Leef v The Queen
[2017] NZCA 62
•17 March 2017
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA511/2015 [2017] NZCA 62 |
| BETWEEN | SLADE MITCHUM LEEF |
| AND | THE QUEEN |
| CA579/2015 | |
| BETWEEN | JOSEPH HURU TURNER |
| AND | THE QUEEN |
| Hearing: | 14 February 2017 |
Court: | Wild, Simon France and Duffy JJ |
Counsel: | M W Ryan for Appellant Leef |
Judgment: | 17 March 2017 at 2 pm |
JUDGMENT OF THE COURT
AMr Turner’s application to adduce fresh evidence is declined.
BMr Turner’s appeal against conviction on the charge of possession of an offensive weapon is allowed. The conviction is quashed. No retrial is ordered.
CMr Turner’s appeal against conviction for aggravated robbery and possession of methamphetamine for supply is dismissed.
DMr Leef’s appeal against sentence is dismissed.
_____________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Introduction
Messrs Turner and Leef were convicted following a jury trial of aggravated robbery and possessing methamphetamine for supply. Mr Turner was also convicted of possession of an offensive weapon (knuckledusters). Messrs Turner and Leef both pleaded guilty at the start of trial to a charge of possession of methamphetamine. At the same time Mr Leef pleaded guilty to further charges of possessing a methamphetamine pipe, dangerous driving and failing to stop.
Mr Turner appeals the three jury verdict convictions on the basis of errors allegedly made in the summing-up. Mr Turner also applies for leave to adduce fresh evidence and for the appeal to be allowed on the basis of that evidence.
Mr Leef appeals his sentence (nine years and six months’ imprisonment).[1] He formally abandoned his appeal against conviction pursuant to r 35 of the Court of Appeal (Criminal) Rules 2001.
Facts
[1]R v Leef [2015] NZDC 18693.
In May 2014 the occupants of a house were disturbed at night. One of the occupants was punched as he opened the front door. Several men forced their way in. Another occupant was hit on the head with a torch. The blow left a distinctive mark that reflected the shape of the torch. The house was subjected to a thorough search by the intruders while the principal occupant was further assaulted. Other occupants of the house were able to flee.
There were a number of vehicles at the scene, many of them apparently unable to be driven. The principal occupant handed over some car keys and the intruders left in a Subaru vehicle. As it happens, the police, by then alerted to the incident by one of the occupants who had escaped, were nearby. The Subaru vehicle was pursued and a chase ensued until the Subaru vehicle broke down. On the floor in front of the passenger seat there was a black bag containing the torch used to assault one of the occupants, and a significant quantity of methamphetamine. Also in the bag were a balaclava and handcuffs. On the back seat of the car was an Xbox and computer belonging to the principal occupant. The evidence of the occupants was that both these items had been in use in the house immediately before the robbery.
There were two people in the Subaru — Mr Leef who was driving and Mr Turner who was sitting in the front passenger seat where the black bag was found. Both men provided innocent explanations. Mr Leef said he went to the address to purchase a car from the principal occupant. The principal occupant had freely given him the keys to the Subaru. At trial it was suggested the vehicle had been purchased for $5000. Mr Leef denied he had been involved in a robbery. He said he fled the police because of the very small quantities of methamphetamine he was in possession of. Mr Leef said he knew nothing of the bag in front of the passenger seat.
Mr Turner told police he had gone to the address as that is where he had been told by Mr Leef to meet him. The two men had previously agreed to go out together that night. Mr Turner said he had been dropped off at the street and then picked up by Mr Leef in the Subaru vehicle. He knew nothing of what had gone on and nothing about the bag at his feet.
Neither man testified. Mr Leef, however, called evidence from a person who had previously bought drugs at the address from the principal occupant. The theory advanced was that the principal occupant was a drug dealer, the drugs in the car were his, and the burglary story had been made up to divert attention from him concerning ownership of the drugs.
Mr Turner’s appeal against conviction
Mr Turner challenges three discrete aspects of the summing up. We address each in turn.
