcher, and one count of assaulting Tony Butcher, contrary to s 202C(1)(a) of the Crimes Act, and one count in respect of each complainant of threatening to do grievous bodily harm to them, contrary to s 306(1)(a) of the Crimes Act.
On the basis of his own evidence, and evidence called from his wife and daughter, Mr Gollan at trial characterised his interaction with the Butcher brothers as no more than lawful protection of moveable property, in response to their signalled intention to repossess the Subaru motor vehicle, and arming himself with a baseball bat as a matter of self-defence after he had been assaulted by one of the Butcher brothers.
The Judge’s reasoning
The Judge rejected Mr Gollan’s version of events, and instead found that his aggressive conduct in swinging the baseball bat at both the Butcher brothers, in circumstances where he would have hit them but for their taking evasive action, amounted to assaults. Further, he found that neither of the Butcher brothers had assaulted Mr Gollan, and that he did make threats to inflict grievous bodily harm on them.
The Judge made a positive finding that Wayne Butcher had been straightforward and honest in all his answers, and made no attempt to embellish his evidence about the relevant events. The evidence from the complainants was supported by the transcript of the 111 call,[5] and it was unlikely that Wayne Butcher would have called the police if he had assaulted Mr Gollan.[6]
[5] Reasons, above n 1, at [17.3].
[6] At [17.7].
The Judge also made adverse findings about the defence evidence from Mr, Mrs and Ms Gollan as “… self-contradictory, internally inconsistent and either the subject of gross mistake or possibly concoction”.[7]
Grounds for challenge
Errors in respect of evidence of the 111 call
[7] At [18].
Mr Gollan made at least two criticisms of the way the Judge dealt with the evidence in the transcript of the 111 call that Wayne Butcher had made during the altercation. On the basis of the police communications operator’s acknowledgement that their system was so sensitive that it would pick up background noises, Mr Gollan argued that the Court could treat the transcript of the telephone conversation that was occurring at the time as exhaustive of everything that was said. On this argument, the absence of threats recorded on the transcript of the 111 call would cast doubt on the prosecution case that threats had indeed been made. Mr Gollan suggested that the absence of threats recorded in the transcript was even more remarkable when Wayne Butcher described the threats as constant.
Mr Gollan’s argument on this point depended on his claim that the call took place throughout the period in which the alleged offending occurred, so that, if he had threatened Mr Butcher, the terms of such threats would have been recorded. He argued that the Judge should in any event have treated the transcript as exhaustively recording everything that was being said at the scene at the time, so that the absence of any recorded threat being made by him against either of the Butchers meant that the police had been unable to prove that such threats were, in fact, made.
That analysis is misconceived. First, it is clear from the transcript that the 111 call was made only after the altercation between Wayne Butcher and Mr Gollan had been underway for some time, and the call was terminated before the altercation ended. Further, there can be no assurance that the transcript did indeed record everything that was being said throughout the period in which the conversation with the 111 operator occurred. The transcript shows that some comments made by Wayne Butcher, who was holding the telephone, to Mr Gollan were themselves not clearly audible, and there is no tenable basis for the proposition that Wayne Butcher’s phone would nonetheless pick up all comments made by someone standing further away from the phone.
The transcript does in any event make references to the threatening behaviour. Near the beginning of the call, it records Wayne Butcher saying to an unknown person “[p]ut the baseball bat down Sir”. Then there are subsequent references in which Mr Butcher describes Mr Gollan swinging the baseball bat around, and comments that Mr Gollan had asked his wife to go and get his “12 gauge” (referring to a shotgun that Mr Gollan had alluded to having in the house).
With the consent of the parties, the Judge listened to the call himself with the advantage of headphones. Although he acknowledged picking up certain comments not recorded in the transcript, none of those additional comments that were not in the transcript included a threat by Mr Gollan. However, the Judge did have the evidence of the complainants as to the threats being made against them. Mr Butcher’s evidence in relation to the part of the events that occurred whilst he was on the 111 call was broadly consistent with the transcript. The complainants were challenged in cross-examination as to the accuracy and truthfulness of their evidence, and the Judge was entitled to make a credibility finding in respect of those recollections.
