Laxon v Police
[2017] NZHC 2324
•25 September 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2017-412-000038 [2017] NZHC 2324
BETWEEN ROBERT PAUL LAXON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 11 September 2017 Appearances:
D L Henderson for the Appellant
R D Smith for the RespondentJudgment:
25 September 2017
JUDGMENT OF NATION J
[1] Mr Laxon pleaded guilty to two charges of dishonestly taking a motor vehicle, one charge of reckless driving, one charge of failing to stop, one charge of burglary and one charge of attempted burglary. He later sought to have the guilty pleas for the first three offences vacated. This application was refused.1 He was subsequently sentenced to two years and 10 months’ imprisonment.2
[2] Mr Laxon now appeals the refusal to allow his application to vacate his guilty pleas and against the sentence imposed.
Facts as indicated by the summary of facts
[3] On 10 April 2016, Mr Laxon drove to the Mosgiel A&P showgrounds and attempted to gain access to a drop-box attached to the office building on the site.
1 Police v Laxon [2017] NZDC 10783.
2 Police v Laxon [2017] NZDC 14630.
LAXON v POLICE [2017] NZHC 2324 [25 September 2017]
This drop-box is used by campers to place their payments. Mr Laxon then attempted to gain access to the office through a window that was left ajar but secured by levers. A camper confronted Mr Laxon and he fled.
[4] Later that day, Mr Laxon drove to a nearby function centre. He gained entry as it was unsecured. He forced open the locked office door, damaging the door. After locating a safe, he unsuccessfully attempted to gain entry to it. Mr Laxon found cash from green fees totalling $60, which he took. He was then discovered by the operator but barred the door. When the operator went to gain assistance, Mr Laxon fled.
[5] Mr Laxon was later arrested and charged for these incidents. He failed to answer his bail. On 17 May 2016, a warrant was issued when he failed to appear at the District Court.
[6] On 20 August 2016, Victim 1 was at a friend’s house in Dunedin and left her vehicle on the street. She then left the property in another vehicle. When she returned, her vehicle was gone. Police found it abandoned a week later.
[7] On 24 August, Victim 2 lent her vehicle to a friend to drive to Dunedin. Mr Laxon accompanied this friend on that trip. Mr Laxon took the keys while the friend was busy and drove off in the vehicle. Victim 2 had not given the appellant any authority to use the vehicle.
[8] On 2 September, Mr Laxon was located in Victim 2’s vehicle. He failed to stop for the police’s flashing lights and sirens and drove at excessive and dangerous speeds, utilising private driveways to hide and avoid being stopped by police. He drove at an estimated speed of 140 kilometres per hour in a 80 kilometres per hour zone. A patrol unit attempted to block his exit when he went down a dead-end street. He drove at speed through a narrow gap between the curb and a patrol vehicle, striking the police vehicle as he did so.
[9] Police continued to pursue him. Mr Laxon continued to drive at excessive speeds and drove on the wrong side of the road numerous times, including on a blind
corner. Mr Laxon drove through an intersection at around 80 kilometres per hour. This caused his undercarriage to hit the road surface, making the vehicle undrivable. He left the car, fled and was eventually apprehended.
[10] Mr Laxon plead guilty to all charges on 20 September 2016 when he was represented by his then counsel, Ms Saunderson-Warner.
Appeal against conviction – principles
[11] Section 232 Criminal Procedure Act 2011 provides that the Court may only allow an appeal against conviction if satisfied that “a miscarriage of justice has occurred”. A miscarriage of justice means any error, irregularity, or occurrence in or 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.3 R v Sungsuwan defines a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”4
[12] R v Condon held that a mere departure from good practice does not render a trial unfair.5 Instead, the errors or irregularities must depart from good practice in a manner “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.6
[13] The appeal proceeds by way of rehearing, and the court on appeal must
examine the Judge’s reasoning carefully and come to its own decision on the facts.7
However, it is generally only in exceptional circumstances that a court on appeal will
interfere with the trial Judge’s findings of fact.8
District Court decision
[14] After pleading guilty to all charges on 20 September 2016, Mr Laxon was convicted and remanded in custody to 10 November 2016 for sentence.
3 Section 232(4).
4 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
5 Condon v R [2006] NZSC at [78].
6 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R at [78].
7 R v Slavich [2009] NZCA 188.
8 Rae v Police HC Hamilton CRI-2006-419-162 at [38].
[15] On 8 November 2016, through his new counsel Mr McCaskill, Mr Laxon filed an application to withdraw guilty pleas on two charges of unlawfully taking a motor vehicle and a reckless driving charge. The application was made on the grounds “when guilty plea was made on charges of unlawfully taking a motor vehicle x 2 and reckless driving charges, it was by AVL. I was on medication and didn’t understand what was happening.” On 10 November 2016, a Judge adjourned sentencing and directed the filing of affidavit evidence by both Mr Laxon and the Police in relation to the application.
[16] Affidavits were filed by the Police and for Mr Laxon relevant to the application. Mr Laxon’s counsel also provided to the Court copies of Mr Laxon’s relevant medical records and showed to the Judge copies of what were said to be Facebook messages. Several other documents were filed by counsel associated with memoranda for the Court.
[17] The application for leave to withdraw guilty pleas was argued in the District Court on 8 March 2017. Mr Laxon gave evidence and was cross-examined. A Mr Kelly, who had sworn an affidavit in support of the application, also gave evidence.