The first proposition is that the Judge’s direction on inferences may have confused the jury about the standard of proof. The Judge’s direction to the jury on inferences was this:
[32] One thing you’re entitled to do, and we do it all the time; subconsciously perhaps; is to draw inferences. An inference is a logical conclusion. So, you’re doing it all the time. If you find this fact to be proved and you find that fact to be proved, then you can draw an inference, you can come to a conclusion. And in this case the Crown in particular is asking you to draw inferences from facts which they contend – it’s a matter for you, of course – have been proved. Whether they have or not, that’s for you to decide. Whether the inference which is open to – open on those facts is also for you to decide.
[33] But inferences are not speculating, it’s not guesswork; and if you can draw two inferences, one of which is favourable to the Crown and one of which is favourable to the defendants from the same set of facts, then the law says that you must draw the one that’s favourable to the defendants. That’s if they have equal weight. Obviously if they’re not of equal weight you will drawn an inference in favour of whichever party it might favour. But you are going to be asked to draw inferences in this case.
The focus is on the direction about equal weight.[2] It is said that the jury may have been 50/50 about Mr Turner’s presence at the house. If so, he is entitled to the benefit of a reasonable doubt but the jury may have applied this equal weight direction and applied a higher standard to Mr Turner’s defence.
[2]This Court in R v Puttick (1985) 1 CRNZ 644 (CA) at 647 explained the error in such a direction. If the jury cannot decide either way, that item of evidence should be put to one side.
The proposition cannot be right. Even if there were confusion over the role of the direction on inferences, the direction tells the jury to adopt the version favourable to the defence. If the jury followed that, it is unclear how adopting the inference favourable to Mr Turner (that he was not at the house) could somehow have been used by the jury to support a conclusion that the Crown had proved its case beyond reasonable doubt. The summing-up and question trail refer to the standard of beyond reasonable doubt on numerous occasions. There is no risk the jury was confused and this ground of appeal fails.
The second challenge concerns the lack of a specific warning under s 122 of the Evidence Act 2006 from the Judge about the reliability of the evidence of the principal occupant, who was the main target. He was the owner of the car, the Xbox and the computer. It was these items that were referred to in the charge. Section 122 of the Evidence Act 2006 empowers the judge to warn a jury of the need for caution when the judge considers specific evidence may be unreliable. Subsection (2)(c) requires the judge to consider such a warning when there is a witness with a motive to give false evidence that is prejudicial to a defendant. This is what Mr Turner relies on.
In the present case the defence advanced two propositions about the principal occupant. First, it was said he voluntarily gave the keys to Mr Leef who had gone to the property to obtain a car. It was common ground that the principal occupant traded in second-hand vehicles. Second, in relation to the methamphetamine, it was put to the principal occupant that he was a methamphetamine dealer and that the methamphetamine was his. Presumably the proposed inference is that he had left the methamphetamine in the car when he voluntarily gave the vehicle to Mr Leef. The principal occupant denied being a dealer but defence evidence was called from a witness who said she regularly accompanied another man to the house to purchase significant quantities of methamphetamine.
At the outset the Crown did not advance a theory about how the methamphetamine came to be in the car. It was not part of the aggravated robbery charge. Rather, the Crown just alleged that at the time the vehicle was stopped, the methamphetamine was knowingly in the possession of Messrs Turner and Leef. The unarticulated possibilities were that Messrs Turner and Leef had taken it to the scene, or acquired it at the scene.
By the time it came to close the case, the Crown accepted that on the evidence the jury might infer the principal occupant was the original owner or possessor of the methamphetamine. It noted that if the jury reached that conclusion, it would provide a further motive for the robbery. Judge Blackie in his directions accurately set out the defence case, and the challenges being made to the credibility of the principal occupant. He described his evidence as “cagey”.
There is no doubt that the issues surrounding the evidence of the principal occupant were squarely before the jury. The question on appeal is whether the Judge erred in not adding his weight to the dispute by way of a special caution warning.
The evidence about the principal occupant being a drug dealer did not go directly towards the charges. An assessment about his credibility in relation to the home invasion, and the thefts, was still required. And in that regard there was significant corroborating evidence. The jury could conclude him credible in that regard even if disbelieving his evidence about not being a drug dealer (something someone might lie about for obvious reasons).
The defence were entitled to advance their theory based around the drug evidence, but it was not a situation where a judge needed to enter the fray and lend support. The principal occupant’s credibility on the robbery matter was very much a jury issue. We note neither trial defence counsel requested such a warning. That is not determinative, but it does point to a perception that there was nothing out of the ordinary. We do not consider the Judge has been shown to have erred in not issuing a special warning under s 122 of the Evidence Act 2006.
