Hay v R
[2015] NZCA 329
•27 July 2015 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA384/2014 [2015] NZCA 329 |
| BETWEEN | GRAHAM STEWART HAY |
| AND | THE QUEEN |
| Hearing: | 20 July 2015 |
Court: | Stevens, Heath and Collins JJ |
Counsel: | P J Kaye for Appellant |
Judgment: | 27 July 2015 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Table of Contents
Para No
Introduction [1]
Background [4]
Appeal against conviction [9]
Defence of compulsion [14]
Statutory provision for compulsion [14]
The elements of compulsion [15]
Jury directions on compulsion [18]
Analysis [26]
Evidential foundation [33]
Submissions on evidential foundation [36]
Our evaluation [44]
Sentence appeal [55]
Result [63]
Introduction
Mr Hay faced trial in the Auckland District Court on one charge of aggravated burglary and one charge of unlawfully taking a motor vehicle.[1] He had earlier pleaded guilty to one separate count of unlawfully taking a motor vehicle. Following a jury trial on the first two counts, he was sentenced in March 2014 on all three counts to seven years and six months’ imprisonment. He now appeals against the jury’s guilty verdict and against his sentence.
[1]R v Hay DC Auckland CRI-2011-004-21003, 12 March 2014 [sentencing decision].
The conviction appeal is advanced on the basis the defence of compulsion by another was not accurately put to the jury. He contends the convictions are unsafe and should be overturned.
Mr Hay appeals against the sentence imposed as being manifestly excessive when compared with the sentence received by his co-offender, Mr Taylor. He says he only played a secondary role in the offending.
Background
The charges arose out of events occurring one evening in November 2011 when Mr Hay was contacted in the early hours of the morning by Mr Taylor. Mr Hay received a text message (“are you up bro?”) which led to him going with Mr Taylor to the property of the complainants, Mr Waddington and Ms Connelly, in West Auckland, apparently to collect a debt.
The complainants and their three children were asleep at the address. Messrs Hay and Taylor broke in through the back door of the house, Mr Taylor armed with a loaded firearm, Mr Hay armed with a crowbar he had obtained from a shed on the property. Mr Waddington was woken up by the noise and went to investigate. Mr Taylor pointed the firearm at Mr Waddington and he and Mr Hay ushered him back into his bedroom, where Ms Connelly was. Both Mr Waddington and Ms Connelly were threatened. Mr Taylor demanded drugs and money. Mr Waddington told him there were none. After searching rooms in the house, Mr Taylor asked about the vehicles parked at the property.
At that point Mr Taylor swapped weapons with Mr Hay and took Ms Connelly outside to unlock the gate to the property. Mr Hay, having swapped weapons with Mr Taylor and now holding the firearm, kept Mr Waddington in the bedroom.
Ms Connelly obtained keys for the vehicles parked at their property. She unlocked the gate, and Mr Taylor returned with her to the bedroom, whereupon he again swapped weapons with Mr Hay. Mr Taylor searched through the complainant’s bedroom and took $60 cash. He then took Mr Waddington from the address in a Ford V8 vehicle to locate an associate. Mr Hay remained at the property for approximately 15 minutes, before taking another vehicle and leaving the property.
Mr Hay was charged with and pleaded guilty to unlawfully taking a motor vehicle, being the white Mazda. He pleaded not guilty to the two charges of aggravated burglary and unlawfully taking the Ford V8. His defence at trial was that he was acting under compulsion from Mr Taylor. He claimed Mr Taylor threatened to do him serious harm if he did not participate in the activities. The jury found him guilty on both counts.
Appeal against conviction
For Mr Hay, Mr Kaye submits Judge Kiernan failed to direct the jury correctly as to the onus and burden of proof in relation to the defence of compulsion. This error, it is said, resulted in a miscarriage of justice.[2]
[2]Crimes Act 1961, s 385.
Also relevant to this issue of miscarriage is the question of whether there was an adequate evidential foundation on which the defence of compulsion could be invoked. Counsel for the Crown, Ms Kelly, provided helpful written submissions on this issue and Mr Kaye responded in some detail at the hearing.
We record that at the trial, no application was made by the Crown to have the defence of compulsion taken away from the jury for want of a proper evidential foundation. The Judge therefore, without opposition, allowed the defence to go to the jury.
