Sharpe v The Queen
[2020] NZCA 475
•23 October 2020 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA233/2020 [2020] NZCA 475 |
| BETWEEN | STEPHEN SHARPE |
| AND | THE QUEEN |
| Hearing: | 27 August 2020 (further submissions 21 October 2020) |
Court: | Gilbert, Thomas and Dunningham JJ |
Counsel: | W C Pyke for Appellant |
Judgment: | 23 October 2020 at 9.30 am |
JUDGMENT OF THE COURT
AThe appeal against conviction is allowed. We direct that a judgment of acquittal be entered on the charge of aggravated burglary.
BThe record of the first strike warning given to the appellant by the District Court on 24 January 2020 is cancelled in respect of the conviction quashed.
CThe concurrent sentences of 12 months’ imprisonment on the charges of assault with a weapon and careless use of a firearm (x 2) are set aside. Concurrent sentences of two years and two months’ imprisonment are substituted on these charges.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Mr Sharpe was found guilty by a jury on one charge of aggravated burglary, two charges of careless use of a firearm and one charge of assault with a weapon, all arising out of events on the evening of 2 February 2019.[1] Mr Sharpe was convicted and sentenced by Judge Butler to three years and six months’ imprisonment on the lead charge of aggravated burglary and concurrent sentences of 12 months’ imprisonment on each of the other charges.[2] Mr Sharpe now appeals against his conviction on the charge of aggravated burglary. He also appealed against his sentence, but this was not pursued at the hearing. Counsel advised that the sentence will only need to be revisited if the conviction appeal is allowed.
[1]Mr Sharpe was also found guilty on one charge of possession of a Class C controlled drug.
[2]R v Sharpe [2020] NZDC 1099 [Sentencing judgment].
Two grounds of appeal were identified in the notice of appeal. The contention that the jury’s verdict on the aggravated burglary charge was unreasonable is not pursued. The sole remaining ground of appeal is that the Judge misdirected the jury and there is a risk of miscarriage as a result.
The facts
Mr Sharpe had been in a four-year relationship with one of the complainants, Ms Beckham. The relationship ended in November 2018, but Mr Sharpe remained living as a tenant in Ms Beckham’s house. At the time of the offending, Ms Beckham was living in the house with her new partner, Mr Hyett, the second complainant.
On 1 February 2019, Ms Beckham gave Mr Sharpe 28 days’ notice to vacate. On the evening of Saturday, 2 February 2019, the three of them were out drinking together at a local tavern. During the course of the evening, Mr Sharpe tried several times to take Ms Beckham aside to talk to her, causing her to become distressed. The three of them then returned home and Ms Beckham and Mr Hyett went to their bedroom which was upstairs and situated directly above Mr Sharpe’s bedroom.
A short time later, Mr Sharpe went to their bedroom and knocked on the door. He said, although they were friendly, they indicated they did not want to talk to him. Mr Sharpe said he went back downstairs. However, he felt “frustrated”, so he went back up and again knocked on the door. This time, he said they told him to “fuck off”. He said he went straight back downstairs in a “fit of depression”. While he was sitting down there, he said he started hearing noises that sounded to him like they were having sex. He said he felt “really sad”, like he was “going to snap”. He said he walked to the gun safe and pulled out the shotgun. He thought about shooting himself but then decided he was not going to “let her get away with this”. After taking two sleeping pills and lying down for five to 10 minutes, he said “I just thought bugger it. She’s gonna see this”. He said he walked back upstairs and entered their bedroom with the loaded shotgun.
There was a dispute at the trial about what happened next. Ms Beckham said she was woken by Mr Hyett screaming. She saw Mr Sharpe standing at the end of the bed pointing the shotgun at them. Mr Hyett also said he woke up to see Mr Sharpe pointing the gun at them. He said he could see Mr Sharpe’s finger on the trigger. A struggle ensued as Ms Beckham went for the gun and pointed it towards the floor. Mr Hyett said that Mr Sharpe then racked the shotgun and a cartridge was ejected from it. During the struggle, Mr Sharpe said “you’re lucky I didn’t pull the trigger straight away”. Mr Hyett assisted in subduing Mr Sharpe and safeguarding the shotgun until the police arrived.
Mr Sharpe’s evidence as to what occurred in the bedroom was somewhat different. He said he did not go there to hurt anybody and did not point the gun at Ms Beckham or Mr Hyett. He said he pointed the gun at the bed to scare them. He said that when they both started screaming, he actioned the shotgun by pumping the mechanism. He said he did this because “I wanted them to know I was serious”. He agreed he was then wrestled to the ground.
