McNeice v The Queen
[2012] NZCA 566
•3 December 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA242/2012 [2012] NZCA 566 |
| BETWEEN JAMES PATRICK MCNEICE |
| AND THE QUEEN |
| Hearing: 13 November 2012 |
| Court: Harrison, MacKenzie and Courtney JJ |
| Counsel: J W Mackey for Appellant |
| Judgment: 3 December 2012 at 12.00 pm |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The sentence of two years eight months imprisonment is quashed and a sentence of two years three months imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
The appellant, James McNeice, was convicted following trial in the District Court at Auckland before Judge Perkins and a jury on one count of aggravated burglary. He was sentenced to a term of two years and eight months imprisonment.[1] He appeals against both conviction and sentence.
[1] R v McNeice DC Auckland CRI-2010-090-8103, 5 April 2012.
The offending arose from a dispute between the victim and Mr McNeice’s partner, Ms Carlyon, who had lived at the victim’s address for a short time. The dispute apparently related to possession and ownership of a motorbike, and over the claim by the victim for rental owing by Ms Carlyon. On 18 April 2010 Mr McNeice and Ms Carlyon went to the address to try and regain some of her belongings which she had left there. Upon arrival at the address, Ms Carlyon waited in the car while Mr McNeice climbed over the fence into the property. He was carrying a meat cleaver, described by the Judge as “really some form of display item rather than a meat cleaver that one might use in the kitchen”. The victim went outside to talk to Mr McNeice. He grabbed the victim by the throat and pushed him against the wall of the house. He threatened the victim saying he would chop off his legs. Mr McNeice then went into the victim’s house and removed a television set and a laptop computer. Ms Carlyon retrieved the television set and put it in the car. The pair drove off.
The indictment jointly charged Mr McNeice and Ms Carlyon with a single count, that “on or about 18 April 2010, at Auckland, while committing burglary, had a weapon”. To establish the offence of burglary, the Crown was required to prove that, in entering the property, Mr McNeice did so with intent to commit a crime there. In opening the Crown case, counsel for the Crown said:
The Crown must also prove that when the accused went inside the property they intended on committing a crime. Now in terms of the intent of the accused, we can’t get inside their [head] to work out exactly what they were thinking when they went to Donovan Ave, but what we can do is look at the surrounding circumstances and from that draw an inference as to what their intentions were.
Now, given the threatening text messages which preceded the incidents and the fact that Mr McNeice took a weapon with him, assaulted Mr Shaw, then went straight inside and stole the TV, you might think that his intention in going into the house was just that, to take Mr Shaw’s property from him.
In closing, counsel for the Crown put the Crown case in these terms:
And that brings us to our next element. The accused intended to commit a crime when he jumped the fence into the property. That, the Crown says, is precisely why he brought the meat cleaver with him. And remember too that it’s not in dispute by the accused that he had a meat cleaver tucked into his jeans when he entered the property. So that requirement, that is that the accused had a weapon with him, can also be ticked off.
Now, the Crown says that when the accused entered the property he intended on committing either of two criminal acts. He planned to assault Mr Shaw and/or he intended on committing theft by stealing Mr Shaw’s property. Now when I say “assault”, what I mean is that he intended on physically using force on Mr Shaw or, at the least, intended on threatening Mr Shaw with the application of force in the circumstances where he has the ability to carry out his threat. Now that’s a legal form of assault and it’s a bit wordy, but that is, he took the meat cleaver with him to threaten Mr Shaw with its use on him.
In terms of stealing Mr Shaw’s property, the Crown says that the accused was going to take Mr Shaw’s property from him, even though the accused knew it didn’t belong to him and he had no right to take it.
In terms of the accused’s intent, you only need to be satisfied that he intended one of those things. At the time the accused entered the property he intended on either assaulting Mr Shaw or to steal his property. If you are sure the accused intended on doing just one of those things then that element will be satisfied.
Mr Mackey for Mr McNeice submits that the Crown had opened the case to the jury on the basis that the intended crime was theft, and had changed its position during trial in a manner which was unfair to Mr McNeice.