The third challenge concerns the Judge’s direction on the offence of possession of an offensive weapon.[3] Mr Turner wore a knuckleduster on his upper chest. It hung from a chain around his neck. He said it was just jewellery.
[3]Crimes Act 1961, s 202A(4)(b).
This aspect of the appeal must be upheld. Section 202A(4) and (5) of the Crimes Act 1961 provide:
(4)Every one is liable to imprisonment for a term not exceeding 3 years—
(a) who, without lawful authority or reasonable excuse, has with him or her in any public place any knife or offensive weapon or disabling substance; or
(b) who has in his or her possession in any place any offensive weapon or disabling substance in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.
(5)It is a defence to a charge under subsection (4)(b) of this section if the person charged proves that he or she did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.
Unfortunately there was no reference in the summing-up or question trail to subs (5). The jury was told to assess Mr Turner’s intention objectively, that is from the viewpoint of what the reasonable person would think he intended. That is correct in terms of subs (4) and its test of prima facie intention but it is necessary to then go on and explain how a defendant may escape that inference (and that he has the onus in that regard).
The factual circumstances no doubt contributed to this oversight. Mr Turner’s primary defence was that he was not in the house, which would of course be a defence to this charge as well as the aggravated robbery count as there could be no prima facie inference of an intention to use the knuckleduster if he was not even there. His explanation that the knuckleduster was jewellery was therefore, in terms of his primary defence, just an additional point of no particular relevance. However, the jury needed to be told that if they decided Mr Turner was in the house, then his “jewellery” defence needed to be assessed in terms of subs (5). The failure to do this means this conviction cannot stand.
Mr Turner’s final ground of appeal is based on the availability of fresh evidence. Affidavits are filed from Mr Turner himself, Mr Turner’s sister, and Mr Leef. The total effect of the evidence is that:
(a)Mr Turner’s sister confirms it was she who dropped him off in the street. Mr Turner did not have a black bag with him. His sister says she offered to wait until Mr Turner was picked up, but he told her not to.
(b)Mr Leef provides an account that exonerates both him and Mr Turner. Mr Leef says he was taken to the property by a friend who wanted him to collect a car for him. When they arrived, Mr Leef was left on the road and the friend went up the drive with two others. They then came down in the Subaru, gave the key to Mr Leef and went off in their own car. Mr Leef saw Mr Turner get dropped off and went and picked him up whereupon a police car appeared.
(c)Mr Turner explains he instructed his lawyer that his sister was not to be called. He thought Mr Leef would testify and when he did not, Mr Turner was left without any explanation as to how he got to the address. (Of this we observe this version of events was generally contained in a police statement read at trial, and that Mr Turner elected not to testify after Mr Leef had elected.)
Of these three deponents, only Mr Leef is fresh. The evidence of the other two, Mr Turner and his sister, was available but not called because of an informed decision by Mr Turner. All there is now is a change of heart as to the best way to advance the defence. It is unnecessary to explore further the circumstances in which this type of evidence should be considered on appeal,[4] because the combined evidence lacks cogency regardless.
[4]The primary test is found in Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [116]–[120].
The evidence of the sister does not advance matters. How Mr Turner got to the property is not pivotal. What he did once there is, and on that the sister cannot help. Mr Leef’s evidence essentially seeks to revisit his own conviction (despite abandoning his conviction appeal), and proffers yet another version of events. It is uncorroborated and not credible. Mr Turner’s evidence just reasserts his trial defence that he did not go onto the property. Any other matters addressed by the evidence, such as whether Mr Turner had a black bag with him when he arrived, are peripheral — it was not, for example, ever alleged he took the bag to the scene.
We decline to admit the evidence, and that ground of appeal accordingly fails.
Accordingly, we dismiss Mr Turner’s appeal as it relates to the convictions for aggravated robbery and possession of methamphetamine for supply. There were no relevant errors in the summing-up. However we allow the appeal in relation to the charge of possessing an offensive weapon. In terms of the consequences of that outcome, Mr Turner is subject to a lengthy jail term. He has long served the short concurrent sentence that was imposed for this offence. In the circumstances we do not order a retrial.