The charge — aggravated burglary
The charge of aggravated burglary, an offence under s 232(1)(a) of the Crimes Act 1961, was the first charge in the charge list. It read:
… while entering part of a building, namely a bedroom, without authority and with intent to commit an imprisonable offence in that building had a weapon, namely a shotgun.
The charge does not specify the imprisonable offence Mr Sharpe intended to commit when he entered the bedroom.
In opening, the prosecutor identified the imprisonable offence as being “[t]he careless use of a firearm or to deal with a firearm, the second charge, that is an imprisonable offence”. This was a reference to charge 2 — careless use of a firearm, an offence under s 53(3) of the Arms Act 1983 and punishable by up to three years’ imprisonment. Charge 2 alleged that Mr Sharpe, without reasonable cause dealt with a firearm, namely a shotgun, in a manner likely to endanger the safety of Ms Beckham.[3] The particulars given for this charge read — “Racked the weapon”. Charge 3 contained the same particulars.
[3]Charge 3 was an identical charge save that it referred to endangering the safety of Mr Hyett. The jury found Mr Sharpe guilty on both these charges.
In closing, the prosecutor again identified the imprisonable offence as being careless use of a firearm:
The Crown say that [Mr Sharpe] went into that bedroom with an intent to carelessly use the firearm. Because we cannot know what [Mr Sharpe] was thinking at the time, that would be impossible, we need to think about the evidence that you have heard and what were the circumstances at the time. There was a loaded firearm. Detective Constable Cooper said that when he retrieved the firearm located on the deck the safety was off. He went to a safe place and actioned the firearm and that a cartridge came out of the chamber followed by five further cartridges as he has pump actioned the shotgun. We know that [Mr Sharpe] walked from his bedroom to the gun safe to retrieve the gun and he has then walked back to his bedroom and he has loaded it load after load. He said that to Detective Constable Cooper the day after the offending and he has also accepted that that is the case today.
…
You may recall he told Detective Constable Cooper that, and I quote, “I loaded it by pumping the mechanism which forced a round into the chamber. I then replaced the bullet by feeding another shell into the holding chamber. I don’t know what I was thinking I just wanted to make them listen. I walked upstairs with the shotgun and went to their room. Their door was shut, I tried to talk to them but they both told me to fuck off. I then entered the room and pointed the shotgun at the bed to scare them. … I then actioned the shotgun by pumping the mechanism, I wanted them to know that I was serious.
…
The Crown says that all of these comments and the circumstances at the time, the reality of the situation for both Ms Beckham, Mr Hyett and Mr Sharpe demonstrate that [Mr Sharpe] did, in fact, go upstairs into that room with an intent to use the firearm, to deal with it in some way and to use it to scare them, to rack the firearm, demonstrating that it was loaded so that they would take him seriously and listen to him.
Defence counsel closed on this issue on the basis that Mr Sharpe went to the bedroom with the intention of committing suicide, which is not an imprisonable offence:
Well, we know careless use of a weapon is an imprisonable offence, but that’s not what the evidence showed, is it? [Mr Sharpe] went in that room to top himself, to put it in crude terms. He’d had a gutful. He had put up [with it] for weeks and it had festered and festered, and we know that he had had suicidal intentions earlier because Ms Beckham confirmed that twice in her evidence, didn’t she? She confirmed that on a previous occasion after this breakup he’d wanted to kill himself with a gun. Committing suicide is not an imprisonable offence. You can’t be sent to prison for committing suicide. That’s why he went in that room. He’d had a week or two of constant having it in his face, seeing a relationship that he’d had for four to five years evaporate, he told you how he was feeling.
So did he go in the room to use the firearm carelessly or did he go into the room to commit suicide because he’d had enough? He simply couldn’t take it anymore. I suggest to you that’s why he went into that room and that evidence wasn’t seriously challenged when he gave it this morning and it was accepted by Ms Beckham that after, at the start of this breakup, he was very upset about it, so I would suggest that charge 1, the one of aggravated burglary, it won’t take you very long at all to come back with a verdict of not guilty on that.
The Judge’s directions
Question 4 in the question trail was not tailored to the facts of the alleged imprisonable offence. It read as follows:
Has the Crown made you sure that at the time Mr Sharpe entered the bedroom, he intended to commit an imprisonable offence?