Relative audibility of police communications, and Mr Butcher
An allied point in relation to the transcript of the 111 call was that Mrs Gollan’s evidence was to the effect that she heard the police operator asking Mr Butcher whether he was on his wife’s phone. However, Mrs Gollan denied hearing Mr Butcher complain at the same point in the telephone conversation with the 111 operator that Mr Gollan was swinging the bat around. As one aspect of the Judge’s assessment of the credibility of Mrs Gollan’s evidence, he observed:[8]
To suggest that on the one hand she was close enough to hear what someone on the other end of a telephone conversation was saying but did not hear any of the other matters which are clearly recorded on the transcript of the 111 call is farcical.
[8] At [18.4].
Mr Gollan argued that that adverse finding was not justified, that the Judge should not have made it and would have been less inclined to make it had he received the evidence Mr Gollan was hoping to adduce that Mr Butcher had the speakerphone activated on his cell phone for part, but not all, of the call.
We understand Mr Gollan to be arguing that the Judge wrongly prevented him asking questions about this topic. We are not satisfied that Mr Gollan sought to ask such questions and was prevented from doing so by the Judge. He could not point to any passage in the notes of evidence where he broached the subject with the witness and was prevented from pursing the point. Certainly, the passage he identified does not touch on this specific topic, but on the discrete issue that Mr Butcher did not report, during the call, that Mr Gollan had made any threat to kill him. Further, when Mr Gollan raised this point in his closing submissions, he agreed with the Judge that the proposition that parts of the 111 call had been conducted with Mr Butcher’s speakerphone function on had not been suggested to Mr Butcher.
It does not appear that Mr Gollan asked Mr Butcher whether any speakerphone facility his cell phone had was activated during Mr Butcher’s conversation with the police 111 operator. In the absence of clear evidence on that point, more technical issues about how effective any such speakerphone would be are irrelevant.
The Judge was justified in taking into account, when assessing the credibility of Mrs Gollan’s evidence, her claim to have heard what was said by the participant in the call at a distance, when her evidence was that she did not hear the contributions made at very much the same time, by the participant who was at the same location as she was.
Wrongful admission of rebuttal evidence
Mr Gollan criticised the Judge for allowing the police to call rebuttal evidence of the scope that was heard from Senior Sergeant Van de Wetering. On Mr Gollan’s analysis, part of the rebuttal evidence related to matters that occurred when Senior Sergeant Van de Wetering was not present, and it was unfair to allow the police a further opportunity.
This criticism proceeded from a misunderstanding as to the sequence in which it became appropriate for rebuttal evidence to be allowed. That only arose because matters that may have been material to the case, and which ought to have been put by Mr Gollan when cross-examining the witness on his original evidence, had not been put. Instead, those matters were raised later in the hearing so that the evidence was left unsatisfactorily. As that situation developed, the Judge could have ignored the later references to those points entirely on the basis that no reliance could be placed on them unless they had been put to the police witnesses who could comment about them (which the Judge would have been entitled to do). One of the alternatives open to the Judge under s 92 of the Evidence Act 2006 was the one he chose, namely granting permission for the relevant witness to be recalled and questioned about the contradictory evidence. There is no error by the Judge in the manner in which he handled this point.
Exclusion of Constable Jones’ job sheet
Mr Gollan argued that the Judge erred in not allowing him to put a job sheet prepared by Constable Jones (one of the officers who attended at the scene but was not called as a witness) to Senior Sergeant Van de Wetering when he was recalled by the Crown to provide rebuttal evidence.
When Senior Sergeant Van de Wetering was recalled, Mr Gollan wished to test a perceived inconsistency in that officer’s evidence in relation to the number of officers on Mr Gollan’s property, and where they were located. Mr Gollan wanted to put to the senior sergeant the description in Constable Jones’ job sheet of the location of another officer, Constable James, who engaged with Mr Gollan’s daughter.
Prosecuting counsel objected to the job sheet being put to Senior Sergeant Van de Wetering. She made the point that the police had volunteered to provide as witnesses any of those who had been at the scene, or who had otherwise been involved, and that the week before trial Mr Gollan had indicated he did not wish to question Constable Jones. On entirely conventional grounds, the Judge upheld the police objection and ruled that Constable Jones’ job sheet could not be admitted by it being put to someone who was not the author of it.
There was no error in the Judge doing so. Had the job sheet been put to the Senior Sergeant without the Court having any opportunity to assess the accuracy of its content by evidence from its author, the Senior Sergeant would have been asked to comment on perceived inconsistencies between his own recollection of what had occurred, and the written summary reflected in the job sheet of another officer when the latter version had not been tested in any relevant sense. In any event, the actions of the relevant officers were described in substantially similar terms by Constables Jones and James. The inconsistencies perceived by Mr Gollan may well have been more apparent than real.