[18] In his oral judgment of the same day, the Judge noted that the guilty pleas which were at issue were entered at the same time as guilty pleas were entered to other charges over which there was no issue. He referred to s 115 Criminal Procedure Act 2011 which permits a defendant to withdraw a guilty plea by leave of the Court, and the principles which the Court must consider in dealing with such an application, as apparent from various judgments.9
[19] The Judge said that one of the grounds for the application was that new evidence had emerged that might give rise to a possible defence to the charges. In
that regard, he referred to an affidavit from Mr Scott Kelly.10 However, the Judge
9 R v C CA59/02, 28 May 2002; Udy v Police [1964] NZLR 235 (SC); R v Taylor [1967] NZLR
577 (SC); Gardiner v Levin District Court HC Palmerston North CIV-2006-454-630, 24
November 2006; Leeder v Christchurch District Court [2005] NZAR 18 (HC); R v Le Comte [1952] NZLR 564 (SC); R v Merrilees [2009] NZCA 59; Watts v R [2011] NZCA 41; Sharp v District Court at Whangarei [1999] NZAR 221 (HC); R v Nevin [2006] NSCA 72; R v Djekic (2000) 147 CCC (3d) 572 (ONCA).
10 The Judge was referring to an affidavit in which Mr Kelly said he had on his cell phone an image of a communication from Ms Murtagh, Victim 1, admitting she loaned Mr Laxon her car.
said that when Mr Kelly arrived at Court and was sworn in, Mr McCaskill had said that the Court should “put to one side that affidavit because Mr Kelly was not able to substantiate his claim, and effectively the evidence contained in his affidavit was incorrect”. Instead, Mr McCaskill had said the Court should consider evidence in the form of “three copied pages of what appeared to be Facebook communications between a third party and Mr Kelly”. As to that, the Judge said these communications were objectionable as hearsay and there were issues of credibility, veracity and reliability as to what was said in them. The Judge said, after considering these communications, that only one small part of a communication could be considered new evidence. It was:
… a statement by the writer of the Facebook message about what may or may not have happened, the writer of the message indicating that she was drunk at the time and does not really recall and does not really know.
[20] The Judge considered this evidence was of limited value and noted the writer of the message was not to give evidence at this hearing so there were hearsay issues relating to it. He said this evidence was not provided by way of affidavit, as required by the Court in a direction in December 2016.
[21] The Judge said there was insufficient evidence in which he could conclude there was new evidence available that might provide a possible defence to the charges or charge Mr Laxon faces.
[22] As to an assertion that Mr Laxon was physically and mentally unwell and therefore unable to engage with counsel, the Judge said he had regard to medical records provided to the Court from the Southern District Health Board. He said they described the operation and associated medication Mr Laxon had received, and indicated there was physical trauma requiring an operation, that he was appropriately medicated for pain and in relation to infection prevention but said there was “absolutely no evidence before the Court that his injury or the operation, or the medication prescribed had any impact on Mr Laxon’s state of mental health at the time or his ability to interact” with counsel or to deal with matters generally.
[23] The Judge said that Mr Laxon’s evidence under cross-examination as to what his former lawyer, Ms Saunderson-Warner, had to say about how pleas were entered
oscillated between saying that she was lying and his not being able to remember what had happened with her.
[24] The Judge said the evidence was sufficient to establish that Mr Laxon was able to communicate with others at the relevant time and was not so incapacitated as to be unable to receive advice or give instructions with regard to the pleas that were to be entered.
[25] The Judge considered it significant that Mr Laxon did not claim he was unable to enter guilty pleas to certain charges on 20 September 2016. He said the medical evidence was insufficient to establish that Mr Laxon was unable to determine whether or not he should plead guilty by reason of lack of capacity due to his state of health at the time.
[26] The Judge indicated that he accepted Ms Saunderson-Warner’s evidence as to the communications she had with Mr Laxon because they were consistent with the way he regarded her at “an extremely experienced and competent lawyer”. He noted she had not been cross-examined, although he also noted Mr McCaskill had indicated he would have preferred to cross-examination Ms Saunderson-Warner. He referred to the fact that no notice had been given requiring Ms Saunderson-Warner to be available for cross-examination and said there was no need for her to be cross- examined because he considered there was no basis for the application.
[27] The Judge declined the application.
Summary of appeal grounds
[28] Through Ms Henderson’s submissions, Mr Laxon’s grounds of appeal were:
(i)Evidence supporting a defence on two of the charges became available that had not been available at the time the guilty pleas were entered;
(ii)Due process had not been followed: Mr Laxon was not present for part of the hearing which included the evidence of one of the defence witnesses;
(iii)The Learned Judge made a decision on untested evidence based on his opinion of Mr Laxon’s former counsel, in such circumstances where the Judge drew an unfavourable inference against him in a situation where the evidence ought to have been tested and the lawyer called;
(iv)Mr Laxon’s medical state was not considered at the time the pleas were entered, he was on significant amounts of opioid medication at the time and notice ought to have been taken in these circumstances that there was a chance of reduced capacity; and
(v) The decision not to vacate the guilty pleas was unsafe.
Potential new evidence
[29] The summary of facts had recorded that Victim 1, Alexandria Murtagh, the owner of a Mazda Familia vehicle, was unknown to Mr Laxon and had reported her vehicle stolen on 21 August 2016 after it had been taken from outside a friend’s address in North Dunedin at a time when she had not given any person authority to take or use her motor vehicle.
[30] The summary of facts referred to the Police locating this vehicle on 27
August 2016 in Mornington, Dunedin, some seven days after it had been taken from where it had been parked.
[31] The pre-sentence advice to courts, prepared on 17 October 2016, referred to the victim’s advice that her car was recovered undamaged after five days and of her being significantly impacted at the time through the unlawful taking of the vehicle. Ms Henderson referred to the victim’s advice with regard to the way the victim had said she would make no claim for reparation.
[32] In his affidavit in support of his application, Mr Laxon provided no detail as to how he asserted the owner of the vehicle gave him authority to have her vehicle for seven days, the identity of the person who supposedly gave him that authority and the circumstances in which it was given. He did not explain if or how it was he took the vehicle from outside an address in North Dunedin but it was found
abandoned seven days later in Mornington, some 4 kilometres away. All he said as to how he had the vehicle was to refer to the statement he made to the Police as apparent from Police disclosure that, when he was asked about a Mazda car, he said that he had been given the key by the owner. That was evidence about what he told the Police, not evidence about how he came to take the vehicle.