It is common ground that if the defence of compulsion is available the onus of proof is on the Crown to establish that the defence has not been made out. Thus the Crown must prove beyond reasonable doubt that the defendant did not act under compulsion. The Crown therefore bears the burden at trial of disproving the existence of the elements of the defence.
We first set out the principles in relation to the defence. We then address the adequacy of the Judge’s jury directions on the defence of compulsion, before turning to address the existence or otherwise of an evidential foundation for it.
Defence of compulsion
Statutory provision for compulsion
The defence of compulsion is set out in s 24 of the Crimes Act 1961 as follows:
24 Compulsion
(1)Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he or she believes that the threats will be carried out and if he or she is not a party to any association or conspiracy whereby he or she is subject to compulsion.
…
The elements of compulsion
This Court in R v Teichelman set out the elements of the defence of compulsion as follows:[3]
The critical features of the provision so far as they affect the present case are these. First, there must be a threat to kill or cause grievous bodily harm. Second, it must be to kill or inflict that serious harm immediately following a refusal to commit the offence. Third, the person making the threat must be present during the commission of the offence. Fourth, the accused must commit the offence in the belief that otherwise the threat will be carried out immediately. It is that belief in the inevitability of immediate and violent retribution for failure on his part to comply with the threatening demand which provides the justification for exculpation from criminal responsibility. The subsection is directed essentially at what are colloquially called standover situations where the accused fears that instant death or grievous bodily harm will ensue if he does not do what he is told. It follows from what we have said that before the matter can go to a jury there must be evidence of a continuing threat of immediate death or grievous bodily harm made by a person who is present while the offence is being committed and so is in a position to carry out the threat or have it carried out then and there.
[3]R v Teichelman [1981] 2 NZLR 64 (CA) at 66, affirmed recently by this Court in R v Neho [2009] NZCA 299 at [11].
Over time, particular aspects of these elements have been clarified and explained. The applicable principles may be summarised as follows:
(a)Fear caused by general threats will not be enough to make out the defence – the requirement in s 24(1) is strict. Acting out of fear is not enough.[4]
(b)The nature of the threat sufficient to establish the defence is guided by s 24(1). Nothing less than “really serious harm” will suffice.[5]
(c)The defendant invoking the defence must have believed the threat would be carried out. This is a mixed subjective-objective test – the belief need not be entirely reasonable, but the reasonableness of the belief will be relevant to whether the belief was genuinely held.[6]
(d)Where the offence is of a continuing nature, the defence will be lost if during its continuance the threatener ceases to be present, and the defendant had the opportunity of bringing the offence to an end.[7]
[4]R v Teichelman, above n 3, at 66; R v Neho, above n 3; R v Frickleton [1984] 2 NZLR 670 (CA) at 671–672; R v Raroa [1987] 2 NZLR 486 (CA) at 494.
[5]R v Maurirere [2001] NZAR 431 (CA) at [14].
[6]R v Raroa, above n 4, at 492.
[7]R v Witika [1993] 2 NZLR 424 (CA) at 436–437.
Accordingly the elements of compulsion are:
(a)The existence of a threat to kill or cause grievous bodily harm;
(b)The threat must be to kill or cause grievous bodily harm immediately upon refusal to comply;
(c)The person making the threat must be present during the commission of the offence; and
(d)The defendant must commit the offence in the belief that the threat will be carried out immediately.
Jury directions on compulsion
The trial Judge included questions relating to the defence of compulsion in a question trail and gave directions in her summing-up to the jury about it. Because they are central to the appeal against conviction, we set out the directions in detail. First, Judge Kiernan described the concept of compulsion to the jury:
[20] Now I’m going to summarise for you what compulsion means. Again, not a word you use every day and I’m going to read to you what the law says and I’m going to paraphrase it, I won’t read out the bits that aren’t relevant. What it says is a person who commits an offence under compulsion, by threats of immediate death, or grievous bodily harm, from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out. So you don’t have to memorise that or write it down, I’m going to explain what it means. So it’s a very strict requirement, so the person who says they were under compulsion, the compulsion has to be a threat of immediate death or grievous bodily harm from a person who is present, so who’s there when the offence is committed and believes that the threats will be carried out. So we’ll go through that in a moment.
