Russell v The Queen

[2004] NZCA 193

IN THE COURT OF APPEAL OF NEW ZEALAND

CA141/03

THE QUEEN

v

PHILLIP MARAU RUSSELL

Hearing:16 June 2004

Coram:Glazebrook J
Paterson J
Doogue J

Appearances:  Appellant in person

B J Horsley for Crown

Judgment:23 August 2004 

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]       On 17 September 2002 Mr Russell was convicted after a trial by jury at the Napier District Court on two charges of assault.

[2]       The charges arose out of an incident on the morning of 6 October 2001 when the police were called to a residence in Waipukurau that Mr Russell’s partner said was owned by her. After arrival, the police officers went inside and spoke with Mr Russell who said that he would leave in 10 minutes. Mr Russell’s partner made it clear that she wanted him to leave immediately. While the police officers were speaking to Mr Russell it was alleged that he became agitated and that he punched one of the police officers, Sergeant Tatere. The other officer, Constable Robertshaw, then sprayed Mr Russell with pepper spray. It was alleged that Mr Russell then grabbed a ceramic pot plant and threw it at the officers. The pot plant struck Constable Robertshaw causing a fracture to his hand.

[3]       Mr Russell filed a notice of appeal against his conviction some three months out of time. Mr Russell said that this was due to the intrusion of the Christmas holidays, which meant his lawyer’s office was closed, and also to his grandmother and uncle dying in the interim. The Crown submitted that no compelling reasons have been provided for the late filing and opposed leave to appeal out of time being granted.

[4]       The appeal was originally set down for hearing on 26 February 2004 but Mr Russell was involved in an accident and the fixture was vacated. It was subsequently set down for hearing on 16 June 2004. A timetable was issued with regards to the provision of a waiver of privilege and the filing of submissions. Mr Russell has filed no written submissions but the waiver has been provided to the Crown. Mr Russell was informed that the hearing would go ahead on its set date of 16 June 2004 and that he would have the opportunity to make oral submissions, even if he did not file written submissions.

[5]       Mr Russell availed himself of that opportunity. In the course of the hearing Mr Russell also addressed issues of sentence, being under the impression that his notice of appeal covered both conviction and sentence. When it was pointed out it did not, Mr Russell applied for leave to appeal against sentence out of time.

Sentencing remarks

[6]       Mr Russell was sentenced by Judge Perkins on 19 December 2002 to 260 hours community work. The Judge considered Mr Russell’s response to the police officers as totally inappropriate. He said that Mr Russell had adopted an unacceptably antagonistic attitude towards the police and that this had been expressed at trial and in the probation report.

[7]       The Judge also noted a long list of previous convictions dating back to the 1980s but said that Mr Russell had kept out of trouble in recent times. He pointed out however, that Mr Russell was under a suspended sentence of imprisonment at the time the assaults were committed.

[8]       The Judge also remarked on Mr Russell’s anger problem and his anti-social attitudes, which were exacerbated by drugs and alcohol. The Judge, however, said that the offending was not the most serious of its kind and that he would, therefore, accept the recommendation of the Probation Officer to impose a sentence of community work. He also decided not to activate the suspended sentence.

Pre-sentence report

[9]       The pre-sentence report (of 10 October 2002) had noted a change in medication (causing Mr Russell to be more settled) and also stated that, since the offences, he had been having ongoing psychiatric counselling. The updated report of 2 August 2004 indicates that Mr Russell advises that his health is now stable on his new medication. It also notes no new convictions, part from for minor traffic matters.

Grounds of conviction appeal

[10]     Mr Russell’s grounds for appeal as filed were that the verdict of the jury was unreasonable and that the trial Judge’s directions to the jury placed undue pressure on the jury to reach a verdict and thereby caused a miscarriage of justice. Mr Russell also subsequently complained that his trial counsel was incompetent in failing to call his partner as a witness at the trial.

