Maxwell v Police
[2019] NZHC 2224
•2 October 2019
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2019-488-000010
[2019] NZHC 2224
BETWEEN DANIEL ROY MAXWELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 September 2019 Appearances:
Appellant in Person
R B Annandale for the Respondent
Judgment:
2 October 2019
JUDGMENT OF MOORE J
[Appeal against sentence]
This judgment was delivered by me on 2 October 2019 at 3:00 pm
Registrar/ Deputy Registrar Date:
MAXWELL v NEW ZEALAND POLICE [2019] NZHC 2224 [2 October 2019]
Introduction
[1] On 20 February 2019 in the District Court at Kaikohe Daniel Roy Maxwell pleaded guilty to three charges. These were:
(a)receiving (over $1,000);1
(b)burglary;2 and
(c)possession of a utensil for using methamphetamine, namely a pipe.3
[2] The same day Judge D J McDonald sentenced him.4 On the charge of receiving Mr Maxwell was sentenced to 150 hours’ community work, nine months’ intensive supervision and was ordered to pay reparation of $1,683.40. On the charge of being in an enclosed yard he was sentenced to 150 hours’ community work and on the charge of possession of the methamphetamine pipe to 40 hours’ community work. The community work terms were ordered to be served concurrently. Additionally, Mr Maxwell’s fines totalling approximately $8,600 were remitted and a sentence of 175 hours’ community work substituted. This was cumulative on the 150 hours so that the total community work sentence was one of 325 hours.
[3] Mr Maxwell appeals his conviction and sentence in respect of the receiving charge only. Before me he represented himself.
The offending
[4] In March 2018 a derelict mill near Rotorua was broken into. 500 kilograms of copper wiring was stolen.
1 Crimes Act 1961, ss 246 and 247(1); the maximum penalty is seven years’ imprisonment.
2 Section 231; the maximum penalty is 10 years’ imprisonment. On the appeal there was some confusion as to the exact nature of the charge. The Judge’s sentencing notes record the conviction was entering a yard unlawfully while the charge list and other documents on the file, including the summary of facts and PAC report, record the charge as burglary.
3 Misuse of Drugs Act 1975, s 13(1)(a); the maximum penalty is one year’s imprisonment or a fine of $500.
4 Police v Maxwell [2019] NZDC 9324.
[5] On 23 March 2018 Mr Maxwell was at home in Rotorua. An associate asked him to sell some copper wiring. He offered Mr Maxwell $100 to do so. Mr Maxwell agreed. The pair unloaded an amount of copper wiring into Mr Maxwell’s car.
[6] Between 23 March and 4 April 2018, Mr Maxwell sold 443 kilograms of wiring to Macaulay Metals. He received $1683.40.
[7] In the early hours of 8 June 2018 Mr Maxwell went to a vacant property in Rotorua. The building had been gutted by a fire two months earlier. Mr Maxwell crawled under the house and extracted copper piping and electrical wiring. He was located by Police nearby, covered in dirt and equipped with tools and a headlamp. When searched, Mr Maxwell was found in possession of a methamphetamine pipe.
Procedural history
[8] The procedural history of this matter is extensive and, in some places, confusing. However, in order to properly understand the circumstances of the appeal it is necessary to set it out.
[9] At the time his pleas of guilty were entered and he was sentenced on 20 February 2019, Mr Maxwell was represented by counsel, Mr Murray.
[10] On 1 April 2019 Mr Maxwell filed an appeal for leave to appeal out of time. At the time of doing so it appears he was no longer represented by Mr Murray because in the field reserved for “Appellant’s lawyer” he wrote “To be advised”.
[11] On 2 April 2019 he filed a notice of general appeal. In the field reserved for “Grounds” he wrote:
“Charges of receiving unfounded due to person whom received from not guilty.”
[12] The appeal was set down for hearing on 11 June 2019. In the meantime Mr Maxwell engaged the services of Mr Harvey who, on 21 May 2019, filed a memorandum confirming he had received the documents relating to the appeal from
Mr Murray but was struggling to contact Mr Maxwell. He sought an adjournment on the basis he would not be able to file the appellant’s submissions in time.
[13] Mr Harvey’s application was granted by Downs J on 23 May 2019. The appeal was adjourned to 30 July 2019.
[14] On 16 July 2019 Mr Harvey filed a further memorandum. He said that the appeal, as he understood it:
“… flow[ed] directly from the fact that the alleged burglar who provided the copper wires was found not guilty of the offence at trial.”