It is apparent from a review of the evidence that the Judge did grant some leniency to Mr Gollan in circumstances where he was defending himself.[9] The rules of evidence are enforced to enable a contest, fair to both sides, in testing all relevant factual matters. It would have been an error for the Judge to allow the job sheet to be put to Senior Sergeant Van de Wetering, without the accuracy of its content first being tested with the author of the document. In any event, the matters addressed in that job sheet could not advance any critical aspects of the defence. Further, there can be no criticism of the Judge in not permitting Mr Gollan to call Constable Jones to put his job sheet to him after the defence case had closed and the Court was hearing rebuttal evidence, which ought always to be confined to the topics on which that step is justified.
Exclusion of article from Police Association journal
[9]At one point, for example, the notes of evidence record acceptance of that as being appropriate by prosecuting counsel.
The other document Mr Gollan argued should have been admitted in evidence was a 2008 article from a journal published by the Police Association commenting on the dangers arising from the use by members of the public of imitation firearms. Mr Gollan did not put the article to any of the witnesses, but he attempted to tender it to the Judge in the course of closing addresses. The article quoted the head of the Invercargill Armed Offenders Raid Squad saying:[10]
In the Mataura incident the gun looked just like an M4 Bushmaster and was even fitted with laser-sighting where a red dot appears on the target, similar to our own models.
[10]Steve Plowman “Replica guns being brandished in public cause concern for public and AOS” Police News (New Zealand, October 2008) at 217–218.
Mrs Gollan had given evidence to the effect that overbearing conduct by police officers included up to three officers crowding around her daughter, pointing rifles that were fitted with laser-sights and which projected red dots on her daughter’s face, reflecting where the rifles were pointed at the time. Police officers had denied this conduct, and in particular denied that there was more than one officer armed with a rifle, or that the rifle was fitted with a laser-sight.
Mr Gollan’s concern was that he ought to have been able to rely on the article to discredit the evidence to this effect from the officers, on the premise that they were lying about the absence of laser-sights on however many rifles were present on the property. His implicit premise was that the quotation from the Police Association journal must inevitably be treated as accurate, and inevitably applied to any rifle that was present at the time.
Mr Gollan treated the reference in the Police Association article to laser‑sights as important because he argued that it supported the credibility of his wife’s evidence, where it conflicted with the evidence given by the police officers that any rifle brought to the property did not have a laser-sight. The inconsistency between the evidence of the officers as to the absence of a laser-sight on the one rifle brought to the incident, and the implication from the article that laser-sights are fitted to rifles issued to officers in Armed Offenders Squad call-outs, is not a basis for directly contradicting their evidence, which was otherwise internally consistent. There are sensible reasons why the specifications for Armed Offenders Squad rifles being fitted with laser-sights should vary from the lesser specification for rifles on more general issue.
The police officers who were called as witnesses during the hearing might credibly have rationalised the apparent inconsistency between their evidence to the effect that the one rifle at the scene not fitted with a laser was a standard issue rifle, and the quotation in the article referring to the specification of rifles used by the Armed Offenders Squad. The Judge did consider the comment Mr Gollan wanted to rely on, and doubted that it said what Mr Gollan attributed to it. There was certainly scope for that concern. In any event, it would have been an error to place any reliance on the article when its accuracy, and whether it applied to the present circumstances, had not been tested in evidence. Again, the Judge’s rejection of the document was on well-settled principles and is not objectionable.
It was submitted for the Crown that, even if an error could be made out in relation to the exclusion of Constable Jones’ job sheet or the article from the Police Association journal, then it was not an exclusion that could give rise to any miscarriage of justice. We are not satisfied that the description of the number and location of police officers at the scene, as described in Constable Jones’ excluded job sheet, raises any material doubt about the nature of the police presence at the property. As Ms Inwood submitted, on a reasonable reading of the job sheet it is more or less consistent with the evidence from the officers that was tested in cross-examination.
Both documents relate to points that were part of the wider context, all occurring after the matters directly relevant to the elements of the charges the police brought against Mr Gollan.