Mr Russell’s oral submissions

[11]     In his oral submissions before us, Mr Russell said that on the relevant date he and his partner had had an argument (not involving violence on his part). His evidence at trial was that the argument had arisen because he had stayed out all night, not having wanted to drive home drunk. He also admitted in evidence that he was annoyed when the police came as he did not think they had any right to ask him to leave his own house.

[12]     Mr Russell submitted that the police officers had over-reacted to the situation but candidly accepted that the police, and particularly Sergeant Tatere (who is not a young man), may have been intimidated by his (Mr Russell’s) aggressive stance. He maintained, however, that he had not punched Sergeant Tatere and that he had not thrown the pot plant at Constable Robertshaw.

[13]     Mr Russell also submitted that the jury had had a lot of difficulty in coming to a decision. He felt that they were forced into it by remarks made by the judge. He considered therefore that he had not been given a fair deal.

[14]     Mr Russell did not pursue his complaints against his counsel in his oral submissions.

[15]     With regard to sentence, Mr Russell’s understanding is that, because he has previous convictions, he will be required to serve his sentence of community work as periodic detention and this will interfere in a major way with his business of furniture making which involves working seven days a week and travelling frequently at weekends. He would be prepared to pay a fine if given time to pay.

The Crown’s submissions

[16]     With regard to the first ground of appeal, the Crown submitted that the evidence called by the Crown, if accepted by the jury, was sufficient for the guilty verdict on each count.

[17]     On the second ground of appeal the Crown submitted that the trial judge, after having been informed by the jury that they were not able at that stage to agree, gave standard directions of a type upheld by the Court in Rv Papadopolous [1979] 1 NZLR 621. In the Crown’s submission, there is nothing in this ground of appeal.

[18]     With regard to the submission of counsel incompetence in failing to call Mr Russell’s partner, the Crown noted that Mr Russell does not dispute that he accepted counsel’s advice in this regard. It was submitted by the Crown that counsel’s advice not to call Mr Russell’s partner was unsurprising in the light of the fact that on 6 October 2001 she had made a signed statement to the police. She had confirmed, on page 2 of that statement, that:

When the police arrived, he [Mr Russell] tried to bargain with the police that he would go later, but I wanted him out there and then. When police refused his demands, he then became aggressive and jumped up and threatened the police sergeant and constable. They tried to reason with him but he refused to listen, shouting and swearing at them. He then picked up a pot plant and threw it at both policeman. A scuffle broke out and he was eventually handcuffed and taken away.

[19]     The Crown also pointed out that the day after the incident Mr Russell’s partner issued a trespass notice on Mr Russell. It had been intended that she would be called as a witness for the prosecution but, on being served with a witness summons, she had indicated that she would not come to Court.

[20]     In such circumstances, the Crown submitted that the advice not to call Mr Russell’s partner as a defence witness was entirely proper. Her prior statement would have been put to her and there is no doubt that her evidence would only have made things worse for Mr Russell.

[21]     With regard to sentence, Mr Horsley submitted that the sentence was entirely unexceptional. The only alternatives would have been a fine or a short sentence of imprisonment, both of which would have interfered with Mr Russell’s business.

Discussion of conviction appeal

First ground of appeal

[22]     For Mr Russell to succeed on this ground, the Court must be of the opinion that a jury acting reasonably must have entertained a reasonable doubt of Mr Russell’s guilt. It is not enough for the Court simply to disagree with the verdict of the jury. We also note that questions of credibility of witnesses and the weight to be attached to their evidence are for the jury.

[23]     In summary, Sergeant Tatere testified that he went to the premises in question with Constable Robertshaw. They were invited into the house by Mr Russell’s partner and went into a bedroom where they had been told Mr Russell was. Mr Russell’s partner stated that she wanted Mr Russell to leave immediately. Sergeant Tatere’s evidence was that Mr Russell became agitated and replied that he would leave in 10 minutes, to which his partner replied that she wanted him to leave right now. The Sergeant testified that he told Mr Russell that he would have to leave and that he suggested to Mr Russell that he should come outside to discuss the matter. Mr Russell became aggressive and began to threaten and swear at him. Sergeant Tatere’s evidence was that out of the blue Mr Russell threw a punch which struck him. At trial, Sergeant Tatere said that he had been hit on the left side of his chest. At depositions he had said that he had been struck in the right shoulder. When this was put to him at trial he said that he must have been struck in the right shoulder but that he had also been hit in the left upper chest area and the latter had been the first blow which had struck him. Constable Robertshaw confirmed that he saw Mr Russell taking a swing at Sergeant Tatere but said that he did not actually see the punch hit the Sergeant.

