Henriksen v Police

[2015] NZHC 2572

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-27 [2015] NZHC 2572

BETWEEN

NATHAN DAVID HENRIKSEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	20 October 2015
Appearances:	Appellant in person M-J Thomas for Respondent
Judgment:	21 October 2015

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

This judgment was delivered by me on 21 October 2015 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

NATHAN DAVID HENRIKSEN v NEW ZEALAND POLICE [2015] NZHC 2572 [21 October 2015]

[1]      Following a defended hearing in the District Court, Judge Coyle found Mr

Henriksen guilty on a charge of stealing two trailers valued at $1,600.00.1     On

12 June 2015, Judge Farnan sentenced Mr Henriksen to 12 months imprisonment.2

He now appeals against both conviction and sentence.

Background

[2]      The charge was laid as a result of the events that occurred on 10 November

2014.  On that date Mr Henriksen went to a property farmed by a Mrs Wallis and her husband.   Mr Henriksen approached Mrs Wallis whilst she was working in the milking shed, and asked if she had any spare scrap metal that he could have.  It is common ground that Mrs Wallis told Mr Henriksen that he could have a length of bailer chain that was lying on a rubbish heap a short distance away.  Mr Henriksen then left the milking shed and went to the area where the chain was lying.

[3]      After she had finished working in the milking shed Mrs Wallis went to the area where the chain had been lying.  She saw that the bailer chain was no longer on the rubbish heap, and she also noticed that two farm trailers that had previously been stored nearby had disappeared.  Bags of calf meal that had been sitting on one of the trailers had been removed and placed on the ground.  Mrs Wallis then immediately contacted the police, who subsequently spoke to Mr Henriksen and arranged for him to return the trailers a few days later.

[4]      The sole issue at the hearing in the District Court was whether Mrs Wallis had given Mr Henriksen permission to take the trailers as well as the chain.   Mrs Wallis told the Judge that she did not give him permission to do so; Mr Henriksen gave evidence to the opposite effect.

Approach on appeal

[5]      This is a first appeal against a conviction entered by a Judge in the District

Court.  This Court may only allow the appeal if the Judge erred in his assessment of

1      New Zealand Police v Henriksen [2015] NZDC 4375.

2      New Zealand Police v Henriksen [2015] NZDC 11061.

the evidence to such an extent that a miscarriage of justice has occurred.3    In this context a miscarriage of justice means an error, irregularity or occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.4

[6]      Generally an appellate court will defer to findings of credibility made by the court below where that court has enjoyed the advantage of seeing and hearing the witnesses and the findings cannot be shown to be plainly wrong.5

The Judge’s decision

[7]      Mrs Wallis was adamant when cross-examined by Mr Henriksen that she had not given him permission to take the trailers.   She said that she used one of the trailers daily to distribute feed to animals on the farm.  The other trailer had a cage on the deck and she used it to transport calves.  She pointed out that she was hardly likely to give away the trailers when she used them regularly on her farm.  She also denied that Mr Henriksen had given her his name when first speaking to her.

[8]      Mr  Henriksen  was  equally  adamant  that  Mrs  Wallis  had  given  him permission to take the trailers.   In a statement to the police four days after the incident, he said that Mrs Wallis told him there were a couple of old motorbike trailers parked near the rubbish heap, and that he could have these as well as the chain.  When he found the trailers he thought they were too good to be given away, but thought that Mrs Wallis must have intended him to take them because there were no other trailers in the vicinity.   He said the trailers were too good to be used for scrap metal, and he had sold them to a farmer a couple of days later for $500.

[9]      Mr Henriksen also maintained that he had given Mrs Wallis his name when he first met her, and said that he would hardly had done this if he intended to steal property from her.  He also said that he was in the process of setting up a scrap metal business at that time, and would not have jeopardised this enterprise by stealing

trailers.

3      Criminal Procedure Act 2011, s 232(2)(b).

4      Section 232(4).

5      R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [76], [83], [84]. Austin, Nichols & Co Inc v

Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5], [13].

[10]     Judge Coyle preferred Mrs Wallis’s evidence.   His reasoning is captured in the following paragraph of his decision:

[13]     I accept and prefer the evidence of Mrs Wallis.   She said, in her evidence, that she was intending to use the trailers the next day feeding out the calves.  It is inconceivable to me that given they are trailers that she was clearly using in a day-to-day farming operation that she would have said anything to Mr Henriksen to give him a belief that he was entitled in any way whatsoever to take the trailers for scrap metal.   She said she did not even  own  the trailers.    But  what  is  pivotal from my perspective  is  her evidence that she was intending to use them the next day.  Additionally, the photographs of the trailers that have been produced do not show the type of “derelict and decrepit, useless trailers” described by Mr Henriksen in his evidence.