Inadequate consideration of a photograph of the premises
Mr Gollan had produced a photograph, extracted from Google Earth, showing the frontage of his property and the front of the house facing the road. At various points in his argument on appeal, Mr Gollan had criticised the Judge for not giving sufficient weight to the matters he argued were conclusively demonstrated by the photograph. First, he argued that the photograph discredited the evidence given by Tony Butcher who had remained in the vehicle in which the Butcher brothers had arrived, and gave evidence of his observation of the initial stages of the altercation between his brother, Wayne, and Mr Gollan. Mr Gollan argued that a hedge shown in the photograph at the front of his property would have obscured Tony Butcher’s view.
Secondly, Mr Gollan argued that the photograph showed a quite steep slope on the ground between the front boundary of the property and the house, so that if the Butcher brothers had been standing at different points on the slope, Mrs Gollan would have had grounds for being confused as to which of them were the taller. This was relevant to Mr Gollan’s criticism of the Judge’s finding that there were inconsistencies between the evidence of defence witnesses as to which of the Butcher brothers had allegedly hit Mr Gollan. Mr Gollan and his daughter described it as the taller of the two, whereas Mrs Gollan had described it as the shorter of the two.
The photograph is indistinct, and would certainly be inadequate as a basis for rejecting the evidence of Tony Butcher that he was able to observe the initial stages of the confrontation between Mr Gollan and his brother from the point near the boundary where he was sitting in a vehicle. There was no challenge to Tony Butcher’s evidence, when he was cross-examined, on the ground that his view of the events he was describing was obstructed by a hedge.
Mr Gollan’s attempted explanation for the inconsistency between Mrs Gollan on the one hand, and Mr and Ms Gollan’s recollection on the other, as to which of the Butcher brothers had struck Mr Gollan had to be assessed in light of other evidence that all three of the defence witnesses had observed both complainants standing close together, so that each had a consistent opportunity to identify which of the two was the taller. Accordingly, these points do not raise any prospect of material error in the factual analysis by the Judge.
Rejection of Ms Gollan’s written statement
Part of the evidence from Mr Gollan’s daughter was a handwritten document purportedly written by her in the time between Mr Gollan being taken into police custody, and when he arrived back at the house later that evening having been released on bail. The statement had not been witnessed and the Judge was not prepared to place any reliance on it:[11]
I place no weight at all upon the purportedly written statement of Candice Gollan. I find that to be in language which is unlikely for a young girl in the circumstances in which she said she was on that night. I reject the suggestion that it was not contributed to by the accused and his wife Lynn Gollan.
[11] Reasons, above n 1, at [18.1].
The Judge had observed earlier in the reasons for the verdicts, when explaining the production of the document during Ms Gollan’s evidence, that the statement was written in “very formal language” that did not seem to the Judge “to be consistent with the terminology [that] might be employed by a young female who was, on her account of [the matter], upset at having firearms pointed at her”.[12]
[12] At [14], last bullet point.
Mr Gollan first attempted to have his daughter produce the statement when leading her evidence, but at that point was denied permission by the Judge on the basis that it constituted a note in aid of her memory, and that she should initially give her evidence as best she could, unaided by reference to it. Then, without the content of the note being the subject of cross-examination, when Mr Gollan re‑examined his daughter, he was permitted to have her produce it as an exhibit. The Judge’s initial ruling was correct in that the note was not admissible in circumstances where the witness was able to give evidence of relevant events without referring to it in the witness box. That position had not changed when Ms Gollan was re‑examined.
Mr Gollan criticised the Judge’s rejection of the statement as being unfair. However, the document was not admissible and was therefore not relevant. The Judge did have the opportunity to observe Ms Gollan giving evidence and being cross-examined, and was well placed to make an overall assessment of her credibility, independently of any issue over her claim to sole authorship of the inadmissible note.
Our consideration of the arguments does not follow the sequence in which Mr Gollan addressed them. However, it is appropriate to consider Mr Gollan’s criticisms of the premises on which the Judge analysed whether the elements of the offences were made out in light of our conclusions thus far on the criticisms of how the Judge dealt with the evidence.
Scope of statutory defences raised: ss 53, 55 and 56 of the Crimes Act
In his oral submissions, Mr Gollan characterised his defence at the trial as relying on all of ss 53, 55 and 56 of the Crimes Act. He split the lawful justification for his actions, first in relation to the Butchers’ attempts to take the car as invoking s 53, and their attempts to enter his home and take other possessions as invoking ss 55 or 56. Those sections of the Crimes Act provide as follows:
53 Defence of movable property with claim of right
Every one in peaceable possession of any movable thing under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending his possession by the use of reasonable force, even against a person entitled by law to possession, if he does not strike or do bodily harm to the other person.