The Judge then explained the onus of proof:
[21] The way the law works is that it’s the job of the Crown – the prosecution – to rebut or negative that defence once there is some evidence of it. …
[22] So in this case Mr Hay says he was under compulsion, he was under threats of immediate death or grievous bodily harm from Mr Taylor, who was present at the time of these offences and he believed the threats would be carried out. So he raises that as a defence, the Crown has to prove to you, beyond reasonable doubt, that he wasn’t under compulsion and we’ll go through that in a moment.
After setting out the Crown and defence cases in relation to the evidence as to compulsion, she continued:
[24] … So Mr Walker’s strong submission to you was that despite the evidence he’s given you in Court yesterday that Mr Hay was not under any compulsion that night, he had a scarf and the Crown suggests maybe also the screwdriver as well, he was doing a job with his mate, Mr Taylor; you should reject Mr Hay’s evidence, your common sense will tell you, on the evidence that you’ve heard in this trial, that you should return guilty verdicts, the Crown has negatived or disproved the compulsion defence beyond reasonable doubt.
…
[26] [The defence] suggested strongly to you it must be not guilty on both counts unless you are sure that he was not there under compulsion and she’s reminded you the Crown have to satisfy you.
The Judge then distributed the question trail to the jury and addressed it in her summing-up stating:
[29] … Are you sure that Mr Hay intended to steal property when he entered the house. If you are satisfied of that beyond reasonable doubt you’d carry on, if you were not satisfied of that obviously you’d find him not guilty.
[30] We’ll go on then to consider compulsion and I’ve noted there what I’ve told you already that Mr Hay does not have to prove that Mr Taylor compelled him to commit the offence – instead, the Crown must negative that defence of compulsion beyond reasonable doubt.
[31] So question 2 would be are you sure that Mr Taylor threatened to cause Mr Hay really serious harm if he did not assist with the burglary. So it’s turned around in that way because it’s up as a defence and the Crown has to negative or disprove it – so are you sure that Mr Taylor threatened to cause Mr Hay really serious harm if he did not assist with the burglary. So if you are satisfied that he was threatened with really serious harm if he didn’t assist that the burglary then that would be yes and we’d go to the next question. If you’re not satisfied that Mr Hay was threatened by Mr Taylor with really serious harm if he didn’t help him then you’d find him [guilty].[8]
[32] So just going on then to the third question, if you get there, is are you sure that Mr Hay believed that the threat – this is the threat of really serious harm – would be carried out immediately, not next week or the day after but immediately, if Mr Hay did not follow Mr Taylor’s instructions. So if you’re sure that Mr Hay believed the threat would be carried out immediately if he didn’t do what he was told then it’s a yes and you’d find him not guilty, if you’re satisfied that Mr Hay believed the threat would be carried out immediately if he didn’t do what he was told you would find him guilty. So I hope that helps, members of the jury, refining it down to the issues you have to concentrate upon and do remember that the Crown has the responsibility of proving these things beyond reasonable doubt.
[8]It is not disputed that this was an error in the summing-up: it reads “not guilty” but this is clearly meant to read “guilty”.
Finally, the question trail provided as follows:
COUNT 1: AGGRAVATED BURGLARY
On all issues the burden of proof beyond reasonable doubt is on the Crown.
1.Are you sure that Mr Hay intended to steal property when he entered the house?
YES – Go to Question 2
NO – Find NOT GUILTY
COMPULSION
Mr Hay does not have to prove that Mr Taylor compelled him to commit the offence. Instead, the Crown must negative the defence (compulsion) beyond reasonable doubt.
2.Are you sure that Mr Taylor threatened to cause Mr Hay really serious harm if he did not assist with the burglary?
YES – Go to Question 3.
NO – Find GUILTY.
3.Are you sure that Mr Hay believed that the threat would be carried out immediately if Mr Hay did not follow Mr Taylor’s instruction?
YES – Find NOT GUILTY
NO – Find GUILTY
The question trail for the second charge, unlawful taking of the V8 was, so far as the defence of compulsion is concerned, in materially similar terms.
