Lamb v The Queen
[2018] NZCA 515
•22 November 2018 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA36/2018 [2018] NZCA 515 |
| BETWEEN | TREVOR PATRICK LAMB |
| AND | THE QUEEN |
| Hearing: | 6 November 2018 (further materials received 16 November 2018) |
Court: | French, Lang and Moore JJ |
Counsel: | L C Ord and S W O Campbell for Appellant |
Judgment: | 22 November 2018 at 11 am |
JUDGMENT OF THE COURT
AThe appeal against conviction is allowed.
BThe conviction is quashed and substituted with a conviction for conversion under s 226(1)(a) of the Crimes Act 1961 on the following terms:
That Trevor Patrick Lamb on 30 March 2017 dishonestly and without claim of right, but not so as to be guilty of theft, took or used for his own purposes a vehicle.
CThe strike warning is cancelled.
DA sentence of 21 months’ imprisonment is imposed on the conversion conviction, CRN 17031000777. All other sentences imposed on the appellant by the District Court on 27 March 2018 are confirmed. For the avoidance of doubt, the sentence for CRN 17054002137 remains cumulative on the sentence for CRN 17031000777.
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REASONS OF THE COURT
(Given by French J)
Introduction
Mr Lamb was convicted at trial before Judge Edwards in the District Court of robbery. He now appeals his conviction. His counsel was concerned the appeal was filed out of time and accordingly sought an extension of time which the Crown did not oppose. However, our interpretation of the relevant provision is that the time limits for appealing only start to run on sentencing.[1] This notice of appeal was filed before sentencing which if anything makes it premature. If, contrary to this view, an extension of time were necessary, we willingly grant it.
[1]Criminal Procedure Act 2011, s 231(2).
The facts relied upon by the Crown at trial were that the complainant was parking a vehicle he had borrowed from a friend when Mr Lamb jumped into the car, punched him and demanded to be driven out of town. The complainant and Mr Lamb knew each other. The complainant drove a short distance but then stopped and, fearing further violence from Mr Lamb, got out of the car and ran off. Mr Lamb then proceeded to drive away in the car which was located later that night.
Mr Lamb did not dispute punching the complainant nor did he dispute driving the car away. However, he said he thought that in running off and leaving the keys in the car, the complainant was giving him permission to drive the car out of town.
Arguments on appeal
Theft is an essential ingredient of the crime of robbery.[2] That means that before the jury could convict Mr Lamb of robbery, it had to be sure not only that he dishonestly and without claim of right took the car but also that he intended to permanently deprive the owner of it.[3]
[2]Crimes Act 1961, s 234.
[3]Section 219(1)(a).
On appeal, counsel for the appellant, Ms Ord, argued that a miscarriage of justice had arisen because of the inadequate way counsel and the Judge dealt with the issue of intent to permanently deprive. In particular, Ms Ord submitted that the Judge’s summing up would have created the misleading impression that if the jury was sure Mr Lamb took the car knowing he did not have authority to take it, then that would of itself justify an inference he must have intended to permanently deprive the complainant of it. Further consideration of intent would not be required. This misdirection, she submitted, was compounded by what the Crown also acknowledged was an unorthodox question trail.[4]
Analysis
[4]The question trail set out the legal ingredients for theft as one question, rather than separating them out as separate steps.
We agree the appeal should be allowed, but do so on the basis that there was simply insufficient evidence on which a jury applying the appropriate standard of proof could reasonably find the charge proved on the evidence.[5]
[5]Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [10(c)].
At trial, the Crown sought to prove Mr Lamb had the necessary intention to permanently deprive by inviting the jury to draw that inference from evidence that:
(a)Mr Lamb did not have permission to drive the car; and
(b)he took the car and drove away knowing he did not have permission and knowing that the complainant did not own the car but had himself borrowed it.