In support of that submission, Mr Mackey refers to discussions between the Judge and counsel during the course of the trial, in the context of the Crown case against Ms Carlyon. Because of the way the evidence had unfolded, there were difficulties with the Crown case that Ms Carlyon was a party to Mr McNeice’s aggravated burglary. Counsel for the Crown applied to amend the indictment by substituting a count solely against Ms Carlyon of burglary. In the course of his submissions on that application, counsel for the Crown said that the Crown case against Mr McNeice was that the intended crime was theft.
We do not consider that, in his opening, counsel for the Crown had limited the Crown case to the proposition that the intended crime was theft. Counsel’s opening referred both to Mr McNeice having assaulted the victim, and stolen the TV. The Crown case in closing did not alter the essence of the Crown case on this element in a way which has led to unfairness to Mr McNeice.
More importantly for this appeal, Mr Mackey did not identify any prejudice or unfairness to Mr McNeice in relation to the conduct of the defence from what he submits was a change in the Crown case. Rather, his submission was that, had the Crown case been put from the outset on the basis that the intended crime was assault, not theft, Mr McNeice might have pleaded guilty. Mr Mackey had raised that possibility in his sentencing submissions, and we will return to it on the sentence appeal. For the conviction appeal, we hold that there has been no change in the Crown case during the course of the trial which might give rise to a risk of a miscarriage of justice.
The notice of appeal raises a second ground of appeal, which asserts that there was an error of law in that the Judge did not direct the jury that they needed to be unanimous on the issue of whether the intended crime was assault or theft. That ground was not pursued in Mr Mackey’s submissions. We address it briefly. It was necessary for the jury to be unanimous on each element of the offence. The relevant element is that, when he entered the property, Mr McNeice intended to commit a crime. We accept Ms Bicknell’s submission that unanimity as to the crime intended was not necessary.
The appeal against conviction is dismissed.
The appeal against sentence
At sentencing, the Crown submitted that a starting point of three to four years imprisonment was appropriate taking into account the aggravating features of the offending which it said were actual violence, the threat, the use of a weapon, the unlawful entering of the premises which was a private residence, the harm to the victims as disclosed in the victim impact statements, and the premeditation which was illustrated by text messages sent to the victim prior to the appellant going to the property. Mr Mackey submitted that a starting point of between 12 and 18 months imprisonment was appropriate.
The Judge noted the importance of sentencing on the basis of the least restrictive outcome and of considering whether a sentence other than imprisonment was appropriate. He considered the relevant purposes of sentencing to be deterrence, denunciation and holding the appellant accountable. He also noted that the sentence must be consistent with sentences imposed for other offenders for similar offending. The Judge adopted a starting point of three years imprisonment. He discounted that by 10 per cent to reflect the appellant’s remorse, giving a sentence of two years and eight months imprisonment.
In support of the submission that the sentence is manifestly excessive, Mr Mackey submits that the Judge did not specify whether he was sentencing on the basis that Mr McNeice entered the property intending to commit theft or intending to commit assault. The Judge noted at sentencing:[2]
Mr Mackey, in his written submissions, has referred to this issue of the apparent change in tack of the Crown in its opening, although I did make the point in my ruling that this was always a charge of aggravated robbery and the only aggravating feature, of course, was the taking of the weapon onto the property, and so there was some [inevitability] about that particular issue being placed before the jury. I am really unable to say whether they found the intention was solely to go on to assault the victim or to steal property; but in any event, that goes to the issue of intention, regardless of which one the jury plumped for or indeed, they might have even decided that both of them applied. But the aggravating feature, of course, which makes this a serious matter, is the fact that you took the cleaver with you when you went on.
[2] R v McNeice, above n 1, at [16].
Mr Mackey submits that the nature of the intended crime is an important element in sentencing for aggravated robbery. He says that aggravated robbery offending that involves an intention to commit theft is inherently more serious than offending with an intention to commit assault. Thus, if the Judge sentenced on the basis that theft was the intended crime, then the sentence would be higher.