…
55 Defence of dwellinghouse
Every one in peaceable possession of a dwellinghouse, and every one lawfully assisting him or acting by his authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of the dwellinghouse by any person if he believes, on reasonable and probable grounds, that there is no lawful justification for the breaking and entering.
56 Defence of land or building
Every one in peaceable possession of any land or building, and every one lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person.
Mr Gollan arguably qualified to invoke s 53 to the extent that the force he used to defend his possession of the motor vehicle was undertaken without striking or doing bodily harm to the complainants. The issue for the Judge therefore was whether swinging the baseball bat at the complainants came within what constituted reasonable force in the circumstances, or went beyond that.
The Judge reasoned that a threat of force is an assault as much as the application of actual force. That accords with settled authority.[13] The Judge treated the question of whether force is reasonable as not being capable of a fine analysis.[14] The Judge further reasoned that Mr Gollan had swung the baseball bat in a dangerous manner and that, had he connected, he would most likely have caused grievous bodily harm or perhaps death. The Judge was satisfied that it was only the evasive action taken by both of the Butcher brothers, in the face of having the bat swung at them, that avoided serious harm being inflicted. On that analysis, the Judge considered that this constituted more force than was reasonable in the circumstances so that Mr Gollan could not make out the defence under s 53.
[13] R v Hills (1999) 16 CRNZ 673 (CA) at 676.
[14] Reasons, above n 1, at [19.2] and [19.3].
Mr Gollan argued that this reasoning involved two errors. First, that unless the use of force had resulted in some injury, it had to be recognised as reasonable. Secondly, that the Judge had treated Wayne Butcher as if he believed the repossession documentation he was relying on justified his being on the property and pressing for repossession of the vehicle. On Mr Gollan’s analysis, the Judge ought to have found that Wayne Butcher appreciated at the time that he could not lawfully insist on taking possession of the vehicle, so that without that lawful pretext, the Butcher brothers were trespassers and that status should have been reflected in the analysis of the extent of force it was reasonable for Mr Gollan to use.
As to the first of these points, the Judge was correct to treat Mr Gollan’s actions in swinging the baseball bat at the complainants without making contact with them as sufficient to constitute a form of “force”. Those actions were therefore validly assessed by the Judge as to whether Mr Gollan used more force than was reasonable in the circumstances. It was entirely open to the Judge to treat those actions as being in excess of what was reasonable in the circumstances.
As to the second point, there is no basis in the evidence for an argument that the Judge should have found that Wayne Butcher knew he lacked lawful authority to pursue repossession of the vehicle. Accordingly, the circumstances in which force was used by Mr Gollan were correctly assessed by the Judge.
As to the argument that the Judge was obliged to consider the existence of defences under ss 55 and 56 of the Crimes Act and failed to do so, the first rejoinder on behalf of the Crown was that Mr Gollan did not raise those statutory defences at any point in the proceedings, so that he cannot complain that the prospect of such defences should have been considered by the Judge. Mr Gollan could not identify any references in the transcript of evidence and his closing address to ss 55 or 56. The passages Ms Inwood drew our attention to were confined to s 53 and s 48 (that is, the general provision on self-defence). In the concluding remarks in Mr Gollan’s relatively lengthy closing address, he observed:
Your Honour, this trial as from the outset, Your Honour correctly addressed the matter as being reasonable force. He correctly addressed the matter as being, was there a claim of right? My view Your Honour, is that invite Your Honour to consider that the element of claim of right as the initial element in the defence section of that section overrides the remaining elements of the charge except, and that all happens providing you don’t hit or cause bodily harm.
That reflects a focus on s 53. We are satisfied that the prospect of a defence under s 55 and/or s 56 were not raised by Mr Gollan.
In any event, we are not satisfied that Mr Gollan had made out the basis for any defence under ss 55 or 56, on the evidence adduced at trial. There was no evidence that either of the Butcher brothers made any attempt to get into Mr Gollan’s house during the altercation, and nor is there any evidence that they expressed an intention to do so. Certainly, the repossession documents included references to items that may be of value beyond motor vehicles, but those documents were not shown to Mr Gollan until he was at the police station after the incident came to an end. Ms Inwood confirmed that after Mr Gollan had been removed from the property, the Butchers did enter the premises but that appears not to have been foreshadowed in any way during the events involved in the charges against Mr Gollan. Accordingly, there is no tenable context in which Mr Gollan could claim to be acting to prevent a forcible breaking and entering, as contemplated in s 55.