Decision

[11]     I find the Judge’s reasoning compelling.  It is inherently improbable that Mrs Wallis would give away valuable farm equipment to a total stranger when she was using it on a daily basis to feed her livestock.   It is also difficult to see why Mrs Wallis would report the theft of the trailers to the police virtually immediately after she had willingly given them away.  Mr Henriksen’s evidence that he thought the gift of the trailers was too good to be true is significant in this context, as is the fact that he considered them too valuable to be used for scrap metal.

[12]     The Judge did not make an express finding about the issue of whether or not Mr Henriksen had given Mrs Wallis his name.  Even if Mr Henriksen is correct in his assertion, however, the fact that he may have given Mrs Wallis his name is not necessarily inconsistent with the prosecution case.   When Mr Henriksen first approached Mrs Wallis he did not know that the trailers existed.  For that reason he could not have had any intention of stealing them at that point.  He may well have decided to take them on the spur of the moment after going to the rubbish heap and seeing the trailers parked nearby.  It is also common ground that Mrs Wallis and Mr Henriksen had never met prior to this incident. Mr Henriksen may have thought that it was unlikely that Mrs Wallis or the police would be able to track him down if he took the trailers.  For those reasons I do not consider that the issue of whether or not Mr Henriksen gave Mrs Wallis his name carries great weight.

[13]      I do not consider it is open to me to disturb the Judge’s findings in relation to credibility.    For  these  reasons  the  appeal  as  it  was  originally  advanced  cannot succeed.

Additional issues

[14]     Three issues remain to be addressed.   They arise out of matters that Mr

Henriksen raised when the appeal was first called before Mander J on 25 August

2015.   Mander J adjourned the appeal so that counsel for the respondent could arrange for the police to make enquiries to determine whether any of Mr Henriksen’s claims had substance.

[15]     The first issue arises out of the fact that Mr Henriksen maintained that he had seen a person driving a tractor on Mrs Wallis’s farm on the day he uplifted the trailers.   He considered  that  this  person might be able to  provide assistance in relation to the issue of whether or not Mrs Wallis was telling the truth when she says that she did not know his name.   Recent enquiries by the police have located the person who was driving the tractor, but he says he cannot be of any assistance in relation to this issue.     Mrs Wallis also remains steadfast in her denial that Mr Henriksen told her his name.

[16]     Mr Henriksen believes that the results of these enquiries are further evidence of a conspiracy by the police and others to ensure he remains convicted of a crime he did not commit.  It is not possible, however, for me to look beyond the statements that these persons have made. Furthermore, and for the reasons already given, I do not attach the importance that Mr Henriksen does to the issue of whether or not he gave Mrs Wallis his name when he first approached her.

[17]     Mr Henriksen also advised Mander J that the prosecutor had provided Judge Coyle with evidence of his previous convictions before the end of the defended hearing.  Subsequent enquiries have revealed that this did not occur.  The record of the hearing in the District Court shows that the prosecutor did not provide the Judge with a list of Mr Henriksen’s previous convictions until after the Judge had found the charge proved.

[18]     Finally,  Mr  Henriksen  raised  an  issue  relating  to  the  conduct  of  the prosecution in the District Court.  He said that Mrs Wallis made eye contact with two constables who were in the courtroom on several occasions whilst she was giving her evidence.  He believes that she may have been seeking guidance or prompting from those officers in relation to the evidence she was to give.  The police have spoken to Mrs Wallis, who denies that this occurred.   She does not believe that one of the police officers named by Mr Henriksen was in the courtroom at any stage whilst she was giving her evidence, and she cannot remember whether the other was present. She denies having any form of contact with either officer whilst giving her evidence. I do not consider that this issue provides grounds to disturb the Judge’s decision on the basis that the hearing produced a miscarriage of justice.

[19]     It follows that none of the additional grounds that Mr Henriksen raised with Mander J advances his case on appeal.  The appeal against conviction is accordingly dismissed.

The appeal against sentence

[20]     Mr  Henriksen  also  appealed  against  sentence,  but  he  did  not  make submissions at the hearing regarding that issue.   Instead he concentrated on his overall submission that a miscarriage of justice has occurred and that his conviction should be quashed.

[21]     Judge Farnan took a starting point of 12 months imprisonment and applied an uplift of three months to reflect the fact that Mr Henriksen has several convictions for offending involving dishonesty.  She then gave him a discount of three months to reflect  totality principles  and  the  need  to  impose  a  sentence  that  was  the  least restrictive   outcome.      This   produced   the   end   sentence   of   twelve   months imprisonment.

[22]     Like the Judge, I consider that the offending was of moderate seriousness given the value of the property stolen and the brazen way in which the theft was committed.  An end sentence of twelve months imprisonment was well within the available range having regard to Mr Henriksen’s previous history.

[23]     It follows that the appeal against sentence must also be dismissed.

Lang J

Solicitors:

Preston Russell Law, Invercargill

Copy to: Appellant