During the jury deliberation a problem with the directions and the question trail was identified. The jury asked the Judge a question and sought assistance as follows:
Your Honour, a couple of jurors have issues with the question sheet given. On both counts it states that Mr Hay does not have to prove compulsion, but your questions imply that he does have to prove compulsion. This is currently preventing us from reaching a verdict.
Judge Kiernan answered the question, suggesting they put the question trail to one side if it was not helpful. She said:
[7] But the central question for you is, “Did Mr Taylor threaten him?” And if he did, and you are satisfied of that, the Crown has not negatived it, because the Crown has to satisfy you beyond reasonable doubt that he did not. Another way of putting it would be, “Have the Crown proved to you, beyond reasonable doubt that Mr Taylor did not threaten to cause Mr Hay really serious harm if he did not assist with the burglary?”
[8] So the central issue, as you know, is on the evidence are you satisfied beyond reasonable doubt that there was no compulsion?
[9] So [I] know it is difficult because it is the other way round, it is not proving a positive; it is proving a negative. So the defence is “I was compelled” and you have got to be satisfied beyond reasonable doubt that Mr Hay was not compelled before you could convict him. And then, of course, there is the other question about belief that the threat would be carried out immediately.
Analysis
Ms Kelly, for the respondent, accepted that in both the question trail and the summing-up the Judge inadvertently reversed the burden of proof. This is a proper concession. In the question trail the Judge correctly recorded that the burden of proof for the defence of compulsion was on the Crown, but nevertheless the structure of questions 2 and 3 in the question trail for both charges had the effect of reversing the burden of proof. They read as if Mr Hay is required to prove compulsion and thereby appear to place the burden on Mr Hay.
We are satisfied that the question trail and the summing-up as they were framed caused a legal error, involving the reversal of the burden of proof for the defence of compulsion. The question is then whether the Judge’s answer to the jury question was sufficiently clear and firm to correct these errors.[9]
[9]Above at [25].
Ms Kelly submits that in answering the jury question the Judge correctly directed that it was for the Crown to prove that Mr Hay was not compelled to offend. She submits further that given the jury itself had identified the error, it clearly understood the point. The direction in response to the question was sufficient to bring home to the jury that the onus was on the Crown to negate the defence.
We disagree. When answering the jury question the Judge said:
[3] Well I am sorry my questions have not been of assistance, and if they are not put them aside. I hope that what I said to you clearly set out the Crown has the responsibility of providing everything beyond doubt and it a defence of compulsion is put up, then the Crown have to disprove or negative it.
The Judge then went on to describe once more what compulsion involved legally, before giving the directions already set out.[10]
[10]Above at [21].
We consider the Judge, when answering the jury’s question, should have told the jury to put questions 2 and 3 of the question trail dealing with compulsion completely to one side or provided (and explained) a new version of the question trail to correct the error. That was necessary because they contained material legal errors (in respect of both charges). Those errors had been repeated during the summing-up and a very clear direction needed to be given, correcting the position.
Although the elaboration of the jury question did correctly explain that the burden of disproving compulsion was on the Crown, the remaining directions were nevertheless confusing. This was in a context where the initial summing-up on compulsion had also, itself, been confusing. Ms Kelly accepted that there were aspects of the redirection that could have been expressed more clearly. We consider in particular that the Judge’s discussion of the correct approach to the burden in response to the question again risked suggesting to the jury that Mr Hay carried a burden of proof in relation to the defence of compulsion, despite purporting to correct the error.[11]
[11]At [9] of the Judge’s response, set out above at [25].
For the above reasons we are satisfied the errors in the question trail and the summing up were not sufficiently corrected. Had the matter stopped there, there is no doubt that such errors would have involved a miscarriage of justice. However, counsel are agreed that an even more fundamental question involves the existence or otherwise of an evidential foundation or credible narrative to support putting the defence of compulsion to the jury. We turn now to address that question.
Evidential foundation
The Supreme Court decision of IA v R considered the history of compulsion in New Zealand.[12] It stated that:
[13] The operation of s 24 depends on the criteria of immediacy (of the harm that is threatened) and presence (of the person making the threats). Satisfaction of these criteria will be highly indicative of coercive circumstances leaving no practical alternative but compliance.
