R v Patrick

[2008] NZCA 115

IN THE COURT OF APPEAL OF NEW ZEALAND

CA440/2007
[2008] NZCA 115

THE QUEEN

v

NEIL BARRY PATRICK

Hearing:3 March and 2 May 2008

Court:Chambers, Gendall and Harrison JJ

Counsel:W C Pyke for Appellant

M D Downs for Crown

Judgment:2 May 2008 at 3.30 pm

Reasons:         9 May 2008

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.

B        The sentence of four years’ imprisonment on the aggravated burglary charge is quashed.  In substitution therefor, a sentence of two years, three months’ imprisonment is imposed, to be served concurrently with the sentence of ten months’ imprisonment on the possession of a weapon charge. 

CThe appellant must report to the criminal section of the High Court at Auckland by 3 pm today to recommence serving his sentence of imprisonment.

REASONS OF THE COURT

(Given by Chambers J)

Aggravated burglary

[1]       Neil Patrick, the appellant, was, in 2006, living apart from his wife, Angela Patrick.  One night in August 2006, Mr Patrick went to Mrs Patrick’s home, carrying a metal pipe with a chain on the end of it.  He was intoxicated, having, he said, consumed both alcohol and a medication called Diazepam. 

[2]       Mr Patrick smashed his way into the home, breaking a glass ranchslider door using the metal pipe.  Mrs Patrick and the Patricks’ teenaged children were in the house asleep.  So were Mrs Patrick’s sister and that sister’s baby.  All the inhabitants were woken and terrified.  At some point, Mr Patrick picked up a knife and wielded it.  The inhabitants managed to barricade themselves into a bedroom.  Mr Patrick tried to bash his way through the door.  The family then ran out of that bedroom through another door and escaped to a neighbour’s house. 

[3]       The police were called.  They found Mr Patrick still in the house, hiding under a bed.  He was still holding the metal pipe.  The police charged Mr Patrick with aggravated burglary and possession of an offensive weapon. 

[4]       A jury found Mr Patrick guilty on both counts.  Judge Burnett, who had been the trial judge, subsequently sentenced him to four years’ imprisonment on the aggravated burglary count and ten months’ imprisonment on the possession of a weapon charge, the two sentences to be served concurrently.  Originally, Mr Patrick appealed against both his convictions and the sentence.  Subsequently, however, he abandoned the appeal against conviction.  The sole issue on the appeal became whether the sentence imposed was manifestly excessive. 

Was the sentence manifestly excessive?

The judge’s reasoning

[5]       Judge Burnett adopted a starting point of four and a half years’ imprisonment.  The appellate authorities on which she primarily relied in reaching that starting point were R v Mako [2000] 2 NZLR 170, R v Watson CA224/03 24 October 2003, and R v Kaukau [2007] NZCA 66. She considered the fact the place burgled was “a private dwelling house” to be an aggravating factor. She also noted that the offending involved “a forced break-in into the victim’s home at 4 am where five relatives of the prisoner were sleeping”. She noted that Mr Patrick had used “considerable force … to break into the house”. She said “emotional damage [could] be presumed, particularly to the young teenage children”.

[6]       Her Honour said she found it “difficult to find any mitigating features”, but she went on to say that, “in the event that there are some mitigating features” she allowed six months’ reduction for them. 

Counsel’s stance

[7]       Initially, Mr Downs, for the Crown, opposed the appeal against sentence.  But the appeal took an unusual turn, as we shall shortly relate.  In the end, Mr Downs accepted the appeal against sentence should succeed.  Indeed, he and Mr Pyke, who appeared for Mr Patrick on this appeal, reached agreement as to what in their view would be an appropriate sentence.  Mr Pyke had submitted the sentence should be reduced to two years, three months’ imprisonment, a result with which Mr Downs did not quarrel.

[8]       So what led to the Crown’s change of stance?  We need to recount what happened during the course of this appeal. 

The course of the appeal

[9]       Mr Pyke, who was not Mr Patrick’s trial counsel, originally submitted that Mr Patrick’s convictions should be overturned because of errors in the judge’s summing-up.  In particular, he submitted the judge’s summing-up on the question of “intent” failed to comply with this court’s judgments in R v Kamipeli [1975] 2 NZLR 610, R v Craig CA142/02 11 December 2002, and R v Storer CA368/05 2 May 2006.  Mr Downs, while accepting the summing-up was less than perfect, submitted it was clear enough.  As a fall-back, he submitted this was a case where there was in truth no defence, with the consequence that any failings in the summing‑up had not led to a miscarriage of justice.  The proviso to s 385(1) of the Crimes Act 1961 should be applied and the appeal dismissed.