Mr Leef’s sentence appeal
Mr Leef was sentenced to nine years and six months’ imprisonment. The nub of his appeal is that the sentence is out of line with other relevant decisions.
Mr Leef is 46 years of age. He is in a long-term relationship and has two adult children. Mr Leef has a formidable history of past offending and had previously been sentenced to imprisonment on six sentencing occasions. On one occasion he received a five year sentence for kidnapping. He had not long been released from his previous sentence when this offending occurred. Not surprisingly, the pre-sentence report assessed him as having a high likelihood of reoffending.
Judge Blackie took an eight year starting point for the aggravated robbery.[5] There were then uplifts for the methamphetamine (one year), the driving offences (three months) and previous offending (six months). There was a three month discount for Mr Leef’s efforts at turning his life around since his arrest.
[5]R v Leef, above n 1, at [35].
The main focus of the appeal is on the starting point of eight years for the aggravated robbery, it being submitted that it should have been six and a half to seven years. We will address the point on its merits, but first observe that the submission misunderstands the concept of adjusting a sentence for totality reasons. Here, for argument’s sake, it can be assumed the starting point for the methamphetamine offending should be four years. However, when added to the aggravated robbery starting point, that would produce a 12 year starting point, which is too high. The Judge recognised this and reduced that figure, for totality reasons, to nine years. That meant the necessary figure for the methamphetamine uplift, as a simple arithmetical exercise, became one year.
It can be seen that the one year figure owes nothing to the intrinsic culpability of the methamphetamine offending, which merits a much higher figure. It is simply a product of an eight year starting point for the aggravated robbery, and a conclusion that nine years is the appropriate overall starting point. So, if the aggravated robbery starting point drops to seven years, as Mr Ryan (counsel for Mr Leef) contended it should, the methamphetamine uplift just rises to two years, which is still well below the appropriate figure. That is why the focus of the appeal must be on the nine year starting point. It is that which must be shown to be excessive for it to be a successful appeal.
In support of his submission that the starting point for the aggravated robbery was too high, Mr Ryan relied on three recent decisions of this Court. Again, before addressing the detail of those, we note they were three unsuccessful appeals where this Court rejected claims that the starting points were too high. In the absence of accompanying comments such as that the starting point was the highest available, such cases offer an appellant little assistance. In such appeals this Court is not endorsing the starting point as the correct starting point or the only starting point. There is always a range, and all that is being said on appeal is that the lower court’s placement was not wrong. It does not necessarily mean a lower point would be inadequate or a higher point excessive. Indeed, as will be seen in two of these cases, this Court considered the starting points to be at the lower end of the range.
The first of the cases is Martin v R, a decision on the papers.[6] Six men, one armed with a shotgun, robbed a tavern. Patrons were ordered to the ground and their hands tied. A staff member was punched and kicked and another threatened. Cash was taken. Two offenders pleaded guilty and a starting point of eight years was taken. Others went to trial and a different judge adopted starting points of seven and a half years for Mr Martin, eight and a half years for a second defendant, and nine years for a third defendant. The starting points were held to be in range and indeed this Court observed the starting points for the first two offenders sentenced “could be regarded as being at the lower end of the range”.[7] We agree, and do not consider the case assists Mr Leef.
[6]Martin v R [2016] NZCA 213.
[7]At [10]–[11].
The second case is Lal v R.[8] It was arguably a more serious case than the present, although the circumstances were quite different. A starting point of seven and a half years was taken, and not accepted by this Court as excessive.[9] Again this Court observed a higher starting point was available.[10] We do not consider Lal should be seen as having precedent value.
[8]Lal v R [2016] NZCA 234.
[9]At [10].
[10]At [10].
The final case is Hemopo v R where a starting point of nine years was taken.[11] There three men forced their way into a private dwelling. The couple inside were threatened, and the male punched several times. The house was ransacked and some electronic goods and a car were taken. We see nothing in this case to suggest eight years for the present offending is excessive. In Hemopo it was held that starting points of more than seven years’ imprisonment remain appropriate for aggravated robberies involving invasion of a private home.[12] In the present case there were several men, two victims were assaulted and property was stolen. It was a home invasion at night. We consider the eight year figure was available to the Judge. There being no other ground of appeal, the sentence appropriately stands.
Result
[11]Hemopo v R [2016] NZCA 242.
[12]At [14].
Mr Leef’s sentence appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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