Any defence under s 56 would have required Mr Gollan to have used the force he did to prevent the Butcher brothers from trespassing on the land. The extent of reasonable force that might apply under s 56 would be the same as the consideration of that notion for the purposes of s 53. Once the Judge rejected the availability of a defence under s 53, consistency of reasoning would have required rejection of any defence raised under s 56 as well.
Reasonableness of the force used
This was listed as a separate ground for challenging the Judge’s reasons. Mr Gollan argued that, even on the state of the facts as found by the Judge, which he still rejected, the Judge should have recognised that the limited use of the baseball bat, in circumstances where he did not make contact with any part of the body or head of either of the complainants, should have been accepted as no more than reasonable force in the circumstances where Mr Gollan was confronted by one, and then two, men within his own property.
As matters were traversed at the hearing, the point was subsumed within Mr Gollan’s arguments that a defence under s 53 had been made out. There is no basis for challenging the Judge’s determination on the facts that the force used was more than was reasonable.
The complainants should have been recognised as trespassers from the outset
This was listed as a separate error by the Judge, but again any relevance it may have had was essentially subsumed in the arguments on the appropriate scope of s 53 of the Crimes Act. Mr Gollan placed considerable reliance on his analysis that the Judge should have treated both of the Butcher brothers as being trespassers from the outset. On this argument, he submitted that there was a close analogy with R v Hills in which constables carrying out a bail check at 2 am were confronted at the door of a dwellinghouse by a woman other than the bailed woman on whom the officers were checking.[15] At one point in the testy exchanges between the occupier and the constables, apparently after she had told them to leave, she let a large Rottweiler dog out of her bedroom and appeared to encourage the dog to chase the constables off the property. The elderly Rottweiler nudged the leg of one constable, and although both constables gave evidence of being frightened it would bite them, there was no evidence that the animal bared its teeth.
[15] R v Hills, above n 13.
In upholding an appeal from conviction for assault using a weapon, this Court observed:[16]
… the Judge’s assessment of the reasonableness of Ms Hills’ use of force for the apparent purpose of removing the police officers from her doorway was made on the basis of an incorrect assessment of the respective legal positions of the appellant and the police officers. … Examining what occurred on the proper basis, namely that, technically, a trespass was occurring, we take the view that it has not [been] shown that what Ms Hills did exceeded the bounds of reasonable force. …
[16] At [18].
We agree with the Judge that whether the extent of force found to have been used is reasonable or more than that is not capable of fine analysis, and every situation must be assessed in its own context. There are material differences between an occupier letting out a large dog whose breed might suggest a reputation for ferocity, but whose behaviour apparently belied that, when contrasted with the very menacing impression, and real risk of serious harm, invoked by wielding a baseball bat. On the s 53 analysis the Judge undertook, he was entitled to treat these features as going beyond what was reasonable to defend Mr Gollan’s possession of the moveable property. Had the Judge’s analysis extended to s 56, then parallel reasoning would almost inevitably have applied. The point at which the dealings between Mr Gollan and the Butcher brothers rendered them trespassers is not relevant to that analysis.
Summary on appeal against conviction
We are unable to find any material error by the Judge in his treatment of the evidence, his approach to the law, and his conclusions on the elements of the charges having been established beyond reasonable doubt by the prosecution.
The second of Mr Gollan’s notices of appeal raised the prospect of his seeking leave to adduce fresh evidence. He did not advance the application in his oral submissions. After Ms Inwood had drawn the matter to the Court’s attention, Mr Gollan acknowledged that the evidence he had proposed was from a neighbour who observed the conduct of police officers at the property after the events giving rise to the charges against him. He acknowledged that evidence of such matters could not be critical, and did not pursue the application.
The appeal against conviction is dismissed.
Appeal against sentence
In sentencing Mr Gollan, the Judge considered features that were submitted on behalf of the Crown as aggravating the relative seriousness of the offending. These included the seriousness of the threats that were made, the type of weapon used, the fact that the threats made with the baseball bat included attempts to hit the head areas of the victims, and also the impact that the offending had had as reflected in victim impact statements provided to the Judge.
