Penniket v R

IN THE COURT OF APPEAL OF NEW ZEALAND

CA216/2015
[2016] NZCA 154

BETWEEN	TIMOTHY ANDREW PENNIKET Appellant
AND	THE QUEEN Respondent

Hearing:	7 April 2016
Court:	Stevens, Asher and Williams JJ
Counsel:	J C Gwilliam for Appellant M J Lillico for Respondent
Judgment:	29 April 2016 at 10.00 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

Following a jury trial in the Tauranga District Court, Mr Penniket was convicted of three charges of burglary and two charges of theft. He was acquitted on a fourth charge of burglary. On the morning the trial commenced, Mr Penniket had pleaded guilty to a seventh charge of wilfully attempting to prevent the course of justice.
Mr Penniket was sentenced by Judge Wolff to an overall term of five years’ imprisonment.[1] He appeals both conviction and sentence. His conviction appeal centres on the conviction for preventing the course of justice.
[1]R v Penniket [2015] NZDC 4672.
Mr Penniket is alleged to have burgled three holiday homes, two in the Rotorua area and one on the Thames coast in February and early March 2012. The Police carried out various searches and discovered stolen property in Mr Penniket’s house. On 25 March 2012, Mr Penniket flew out of New Zealand destined for Brisbane. He returned on 14 September 2012 and was arrested and charged.

Appeal against conviction

Approach to appeal against conviction after a guilty plea

Mr Penniket initially pleaded not guilty to all charges. His counsel was Mr Barnett. The first submission on appeal is that Mr Barnett’s advice and conduct in relation to Mr Penniket’s guilty plea to the attempting to pervert the course of justice charge led to a miscarriage of justice. Incorrect legal advice is said to have led to the change of plea. Mr Gwilliam for Mr Penniket puts this on the basis of counsel error of a type discussed in Sungsuwan v R.[2]
[2]Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
There is no dispute as to the applicable law. The approach to conviction appeals where there have been pleas of guilty was set out in R v Le Page where this Court said:[3]
… it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.
[3]R v Le Page [2005] 2 NZLR 845 (CA) at [16].
There are at least three broad categories where, notwithstanding a guilty plea, there can be a miscarriage of justice.[4] These are:
(a)where the defendant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b) where on the admitted facts the defendant could not in law have been convicted of the offence charged; or
(c)where the plea was induced by a ruling which embodied a wrong decision on a question of law.[5]
[4]Richmond v R [2016] NZCA 41.
[5]J B Robertson and F B Adams (eds) Adams on Criminal Law (looseleaf ed, Thomson Reuters) at [CPA232.14] notes three further possible circumstances where an appeal against conviction following a guilty plea may provide a ground for an appeal. None of these have any application in the present case.
As acknowledged in a number of cases, a fourth category can be added to these three.[6] That is where trial counsel errs in the advice given as to the non‑availability of certain defences or potential outcomes. Counsel, for example, may act wrongly or negligently to induce a decision on the part of a defendant to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced. The Court in R v Merrilees observed:[7]
It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
[6]R v Merrilees [2009] NZCA 59 at [34]. See also Lyttelton v R [2014] NZCA 638 at [52].
[7]At [35].
It will often be the case that a defendant will make a decision to plead guilty despite the existence of possible defences. There is no miscarriage if the appellant, knowing the existence of possible defences, makes an informed decision to plead guilty.[8] The existence of a defence at the time of the guilty plea, even a possibly viable defence, is not enough to allow a change of plea. There may be defences that could be run, but which are put to one side because they are unlikely to succeed, or carry other disadvantages. In the absence of material counsel error, such decisions cannot be revisited on appeal save in rare circumstances. The sole fact that a possible defence was known to exist at the time the appellant pleaded guilty does not on its own show a miscarriage of justice.

The facts of the offences

[8]Lyttelton v R, above n 6, at [52], citing R v Le Page, above n 3, at [16].