[12]IA v R [2013] NZSC 88, [2014] 1 NZLR 17.
This Court in R v Teichelman emphasised the need for a credible narrative for the defence:[13]
The appellant was not entitled to have the possibility of compulsion considered by the jury unless there was an evidential foundation for the defence (Salaca v The Queen [1967] NZLR 421 and R v Joyce [1968] NZLR 1070).
[13]R v Teichelman, above n 3Error! Bookmark not defined., at 66.
There is no dispute that prior to the defence of compulsion being left to the jury, there must be a credible narrative (being an evidential foundation) to support it. The question for us is whether such foundation existed in this case.
Submissions on evidential foundation
Ms Kelly submits there was no evidential foundation at trial to make compulsion a live issue for the jury. Although Mr Waddington had stated Mr Taylor was the more active of the two offenders and seemed to be in charge, there was no evidence from either Mr Waddington or Ms Connolly that Mr Taylor was actively threatening Mr Hay with death or grievous bodily harm. Moreover, Mr Taylor left Mr Hay with the gun in the house when he went out to the gate with Ms Connelly.
Mr Hay gave evidence at trial. He claimed the alleged threat was made to him when he first met up with Mr Taylor. He reported Mr Taylor as saying “Get the fuck out of the car or you’re gonna get it”. Mr Hay said Mr Taylor was holding a gun when he made the threat adding:
A.He was holding the gun, pointed. He had it in his hand on the seat, on the seat like this but leaning over like that, pointed at my head.
Q. And so he said, “You’re gonna get it?”
A. He said, “You’re gonna fuckin get it,” he swore as he said it.
Q. And then what happened?
A.Then I just looked at my partner and just said (inaudible 12:12:33) got no choice and then as he jumped out of the car and I opened the door and I just said to her as I opened the door, I just said, “If you hear any 20 gunshots gap it, but as soon as you can’t see me, gap it.” From then we had to walk down say the roundabout is here, the house was here, the parks basically by the roundabout but just down a bit on the other side of the roundabout from what the house is, and he wanted me to walk through there to go to – I can’t remember how it gets to [the house] …
Mr Hay also said in evidence:
Then he walked over to the door, I sort of dawdled I guess sort of walked slowly towards where he was walking, just kinda contemplating the situation and then as he walked up the steps he turned around and said, “Get up here,” and that’s when I walked up the steps. I sort of stood I guess on the top step maybe half on the second step, I’m not quite, it’s a long time ago, I can’t really, then he started to put the crowbar under the door, he held the crowbar like this but sort of had the gun in his hand at the same time I think, and was leaning on it, was leaning using his shoulder on the thing.
Ms Kelly therefore submits any threats made to Mr Hay occurred in the car and away from the door of the house before the aggravated burglary. There was no evidence whatsoever of an actual threat at the time of the commission of the offence. Neither was there evidence about the immediacy of the implementation of the alleged threat. Mr Hay only referred to the earlier threat of “you’re gonna get it” which was of a general nature. There was no evidence Mr Hay was fearful of the immediately carrying out of that threat.
Additionally Mr Taylor was not present with Mr Hay throughout the whole aggravated burglary. He left Mr Hay on his own on two occasions. The first was with the gun, when Mr Taylor went down the driveway with Ms Connelly. The second was when Mr Taylor left the address in the car with Mr Waddington. Presence of the individual doing the threatening is a central statutory requirement to establish the defence.
Ms Kelly submits the defence of compulsion is not available if there is a reasonably available opportunity for the offender to seek help, protection or to escape.[14] She contends Mr Hay could have left the address or sought assistance on two occasions. The first was when Mr Hay was in the room with Mr Waddington, while Mr Taylor and Ms Connelly had gone to the gate. Then he could have left or at a minimum phoned the police, particularly because Mr Hay appears to have had control over the victim’s phone at that time. The second occasion was when Mr Taylor left the address with Mr Waddington, Mr Hay took several minutes before leaving the address. He was on his own and Mr Taylor was not able to immediately carry out any threat to kill or cause grievous bodily harm because he was not with Mr Hay.
[14]Citing R v Raroa, above n 4.
