Potaka-Kiu v Police

[2016] NZHC 3063

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-30 [2016] NZHC 3063

BETWEEN

HONORIA JESSE POTAKA-KIU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 December 2016
Counsel:	W Hawkins for Appellant M M Mitchell for Respondent
Judgment:	14 December 2016

JUDGMENT OF WILLIAMS J

Introduction

[1]      On 11 July 2016, Ms Potaka-Kiu was convicted of burglary following a Judge-alone trial.  The hearing proceeded “on the papers”.  While this seems rather irregular the appellant consented to this mode of trial and no issue is taken with it in this appeal.  Ms Potaka-Kiu now appeals against her conviction, although she does so on narrow grounds.

Facts

[2]      Ms Potaka-Kiu was trespassed from Pak’n Save Hastings on 27 January

2015.  She was warned that if she trespassed she may be charged with burglary.  On

6 February 2016, she went to Pak’n Save with her partner.  She selected a number of items, substituted the barcodes on them for barcodes with lower prices, and then went through the self-checkout, scanning the new barcodes.  Store security viewed this on CCTV and contacted police.  The police met Ms Potaka-Kiu at the exit and

escorted her to the security office. The goods were recovered.

POTAKA-KIU v NEW ZEALAND POLICE [2016] NZHC 3063 [14 December 2016]

District Court decision

[3]      There is no verdict decision as such on the file, but there is a record of the legal discussion before Judge Adeane.  Mr Hawkins argued that the trespass notice was invalid because it referred to two other occupiers who had not given consent, and it was overly broad.  These arguments were rejected.  He also submitted that the burglary charge should be amended to theft.   The Judge rejected this because, he said, it is standard practice for the police to lay burglary charges against recidivist shoplifters who are trespassed.  He was satisfied that the elements of burglary were made out.

Appellant’s submissions

[4]      Ms Potaka-Kiu appeals on two grounds:

(a)       the trespass notice was not valid; and

(b)      the charge should have been amended to theft.

[5]      As to the first point, counsel submits that the trespass notice included other occupiers, Unichem Pharmacy (in Hastings), Obsess Café (Napier) and Pak’n’Save Napier, who did not give their authority to issue the notice.   The consent of all occupiers was required to authorise the valid service of a trespass notice on their behalf.   There was no evidence that the consent of the other three occupiers was given, and it may in fact be against their wishes.  And there was no evidence that those occupiers had reasonable grounds to issue a notice.

[6]      Accordingly, the trespass notice is similar to “blanket trespass” schemes that have been found to be illegal.   Counsel points to the Solicitor-General’s advice recorded in Auckland Council for Civil Liberties Inc v Attorney-General to that

effect.1  The Judge therefore erred in upholding the validity of the trespass notice.

1         Auckland Council for Civil Liberties Inc v Attorney-General HC Auckland CP 452/93,

10 November 1993. The Solicitor-General’s advice is not set out in the costs judgment that I

found, so I am unable to verify the advice referred to.

[7]      The second ground is that the Judge erred in declining to amend the charge pursuant to s 133 of the Criminal Procedure Act 2011 (CPA).  Counsel submits that the charge should have been amended to shoplifting under $500.  The summary of facts disclosed a case of trespass and theft, not burglary.  And further, the Solicitor- General’s prosecution guidelines provide that the nature of the charge should reflect the criminality of the conduct. This was not adhered to.

[8]      Counsel  submits  that  the  police’s  motivation  in  pursuing  the  charge  of burglary was that the maximum penalties for shoplifting under $500 and trespass (three months’ imprisonment) were an insufficient deterrent: they were frustrated with her recidivism and the inadequacy of previous sentences.   But this is not a proper basis to initiate a prosecution for a serious charge; rather the focus should be the criminality of the conduct.

[9] Further, counsel submits that Parliament never intended the offence of burglary to cover this kind of conduct. The Crimes Amendment Act 2003 removed the requirement that “break and entry” must be established, and replaced this with “entering without authority”. In introducing the Bill, Phil Goff said that this would remove technical arguments about what constitutes a break, and would effectively combine burglary and unlawful entry offences. The Select Committee made similar

comments.  And in Police v Barwell,2 Hansen J rejected the argument that burglary

was intended to encompass shoplifting.  The police’s reliance on the trespass notice to argue that she entered the supermarket without authority is an attempt, counsel says, to subvert Parliament’s intention.