[15] Mr Harvey confirmed he had been in contact with Mr Maxwell but his instructions were incomplete. He also noted the following:
(a)Mr Maxwell was seeking to appeal his conviction on the basis he should not have pleaded guilty;
(b)the fact that the alleged burglar had been found not guilty was not the end of the enquiry; and
(c)Mr Maxwell sought only to appeal his sentence on the receiving charge but had been sentenced concurrently for other charges.
[16] Then, in a further memorandum dated 21 July 2019, Mr Harvey advised he had received further instructions from Mr Maxwell. These were that he now pursued only his appeal against conviction. Mr Harvey considered that he was conflicted and sought leave to withdraw. He also sought a month’s adjournment to enable Mr Maxwell to find alternative counsel and file evidence in support of his appeal. Jagose J granted the adjournment on 25 July 2019. The appeal was placed in callover on 22 August 2019 for the purpose of confirming whether Mr Maxwell would be represented by counsel on the appeal or whether he would represent himself.
[17] At the callover on 22 August 2019 Mr Maxwell did not appear. Downs J set the appeal down for 26 September 2019. He made timetabling orders requiring
Mr Maxwell to file his submissions by 4 September 2019 and the respondent by 11 September 2019. The Judge recorded:
“[3] Mr Annandale said the Police “lack clarity” about the grounds of appeal. Mr Maxwell must make clear in his submissions what these are.
[4] I also record this: if Mr Maxwell fails to file and serve his submissions in accordance with this timetable, his appeal may be dismissed for non- compliance. A copy of this Minute is to be given by the Registry to Mr Maxwell.”
[18] On the afternoon of 4 September 2019 Mr Maxwell emailed the Registry requesting an extension of time to file his submissions. He advised he was having difficulty applying for legal aid. The following day Lang J extended the time for filing submissions to 10 September 2019.
[19] Then, on 6 September 2019, a representative of legal aid emailed the Registry advising that a lawyer was available to represent Mr Maxwell at the hearing but would not be able to comply with the new timetabling orders. She requested a further extension until 17 September 2019 which was granted by Lang J.
[20] Ms Thode was assigned to Mr Maxwell on 9 September 2019. On 17 September 2019 she filed a memorandum. She observed that she had reviewed the appeal materials and spoken with Mr Maxwell. She said she had advised Mr Maxwell she was unable to advance the grounds he wished her to. As a consequence, he told Ms Thode he would represent himself and would file supporting documentation later that day.
[21] At 4:18 pm on 17 September 2019 Mr Maxwell sent the Registry the following email:
“Hi sir, this is my submission as a lawyer does not want to help me saying I have no case.
I never knew at that time I received the copper that it was stolen as it was our custom to sell copper, led (sic), iron, aluminium regularly at our job metal craft.
Metal craft fired me based on these accusations who I raised a personal grievance with the ERA and recently this case was settled in my favour.
I realize that while I was on bail for the receiving charge in which I pleaded not guilty, I walked onto a property of a burnt down house as I could see scrap metal and because I had no job and it was all burnt down I didn’t think it would cause harm but a (sic) officer came and I was charged with burglary because I was on bail and possession of a utensil.
While in jail for ten days I decided to plead guilty for all my charges, based on what the police had told me I also changed my plea for the receiving charge from not guilty to guilty although I never knew at the time the copper was stolen I thought based on Robert walker attitude at work and what the police had told me it must have been, but I was wrong and so were they.
Robert walker was found not guilty and therefore the copper he had given me was indeed from a job he had done for metal craft.
May I say that it is not actually the conviction that is hurting me right now but the community sentence as we also work Saturdays and it heavily effects my attendance for affco moerewa. I would gladly welcome a change to that and leave the conviction if at all I get the opportunity to appear or appeal this case. Thanks.”
The hearing
[22] Appearing for himself before me Mr Maxwell initially indicated that he wished to advance his argument on the basis that he was appealing both the conviction and sentence in respect of the receiving charge. He said he was not guilty of the receiving charge, that he misunderstood what it meant and had been happy to accept the Police allegations. However, on reflection, he said he did not think he should have pleaded guilty because he:
“… had a little hunch … [he] thought it might be stolen but [he] hoped it wasn’t because of [the supplier’s] body language at the time.”
[23] I explained to Mr Maxwell that one element of the charge of receiving is knowing the property to have been stolen or being reckless as to whether or not it had been stolen. I also discussed with him the notion of wilful blindness.