The first charge related to the burglary of a holiday home between 28 February and 3 March 2012. The three offenders, including Mr Penniket, broke into the house through a window. What was taken included a kayak, a wakeboard, a wooden kneeboard, a water ski and a life jacket. A $15,000 boat and trailer were also stolen from the same address.
The next charge of burglary related to a burglary of another holiday home between 25 February and 7 March 2012. The items stolen included two televisions, a stereo, two fishing rods, reels, tackle box, four wetsuits, a wakeboard and a large amount of alcohol. In total, approximately $4,000 worth of property was taken and the victim spent $800 on repairing his property and on insurance.
A third holiday home was burgled between 25 February and 7 March 2012. Items taken from this address included jewellery, bedding, furniture, kitchenware, household ware, food and alcohol. The jewellery alone had an approximate value of $15,000, with the total value of the property taken in the region of $35,000. There was also the theft on that occasion of a $30,000 caravan.
The Police searched the houses of Mr Penniket’s associates on 7 March 2012 and discovered a substantial amount of the stolen property. On 23 March 2012, the Police searched Mr Penniket and his partner’s house, and discovered other property stolen from the holiday homes.
Mr Penniket fled the country to Brisbane on 25 March 2012. This gave rise to the attempting to prevent the course of justice charge.

The circumstances of the guilty plea

Much of the argument focused on the circumstances surrounding Mr Penniket entering the guilty plea to the preventing the course of justice charge. By consent we considered new affidavit evidence filed for the appellant in this Court of Mr Penniket, his mother Ms Laureen Marsden, and in reply by the Crown, from Mr Penniket’s counsel at the trial, Mr Barnett.
Mr Penniket in essence claimed counsel incompetence on the part of Mr Barnett in not defending the preventing the course of justice charge. Mr Gwilliam argued that when Mr Penniket departed from New Zealand for Brisbane, he was not aware that he was a suspect in relation to the burglary charges and that the Police wished to talk to him about them. Mr Penniket claimed that his departure was not an attempt to escape prosecution, but was because he believed that he could get a job in Brisbane and make a new start. His mother deposed that she had paid for the renewal of his passport unaware that he was facing an investigation, and she had believed that he had a genuine reason to make a new start in Brisbane.
The evidence of Mr Penniket and Ms Marsden was rather unspecific on dates and facts. Ms Marsden did exhibit dated passport documentation indicating that there was indeed an application to renew Mr Penniket’s passport lodged on 8 March 2012. This was after the searches of the associates’ houses but prior to the Police search of his house. She deposed that she paid for that application and his ticket, not knowing he was a suspect.
The Crown did not seek to cross-examine Ms Marsden, but did cross‑examine Mr Penniket and challenged his evidence that his departure was innocent. We record that we found Mr Penniket’s evidence vague and unconvincing. For instance, he protested that he did not think that the case against him on the preventing the course of justice was strong, or that he might get a discount for pleading guilty. He said he always believed the decision to plead guilty was not right. However, he gave no believable explanation as to why, if that were true, he decided to plead guilty and signed two documents expressing his wish to do so.
It further damages his credibility that, in a letter to the Court at the time of his sentencing, he expressed his regret at the absconding, and referred to the fact that he had opted for “flight” from New Zealand like a coward, rather than facing the investigation. This contradicted his evidence before us.
The established facts do not bolster his claim of an innocent intention to depart the country for reasons unconnected to the Police investigation of the burglaries. Indeed, those facts indicate the contrary. In particular:
(a)text messages show that he became aware on 7 March 2012 that the Police had raided his co-offender’s house. He appears to have applied to have his passport renewed the day after. The text messages show an intention on his part thereafter to move to Auckland; and
(b)his family home was searched by the Police on 23 March and on that same day he moved to Auckland, leaving for Brisbane two days later on 25 March 2012.

The strong inference is that his actions to leave were driven by him becoming aware of the investigation.