[33] The other charge of unlawfully taking a vehicle related to a Holden Astra motor vehicle. The summary of facts said that Victim 2, Leone Marner the owner of a Holden Astra, on 24 August 2016 in Christchurch, lent her vehicle to a friend to drive to Dunedin to visit his pregnant partner. Mr Laxon was accompanying this person on the trip to Dunedin. Victim 2 gave only her friend authority to take or use her motor vehicle. The summary said that, after Victim 2’s friend stopped at the home address on Byron Street, Mornington, Mr Laxon picked up the keys to the Holden Astra, which were on a coffee table, and took the vehicle. The summary said this victim had not given Mr Laxon authority to take or use the vehicle. The summary of facts referred to this victim reporting the vehicle stolen on 1 September
2016.
[34] On 2 September 2016, Mr Laxon was located in the Holden Astra vehicle in Ravensbourne, Dunedin. This was the vehicle he was in when he attempted to evade the Police and was ultimately apprehended.
[35] In his affidavit in support of his application, Mr Laxon again provided no evidence as to the circumstances in which he claimed to have borrowed the car from the owner or as to the identity or characteristics of the person who had allegedly authorised him to be using that vehicle. The only evidence he provided as to this was to say in his affidavit that disclosure from Police records indicated that he “told Police that the car [he] had been driving was borrowed”.
[36] It was first suggested there might be new evidence that could mean Mr Laxon had a defence to this charge through a memorandum provided to the Court by his then counsel Mr McCaskill on 7 December 2016. Mr McCaskill said in his memorandum that the owner of the Holden Astra had made a statement to the Police in which she said she had allowed Mr Ricky Taylor to borrow her car. Her statement
was attached to the memorandum. Mr McCaskill also attached to his memorandum a note he had been given which he said indicated there might be a defence to the charge of unlawfully taking the Holden Astra.
[37] The attached brief note, signed by Ricky Taylor, stated “To Whom It May Concern, I Ricky Taylor verbally gave Robert Laxon permission to use the Holden Astra”.
[38] In an affidavit of 3 February 2017, Mr Ricky Taylor said:
I Ricky Charles Taylor of Dunedin unemployed
1. On 24 August 2016 at Christchurch I leant a Holden Astra car by Leone
Marnet, Robert Laxon and another person were with me.
2. We went to Dunedin in the car.
3. About 2 days later, in Dunedin, I leant the car to Robert Laxon.
[39] When first interviewed by a Detective about taking this car on 3 September
2016 and in his affidavit in support of his application, Mr Laxon had said nothing about how he had travelled from Christchurch to Dunedin in this car. He had said nothing about Mr Taylor giving him permission to use it and nothing to explain how he could have thought Mr Taylor could authorise him to drive a vehicle which, according to the summary of facts and Mr Taylor’s brief affidavit, only Mr Taylor had been authorised to drive by the car’s owner.
[40] The statement from the owner attached to the memorandum was a statement made to the Police on 7 September 2016 by Ms Marner, the owner of the Holden Astra.
[41] In that statement, she explained how she lived in Christchurch. She described the circumstances in which a man called Ricky (presumably Ricky Taylor) had asked if he could borrow her car to travel to Dunedin. She explained how a person, who would have been Mr Laxon, and another person were with Mr Taylor. She did not talk to Mr Laxon. She wanted to help Mr Taylor and lent him the vehicle. She said that the next day she tried to contact Mr Taylor to find out when he would be back in Christchurch but that she then heard the vehicle had been taken
from Mr Taylor. In the statement, she explained how, on 28 August 2016, Mr Taylor and the other person had come to her home late in the evening, that she grilled them about what had happened to the vehicle and said she would be going to the Police. She said Mr Taylor had agreed to accompany her the next day to do this but did not do so. In her statement she said that two days later Mr Taylor had come to her house, they went to the Police Station and Mr Taylor explained to the Police how his friend “Mr Laxon had taken the keys off them and had gapped it”, how, when he was on the phone in the house in Mornington, Mr Laxon had taken the keys, gone outside and disappeared with the car. In her statement, Ms Marner said that Mr Taylor had told the Police he did not give Mr Laxon the car to use or the permission to drive.
[42] A Mr Scott Kelly swore an affidavit of 30 November 2016 in support of Mr Laxon’s application. That affidavit related to the Mazda vehicle taken from outside an address in North Dunedin on 21 August 2016. In that affidavit Mr Kelly said:
1. That I am aware Robert Laxon was charged with unlawfully taking a motor vehicle owned by Alexandria Murtagh.
2. That there is on my cellphone an image from her to me admitting that she loaned Robert Laxon the car.
3. My cellphone is at present held by The Police. It was taken from me when I was arrested for breaching a protection order.
[43] One of the affidavits the Police filed relevant to the application was from a New Zealand Police digital forensic technician, L Zigliani. In that affidavit, she said how she had examined a cell phone belonging to Scott Kelly. She had been told by a Constable involved in the investigation that Mr Kelly said Ms Murtagh had admitted to him she had lent her vehicle to Mr Laxon and alleged there was evidence on the cell phone of communications between him and Ms Murtagh as to this. In her affidavit, Ms Zigliani said she had found no evidence of communications such as Mr Kelly said had occurred and had found no evidence of any communications between Mr Kelly and Ms Murtagh.