[10]     There are also sentencing difficulties if the offence of burglary is expanded. Previous convictions for burglary are highly relevant when sentencing for burglary, because of the distinction between recidivist burglars and first time burglars.3   And the appellant’s criminal history would suggest far worse behaviour than the facts actually demonstrate.  This would mean that a sentencing court could not rely on a defendant’s criminal history as accurately reflecting their criminality, and would

need to obtain summaries of facts on which the defendant was sentenced.

2      Police v Barwell HC Christchurch CRI-2006-409-77, 6 July 2006.

3      Senior v Police (2000) 18 CRNZ 340.

[11]     Additionally, there are bail implications, because s 12 of the Bail Act 2000 defines burglary as a serious property offence.

Crown submissions

[12]     Counsel submits that the validity of the trespass notice is not relevant to the charge of burglary, and that the charge was properly available in the circumstances.

[13]     Counsel submits that the Court is not required to determine whether the trespass notices were overly broad, because even if their scope was narrower than purported, they would unquestionably have been effective in respect of Hastings Pak’n’Save.  This is the effect of the decision in Williams v Police, where a similar argument was advanced.4    Further, all that is required for a charge of burglary is to enter the premises without authority, with intent to commit an imprisonable offence therein.  There are other ways to revoke the implied authority to enter a shop: all that is required is to convey the revocation in some way, for example by verbal trespass

notice.   In this case, the appellant’s implied licence had clearly been revoked; and she herself has acknowledged that she knew she was not permitted on the premises. Accordingly there was no question that she did not have authority.

[14]     As to the second ground of appeal, counsel submits that the burglary charge was appropriate because:

(a)     the appellant has a history of previous offending, suggesting premeditation: five convictions for taking items from the same supermarket, including one of burglary – and in total, 15 convictions for shoplifting, three for burglary and seven for trespass;

(b)this particular offending was also premeditated, as it required her to print the false barcode stickers and affix these as she moved through the store;

[15]     Accordingly, the criminality of this offending would not be captured by a shoplifting charge.

4      Williams v Police HC Auckland, CRI-2005-404-60, 3 June 2005.

[16]     Finally, counsel points to Police v Barwell, where the Court accepted that burglary could be appropriately charged in cases involving shoplifting.

Analysis

Trespass notice

[17]     Section 4 of the Trespass Act provides that an occupier can warn a person to stay off a place if:

(a)      the person is trespassing or has trespassed on that place; or

(b)the occupier has reasonable cause to suspect the person is likely to trespass on that place.

[18]   “Blanket” trespasses may face difficulties meeting either of these two requirements, as well as the requirement that the notice is given by the occupier (which implicitly means every occupier).  As such, they may well be inconsistent with s 4. But Mr Hawkins has not pointed to anything to suggest that “blanket” trespass notices are invalid in respect of the particular premises where the notice has clearly been authorised by the occupier.

[19]     The  trespass  notice  in  question  was  served  at  Pak’n’Save  Napier.    The

letterhead of the notice says “Hastings & Napier City Pak n’ Save”. The notice says:

In accordance with the above [Trespass] Act and Section you are hereby warned to stay of the place known as PAK’n SAVE FOOD WAREHOUSE and PAK’n SAVE FUEL, Station St, Napier and Heretaunga St, Hastings (including chemists and adjoining carparks).

[20]     Because the notice was served at Pak’n Save in Napier, it would seem that it was authorised by the owner of that store.   What is not clear is the relationship between the Napier and Hastings Pak’n Saves.  Ms Mitchell submits that Hastings Pak’n Save is both the issuer of the notice and the occupier of the premises, but this is not evident from the notice itself.