These particular factors were known to Mr Barnett who was advising Mr Penniket prior to trial. It is not surprising that he would have considered that the preventing the course of justice charge would be hard to defend. Mr Penniket’s claim that the proximity of the dates of search and the steps he took to leave New Zealand was just a coincidence was unlikely to be credible. Mr Penniket had earlier pleaded guilty to another preventing the course of justice charge, concerning a later departure from New Zealand prior to trial following his return from Brisbane. He had been sentenced on that charge already to 18 months’ imprisonment.
Having heard Mr Barnett, we conclude that he was careful and legally accurate in his advice and actions. By the time of his last visit to Mr Penniket the Saturday before the trial, he was very familiar with the file and the issues involved having had a number of discussions with Mr Penniket as well as appearances for him on issues such as bail, challenges to evidence, and an appeal on evidence issues to the Court of Appeal. Mr Barnett prepared a detailed four and a half page document that Mr Penniket signed at the Saturday meeting recording his instructions. Mr Barnett was commendably thorough.
He spent some hours talking to Mr Penniket at that meeting. The strengths and weaknesses of the evidence were canvassed. As a consequence Mr Penniket changed his mind about defending the preventing the course of justice charge and decided to plead guilty. He signed a handwritten letter of instruction prepared by Mr Barnett stating that “…after considering my options and discussing the evidence I have decided to plead guilty to the preventing the course of justice charge.” He acknowledged that the Crown might use it against him as an indication of a guilty mind, and concluded “I am making my decision based on the weight of evidence against me [on] the preventing charge”. Further, on the Monday morning of the trial he signed a typed document to similar effect. He acknowledged that the earlier sentence indication on the other preventing the course of justice would not bind the Judge.
Despite Mr Penniket’s assertions to the contrary, the case against him on the perversion charge was strong. Having seen him give evidence, we doubt that a jury would have considered that his explanations for leaving created a reasonable doubt. In any event, he had made a firm decision not to give evidence at the trial, making the task of establishing a reasonable doubt even harder.
The plea was entered by Mr Penniket knowing his options, perceiving an advantage in obtaining a guilty plea discount, and perhaps achieving some strategic advantage in not having the issue contested at trial against a strong Crown case. We do not consider that calling his mother, Ms Marsden, would have strengthened his defence. Even if she appeared to give credible evidence, her actions could be explained by the fact that Mr Penniket did not disclose to her his true intentions.
We reject the criticism made of Mr Barnett in not getting a brief from Ms Marsden. Mr Barnett did not wish to approach her, given a potential conflict between her interests and those of her son, and he left it to Mr Penniket to approach her to give evidence. Mr Penniket did not do so and did not pursue her as a witness. Although Ms Marsden had earlier been acquitted of a preventing the course of justice charge concerning Mr Penniket’s absconding, there were risks in her giving evidence in her son’s trial and her assistance to her son being explained. Ms Marsden’s evidence could have harmed Mr Penniket’s position, as Mr Penniket had told her about the 23 March 2012 search warrant and his concern about it.
In terms of availability, Ms Marsden was present in Court at the start of Mr Penniket’s trial. Whatever the reason, it was Mr Penniket and Ms Marsden who chose not to pursue her giving evidence. There was no error by Mr Barnett in not pursuing her himself.
This is not a case of an arguable or tenable defence not being explored or advanced. Mr Penniket chose, for reasons that can be readily understood, not to defend that charge. Later regret at the entry of a guilty plea and the presentation of hypotheses of a better outcome do not come close to meeting the threshold for a successful appeal against conviction following a guilty plea.
We conclude that there has been no error by counsel, and that the entry of the plea of guilty has not given rise to any miscarriage of justice. This ground of appeal fails.