[44] It was thus apparent from the transcript of the evidence given at the hearing of the application to withdraw guilty pleas, and Mr McCaskill’s suggestion that Mr Kelly’s affidavit should be put to one side, that Mr Kelly’s evidence was fundamentally discredited in that he accepted there was no image on his cell phone
from the owner of the Mazda, admitting that she had loaned Robert Laxon the car. Instead, Mr Laxon and his then counsel sought to rely on images of Facebook messages which were not before the Court by way of affidavit. It must have been suggested to the Judge that these images might provide a basis for Mr Laxon to assert that Ms Murtagh had authorised him to have her vehicle.
[45] The Judge examined the claimed copies of Facebook messages. He described the Facebook messages as being from a “third party”. There is nothing in the record before me to suggest that they were communications from the true owner of the vehicle or to suggest that, whatever was in the alleged Facebook messages, they provided some evidential basis for Mr Laxon to assert that the owner of the vehicle had authorised him to have possession of the Holden Astra.
[46] One of the charges in which Mr Laxon sought leave to withdraw his guilty pleas was the charge of reckless driving. The only basis on which he sought to contest that charge was as to his assertion that he had not rammed a Police car when driving the vehicle on 2 September 2016. Rather, he wanted to claim the Police had driven into the path of his vehicle. That dispute over a detail of the offending was raised at his sentencing on that charge. Even if Mr Laxon had been correct in what he asserted as to this, it would not have provided him with a defence to the charge. The way in which he drove the car in trying to evade the Police on 2 September 2016 was reckless in a number of respects. In her submissions as to the appeal against sentence, Ms Henderson acknowledged that, in terms of reckless driving, it was about as bad as it can get. Ms Henderson did not suggest that there was any basis on which he could arguably assert that he was not guilty of reckless driving.
[47] On 24 October 2016, after Mr Laxon had pleaded guilty to all charges and when he had been remanded for sentence on 10 November 2016, in a neatly written letter to a Judge of the District Court, Mr Laxon described his unfortunate background, explained how he had come to live “a life of criminal offending” and said how much he regretted his offending and wanted to say sorry for it. There was no suggestion in that letter that he thought, at that time, he was not guilty of any of the offending for which he was then due to be sentenced.
[48] The Judge had to determine whether the interests of justice required the application to withdraw guilty pleas to be granted, in particular whether leave should be granted to avoid a miscarriage of justice. In that regard, there was an onus on Mr Laxon to establish that he had an arguable defence. This did not mean he had to prove his defence would inevitably succeed or that it would even be highly likely to succeed, but he did have to establish that he had an arguable defence or one which “ought to be heard”.11
[49] It is clear that, after considering the evidence advanced for Mr Laxon, and considering what he had to say under cross-examination, the Judge had formed the view that the potential new evidence was not sufficient to establish that he would have an arguable defence to the charges. On my review of all the evidence which was being advanced as to a potential defence, I consider the Judge was justified in the assessment which he came to in this regard. Mr Laxon had earlier pleaded guilty to the unlawful taking charges. In the interests of justice, the potential new evidence which was brought to the attention of the Judge did not justify leave being granted to withdraw the earlier guilty pleas.
Due process
[50] There appeared to be agreement as to how the hearing proceeded on 8 March
2017. It began about 2.15 pm. The hearing had been scheduled to take about one hour. The Judge was scheduled to do an unrelated sentencing at 4.40 pm. The Court adjourned at 3.31 pm and resumed at 3.50 pm when Mr Laxon was still being cross- examined. Mr McCaskill then discussed with the Court matters relating to the next witness, who it appears was to be Mr Kelly. The Court adjourned at 4.05 pm but resumed again at 4.13 pm. It then appeared the hearing would run over the allotted hour. The Judge decided that he was going to have to part-hear the application. He told Mr Laxon that the hearing would be put off to another day. Mr Laxon then left the courtroom to go to the Court cells.
[51] After some discussion between counsel and the Judge, the defence witness, Scott Kelly, was then called. He briefly referred to his affidavit. He accepted that
11 Joshi v R [2015] NZHC 2022 at [22]-[23]; Cooper v R [2013] NZCA 551 at [20].
there were no images on his cell phone recording messages from Ms Murtagh, Victim 1, the owner of the Mazda. This was one of the cars which Mr Laxon had pleaded guilty to unlawfully taking. He then gave evidence about searching the internet and obtaining various communications he had with Ms Murtagh and copying them to the Police. These were the images which the Judge looked at. The Police objected to the evidence being led. There was a discussion about these images, but no cross-examination of this witness or questions from the Court. Mr Kelly was then excused. All this occurred in the absence of Mr Laxon.
[52] Following Mr Kelly’s evidence, the Police applied to have the application dismissed. There was a discussion about whether it was necessary for Ms Saunderson-Warner to give evidence. The Police submitted there was no evidential basis on which the Court could be asked to vacate the plea. Mr Laxon argued the application should proceed because Mr Laxon’s evidence conflicted with that of Ms Saunderson-Warner. He also suggested that the advice she gave him may not have been adequate.
[53] The Judge then asked for Mr Laxon to be brought back into Court and gave his decision declining the application.
[54] Mr Smith, for the Crown, accepted the hearing should not have proceeded with a witness being called in the absence of Mr Laxon but submitted that this could not, of itself, have given rise to a miscarriage of justice sufficient to allow this appeal. Ms Henderson accepted that, of itself, what occurred was probably not so serious as to justify the appeal but, in conjunction with other matters, was part of what had brought about a miscarriage.
[55] There was an error of process, contributed to no doubt by the fact the hearing was taking longer than had been scheduled and the Judge was committed to another sentencing hearing at 4.40 pm. Mr Laxon was however represented by his counsel when Mr Kelly was giving evidence.