The Judge addressed the jury on question 4 in his summing up in this way:
And then question 4 which is the key part to this charge of aggravated burglary, “Has the Crown made you sure that at the time Mr Sharpe entered the bedroom he intended to commit an imprisonable offence?” I have to tell you that suicide and/or attempted suicide are not imprisonable offences, they are not offences under our Crimes Act. If you find that there was a reasonable possibility that he went into Ms Beckham’s bedroom to shoot himself or to try and do so then you must acquit him on charge 1 because the imprisonable offence element will not have been made out.
[The Judge then summarised the evidence on the issue of Mr Sharpe’s intent when he entered the bedroom.]
If [Mr Sharpe] went into the bedroom not to shoot himself or attempt to shoot himself but to threaten, coerce or scare the complainants or indeed to kill them then that intention would amount to an imprisonable offence. To present a firearm, that means to point a firearm at someone, is an imprisonable offence. Did [Mr Sharpe] have the barrel pointed at the floor or at the couple in the bed? You have got to decide that issue.
The Judge concluded his summing up with a summary of the Crown and defence cases. Returning to the question of the imprisonable offence for the purposes of charge 1, the Judge said this:
The Crown limits itself in that discussion to what is actually charges 2 and 3, careless use of the firearm, but you are entitled to consider any imprisonable offence as his intention. You are not confined to what the Crown suggests as far as that is concerned. And as I said to you a few moments ago, if you decide that he intended to kill them, intended to coerce them or threaten them, then those would constitute imprisonable offences obviously and you can work on that basis.
Submissions
Mr Pyke, for Mr Sharpe, submits that the Judge was wrong to venture beyond the Crown case, without alerting the defence to this before closings were given. The defence argued for a not guilty verdict based on the imprisonable offence relied on by the Crown, namely careless use of the weapon by racking the shotgun. The issue was therefore whether this is what Mr Sharpe intended to do at the time he entered the bedroom.
Mr Pyke argues that the legal basis for the jury’s verdict is in doubt because of the Judge’s directions concerning the offence of presentation of a firearm. The jury may have concluded that Mr Sharpe intended to rack the shotgun when he entered the bedroom, and this was careless use of the weapon. However, because of the Judge’s directions, the jury may have found it proven that Mr Sharpe entered the bedroom with the intention of presenting the weapon by pointing it at Ms Beckham and Mr Hyett. Mr Pyke submits this is unfair because defence counsel did not have the opportunity to present argument on this alternative thesis. A further risk is that, even if the jury found it proven that Mr Sharpe did point the shotgun at the couple, they might still have doubted that this was the imprisonable offence Mr Sharpe intended to commit at the time he entered the bedroom. Defence counsel made no argument on that point because the possibility the Judge might sum up on that alternative basis was not signalled.
In summary, Mr Pyke submits there is a risk of a miscarriage of justice. The outcome could have been different. If the Judge’s directions had aligned with the Crown case and the defence argument in closing, there is a reasonable possibility another verdict would have been reached.
Ms Hoskin, for the Crown, submits the Judge’s directions were correct and caused no prejudice to Mr Sharpe. She contends there is no risk of a miscarriage of justice.
Ms Hoskin says the Crown’s position from the outset of the trial was clear, namely that Mr Sharpe entered the bedroom, pointed his loaded shotgun at the complainants as they lay in bed and then racked it. She says that if the jury accepted this evidence then the intention element of the charge was proved — Mr Sharpe entered the bedroom with intent to commit an imprisonable offence. Ms Hoskin says this was effectively the point being made by the Judge. So long as the jury accepted the factual narrative advanced by the Crown witnesses, this element was made out. While the Judge referred to offences other than those specifically referenced by the Crown, this made no practical difference and caused no prejudice because these offences were all based on acceptance of the same factual narrative. This narrative had been put to Mr Sharpe and rejected by him in his evidence and in the closing address of his counsel.
The defence case was founded on a competing narrative, namely that Mr Sharpe entered the bedroom with a loaded shotgun with the intention of committing suicide. The Judge made it quite clear to the jury that if they accepted this evidence, or they considered this was a reasonable possibility, their obligation was to find Mr Sharpe not guilty. Mr Sharpe’s evidence about his intention in entering the bedroom with the loaded shotgun could not have been any different, even if he had known how the Judge was going to sum up. The imprisonable offences mentioned by the Judge were all offences that were raised by the prosecution evidence and rejected by Mr Sharpe in his evidence. He categorically denied pointing the gun at Ms Beckham or Mr Hyett and he said he did not intend to threaten them.