Summing-up – the direction on the preventing charge

As Mr Barnett warned Mr Penniket might well happen, the Crown in closing referred to Mr Penniket’s absconding following the Police search as supporting the case against him in that it implied a guilty mind. The appellant criticised the lack of a fuller jury direction, akin to a propensity direction, to avoid unfair prejudice on that point.
In Boyd v R, the Court of Appeal stated that although evidence of defendant attempting to flee New Zealand was admissible, it should be accompanied by directions to the jury about the circumstantial nature of the evidence:[9]
At trial the Judge will have to direct the jury that the evidence is circumstantial only and does not directly prove the offences with which Mr Boyd is charged; and that evidence of Mr Boyd absconding is only relevant if the jury is satisfied Mr Boyd’s conduct amounts to an admission of guilt. The trial Judge will also have to direct the jury that it is entitled to draw an inference that Mr Boyd’s conduct in absconding while on bail, so close before the trial was due to commence, is evidence amounting to such an admission, provided the jury is satisfied that Mr Boyd’s conduct is not capable of any other reasonable explanation.
[9]Boyd v R [2015] NZCA 527 at [15] (footnotes omitted).
Although Boyd v R is a recent Court of Appeal case issued subsequent to the conclusion of Mr Penniket’s trial, these proposed directions were adopted from the earlier cases R v Ali[10] and R v Luczynski.[11] In those cases, the Courts consistently suggested that the trial Judge would need to give a direction as to the inferences which may be drawn from the evidence of the flight, the possibilities of innocent explanations,[12] and the fact that the evidence is circumstantial and does not directly prove the guilt of the defendant.[13]
[10]R v Ali CA129/06, 6 July 2006.
[11]R v Luczynski [2003] 2 NZLR 860 (HC).
[12]R v Ali, above n 10, at [9].
[13]R v Luczynski, above n 11, at [18].
While Judge Wolff did not in a strict sense give a propensity type direction, he gave a full and satisfactory direction as to the relevance of Mr Penniket leaving the country, which necessarily pointed out its evidential limitations. The Judge told the jury that the Crown had referred to Mr Penniket’s departure as indicating a guilty state of mind and something to hide. He mentioned the defence position that there could have been a number of other explanations for his departure, including the instinctive reaction of an innocent person who is suddenly accused to flee. He said:
Defence says, well of course on the evidence that you have he could easily face many charges of receiving stolen property, so he had a good reason to run anyway. So it adds nothing to whether he was involved with the burglaries or the thefts. All it indicates is that he was a little bit troubled about what had been found at his property. Then again people sometimes run simply because that’s the first thing that they think of. You could be innocently passing a shop and someone yell out, “Stop, thief.” And, you’d see people looking at you and you suddenly just take to your scrapers because though you are not the thief you are not going to stick round to find out. So you might think that in relation to count 7 there is a little bit of relevance but not a whole lot. But, it was in the indictment and he pleaded guilty to it and so it needed to be addressed, otherwise it would be the elephant in the room.
The Judge clearly emphasised the limited relevance of the flight and the possibility of explanations other than a guilty mind. While it was open to him to specifically warn against assuming Mr Penniket’s guilt because he had left the country, the clear import of the Judge’s warning was that the evidence of the flight could not be used in that way. He gave the usual prejudice direction as well.
We consider that the Judge’s explanation of the relevance of the preventing the course of justice charge was accurate and in accordance with Boyd v R.[14] The jury would have been aware that the evidence of the absconding had limited relevance and did not prove the charges. The Judge did what was necessary to warn the jury against taking inferences arising from the absconding too far.
[14]Boyd v R, above n 9.
This ground of appeal therefore fails.
A further ground of appeal concerned an alleged failure by the Judge to give a tripartite warning following the defence offering evidence from one of Mr Penniket’s associates, Mr Wilkin. However, Judge Wolff in his summing-up warned the jury that, if Mr Wilkin’s evidence was not accepted, they could not then assume Mr Penniket’s guilt, and that the Crown still needed to prove its case. It was also pointed out that Mr Wilkin’s earlier plea of guilty was irrelevant. The Judge said all that was required. This ground of appeal was not pursued before us, in our view for good reason.

