Patuwai v Police - [2016] NZHC 1336

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2015-404-360

[2016] NZHC 1336

BETWEEN
SABRINA MOANNA PATUWAI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 April 2016

Appearances:

V D Heather for Appellant I S Ko for Respondent

Judgment:

20 June 2016

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 20 June 2016 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

PATUWAI v POLICE [2016] NZHC 1336 [20 June 2016]

Solicitors:
Kayes Fletcher Walker, Auckland

Introduction

[1] This is a case where confusion has arisen by the prosecution laying alternative charges in relation to the same alleged offending. The Judge began by first dealing with the less serious charge of receiving which she considered to be proven, but then went on to convict the appellant of the more serious alternative charge of conversion without properly addressing the elements of that more serious offence.

[2] The question for me to decide is whether, in the circumstances, the Court should direct that a conviction for the less serious offence should be entered and substituted for the more serious offence.

Background

[3] On 19 February 2015, Ms Patuwai was in the front passenger seat of a stolen vehicle that was stopped by the Police. The driver was her cousin. Ms Patuwai admitted having earlier driven the stolen vehicle.

[4] Later that same day, Ms Patuwai was charged with receiving stolen property (the receiving charge) and failing to comply with a lawful requirement by driving while being disqualified from holding or obtaining a driver licence. Ms Patuwai defended the receiving charge but pleaded guilty to the driving while disqualified charge.

[5] On 1 October 2015, the Police laid a further charge of unlawfully using a motor vehicle (the conversion charge). Ms Patuwai entered a plea of not guilty to this charge.

[6] At a Judge-alone trial in the District Court on 2 October 2015, the prosecution proceeded with both charges on the basis that they were laid in the alternative. Judge Simpson found that the receiving charge was proven, and indicated she intended to dismiss the charge of conversion.

[7] During legal discussion, the Police prosecutor informed the Judge that the Police regarded the conversion charge as being “better fitted” to the facts of this case. Following that indication, the Police were granted leave of the Court to withdraw the receiving charge and Ms Patuwai was convicted and sentenced on the conversion charge. She was sentenced to 12 months’ supervision, 175 hours’ community work and reparation of $418.25.

District Court decisions

[8] There are effectively two oral decisions. Prior to the first decision, the Police had called one witness and the statements of the three others were read. Both Ms Patuwai and her cousin then gave evidence.

[9] Judge Simpson rejected Ms Patuwai’s version of events, saying “I think it is likely she did realise the vehicle was stolen”. The Judge went on to say:

[16] I have already made observations about the damage that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 1336
Decision Date: 20 June 2016

CaseChat Overview and Summary

In Patuwai v Police, Sabrina Moanna Patuwai appeals her conviction and sentence for unlawfully using a motor vehicle (conversion) and seeks a new sentence. The District Court convicted Ms Patuwai of the more serious conversion charge after initially finding her guilty of the lesser receiving charge. The High Court was required to determine whether the District Court erred in convicting Ms Patuwai of the conversion charge. The court was also required to consider the appeal against the sentence, given the difference in the maximum penalties for the receiving and conversion charges. The High Court found that the District Court erred in convicting Ms Patuwai of the conversion charge, as it did not properly address the elements of that offence. The court substituted a conviction for receiving, the lesser charge. The court also found that the appeal against sentence should be remitted to the District Court for resentencing in light of the substituted conviction.

The High Court allowed Ms Patuwai’s appeal against conviction for conversion and directed that a conviction for receiving be entered. The court remitted the matter to the District Court to determine the appropriate sentence in light of the substituted conviction for receiving.

Orders