[56] Ms Henderson argued that, had he been in Court, Mr Laxon would have been able to give his counsel instructions that might have been appropriate having regard
to Mr Kelly’s evidence. Mr Kelly was, however, giving evidence about communications he claimed to have had with Ms Murtagh. There was no suggestion in the affidavits of Mr Laxon or Mr Kelly that Mr Laxon was party to those communications. Unless Mr Laxon had somehow been involved in orchestrating the evidence which Mr Kelly was to give about these communications, his presence could have made no difference to the evidence which Mr Kelly was going to give. Had he been involved in orchestrating the evidence to be given by Mr Kelly, there would have been even more serious issues as to the credibility of Mr Kelly’s evidence than had already been exposed through the way it had become apparent his brief affidavit was untrue.
[57] The issue on an appeal against conviction is whether a miscarriage of justice has occurred. Not every error that has occurred in the conduct of any proceedings will give rise to a miscarriage of justice.12 The fact Mr Laxon was absent during part of the hearing over his application was not an error so gross or prejudicial that there was a miscarriage of justice.
Non-calling of former counsel
[58] Because of the view which the Judge had come to as to the overall merits of Mr Laxon’s application, he did not consider it necessary for Ms Saunderson-Warner to be available for cross-examination. Nevertheless, he clearly had regard to her evidence. He was entitled to do this because Mr Laxon and his counsel had not given the Police notice that she was required for cross-examination. The Judge was also so obviously unimpressed by the evidence that Mr Laxon had given under cross- examination, that he was effectively putting to one side that evidence in considering what weight he should give Ms Saunderson-Warner’s evidence.
[59] Ms Saunderson-Warner swore an affidavit dated 10 January 2017. She said that she had represented Mr Laxon from April 2016 to 31 October 2016, initially in relation to burglary and attempted burglary charges. She said she met with him in relation to those charges and he showed a good understanding of Court processes.
She said she spoke with him by telephone on 6 September 2016 following his arrest
12 Condon v R, above n 3, at [78].
when he was in hospital. She said she got sufficient instructions from him for him to be remanded in custody by consent. She received full disclosure in relation to the new charges, including two unlawful takings of a motor vehicle charge and theft of a motor vehicle, failing to stop for red and blue flashing lights and a reckless driving charge. She said she took instructions from Mr Laxon between 17 and 20 September
2016 and, in her opinion, he was able to fully understand the charges. She said he confirmed the pleas in relation to the historic burglary charges.
[60] She said she read in the summary of facts for the new charges, paying particular attention to the unlawful taking charges, given he had mentioned a defence when initially speaking to the Police. She read him the statements of the complainants over the telephone. Ms Saunderson-Warner said that he instructed her that he wished to plead guilty to all charges if the theft of a motor vehicle charge was withdrawn. She said she gave him the option of a further adjournment, given she had received disclosure on only 17 January 2017, but that he was then specific that he wished to plead guilty to the other charges but did not accept the theft of a motor vehicle charge. On the basis of those instructions, she discussed the matter with the prosecutor and the charge of theft of a motor vehicle was withdrawn.
[61] She said Mr Laxon had no difficulty understanding the situation and that his behaviour was consistent with how it had been when she began representing him in May 2016. She also said she spoke on numerous occasions with his partner who did not express any concerns about Mr Laxon’s health or ability to understand the charges.
[62] Ms Saunderson-Warner contradicted a statement by Mr Laxon in his affidavit that he had contacted Ms Saunderson-Warner several days after 20 September 2016. Ms Saunderson-Warner said, on 31 October 2016, she met Mr Laxon in prison to discuss sentencing. He then informed her that he no longer wished her to act as he thought she was working with Police prosecutions.
[63] Consistent with Ms Saunderson-Warner’s affidavit, the Court record shows that, on 20 September 2016 when Mr Laxon pleaded guilty to all other charges, the charge of theft of a motor vehicle was withdrawn. Her affidavit also indicated she
had discussed in some detail the charges to which he had pleaded guilty and had read to Mr Laxon the complainants’ statements. Consistent with this, before he was ultimately sentenced, Ms Henderson and the Police joined in asking the Court to amend one of the burglary charges to “attempted burglary” on the basis it had been agreed between the then defence counsel and the Police, before guilty pleas were entered, there would be such a change to one of the charges and through an oversight this had not occurred.
[64] It had been anticipated by both the Police and Mr Laxon’s counsel that Ms Saunderson-Warner would be available for cross-examination. It appears the Judge had assumed this would also be necessary and thus the hearing would have to be adjourned part-heard but changed his mind after the Police made their application for the withdrawal application to be dismissed on the basis that, after hearing from Mr Laxon and Mr Kelly, there was no basis on which the application could succeed. It was clear from the Judge’s decision that he accepted this was the position.
[65] It would have been better, given the importance of justice being seen to be done, if she had been cross-examined and Mr Laxon had seen her respond to the questions that were being put to her. It might well be that this is what would have happened but for the pressure the Court was under through the constraints of the Judge being scheduled to deal with another matter at 4.40 pm.
[66] There was a conflict between the evidence Mr Laxon gave in his affidavit and when he was questioned in Court, and what Ms Saunderson-Warner had said in her affidavit. However, it was open to the Judge to reach the view, after hearing and seeing Mr Laxon being cross-examined, that his evidence was so discredited that it could be put to one side.
[67] With that evidence put to one side, for the reasons already discussed, it was open to the Judge to conclude at that point that Mr Laxon had no arguable or tenable defence to the charges to which he had pleaded guilty. The Judge also had a clear view as to the lack of merit in other grounds relied on in support of the application, his assessment on which was not dependent on the evidence provided by Ms Saunderson-Warner in her affidavit. In those circumstances, the fact he gave a
decision on the application without Ms Saunderson-Warner having been cross- examined is not, of itself, sufficient to have caused a miscarriage of justice.
[68] Ms Henderson submitted that, with Ms Saunderson-Warner not being questioned, the Judge was not entitled to draw the inference that her evidence as to how she had given advice and received instructions was correct, given the way that evidence conflicted with that of Mr Laxon.