[24]     With regard to the allegation relating to the ceramic pot, Constable Robertshaw related how the pot had been thrown in his direction and how it had hit his hand. Sergeant Tatere confirmed that Mr Russell had thrown the ceramic pot in the direction of himself and Constable Robertshaw. He said that he had ducked and the pot had flown over him but he did not see it actually hit Constable Robertshaw.

[25]     Mr Russell’s evidence was that he had not punched Sergeant Tatere. Mr Russell admitted that he had been annoyed by the police action and that he had refused to leave. He also admitted saying to the police that it would take more than the two of them to get him out of the house. He said that he had thrown the pot plant but that he had thrown it towards the mirror. He had lost his temper for a split second after being pepper sprayed and he was going to smash the mirror in his anger.

[26]     The jury clearly accepted the evidence given by the police officers as it was open to them to do. On the police officers’ evidence, the jury was entitled to find Mr Russell guilty on both counts. This ground of appeal fails.

Second ground of appeal

[27]     As submitted by the Crown, the Judge’s directions as set out in the record were standard directions. There was therefore no undue pressure on the jurors to reach a verdict. This ground of appeal also fails.

Third ground of appeal

[28]     We accept the Crown’s submission that the evidence of Mr Russell’s partner would not have been helpful to him. In addition, Mr Russell had accepted his counsel’s advice not to call her. In these circumstances, no issue of counsel incompetency can arise.

Discussion of sentence appeal

[29]     Given the Judge’s assessment of the nature of the offending, Mr Russell’s previous convictions and the uncertainty surrounding whether the positive factors mentioned in the pre-sentence report were sustainable, we consider that the sentence was appropriate when imposed.

[30]     However, as the Judge recognised, the offending was not the most serious of its kind. Apart from minor traffic matters, Mr Russell has had no further convictions since 2002, indicating that the positive features noted in the October 2002 pre-sentence report appear to have been sustained. Mr Russell impressed us as a person trying hard to put his past difficulties behind him. In these circumstances (and given the time that has now passed since the offending) we would allow his appeal on sentence and substitute a sentence of 130 hours of community work.

[31]     Mr Russell’s understanding that there is a policy requiring offenders with previous convictions to serve sentences of community work in a community work centre must be erroneous. The case of each individual offender must be assessed in terms of the criteria set out in s62 of the Sentencing Act 2002.

[32]     In Mr Russell’s case, we note that, when assessing the type of community work Mr Russell will have to undertake, the distance he lives from the nearest community work centre and his business and family commitments should be taken into account, as well as the progress he has apparently made to put his earlier offending behind him and to do something constructive with his life. Certainly, if placement in a community work centre would interfere with Mr Russell’s business to the extent he claims, Mr Russell would appear, in our view, to have a good case for placement with an agency other than a community work centre – see the comments in Hall’s Sentencing at SA64.2.

Result

[33]     Mr Russell’s application for leave to appeal out of time on conviction and sentence is granted. For the reasons given above, the appeal in relation to conviction is, however, dismissed.

[34]     Mr Russell’s appeal against sentence is allowed. The sentence of 260 hours community work is quashed and replaced by a sentence of 130 hours community work. Mr Russell is to report to a probation officer in the Hastings probation area as soon as practicable and not later than 72 hours after the receipt by him of this judgment.

[35]     A copy of this judgment is to be provided to the Hastings Community Probation Service.

Solicitors:
Crown Law Office, Wellington