Assessment
Burglary and aggravated burglary are crimes of specific intent — the defendant must be shown to have intended to commit an imprisonable offence at the time of entry to the premises. The Crown should particularise the imprisonable offence said to have been intended by the defendant at the relevant time. If this has not been done before the trial commences, the trial judge should require the prosecutor to specify the imprisonable offence alleged to have been intended by the defendant at the time of entry. This is a matter of basic fairness. The defendant is entitled to know the case he or she is facing. It is also necessary to ensure the jury is focused on the alleged state of mind and is not left to speculate whether the intended conduct amounts to an imprisonable offence.[4] The charge can only be amended during the trial if the defendant has not been misled or prejudiced in his or her defence by the amendment.[5] Judicial directions should be confined to the imprisonable offence the Crown relies on.
[4]R v Berking CA56/06, 4 September 2006 at [22]–[26].
[5]Criminal Procedure Act 2011, s 136.
It is unacceptable and contrary to basic fair trial rights for a defendant to hear for the first time during the course of a judge’s summing up that he or she is vulnerable to conviction on a basis other than that advanced by the Crown. The judge should not direct the jury in summing up that they are free to substitute their own analysis of the case and determine the charge on a different basis from that advanced by the Crown and responded to by the defence. A summing up is intended to be a balanced summation of the case the jury has heard after both sides have closed their respective cases. It is not the role of the judge in summing up the respective cases to reformulate the case by changing or expanding the parameters of the charges brought by the Crown. Certainly, this should never be done without first discussing the suggested amendment with counsel to ensure there is no prejudice and no objection.
While, in the present case, the alleged imprisonable offence intended was not specified in the aggravated burglary charge, the Crown made it clear in their opening and closing addresses that it was careless use of a firearm, namely dealing with a firearm in a manner likely to endanger the safety of any person by racking the weapon. The defence understood that was what was being alleged throughout and conducted their case accordingly. Everyone understood that the alleged intention was to commit the offences particularised in charges 2 and 3. The competing narratives were fully addressed on that basis in the evidence and in closing submissions. To that point, there was no unfairness or prejudice arising from the Crown’s failure to provide particulars of charge 1 in the charging document.
However, the Judge did not follow best practice in formulating his question trail. Ideally, question 4 ought to have been tailored to the facts the jury needed to be sure about on the Crown case to find Mr Sharpe had the alleged intention when he entered the bedroom. While this is best practice, the failure to tailor the question trail in that way was not fatal. The question posed was correct, just not as helpful to the jury as it might have been.
Had the Judge directed the jury on question 4 in terms of the Crown case and the defence response to it, there would have been no issue. However, the Judge did not do this. We agree with Mr Pyke that the Judge should not have summed up on the basis of an intended offence not relied on by the Crown or addressed by the defence, certainly not without first discussing this with counsel. We accept Mr Pyke’s submission that the Judge erred in directing the jury that they were not confined to what the Crown contended was Mr Sharpe’s intention on entering the bedroom and could consider other possibilities such as whether he intended to “kill them”, “coerce them”, “threaten them”, “point a firearm at someone”, or indeed “any imprisonable offence”.
As we have said, it is fundamental to a fair trial that a defendant should know what is alleged against him or her at the outset. Here, Mr Sharpe was entitled to proceed on the basis that the Crown was obliged to prove to the requisite standard that at the time he entered the bedroom, he intended to carelessly use the firearm by racking it — in other words at the time he entered the bedroom, he intended to commit charge 2. While charge 1 did not specify this, it was clear from the time of the Crown’s opening that this was the allegation. The Crown did not depart from this core allegation during the course of the trial and it closed its case on that basis, as did the defence. The Crown should have been treated as being bound by those particulars, just as if they had been written into charge 1 (subject to any amendment with leave).
We see this case as being distinguishable from Kirby v R, relied on by Ms Hoskin.[6] There, the Judge’s failure to specify the offence in his summing up or in his question trail was considered not to be fatal because the Crown had made clear in their opening that the intended crime was arson. Everyone in the courtroom knew the intended crime was alleged to be arson and that arson was a crime.[7] That is not the position here because of what the Judge said in his summing up. While it may be that by the end of closing addresses, the jury clearly understood that the Crown case was that Mr Sharpe entered the bedroom with the intention of carelessly using the firearm by racking it, the Judge directed the jury that they were not constrained by this and could consider any other imprisonable offence. Any clarity as to the crucial issue of intent that existed prior to the Judge’s summing up was removed by this direction.
[6]Kirby v R [2013] NZCA 451, (2013) 26 CRNZ 740.
[7]At [41].
