Paul v Police

[2017] NZHC 3021

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2017-441-40 [2017] NZHC 3021

BETWEEN

ERNIE OʼNEAL PAUL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 December 2017 (via AVL)
Counsel:	W R Hawkins and A McPherson for Appellant J E Rielly for Respondent
Judgment:	7 December 2017

JUDGMENT OF SIMON FRANCE J

[1]      Mr Paul twice went onto a rural property situated off a road near Napier. Access is down a long drive to reach an area or paddock where a contracting business stores demolition material. The material is later sorted and used for hard fill.  On two occasions whilst there, Mr Paul took copper piping and a cylinder. He was convicted of two charges of burglary contrary to s 231(1)(a) of the Crimes Act 1961.1

[2]      The only issue on appeal concerns whether the demolition site is an enclosed yard for the purposes of the extended definition of “building” found in s 231(2) of the

Act:

1      New Zealand Police v Paul [2017] NZDC 25883.

PAUL v POLICE [2017] NZHC 3021 [7 December 2017]

231  Burglary

(1)       Every one commits burglary and is liable to imprisonment for a term not exceeding 10 years who—

(a)       enters any building or ship, or part of a building or ship, without authority and with intent to commit an imprisonable offence in the building or ship; or

(b)       having entered any building or ship, remains in it without authority and with intent to commit an imprisonable offence in the building or ship.

(2)       In this section and in section 232, building means any building or structure of any description, whether permanent or temporary; and includes a tent, caravan, or houseboat; and also includes any enclosed yard or any closed cave or closed tunnel.

(3)      For the purposes of this section and section 232,—

(a)       entrance into a building or ship is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by that person, is within the building or ship; and

(b)       every one who gains entrance to a building or ship by any threat or artifice used for that purpose is to be treated as having entered without authority.

[3]      In R v Letton the Court of Appeal, when considering the analogous offence of being found in an enclosed yard or area, held that for this type of offence the enclosed yard must be appurtenant to a building.2 That decision has consistently been applied over the years.  In Hewson v New Zealand Police, the charge was the successor under the  Summary  Offences  Act 1981  of  the  offence  being  considered  in  Letton.3

Laurenson J held that the new offence continued to require the enclosed area to be appurtenant to a building. Letton was subsequently applied to the offence of burglary

under the Crimes Act by the Court of Appeal in R v Dar.4

2      R v Letton [1943] NZLR 687 (CA).

3      Hewson v New Zealand Police HC Whangarei AP25/97, 14 October 1997.

4      R v Dar [2007] NZCA 140.

[4]      In New Zealand Police v Hughes Judge Rea summarised the position as a requirement that the yard exists to service the particular building.5   If instead the land is the dominant feature, the definition is not met. The centrality of the requirement was emphasised by Smith J in Letton :6

The appurtenance of the yard, garden, or area to the building is, I think, important.  The mere association or connection of enclosed ground with a building is not, of itself, sufficient to bring that ground within the section. For example, fenced land surrounding a shepherd’s hut may or may not be within the section.  The issue will depend upon whether the fenced area is not only connected with the hut, but is appurtenant to it; whether, for example, like a kitchen garden, it is subsidiary to and serves the purposes of the building or whether, like a fenced block of a sheep-run, it does not.

[5]      Turning then to the evidence in the present case, the demolition storage yard is down the end of a long driveway.  On either side of the driveway there are paddocks planted in vines.  Shortly before the entrance to the demolition site, on the left, there is a collection of houses or dwellings used to provide lodging for temporary workers on the vineyard.  Past the entrance to the demolition storage site, but not far past, on the right is a permanent home again attached to the vineyard.

[6]      Three sides of the demolition storage site itself are bounded by trees, with a creek underlying these trees on one side.  Entrance is over a one lane bridge which crosses the creek through a cutting in the trees.  The fourth side of the site is open – looking in that direction, a little past the boundary of the site is an open paddock planted in crop. It seems, although the evidence is not clear, that the entire area is owned by the one entity.

[7]      The District Court placed emphasis on the fact that all these different uses appear to operate on one undivided (in title) block accessed by one plainly private driveway.7      This  one-site  approach  meant  the  demolition  site  could  be  seen  as

appurtenant to the dwellings associated with the vineyard.

5      New Zealand Police v Hughes [2015] NZDC 7630 at [23].

6      Letton, above n 2, at 693.

7      Paul, above n 1, at [33].

[8]      I do not agree.  The reality is that the demolition site is a self sufficient site unconnected in use to the dwellings or the vineyard. It is not appurtenant to a building, and in fact has no permanent buildings located on it at all.  Nor on the evidence is it enclosed, although this may well be a question of not eliciting the necessary information.  On the evidence as it stands it would seem one side is completely open, albeit to a private paddock. It is unclear from the photo what the border between them consists of.

Result

[9]      The appeal is allowed.   The two convictions for burglary at an address on

Maraekakaho Road will be quashed and convictions for theft substituted.

[10]     Mr Hawkins advised that, if successful, he did not consider he could contend for a change in sentence. Mr Paul was sentenced on numerous charges and the overall outcome was quite favourable.8  I have obtained a copy of the sentencing remarks and have satisfied myself that concession is properly made.  The value of the property is less than $500 so the relevant sentence provision is s 223(d).

[11]     On charge CRN17020001012 the conviction for burglary is quashed and a conviction for theft substituted. The sentence is convicted and discharged.

[12]     On charge CRN17020001013, the conviction for burglary is quashed and a conviction for theft substituted. The penalty is two months’ imprisonment, concurrent

with other sentences.

Simon France J

8      New Zealand Police v Paul [2017] NZDC 23028.