[69] Given, the Judge was entitled to reject, and did reject, Mr Laxon’s evidence on this after he had been cross-examined, there was no such conflict so that it was open to the Judge to accept Ms Saunderson-Warner’s evidence. Importantly, it is apparent from his decision that this was not crucial to the judgment he reached as to the overall merits of the application.
[70] Ms Henderson submitted that the way Ms Saunderson-Warner’s evidence had been dealt with was again not that it had caused a miscarriage of justice but that it had contributed to a miscarriage of justice. I do not accept that submission.
Reduced capacity
[71] It was submitted for Mr Laxon that Mr Laxon was being prescribed Tramadol at 50 mg per day at the time he entered guilty pleas. Ms Henderson submitted Tramadol can affect cognitive functions and there was thus a real risk that he was in an “arguably reduced state” at the time he pleaded guilty.
[72] On an application to withdraw guilty pleas and on an appeal against conviction on the basis that such application should have been granted, the onus was on Mr Laxon to provide some evidential basis to support the assertion that he did not know what he was doing when guilty pleas were entered to all charges.
[73] The starting point was that there had been a hearing in the District Court, presided over by a Judge, where he was represented by counsel. Guilty pleas were entered to all charges but for one. In accordance with instructions which his counsel said Mr Laxon had earlier given to her, the charge of theft was withdrawn.
[74] I have listened to the oral recording of the hearing when the guilty pleas were entered. Ms Saunderson-Warner told the Judge she had written instructions to the two original charges of burglary and attempted burglary and guilty pleas could be entered to those charges through counsel. She then asked that the two unlawful taking charges, the charge of reckless driving and the charge of failing to stop be put to Mr Laxon. The Judge then dealt with each of those four charges, reading out to Mr Laxon the specifics of each charge and asking him how he pleaded. To each charge, Mr Laxon responded “guilty”. Once those guilty pleas had been entered, Ms Saunderson-Warner advised the Judge that the Police had an application to make in relation to the charge of theft. The Police then sought leave to withdraw that charge.
[75] The Court record shows that the summary of facts in relation to all charges was read out. As already referred to, on 24 October 2016, in anticipation of sentence on all matters, Mr Laxon wrote a letter to the Court apologising for his offending.
[76] The general tenor of Mr Laxon’s evidence in his affidavit and when questioned at the hearing, was that there was much he could not remember. In his affidavit, he said he was not in mainstream prison because he was “too unwell, and continuing to receive medical treatment including medication”.
[77] It is clear from the Judge’s decision that he had carefully considered the medical records relating to Mr Laxon in reaching the decision he did. I have also carefully read those documents.
[78] The summary of facts described how Mr Laxon ran off from the crashed vehicle near Port Chalmers but was located hiding in dense bush after being tracked by a Police dog unit. The medical records indicate he was admitted to an orthopaedic ward of Dunedin Hospital on 2 September 2016 with lacerations and puncture wounds as a result of a dog bite to the left lower limb and a contusion to the deep peroneal nerve. His presenting complaints were all of a physical nature, including reported difficulty in moving his toes and numbness to his foot. Mr Laxon went into the operating theatre for the wound to be cleaned and the nerve and tendon damage assessed. He was taken to the operating theatre again on 9 September 2016 for further exploration and cleaning of the wound, and for a skin graft. He was
discharged from hospital to the Otago Corrections facility at Milton on 14 September
2016 with instructions to the manager that he was to keep his dressing intact and dry. He was not to shower but was able to wash provided he kept his leg dry. He was using crutches and had a metal foot splint. They were to ensure that he had extra pillows so he could keep his legs elevated at all times when he was in bed or sitting. He was to be seen daily for medications.
[79] Mr Laxon was seen daily from 14 to 21 September 2016 for reviews as to how the wound was healing and how he was recovering from the skin graft.
[80] There is nothing in the medical records to suggest that his mental function was affected by either the original wound or medication he was prescribed. Records do indicate that he was in pain from the wound and that medication, including Tramadol, was prescribed to help with that. On 20 September 2016, Mr Laxon was prescribed 50 mgs Tramol and was advised to take regular Panadol.
[81] With the instructions that had been given as to his ongoing care and medical needs, there was no reason to think that his not being in mainstream prison on 20
September 2016 was because of any impaired mental functioning.
[82] The records also indicate that, between 14 and 21 September 2016, Mr Laxon was able to engage appropriately with medical staff, describe how he was feeling, and was able to discuss with medical staff engagements he had with them previously and what was planned for the future. On 20 September 2016, the day on which he entered guilty pleas, he was seen at 8.50 am. The notes indicate that he had stated that he “feels well today”. He described the pain associated with the wound site as being five out of 10, a significant improvement on the 8/10 he had spoken of on 16
September 2016.
[83] Consistent with that improvement, on 21 September 2016, Mr Laxon was moved off daily medical oversight and said he was “feeling better than he has been”. Throughout all the time he was in hospital and seen by medical staff through to 21
September 2016, he was able to give verbal consent to the treatment he was receiving.
[84] One of the affidavits filed by the Police in opposition to the plea withdrawal application was from Detective O’Connell. He referred to and confirmed the statement he had prepared on 3 September 2016 referring to his meeting with Mr Laxon at the Dunedin Public Hospital at 9.30 am on 3 September 2016. He said Mr Laxon was alert and spoke freely to him, called the Detective by his name and was aware of what was happening. He was aware he had just had a bedside Court hearing and was remanded in custody to appear in Court on Tuesday 6 September
2016. The statement includes a record of questions and answers about the cars that Mr Laxon was ultimately charged with taking unlawfully. It is apparent from the statement that Mr Laxon was able to respond to questions clearly and coherently and, in doing so, claimed that he had been allowed by the owners to have the cars. The statement concluded with reference to the Detective asking Mr Laxon if there was anything the Detective could do for him and Mr Laxon responding by asking the Detective to let his partner know that he had been arrested and that he was in hospital. There was nothing in that evidence to suggest that Mr Laxon’s mental functioning had been affected by the injury that he had suffered or medication he had then been prescribed.