The Crown did not allege that Mr Sharpe entered the bedroom with the intention of killing Ms Beckham or Mr Hyett, coercing them, threatening them, presenting the weapon by pointing it at them, or committing some other unspecified imprisonable offence. The jury should not have been directed to consider these possibilities, raised only by the Judge. They formed no part of the Crown case and had not been addressed by either counsel in their closing addresses.
It is also not clear what imprisonable offence the Judge was referring to with his reference to “coerce” or “threaten”. More problematic was the Judge’s further reference to “any imprisonable offence”. This opened the field wide, with the jury receiving no other assistance on what the specific intent might have been or whether the alternative act or acts intended would constitute imprisonable offences. The jury should not have been left to speculate on these matters.
We consider the Judge erred in his directions in summing up on the crucial issue of intent on the aggravated burglary charge, charge 1. In our view, this was a fundamental error. Because these alternative possibilities were raised for the first time by the Judge in his summing up, the defence was deprived of any opportunity to address them in evidence or in closing argument to the jury. The error has resulted in an unfair trial on this charge and a miscarriage of justice has occurred.[8]
[8]Criminal Procedure Act, s 232(4)(b).
Further, we cannot be confident that the guilty verdict reflected that the jury were sure that Mr Sharpe entered the bedroom with the intention of carelessly using the weapon as the Crown had alleged. There is a reasonable possibility, based on the Judge’s directions, that the jury concluded Mr Sharpe had some other intention, including to commit an act that does not constitute an imprisonable offence. For example, the jury might not have been sure that the Crown had proved to the required standard that Mr Sharpe intended to rack the gun at the time he entered the bedroom. The evidence was that the weapon was not racked until Ms Beckham wrestled with Mr Sharpe and the gun. It was then that he stepped back and racked the gun. In view of this evidence, the jury may have been left in doubt about whether this was Mr Sharpe’s intention at the time he entered the bedroom. This uncertainty may explain why the Judge raised other possible scenarios.
Because of the Judge’s directions, there is no way of knowing the basis on which the jury found Mr Sharpe guilty on the aggravated burglary charge. We cannot exclude the reasonable possibility that a not guilty verdict might have been delivered had this error not been made.[9]
[9]Section 232(4)(a). See also R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.
For the reasons we have given, justice has miscarried on the aggravated burglary charge. The conviction appeal on that charge must be allowed.
Disposition
The Crown does not seek a retrial on the charge of aggravated burglary, nor would this be appropriate in all the circumstances. We therefore set aside the conviction on that charge and direct a judgment of acquittal.
Because aggravated burglary was the lead charge for the purposes of sentencing, s 236 of the Criminal Procedure Act 2011 is engaged. The sentence imposed on that charge was taken into account in imposing the sentences on the lesser charges. The parties agree that the concurrent sentences of 12 months’ imprisonment imposed on the lesser charges — assault with a weapon and careless use of a firearm (x 2) — should be set aside and substituted with a more appropriate sentence for those offences given the appeal against conviction on the charge of aggravated burglary has been allowed.
Mr Pyke submits that a starting point in the range of two to two and a half years’ imprisonment is warranted given the firearm was loaded and posed a real risk to the safety of the terrified victims. Ms Hoskin submits the appropriate range should be six months higher — two and a half to three years’ imprisonment. Having reviewed the authorities relied on by both counsel, we consider a starting point of two and a half years’ imprisonment would be appropriate.[10]
[10]R v W (CA352/97) 19 November 1997; Freakley v R [2010] NZCA 497; and McNeilly v R [2011] NZCA 481.
The Judge allowed a discount of six months from the four-year starting point he adopted on the aggravated burglary charge to reflect Mr Sharpe’s emotional state at the time of the offending, his genuine remorse and the rehabilitative steps he had taken while remanded in custody (equating to 12.5 per cent).[11] The same proportionate discount applied to the lower starting point we have adopted for the less serious offending equates to approximately four months. This results in an end sentence of two years and two months’ imprisonment.
Result
[11]Sentencing judgment, above n 2, at [14].
The appeal against conviction is allowed. We direct that a judgment of acquittal be entered on the charge of aggravated burglary.
The record of the first strike warning given to the appellant by the District Court on 24 January 2020 is cancelled in respect of the conviction quashed.
The concurrent sentences of 12 months’ imprisonment on the charges of assault with a weapon and careless use of a firearm (x 2) are set aside. Concurrent sentences of two years and two months’ imprisonment are substituted on these charges.
Solicitors:
Crown Law Office, Wellington for Respondent