The Judge considered, as potential comparators, two other decisions in which there had been incidents of actual violence, and terms of 18 months’ imprisonment had been upheld on appeal.[17]
[17]R v Wakelin HC Auckland T030456, 20 June 2003 and Moana v Police HC Invercargill CRI-2004-425-36, 19 October 2004.
On the basis of the identified features and the analogies, the Crown had contended for a starting point in the range between 12 and 15 months’ imprisonment, and the Judge had adopted the lower point within that range.
The Judge then considered whether the sentence ought to be transformed into one of home detention, which had been the recommendation in the pre-sentence report. The Judge considered that sentences of home detention should normally be reserved for cases in which a sentence of home detention would facilitate some rehabilitative programme. The Judge was disinclined to consider home detention here because he did not see any rehabilitative aspects. In addition, he expressed concern that any sentence of home detention would be served with Mr Gollan living with his wife and daughter whom the Judge characterised as having been supportive of his criminal acts and “unreliable”.
Mr Gollan argued that the length of sentence was manifestly excessive and challenged the Crown to identify sentences in comparable circumstances where there had been no actual violence, resulting in a term of imprisonment anywhere near as long as 12 months. He also criticised the Judge’s reasons for rejecting home detention as irrelevant or inadequate.
Ms Inwood did not cite comparable sentences where there had been no actual violence. She characterised the sentence as “steep” but did not concede that it was manifestly excessive.
At the age of 58, Mr Gollan has four previous convictions for assault and six other convictions that the Judge considered might reflect aggressive or threatening behaviour. Relevant ones he identified are dated 1971, 1978, 1983, 1989, 1999 and 2006. Certainly the vast majority of these previous convictions can be treated as historic, and do not warrant any uplift as recognising an aggravating factor personal to Mr Gollan as the offender. It does not appear that the Judge treated it as such.
The Judge was entitled to treat Mr Gollan’s attempts to strike out with a baseball bat, which included attempts to hit the heads of the complainants, as a feature adding to the seriousness of the offending. The law treats any attacks, or attempts at attacking, the heads of victims as relatively more serious than blows, or attempted blows, to the body.[18]
[18] R v Taueki [2005] 3 NZLR 372 (CA) at [31].
In the end, however, no actual violence occurred. There was a substantial background of financial tensions in Mr Gollan’s life, which the complainants may well have been unaware of. There was obviously an immediate context of financial pressure in that the initiatives to repossess the vehicle were because of default on loans from a finance company. Mr Gollan was inclined to agree that at the age of 58, he ought to have learned to control his emotions and be sufficiently responsible in his dealings to avoid criminal conduct. In a sense, deterrence is not as important a consideration in these circumstances as it would be for a young man who offended in the same way, and whose record of previous convictions had been amassed over a much shorter and more recent period.
Having regard to all the circumstances, we consider that a starting point for the offending is materially less than 12 months’ imprisonment.
We are concerned that the Judge rejected the prospect of home detention, at least in part because he perceived a requirement for a positive rehabilitative reason for imposing that sentence instead of imprisonment, when there is no such requirement. The Sentencing Act 2002 (the Act) provides no guidance on when home detention will be the appropriate sentence, beyond the bare criteria in s 15A of the Act. Although s 80D of the Act does authorise the imposition of conditions of home detention that have rehabilitative purposes, the need for them is not a pre-requisite to use of the sentence in the first place. There will be a wide range of factors that can properly influence a decision as to whether a short sentence of imprisonment is appropriately substituted with one of home detention in individual cases.
Accordingly, we consider that the Judge erred in the grounds for rejecting home detention as an alternative sentence. As we also consider that the starting point was too high, the preferable course is for us to consider the appropriate sentence afresh.
Reflecting on all the circumstances, we are satisfied that the culpability of the offending is appropriately met by an adjustment to Mr Gollan’s sentence to achieve his immediate release. Accordingly, the sentences of 12 months’ imprisonment on the charges of assault with a weapon are quashed and concurrent sentences of eight months’ imprisonment on those charges are substituted. The sentences of six months’ imprisonment on each of the charges of threatening to do grievous bodily harm are quashed and substituted with sentences of four months’ imprisonment. All of these sentences are to be served concurrently. The standard release conditions apply for a period of six months beyond the expiry date. The outcome of the sentence appeals does not have any precedent value, but is intended to address the circumstances as they appeared to us.
Solicitors:
Crown Law Office, Wellington for Respondent
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