Mr Mackey also advances, as relevant to the sentencing appeal, the submission we have noted in dealing with the conviction appeal, that, if the Crown’s case had been put on the basis that the intended crime was assault, Mr McNeice may have pleaded guilty. The Judge addressed this submission in these terms:
[8] Of course the issue arose also as to where the aggravated burglary took place. The issue of the intention was raised as a preliminary issue at trial, which I resolved by way of a ruling, and Mr Mackey now says that once that ruling was made, your conviction was inevitable and that that should be taken into account in some way in that, he says, you may have not put the matter to trial if that had been a position taken prior to the trial commencing.
[9] I cannot really resolve those issues now. The jury’s verdict was that you were guilty of an aggravated burglary and it would be aggravated, in any event, by the fact that you took the weapon onto the property. The issue of intent is the issue that is raised by the distinction between the assault which is alleged to have occurred and the taking of the television set as a theft.
Mr Mackey also submits that the Judge should have taken into account the victim’s conduct in sentencing the appellant. The victim, he submits, contributed to the dispute that triggered the offending by selling the appellant’s motorbike. The victim gave varying accounts of what he did with the motorbike, and there was some evidence that he may have still had the motorbike or the proceeds of it at the time of the offending.
In his oral submissions, Mr Mackey reaffirmed his submission to the sentencing Judge that the appropriate starting point should have been in the range of 12 to 18 months.
Ms Bicknell notes that Mr Mackey advanced the same arguments at sentencing and they were properly considered. She submits that the sentence is not manifestly excessive and that the starting point was appropriate, based on the guidelines in R v Mako.[3] She argues that the Judge was not required to determine which criminal intent was the basis of the jury’s verdict, and it was open to the Judge to sentence on the basis that the jury may have been satisfied he had both, pursuant to s 24 of the Sentencing Act 2002. Ms Bicknell submits that the Judge did take into account the actions of the victim because he noted “any stand which the victim took in respect of all that was probably without any legal basis”.[4]
[3] R v Mako [2000] 2 NZLR 170 (CA).
[4] At [2].
The essential issue on this sentence appeal is the starting point. We consider that the Judge’s approach to the possibility that Mr McNeice might have adopted a different tack if the intended crime had been assault, and to the conduct of the victim, was appropriate.
The starting point needs to be assessed having regard to the criminality and seriousness of the appellant’s conduct. Some care is needed in applying the principles in R v Mako, the guideline judgment for aggravated robbery, to aggravated burglary. While the two offences may often reflect similar levels of criminality, that is not necessarily so. In particular, the presence of a weapon, the sole criterion for aggravated burglary, is only one of the factors which may aggravate a robbery. The infliction of grievous bodily harm is a more serious aggravating factor for that offence. The discussion of sentencing levels in R v Mako reflects that difference.
In this case, there was little in the way of premeditation or planning. There was, following discharge of Ms Carlyon, only one offender. To the extent that R v Mako may be applicable by analogy, we regard this offending at near the bottom end of the scale, discussed in [59], where the starting point would be between 18 months and three years. Recent decisions of this Court in aggravated robbery cases involving a similar level of offending to this case reflect that.[5]
[5] Norton v R [2012] NZCA 334; O’Donnell v R [2011] NZCA 50.
For these reasons, we consider that the starting point of three years is too high. We fix a starting point of two years six months.
The Judge did not uplift the starting point to reflect the appellant’s previous convictions, because they were, as he described them “quite historic now”.[6] We adopt the same approach.
[6] At [20].
The Judge allowed a 10 per cent discount for remorse. Applying that figure to our lower starting point produces a discount of three months, giving an end sentence of two years three months.
The difference of five months between that and the Judge’s end sentence is significant, and leads us to the conclusion that the sentence is manifestly excessive.
Result
The appeal against conviction is dismissed.
The appeal against sentence is allowed. The sentence of two years eight months is quashed and a sentence of two years three months is substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
3