Finally, Ms Kelly submits a valid defence of compulsion under s 24(1) of the Crimes Act requires that the offender must have no realistic choice other than to break the law. Here Mr Hay did have a realistic choice. He could have left the address or chosen to contact the police. Therefore the respondent submits the defence of compulsion had no evidential foundation and should not have gone to the jury.
Mr Kaye very properly accepts he could not dispute the above factual analysis. He agrees the position as to the existence of the requirements of the defence of compulsion in this case needs to be assessed at the time of entry into the premises and, while maintaining his submission that the narrative was sufficient, acknowledged the limited evidential foundation.
Our evaluation
We refer first to the importance of the immediacy of the threat. As this Court said in Teichelman:[15]
It is that belief in the inevitability of immediate and violent retribution for failure on his part to comply with the threatening demand which provides the justification for exculpation from criminal responsibility. The subsection is directed essentially at what are colloquially called standover situations where the accused fears that instant death or grievous bodily harm will ensue if he does not do what he is told. It follows from what we have said that before the matter can go to a jury there must be evidence of a continuing threat of immediate death or grievous bodily harm made by a person who is present while the offence is being committed and so is in a position to carry out the threat or have it carried out then and there.
[15]R v Teichelman, above n 3, at 67, applying R v Joyce [1968] NZLR 1070 (CA) at 1079.
We are satisfied that there was no credible narrative for the defence of compulsion. We agree with counsel the time to assess the evidence is at the point when the aggravated burglary occurred. The critical point was when Mr Taylor and Mr Hay entered the property. There can be no suggestion then Mr Hay was acting under compulsion. There was no evidence of any threat at that time of violent retribution to Mr Hay if he did not comply with Mr Taylor’s demand to commit the offence.
We also consider the wider context of the offending is relevant. When addressing the defence put forward by Mr Hay, the Crown prosecutor said:
Graham Hay wore a scarf over his face that morning. This is important evidence, in my submission. It is important evidence because this shows this wasn't a situation where he was forced into assisting in a home invasion, he came prepared for what they were about to undertake. He was wearing a singlet and a pair of shorts. He brought a scarf to that property along with the screwdriver, in my submission, because he knew he had a job to do and he did it.
When addressing the jury on the elements of aggravated robbery the prosecutor told the jury this:
Second question in relation to the aggravated burglary, "Has the Crown demonstrated on the evidence that you are sure that there was no immediate, and that word "immediate" is important, threat of really serious injury to Mr Hay by Mr Taylor if he did not follow his instructions? So those are your focus on that first count.
…
But if you reject his evidence and the defence based on the texts, you can be sure that the Crown has proved to you beyond reasonable doubt that he was not compelled by an immediate threat to his personal safety then and only then, can you convict Mr Hay of those two charges. And I know that sounds like a bit of a mouthful but it is something that will be explained to you both by my learned friend, I anticipate, and by Her Honour when she sums up to you.
…
The major theme in the defence closing was that Mr Hay did not want to be at the address during the aggravated robbery and that his attendance was not voluntary:
[Members] of the jury, it's your job to find Mr Hay not guilty unless the Crown have convinced you to the point that you're sure that he wasn't there under compulsion, and the defence says how can you possibly accept that he wasn't there voluntarily when the Crown's own witnesses give evidence that he clearly didn't want to be there and that he was scared?
Trial counsel focused on the fact that Mr Hay did not want to be there, that Mr Taylor seemed to be in charge and Mr Hay was quiet:
Because its own evidence from Mr Waddington and Ms Connelly is that Mr Hay was scared, he didn’t want to be there, he had fear in his eyes. He was being told what to do by Taylor. He was quiet, he didn't do much talking. Taylor did the talking. Taylor told Hay what to do. Taylor had the gun. Mr Hay was not there of his own free will. “Get out of the fucking car or you're gonna get it.”
Defence counsel added:
Mr Hay has never said he didn't go into the home. The only issue is did he go there willingly or was he compelled to go there? He's given evidence of the threats that were made. You’ve got consistent evidence of Mr Taylor’s threatening behaviour to Mr Waddington and Ms Connelly. He points the gun at Mt Waddington at least twice at his head and his body, he threatens to shoot him. So again, the Crown witnesses, they corroborate the behaviour of Mr Taylor. As far as Mr Hay is concerned, Mr Taylor acted that way to him, Mr Waddington sees him act that way to Mr Waddington. There's a consistency. There's a consistency in how Mr Taylor was behaving to all people involved that night. And that’s not something that Mr Hay could possibly have made up on the 15th of December to fit the evidence.