[10]     Where an appeal involves an attack on a summing-up, we often now call for a transcript of not only the summing-up but also counsel’s opening and closing addresses, whenever they have been recorded.  (They normally are recorded when the “For the Record” system of evidence recording has been used.  That system is now almost invariably used in the District Court and is frequently used in the High Court.)  Counsel’s addresses provide context for the judge’s summing-up.  Sometimes, something that appears at first blush slightly odd in the summing-up is immediately explained when one reads counsel’s addresses and can see the point the judge was responding to.  Further, sometimes a judge’s less than perfect summation on a point may be saved if the prosecutor’s address on the same point has been completely clear and correct: R v Bowen [2007] NZCA 253 at [27]‑[31].

[11]     In the present case, however, a transcript of counsel’s addresses had not been obtained prior to the hearing on 3 March.  Following that hearing, we decided we would call for a transcript of counsel’s addresses.  In particular, we wanted to see how the prosecutor had addressed on the topic of “intent”.  In addition, we wanted to see how defence counsel had addressed this.  Had he raised one defence (lack of intent) or two defences (lack of intent and automatism)? 

[12]     We caused the transcripts, as soon as they became available, to be supplied to counsel.  As soon as Mr Pyke read them, he applied to amend the grounds of appeal.  He sought to raise for the first time trial counsel incompetence.  He submitted that defence counsel’s addresses to the jury had been so muddled and incoherent that the jury was left with no clear idea as to what the defence really was.  Mr Downs, while not accepting Mr Pyke’s submission, nonetheless consented to the amendment sought.  We granted it. 

[13]     Mr Patrick provided a waiver of privilege and swore an affidavit in support of the new ground of appeal.  That affidavit went further than had originally been signalled: Mr Patrick criticised not only his trial counsel’s in-court performance but also the advice he had given prior to trial.  In particular, Mr Patrick complained he had been given no advice about the advantages that might accrue to him from a plea of guilty.  Nor, he complained, did his trial counsel make any attempt to negotiate with the prosecutor about the possibility of reduced charges to which guilty pleas might have been entered. 

[14]     Mr Downs took no issue with the widening of the complaint against trial counsel.  Trial counsel swore an affidavit.  He accepted his addresses “could have been clearer and better”.  He also accepted that he had advised Mr Patrick he “had a defence to the charge and that it ought to be defended”.  That defence was, as he termed it, “the defence of intoxication”.  His thinking in that regard appears to have been based on the following reasoning.  Trial counsel said in his affidavit:

I clearly put to [Mr Patrick] the following questions:

(a)Did you do these acts alleged?  His answer was he could remember nothing.

(b)Did you intend to do these acts?  His answer was no.

That situation was always the case.  I did not think I had any room to move.

[15]     Later in his affidavit, trial counsel said of Mr Patrick:

He was difficult to advise.  He had no short term or long term memory, and exhibited the failings of an alcoholic.

[16]     These passages revealed the error in counsel’s reasoning and advice.  For a start, there is not, of course, a “defence of intoxication”.  At best, the state of intoxication may be a factor in raising a “defence” that the accused lacked the necessary intent.  But the serious error made by trial counsel lies in the second question he says he put to Mr Patrick and the answer to which he says left him with no room to move.  There is no dispute Mr Patrick was at all relevant times an alcoholic.  His stance has always been that he has no recollection of the events leading to the two charges, though he accepts the events happened as his wife and family have told him they did, and he believes them.  Such amnesia is common with alcoholics.  Given he could remember nothing about the night in question, the second question trial counsel asked of him was meaningless.  How could Mr Patrick provide any insight into what he intended at the time if he has no recollection of the events in the first place?  His lack of memory of what indisputably happened tells one nothing about his intent at the time.  To work out what inferences as to intent could be drawn, one needed to look at the Crown evidence as to exactly what happened on the night in question.  That evidence led inexorably to the conclusion that Mr Patrick, while obviously intoxicated, did intend to break into Mrs Patrick’s home and threaten her.  And, what is more, Mr Patrick’s complete lack of memory of the night in question meant he was not in a position to say anything to rebut the inevitable inference that he had the necessary intent. 

[17]     Trial counsel at no stage advised Mr Patrick of the inevitable inference to be drawn from the Crown evidence.  He appears to have considered that Mr Patrick’s saying he had “no intent” would have probative force and might raise a reasonable doubt as to guilt.  Of course, given Mr Patrick said he could remember nothing of the night in question, his later assertion he did not intend the acts was completely self‑serving and of no probative value. 