[85] Although Mr Henderson endeavoured to explain how Tramol might affect cognitive functioning, there was no evidence as to that and no evidence that it had done so. There was no suggestion that Mr Laxon did not know what he was doing when he entered guilty pleas to the remaining charges.
[86] There is no reason to think that Mr Laxon would have been overawed or confused by the Court process. Given his record of previous offending, it must have been sadly familiar to him.
[87] There is no suggestion in any evidence put before the Judge that Mr Laxon was misled as to what the Police had to prove against him in relation to the charges to which he had pleaded guilty when he did plead guilty. He clearly understood that he would not have been guilty of unlawfully taking a motor vehicle if he had genuinely believed that the owner of the vehicle had authorised his driving the vehicle. When questioned by a Detective on 3 September 2016, when he was in hospital, Mr Laxon denied taking either vehicle without authority. He said, in one
instance, he had borrowed the car, and in the other, that he had been given the key by the owner.
[88] The Judge was thus justified in concluding at the end of the defence case that there was no evidential basis for Mr Laxon to suggest that he had not known or understood what he was doing when he appeared by AVL and entered guilty pleas on all but one charge on 20 September 2016.
Conclusion as to appeal against conviction
[89] It was not submitted the Judge made any error as to the principles which he had to consider in deciding whether or not the application for leave to withdraw guilty pleas should be allowed. After hearing evidence from Mr Laxon, the Judge considered there was no merit in the application and, having regard to the interests of justice, the application should be refused. On appeal, Mr Laxon has not been able to show there was any error in the process by which that decision was reached or any basis on which it can be said a miscarriage of justice occurred in the application being refused. Mr Laxon’s appeal against conviction on the two unlawful taking charges and the reckless driving charge is therefore dismissed.
Sentencing
[90] In his 30 June 2017 decision on sentencing, the Judge laid out the facts relating to the various charges that the appellant had pled guilty to. He noted there was a lot of reparation owing, for which he would make orders, although he doubted whether the victims would ever be paid the sums they had lost.
[91] The Judge noted that the appellant had 30 prior burglary convictions as well as other convictions. He considered that, as the burglary and attempted burglary were premeditated, of commercial premises and at a time when people were likely to be present, the offending was serious. He took a starting point of two years and two months’ imprisonment.
[92] The Judge found that the reckless driving was of the most serious sort so increased the overall starting point sentence for this by the maximum penalty for that
offence, three months’ imprisonment. Nine months was added for the two incidents of taking a motor vehicle. This brought the starting point sentence to three years and two months.
[93] The Judge considered that a strong uplift was required to recognise the appellant’s previous convictions. Although he considered that uplift could be 18 months, in allowing for totality, the Judge applied a nine month uplift. He allowed for a five per cent discount for personal mitigating factors. He then gave a nine month discount for the guilty pleas, which is somewhere between 15 and 20 per cent, to take into account that they were not prompt. The end sentence was two years and ten months.
[94] The Judge then awarded reparation totalling $7,319.40, based on the reparation schedules before him. He disqualified him from driving for 15 months on the reckless driving charge and a further three months on the failing to stop charge.
Principles on appeal against sentence
[95] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.13 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.14
Reparation
[96] The sentencing Judge ordered total reparation of $7,319.40, being:
(a) $731.50 to Victim 1, which covered the $605 losses outlined in the reparation schedule and the cost of the spare tyre and tools missing
from the vehicle;
13 Criminal Procedure Act 2011, ss 250(2) and 250(3).
14 Ripia v R [2011] NZCA 101 at [15].
(b)$3,800 to Victim 2, for the damage to the car, based on research by the officer in charge into a fair value for the car; and
(c) $1,167 to Victim 5 and $1,620.90 to the victim’s insurer for repairs to
the function centre.
[97] In relation to Victim 1, Ms Henderson noted that, although Victim 1 had reported a financial loss of over $605, she had decided not to claim reparation and, according to a report of 29 May 2017, had not contacted the Police to update information in her victim impact statement.
[98] The sentencing Judge had specific information before him as to how Victim 1 had incurred costs and a loss of $605 as a result of the unlawful taking of her car. That loss had to be based on information provided to the Police by Victim 1. A further $126.50 was allowed for the value of a spare wheel car jack and tool kit. The Judge thus had adequate information on which he could assess her loss as being
$731.50.
[99] The loss to Victim 2 was based on an estimated value of her vehicle of
$4,000, less $200 received for it from a car wrecker. In her statement to the Police of 7 September 2016, the owner had said the car had been valued at about $6,000 the last time she insured it, that she thought it would still be worth that $6,000 but her insurer used to drop its value by $1,500 each year. The Police estimation of the loss she suffered in respect of that vehicle was reasonable.
[100] The loss suffered by the owners of the building and function centre which had been burgled was based on specific information provided by the insurer.
[101] For Mr Laxon, Ms Henderson criticised the Judge’s decision to order reparation when he said that Mr Laxon was unlikely to pay it. Section 12 of the Sentencing Act provides that a court must impose reparation unless “satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate”.
[102] There was no information before the Court or before me that there were special circumstances or that there would be particular hardship if Mr Laxon was ordered to pay reparation. He accepted his liability to make reparation. Mr Laxon told the Probation Officer who prepared the updated advice to courts that he would be able to meet reparation by way of minimum instalments once released. In the earlier report, he accepted liability for reparation associated with the burglaries.
[103] The Judge did express a concern as to whether Mr Laxon would actually make the reparation ordered but there was no indication from the Judge that he considered Mr Laxon would not be able financially to do so.