Sentence appeal

On sentence, Judge Wollf assessed the burglary and theft offending as spree offending by a group of professional burglars. He fixed a starting point of three and a half years’ imprisonment. He considered the preventing the course of justice charge warranted a starting point of two years’ imprisonment. The combined starting point was reduced to four and a half years’ imprisonment given that a cumulative sentence was to be imposed. This was then uplifted by six months to five years’ imprisonment to account for Mr Penniket’s past record of offending.
The Judge made the sentence concurrent with the one and a half year sentence that Mr Penniket was already serving on the other preventing the course of justice charge. This was effectively a further discount on sentence, given that Mr Penniket had served only six months of that one and a half year sentence. The net effect of all the sentences, including the prior sentence, was five and a half years’ imprisonment.
Mr Gwilliam submitted that the starting points were too high for both the burglary and preventing the course of justice charges, and that there was a lack of sufficient credit for Mr Penniket’s guilty plea and his efforts to rehabilitate while in prison.
We consider first the starting points for the burglary and theft charges by considering some recent cases. There is no tariff decision.
In Marsh v R, the appellant, with two co-offenders, drove to a house, forced their way inside, and took $90,000 of property.[15] The appellant was also sentenced for a residential burglary of items valued at $2,820, and an attempted residential burglary in which he triggered a silent alarm. This Court upheld a sentence of three years and six months’ imprisonment, although in that case the offender had a significant past history of burglary and dishonesty offending and was on parole at the time of the burglary. Taking into account the other burglary and attempted burglary, a five year starting point was held to be appropriate.[16]
[15]Marsh v R [2010] NZCA 445.
[16]At [13].
In Harrison v R a starting point of four years’ imprisonment was upheld for the burglary of four residential homes where the amount stolen was valued at $66,000 and included televisions, cellphones, jewellery, sports equipment and other household items, as well as sentimental items.[17] The Court noted the short space of time over which the offending occurred, the serious impact on the victims, and the fact that the offending was committed soon after release from prison. The Court also surveyed a number of Court of Appeal cases, confirming a range of three years and six months’ to four years’ imprisonment in serious, high-value residential burglaries.[18]
[17]Harrison v R [2011] NZCA 80.
[18]At [10] citing R v Sherlock [2008] NZCA 555, R v McAllister (2001) 18 CRNZ 606, and Swinburne v R [2010] NZCA 568.
Here, there were three major burglaries involving total losses to the victims of around $85,000. We reject a submission that burglaries of holiday homes involve a lower level of culpability to that of residential homes. There is still the significant possibility of the victims being present, and the victim impact reports show how the losses of valued personal items affected the residents and their ability to enjoy their dwellings. These factors can apply equally to residential or holiday homes.
In light of this case law, a starting point of three years, six months’ imprisonment for three significant residential burglaries was well within range, and towards the lower end. An uplift of around six months was not out of line given Mr Penniket’s relatively significant previous dishonesty offending history, which included burglaries.
We turn to the starting point of two years’ imprisonment for the preventing the course of justice. Mr Penniket achieved his goal in departing New Zealand on 5 March 2012 and frustrated the Court process for about six months until his return on 14 September 2012. He did ultimately return of his own volition, a factor which means that a starting point of two years’ imprisonment was at the top of the available range although not out of it. We accept that it is difficult to see why this sentence was six months more than the earlier preventing the course of justice sentence, given that the later absconding, involving obtaining a British passport in a different name, was if anything more serious. Nevertheless, the absconding to Australia was a cynical attempt to frustrate the course of justice, and a condign sentence had to follow.
When we consider how the Judge dealt with matters in the round we are satisfied that the end sentence imposed was appropriate. The stern starting point on the preventing the course of justice charge is to be contrasted to the more lenient starting point for the burglary charges. While the Judge made no specific discount for the guilty plea, or Mr Penniket’s rehabilitation efforts in prison, he made general discounts which can be seen as reflecting these matters. He discounted the combined starting points by one year. He made the sentences concurrent with the sentence for the earlier preventing the course of justice conviction, with the effect of discounting that sentence significantly.
Looked at overall, the end sentence for all the offending of five years’ imprisonment was fair for three major burglaries and a significant preventing the course of justice charge, including an uplift for relevant past convictions.
We are conscious of Mr Penniket’s apparently effective rehabilitation efforts while in prison, and they are to be encouraged, as he is at the crossroads. However, they are not of the order or type to warrant more recognition than was given by the Judge. Those efforts will undoubtedly be considered at any parole hearing.

Result

The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established