We agree with Ms Kelly that the fact there was no evidence of an ongoing, immediate threat during the aggravated burglary was not helpful to trial counsel. The focus on Mr Hay’s secondary and apparently begrudging participation in the aggravated burglary was the only evidence, coupled with the alleged general threats prior to entry into the house, which were emphasised in the defence closing.
The defence of compulsion is also inconsistent with the degree of preparation undertaken by both offenders. They had a gun and disguises. Mr Hay had the presence of mind to bring a scarf with him to the scene to help conceal his identity. Once at the property Mr Hay took time to locate a weapon for himself in the form of a crowbar.
For the above reasons we are satisfied the defence of compulsion was not available to Mr Hay on the evidence placed before the jury. If an application had been made at the conclusion of the evidence, the Judge should not have allowed it to go to the jury. We conclude, therefore, that the defence of compulsion by another was not properly available to Mr Hay and should not have been put to the jury. It did not create any issue in respect of the jury’s verdict for it to have been considered and rejected. Accordingly there was not a miscarriage of justice.
It follows that the conviction appeal must be dismissed.
Sentence appeal
Mr Hay was sentenced to imprisonment for seven years and six months. He contends the starting point of seven years and nine months adopted by the Judge is manifestly excessive when compared to the eight year and three month starting point adopted for Mr Taylor.[16]
[16]Mr Taylor pleaded guilty to his charges following a sentence indication.
The leading authority on disparity between co-offenders’ sentences is R v Lawson, where this Court stated:[17]
… a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly. It is for this reason that a disparity in sentences imposed on co-offenders may justify a reduction in a sentence imposed on one which would otherwise be appropriate. But the test of intervention by an appellate Court is not merely whether an offender feels a sense of grievance over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice.
[17]R v Lawson [1982] 2 NZLR 219 (CA) at 223. See also MacFarlane v R [2012] NZCA 317 at [24].
When sentencing Mr Taylor Judge Wade took a starting point of eight years and six months’ imprisonment.[18] The starting point was then uplifted by 12 months to reflect his previous convictions. Judge Wade then gave Mr Taylor a discount of two years’ imprisonment to reflect his guilty pleas.
[18]R v Taylor DC Auckland CRI-2012-090-1557, 11 July 2012 at [18] and R v Taylor DC Auckland CRI‑2012-090-1557, 28 September 2012 at [3].
When sentencing Mr Hay, Judge Kiernan was well aware of the need for parity with Mr Taylor’s sentence. She was also cognisant of the need to reflect the different role in the offending of Mr Hay from that of Mr Taylor. She chose a starting point of seven years and nine months’ imprisonment which was lower than that taken for Mr Taylor. That difference was to recognise the “different roles played by each”.[19]
[19]Sentencing decision, above n 1, at [25]–[26].
The Judge then added an uplift of six months for Mr Hay’s criminal history, reaching an overall starting point of eight years and three months:
[27] From that eight years and three months I am going to give you a nine month discount that takes account of your secondary role, which I have factored into the starting point but I am going to give slight credit for that as well and the other factors that I have already mentioned, so that is a generous discount, Mr Hay, from eight years and three months, which takes the final sentence to seven years and six months.
This further nine month discount from the starting point, in further recognition of his lesser role, amounted in total to an 18 month discount for his secondary role in the offending.
Despite the careful and comprehensive submissions of Mr Kaye, we are satisfied an end sentence of seven years and six months’ imprisonment was available to the Judge. She was right to take into consideration the aggravating features of unlawful entry into the property at night, premeditation, multiple offenders, weapons and the effect on the victims. The adjustments made by the Judge to reflect the nature of Mr Hay’s involvement and criminality were entirely appropriate. The disparity between the sentences appropriately reflects the different circumstances of the offenders.
Although Mr Kay also raised the possibility of trial counsel error, no particulars were able to be advanced in support. In any event, we see no clear basis for developing such a ground on the material provided to us. This ground of appeal therefore fails.
Result
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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