[21]     However, the Crown also relies to some extent on the earlier trespass notice dated  25 September  2014,  and  Ms  Potaka-Kiu’s  subsequent  written  and  signed acknowledgement that she was trespassed from Hastings Pak’n Save and that she understood she was not to go there for two years.  This notice was served at Hastings Pak’n Save and lists “Hastings PAK’n SAVE and Napier PAK’n SAVE, including all building, carparks and petrol facilities at the above named locations”.   It is not therefore subject to any of the potential problems about being overly broad. And it is unnecessary to resolve that issue given that a valid trespass notice was in force and acknowledged to be so by the appellant.

Amendment of charge

[22]     It is possible to amend a charge during trial pursuant to ss 133 and 136 CPA, if “there appears to be a variance between  the proof and  the  charge” and  “the amendment will make the charge fit with the proof”.

[23]     Burglary is relevantly defined in s 231 of the Crimes Act as follows:

(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[.]

[24]     In Police v Barwell Mr Barwell had stolen a range of goods from retailers on eight separate occasions.  He was charged with burglary.  The charges were amended in the District Court to charges of obtaining by deception, attempting to obtain by deception, and theft.  The Crown argued in both the District Court and High Court that the 2003 amendments recast the crime of burglary, and that there was no implied licence to enter a shop with a dishonest purpose; accordingly to do so is to enter without authority.

[25]     In the High Court, Hansen J set out the legislative history of burglary and concluded that Parliament did not intend to expand it in 2003: “if Parliament had

intended such a radical recasting of the law relating to burglary it would have spelt it

out specifically.”5

[26]     But it is to be noted that Judge Abbott in the District Court also said (in obiter) that if Mr Barwell had been trespassed from the premises, any entry to those premises would be “without authority”, and that if the facts were similar to the present incidents, he would almost certainly be guilty of burglary.6   Hansen J did not disturb this finding.

[27]     This case – and the distinction it draws between a person entering a premises to commit a crime generally, compared to when the person has been trespassed, is correct in my view.  A trespass notice is a clear revocation of the implied licence to enter. Accordingly, the requirement of entering without authority is met.

[28]     As the elements of the charge are made out, there is no reason to amend it under s 133.  Although the police could have pursued lesser charges, the burglary charge was within discretion.  Prosecutorial discretion should not be interfered with by  the  courts  except  in  very  rare  circumstances.7    There  may  be  scope  for intervention if bad faith is established,8  but that is clearly not the case here: the

police were responding to a recidivist offender who had been trespassed.  Otherwise, the court as the trier of fact will stay away from decisions about the nature of the charge that is to be proffered for proof.

[29]     I acknowledge Mr Hawkins’ concerns about how much information might be available in subsequent sentencing as a result of the standard criminal and traffic reports provided by the Ministry of Justice.   Mr Hawkins was concerned that the limited information available would not make it plain that the burglary in question was that of a trespassed shoplifter.   The low level nature of the offending will be reflected (one would have thought) in low level sentencing.   Presumably also a

defendant can point out to his or her counsel that the burglaries in question were of

5      Police v Barwell, above n 2, at [26].

6      Police v Barwell (2006) 22 CRNZ 287 (DC) at [68] and [87]-[88].

7      See Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [61]-[62] for an analysis of prosecutorial discretion generally. See Tui Saili v R [2012] NZCA 149, at [23] confirming that deciding which charges to lay is a decision for prosecutors and not the Court.

8      Polynesian Spa at [64].

the kind discussed here.  I do not see merit in the suggestion that the lack of detail in reporting should result in a downgraded charge, or (as Mr Hawkins suggested in a separate submission) a s 106 discharge.

[30]     I do however agree with Mr Hawkins that burglaries by way of trespassed shoplifting are a special category of burglary.  They ought to be sentenced on their own terms rather than in accordance with the usual guidance to be found in Senior9 and other domestic or burglary offending authorities.  This appeal is not the place to address relevant issues in this regard as it is against conviction not sentence.  Should the issue arise again, it may be appropriate for subsequent courts to set out relevant

considerations in more detail.

[31]     Accordingly, the appeal is dismissed.

Williams J

Solicitors:

Public Defence Service, Napier for Appellant

Crown Solicitor, Napier for Respondent

9      Senior v Police, above n 3.