[18]     The error in trial counsel’s reasoning was fully exposed by the prosecutor, both in his cross-examination of Mr Patrick and his final address.  First, the prosecutor asked whether there was any reliable evidence Mr Patrick was intoxicated at all, given he not only could not remember the night in question but also could not remember (so he said) anything about the ten days before the incident.  In addition, the prosecutor detailed the steps Mr Patrick had undoubtedly taken that night and said it was inconceivable he did not know what he was doing. 

[19]     When we reassembled to continue the appeal on 2 May, we advised counsel at the outset that, while trial counsel’s in-court performance and the judge’s summing-up were less than perfect, we provisionally considered the appeal against conviction would fail.  Even if we did ultimately conclude the judge’s summing-up contained misdirections of law, we were minded to agree with Mr Downs’s submission that this was a classic case for application of the proviso, on the basis that there was in truth no defence.  Trial counsel’s principal error was in the advice he gave prior to trial, which erroneously led Mr Patrick to believe he had a defence when he did not.  Following that interchange, Mr Pyke sought an adjournment so that he could take instructions from Mr Patrick.  (Mr Patrick was present because he had been on bail; in addition, Mr Downs had given notice that he wished to cross-examine him.)

[20]     After the adjournment, Mr Pyke advised that Mr Patrick now formally abandoned his appeal against conviction.  He then pursued the appeal against sentence, relying in part on trial counsel’s pre-trial failures.  He submitted that, had trial counsel properly analysed the case, he would have advised Mr Patrick to plead guilty and would have negotiated with the Crown Solicitor at Hamilton in an attempt to ensure a favourable summary of facts and Crown sentencing submission.  He submitted that such should have been achievable, especially in circumstances where Mrs Patrick was now supportive of her former husband and eager to assist him in breaking his addiction to alcohol. 

[21]     Mr Downs, in his helpful submissions, adhered to his earlier submission to the effect that the trial itself had not miscarried.  But he submitted that trial counsel’s failure to advise Mr Patrick of the near certainty of conviction and of the advantages of early pleas of guilty had led to a miscarriage of justice so far as sentence was concerned.  We accept that submission.

Our analysis of the appropriate overall sentence

[22]     Mr Pyke, in advocating the sentence should be reduced to two years, three months’ imprisonment, was not specific as to how he reached that figure, although he had in his initial submissions argued for a much lower starting point than that which the judge had adopted.  It would be fair to say there was an element of backward reasoning in Mr Pyke’s approach.  Apparently, if Mr Patrick were to be resentenced to two years, three months’ imprisonment, he would immediately be eligible to apply for parole, given the amount of time he has served in prison.  This type of reasoning was reflected in another suggestion Mr Pyke hopefully advanced, namely that we might consider sentencing Mr Patrick to “time served”.  That would have meant he did not have to return to prison pending the hearing of a parole application.  We could not countenance, of course, either strand of reasoning. 

[23]     Mr Downs’s approach was more analytical.  He adhered to the judge’s starting point of four and a half years’ imprisonment.  He submitted that, had Mr Patrick been properly advised and pleaded guilty, he would have received a one‑third discount (18 months) on that account.  He should also have received a further discount of nine months on the basis that he was effectively a first offender in his late forties.  That led to a sentence of two years three months’ imprisonment. 

[24]     Our approach is close to Mr Downs’s, but not identical.  First, we consider the judge’s starting point was too high.  While Mr Patrick’s breaking-in was serious and would have been frightening for the inhabitants, the incident was of reasonably short duration and Mr Patrick made no attempt to harm any of the inhabitants physically.  He also allowed them to escape and did not pursue them.  We rank the criminality of the incident as less serious than what happened in Storer, where this court noted that “the starting point adopted by the Judge of a sentence of four and a half years’ imprisonment … was well outside the appropriate range” for the offending in that case: at [29]. We also consider the offending here was significantly less serious than the multiple offending dealt with in Kaukau, where this court approved an overall starting point of five years: at [18]. (In that case, the court went on to allow the appeal against sentence on the basis that an insufficient allowance was given for mitigating factors.)

[25]     Viewed overall, we consider the starting point for this offending should have been in the range of three and a half years to four years – say, three years, nine months. 

[26]     We now turn to consider mitigating factors other than the (notional) guilty pleas.  As we have said, the sentencing judge found it “difficult to find any mitigating features”, but, in case she was wrong about that, deducted six months.  We must observe, with respect, that was a most unusual approach.  First, we would have thought there clearly were mitigating factors here.  Secondly, it is not appropriate for sentencing judges, if they think there are no mitigating factors, to make an allowance for them.