As Ms Mildenhall for the Crown acknowledged, that was the only evidence on which the Crown was able to rely. However, in our view that evidence also equally supported the inference that Mr Lamb only intended to borrow the vehicle for a limited purpose rather than permanently take it. It is well established that where two inferences are equally available, to choose one in preference to the other is to guess and the jury must not guess.[6] In this case there was also the further uncontested evidence of various statements made by Mr Lamb to the complainant about his reasons for wanting the car, all of which supported the inference he only wanted to borrow it temporarily.
[6]See Colgan v R CA214/87, 7 December 1987 at 11; Tuiloma v R CA222/99, 8 December 1999 at [27]; Owenv R [2011] NZCA 348 at [55]; and Edwardson v R [2017] NZCA 618 at [34].
We accordingly quash the conviction for robbery and cancel the strike warning that was given on conviction.
However, that is not the end of the story. As Ms Ord accepted, although Mr Lamb may not have been guilty of robbery, he was undoubtedly guilty of the lesser offence of conversion of a motor vehicle.[7] That gives rise to the question of whether the appropriate disposition of this appeal is for there to be a retrial of the robbery charge or whether we should substitute the robbery conviction with a conviction for car conversion and resentence Mr Lamb.[8]
[7]Crimes Act, s 226(1)(a).
[8]Criminal Procedure Act, ss 233–234.
Ms Mildenhall advised that, were we to allow the appeal, the Crown favoured the latter option rather than a retrial. Mr Lamb has already served a significant portion of the sentence that was imposed on him in respect of the robbery charge. We agree.
We accordingly exercise our powers under s 234 of the Criminal Procedure Act 2011 and substitute the conviction for robbery with a conviction for conversion.
Turning then to the appropriate substituted sentence for conversion, it is necessary first to provide some further details about the sentencing in the District Court.[9] Mr Lamb was sentenced in respect of seven charges, including the robbery. In relation to the latter, which she viewed as the most serious charge, the Judge adopted a starting point of two and a half years’ imprisonment.[10] She then applied an uplift of six months on account of two driving offences that occurred while Mr Lamb was driving the converted car (reckless driving, driving while disqualified).[11] That resulted in a total of three years’ imprisonment. Cumulative sentences of six and three months’ imprisonment for other unrelated offending were then imposed before reductions made for remorse and attempts at rehabilitation as well as guilty pleas.[12]
[9]R v Lamb [2018] NZDC 6032.
[10]At [30].
[11]At [31].
[12]At [33]–[34], [37]–[38], [40] and [46].
The upshot was a total end sentence of three years’ imprisonment. It was comprised of a sentence of two years and three months’ imprisonment for the robbery charge, concurrent sentences for the related driving offences, and the two cumulative sentences.[13]
[13]At [46].
Ms Ord submitted that if we were to re-sentence, then an appropriate starting point of between 10-12 months was appropriate with the assault attracting a one month uplift, there being no injury to the complainant.
We do not accept that submission which in our view does not adequately reflect the seriousness of the offending including the related driving offences. In our view, taking into account those driving offences as well as the aggravating feature of the punch, the appropriate sentence for the conversion of the vehicle is 21 months’ imprisonment. There is no reason to disturb the sentences imposed in respect of the other offending, which means the total end sentence is reduced by six months from three years’ imprisonment to two years and six months’ imprisonment.
Outcome
The appeal against conviction is allowed.
The conviction is quashed and substituted with a conviction for conversion under s 226(1)(a) of the Crimes Act 1961 on the following terms:
That Trevor Patrick Lamb on 30 March 2017 dishonestly and without claim of right, but not so as to be guilty of theft, took or used for his own purposes a vehicle.
The strike warning is cancelled.
A sentence of 21 months’ imprisonment is imposed on the conversion conviction, CRN 17031000777. All other sentences imposed on the appellant by the District Court on 27 March 2018 are confirmed. For the avoidance of doubt, the sentence for CRN 17054002137 remains cumulative on the sentence for CRN 17031000777.
Solicitors:
Ord Legal, Wellington for Appellant
Crown Law Office, Wellington for Respondent
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