[104] There was no error in the Judge’s decision to order reparation of $7,319.40.
Length of sentence
[105] Ms Henderson argued the ultimate sentence imposed on Mr Laxon was manifestly excessive, primarily because of the uplift of nine months for Mr Laxon’s previous offending. She argued this was excessive when considered as a proportion of the starting point sentence of two years and two months for the burglary offending. She accepted that, even allowing for the dispute of how Mr Laxon had come to collide with a Police vehicle, the reckless driving was so serious as to justify an uplift for that offence of three months’ imprisonment. No issue was taken with the starting point of two years and two months’ imprisonment for the burglary and attempted burglary or the nine month uplift for the two incidents of taking a motor vehicle.
[106] The uplift for the reckless driving charge of three months’ imprisonment was the maximum sentence of imprisonment that could be imposed for that offence. The further uplift of nine months should be treated as an uplift on the starting point sentences of two years and 11 months for the burglary offending and the two charges of unlawfully taking a motor vehicle.
[107] The Judge was obviously concerned at the fact Mr Laxon was a recidivist burglar, whose offending had not significantly altered as a result of previous sentences of imprisonment. This justified an increased sentence for the protection of
the public and in an attempt to deter him from this offending. This previous offending of dishonesty also justified an increase in the sentences for the two incidents of unlawful taking of a motor vehicle. The uplift for previous offending was thus some 26 per cent on the initial starting point for that offending.
[108] Mr Smith, for the Crown, referred to the Court of Appeal’s judgment in R v Columbus as being of some assistance.15 There, the Court of Appeal had considered a starting point of one year was appropriate for a spontaneous and opportunistic burglary “at the minor end of the scale”. The offender had broken into a garage and stole a mountain bike, gardening tools and a tool box. That starting point was then increased by six months’ imprisonment for the theft of a lawnmower from the rear of a property, the theft of $68 worth of petrol through departing from a service without paying for it, and possession of a cannabis pipe and some cannabis leaf. This resulted in a starting point sentence of one and a half years’ imprisonment. His history of previous burglary offending was held to justify an increase of one year on that starting point.
[109] In R v Chin, the Court of Appeal declined to interfere with a sentence of three years’ imprisonment where Mr Chin had been found guilty of burglary, had earlier pleaded guilty to four charges of theft committed on a single day and was being resentenced for an earlier theft, plus charges of possession of cannabis plant and instruments and burglary.16 Some of that earlier offending had been committed while on bail.
[110] It is clear from the Court of Appeal’s discussion of the sentences in both Chin and Columbus, that a prior history of dishonest offending, particularly burglary, and the ineffectiveness of previous sentences of imprisonment, justify an increased sentence for later burglaries. The criminality involved in that later offending has to be assessed as more serious and there is a greater need for a sentence which deters the offender from further offending and provides more sustained protection for the
community from him.
15 R v Columbus [2008] NZCA 192.
16 R v Chin CA43/04, 10 June 2004.
[111] Given that rationale for the uplift, the nine month uplift here was appropriate.
[112] There appeared to be little Mr Laxon could be given credit for, apart from completing an initial drug addiction course while in prison, but the starting point was reduced by some four months, around five per cent, for personal matters which his counsel had mentioned. An offender might be given credit for an offer to participate in a restorative justice meeting with his victims as evidence of real remorse and evidence that an offender was endeavouring to take responsibility for his offending and to, in some way, be accountable to his victims for what he had done. Here, there was no information before the Judge to indicate that Mr Laxon was genuinely remorseful for what he had done. In his letter to the Court of 24 October 2016, Mr Laxon explained how his upbringing in a gang environment had led to his spending so much time in prison. He explained how he wanted his life to change and that he was determined to make changes. Perhaps the Judge recognised this in giving him some credit for personal factors and making it clear he did not wish to impose a crushing sentence.
[113] The sentence was then reduced by nine months for guilty pleas. This was equivalent to a credit of between 15 and 20 per cent. On this account, Mr Laxon was again fortunate.
[114] Mr Laxon had demonstrated no remorse in respect of the unlawful taking and reckless driving charges. Although he did plead guilty promptly to those charges, he could have lost any credit for that given the lengths he went to on his application to withdraw his guilty pleas to those charges.
[115] Mr Laxon did plead guilty to the other charges, including the burglary and attempted burglary charges after he was apprehended on 27 August 2016, but that offending occurred on 10 April 2016. Mr Laxon appeared in Court on those charges on 23 April 2016, was remanded in custody to 26 April 2016 and was then bailed to appear next in Court on 17 May 2016. He failed to attend Court on that day and a warrant was issued for his arrest. When he was located by the Police on 27 August
2016, he attempted to evade arrest, leading to the Police chase, the reckless driving and the damage to the Police vehicle that occurred on 27 August 2016.
[116] Mr Laxon’s failure to attend Court when required and his continued evasion significantly delayed the resolution of the criminal proceedings against him, put the Police to considerable cost and effort in obtaining his attendance at Court. It would have been appropriate to bring all that into account against the credit that he was otherwise entitled to for his guilty pleas on the charges relating to his April 2016 offending.
[117] The effective sentence for all Mr Laxon’s offending was imprisonment for a
term of two years and 10 years. He also has to pay reparation for a total of
$7,319.40 and was disqualified from driving for a total of 18 months, most of which he will be in prison. The Judge took care to arrive at a sentence which allowed for totality and reflected his wish not to impose a crushing sentence overall.
[118] I do not consider there was any error in the way the Judge arrived at the end sentence or that the end sentence was manifestly excessive. Mr Laxon’s appeal against sentence is accordingly dismissed.
Solicitors:
D L Henderson, Barrister, Dunedin
Crown Solicitors Office, Dunedin.
0
4
0