[27]     The first mitigating factor was that Mr Patrick was effectively a first offender.  He had two driving convictions from the 1980s, both arising from the same incident and both dealt with by a fine.  He had one other conviction, which resulted from an incident occurring after this break-in.  It was a charge of refusing a police officer’s request to provide blood, to which he had immediately pleaded guilty, been fined, and been disqualified from driving for six months.  He had no prior history of burglary or offensive behaviour. 

[28]     The second mitigating factor was not squarely before the judge.  This was the attitude of Mrs Patrick and their family.  Mrs Patrick, who swore an affidavit in support of the appeal, was very critical of trial counsel’s performance both prior to sentencing and at sentencing itself.  Prior to sentencing, she said she and Mr Patrick had given counsel copies of reports from his health care workers and letters written by his family.  They also asked trial counsel to get in touch with Mr Patrick’s regular psychiatrist.  According to Mrs Patrick, trial counsel did not get in touch with the psychiatrist.  Nor did he use the other reports and letters supplied.  We cannot verify the accuracy of that last assertion.  This complaint was not dealt with in trial counsel’s affidavit, but that may be because Mr Downs did not refer Mrs Patrick’s affidavit to trial counsel.  We suspect, however, the assertion is true.  First, no reports or letters appear on the District Court file.  Secondly, Judge Burnett did not refer to any such reports or letters in her sentencing notes.  We have a copy of trial counsel’s sentencing memorandum.  Certainly it does not refer to any such reports or letters.  Indeed, we would have to say it is one of the worst sentencing memorandums any of the current panel has ever seen.  It was frankly useless.  Whether the oral presentation was any better we do not know. 

[29]     In any event, the information now provided by Mrs Patrick – information  which she says she wanted to be before the District Court at sentencing – would have greatly assisted Mr Patrick’s case for a discount on the basis of prior good character.  Mrs Patrick’s detailed analysis of Mr Patrick’s character and situation was insightful and demonstrated fairly conclusively that his sole weakness was his alcoholism, an affliction which she and the children were keen to assist him to master.  None of this was before the sentencing judge.  Had it been, we feel sure she would have deemed appropriate a discount for the background circumstances and family support to which Mrs Patrick referred. 

[30]     We agree with Mr Downs that these mitigating factors warranted nine months’ reduction.  That brings the sentence back to three years. 

[31]     It is now well established that a guilty plea at the earliest opportunity should give rise to a discount of 30 to 33% (which is applied to the provisional sentence after all aggravating factors and all other mitigating factors have been taken into account): see, for example, R v Fonotia [2007] 3 NZLR 338 at [50]‑[51] (CA) and R v Proctor [2007] NZCA 289 at [27]. Had Mr Patrick pleaded guilty at the earliest opportunity (as he should have), he could have expected a 30% reduction on the three years – say, one year. While it is clear from Mr Patrick’s affidavit (and from Mrs Patrick’s affidavit, for that matter) that Mr Patrick was heavily reliant on his counsel’s advice as to how he should plead, we cannot be certain he would have pleaded guilty if properly advised. We think it highly likely he would have pleaded guilty, but we can put it no higher than that. In these special circumstances, we are prepared to allow a further discount of nine months.

[32]     The end result is a sentence of two years, three months’ imprisonment.  Lest it be thought we too are guilty of “reverse engineering”, we point out that, prior to resuming on 2 May, the panel had discussed what an appropriate sentence would be, were Mr Patrick now to acknowledge his guilt and abandon the conviction appeal.  The tentative result we came to was two years, three months’ imprisonment, although we did not disclose that to counsel.  We were somewhat amazed when counsel later advised their agreement as to an appropriate sentence, albeit they reached the result by somewhat different routes from us. 

Result

[33]     For the above reasons, we delivered an oral judgment on 2 May, allowing the appeal and substituting a sentence of two years, three months’ imprisonment for the four years’ imprisonment Judge Burnett had imposed.  That is a significant reduction, in the main justified by factors of which Judge Burnett was unaware.  She of course was sentencing on the basis that Mr Patrick had pleaded not guilty.  In addition, much of the material made available to us on the mitigation front was not made available to her, owing to a lack of proper diligence on trial counsel’s part. 

[34]     Mr Patrick had been on bail following a successful bail application (to which the Crown consented) in early April.  After the conviction appeal was abandoned, we required Mr Patrick to recommence serving the sentence of imprisonment.  Mr Pyke advised that he would be urgently applying to the Parole Board for an early parole hearing.  We express no view as to whether that application should succeed. 

Solicitors:
Crown Law Office, Wellington