[24] I explained to Mr Maxwell that appealing his conviction having pleaded guilty would require him to file evidence in the form of affidavits and to waive legal professional privilege so that the Crown could speak with Mr Murray about any advice he gave him when he entered his plea of guilty and, if necessary, file evidence. I explained that this process would normally mean that any conviction appeal would probably not be able to be heard within the next 10 weeks.
[25] I emphasised that it was Mr Maxwell’s absolute right to appeal and although I had no wish to place him under any pressure, he needed to understand the consequences of his decision.
[26] After a brief reflection, Mr Maxwell observed that his overwhelming concern has always been the sentence of community work and the difficulties he is experiencing in serving it. He advised he did not wish to pursue the conviction appeal; only the sentence appeal.
[27] He estimated that he has completed approximately 30 hours of community work but this has been at the expense of his employment which he said was now at risk. Mr Maxwell explained that he works as a boner at the Affco Freezing Works at Moerewa. This requires him to be available to work on Saturdays when required. I did not understand him to say he worked every Saturday. While his employer will grant dispensations from working on Saturdays in some circumstances, such as attending a tangi, Mr Maxwell said they have refused to grant him a dispensation to attend community work on those Saturdays when they have required his services at Moerewa. As a consequence he has been treated as an absentee and will be subject to disciplinary consequences. He has already received a written warning. He fears he may lose his job.
[28] Adding to these complexities and creating a further layer of tension is that if Mr Maxwell meets his employer’s demands and works on a Saturday, he will be in breach of his community work conditions and is liable to be charged. He advised me this has happened twice. As a consequence he has been obliged to attend Court making him absent from work and thus compounding his unenviable predicament.
[29] Unsurprisingly, Mr Maxwell’s employment is very important to him. As he explained, not only does it provide the means for him to support himself and his family, but it also distances him from the distractions and the company of those others which led to be involved in the instant offending.
[30] As I observed in Court, I have considerable sympathy for Mr Maxwell’s predicament. I am satisfied, for reasons which follow later in this judgment, that it
cannot be said that the sentence imposed on Mr Maxwell was manifestly excessive. In my view it was well within the range available to the sentencing Judge. Indeed, as Mr Annandale, for the Crown, observed, a sentence of imprisonment would not have been out of place.
[31] Having said that, one purpose of a sentence of community service is to impose a level of liberty deprivation while permitting the offender to remain in the community and, if employed, continue their employment. It would not be in the interests of Mr Maxwell, his family or the community if, as a consequence of meeting the obligations of his sentence, he also lost his job.
[32] I record my gratitude to Mr Gillard, a probation officer with the Department of Corrections, who was in Court during my discussions with Mr Maxwell. He explained to the Court that in practice community work can be undertaken on different days of the week and that the Department of Corrections is flexible and adaptive to the individual needs of those serving community-based sentences. He said it was important that Mr Maxwell engage with his supervising probation officer or officers in Kaikohe. He pointed out that this requires communication by Mr Maxwell and may necessitate Mr Maxwell’s employer providing a letter to Mr Maxwell’s probation officer.
[33] The Court is indebted to Mr Gillard for intervening and in particular for agreeing to assist Mr Maxwell to make contact with his probation officer in Kaikohe. I direct a copy of this judgment be forwarded to Mr Gillard for the purpose of informing and facilitating any discussions with his counterparts in Kaikohe with a view to accommodating Mr Maxwell’s needs. It may also be desirable for Mr Maxwell’s employer to receive a copy of this judgment but I leave that to the parties to advance if they think fit.
Was the sentence manifestly excessive?
[34] This leaves only the question of whether the sentence imposed for the receiving charge was manifestly excessive. I have already recorded that I do not believe it was. My reasons now follow.
[35] While the offending was not particularly serious in and of itself, it suggested a facility on Mr Maxwell’s part to offend in order to fund a drug habit. I say this based on the methamphetamine pipe found in his possession and his own admitted methamphetamine use. Left unchecked, this is a habit which could easily spiral into more serious offending and is plainly of concern. A sentencing response which monitored Mr Maxwell while keeping him in the community was clearly the appropriate response. The fact that he pleaded guilty early in the proceeding and expressed remorse and insight into his offending are encouraging signs. But taking into account all factors, including Mr Maxell’s criminal history (which is not insignificant), it cannot be said that the sentence was out of range.
Result
[36]The conviction appeal, having been abandoned, is dismissed.
[37]The sentence appeal is dismissed.
Moore J
Solicitors:
Crown Solicitor, Whangarei
Copy to:
The AppellantDepartment of Corrections, Kaikohe
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