Skerten v Police
[2015] NZHC 2882
•19 November 2015
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2015-412-000029 [2015] NZHC 2882
ERIC DELWYN SKERTEN
v
NEW ZEALAND POLICE
Hearing: 16 November 2015 Appearances:
No appearance for the Appellant
Richard Smith for the CrownJudgment:
19 November 2015
JUDGMENT OF NATION J
Background
[1] On 2 February 2015, after a defended Judge alone hearing, Judge K J Phillips found Mr Skerten guilty of:
i. having in his possession an offensive weapon, namely a mallet, in circumstances that prima facie showed an intention to use it to commit an offence involving bodily injury;
ii. threatening to do grievous bodily harm to Matthew James Holmes;
iii. intentionally damaging a hammer the property of Matthew James
Holmes;
iv. failing to answer bail and to appear in Court as required;
SKERTEN v POLICE [2015] NZHC 2882 [19 November 2015]
v. driving a motor vehicle while his licence was suspended; and vi. threatening to kill Matthew James Holmes.
[2] The most serious alleged offending related to an incident on 25 August 2014. The Judge found Mr Skerten had gone to the home of his brother-in-law, Mr Holmes, with a sledgehammer in his right hand and a bag of tools in his left hand. Mr Holmes told Mr Skerten to leave. Mr Skerten was waving the hammer around in an aggressive manner. Mr Holmes described it as being about a metre long with a head. Mr Skerten also had a bottle of methylated spirits in his hand. Mr Skerten approached towards Mr Holmes and made threats to him that Mr Holmes was going to “burn”. Mr Skerten threw the bag of tools on the ground. He used the sledgehammer to smash hammers and other items which had spilled out from the bag when he threw it on the ground. Mr Skerten however claimed that the tools had been already broken before he took them to the address.
[3] The breach of bail charge related to his non-appearance in Court in Dunedin on 27 November 2014 after he had been released on bail on 14 October 2014.
[4] Mr Skerten’s licence was suspended on 12 December 2014. On 2 February
2015, he was driving the car in Balclutha.
[5] On 17 April 2015, Mr Skerten also pleaded guilty to a charge that on 9 March
2015 he had threatened to kill Mr Holmes. This offence occurred when Mr Skerten was speaking to Corrections officers on 9 March 2015 after he had been remanded in custody after a breach of bail. Mr Skerten said to the Corrections officers that Mr Holmes better watch out when he got out. Mr Skerten said “I’ll burn him down. When I get out, I’ll do what I should have done years ago. He’d better have left the country or I will kill him.”
[6] On 17 April 2015, Judge Phillips sentenced Mr Skerten to 12 months’ imprisonment in relation to the offending that occurred on 25 August 2014, four months’ imprisonment cumulative in respect of the threatening to kill offence committed on 9 March 2015, one month’s imprisonment concurrent on the charge of
driving while his licence was suspended and one month’s imprisonment concurrent on the breach of bail charge. He was disqualified from driving for six months.
The appeal
[7] On 24 August 2015, Mr Skerten signed a notice of appeal against conviction and sentence in respect of all these charges. It appears that this was received in the District Court on 1 September 2015 at the time Mr Skerten was serving his sentence of imprisonment at the Invercargill prison. Mr Skerten’s appeal included an application for leave to appeal out of time.
[8] Mr Skerten was notified when he was in the Invercargill prison that the appeal would be heard on 16 November 2015 at 10.00 am. There was a possibility that a lawyer, Mr Westgate, might be engaged but legal aid was declined.
[9] Mr Skerten was released from Invercargill prison on 4 November 2015, having served the prison sentence that was imposed on him.
The appellant’s grounds for appeal
[10] When the matter was called before me on 16 November 2015, I thus had an application for leave to appeal out of time and the notice of appeal against conviction and sentence. I had no submissions in support of either but Mr Skerten had filed a lengthy notice of appeal and associated letters. These documents referred to:
(a) failure of his trial lawyer to show him the index of documents disclosed by the police before the hearing; and
(b) inadequate representation by his trial lawyer and sentencing lawyer;
(c) failure of the police to produce the sledgehammer at trial which, in his notice, Mr Skerten said he still had;
(d) failure of trial counsel to call his partner who had been a witness to what happened with Mr Holmes;
(e) failure of his defence counsel or the police to produce texts of communications between Mr Skerten and Mr Holmes before the incident of 25 August 2015;
(f) argument that liquid he had on the occasion was not methylated spirits but a mixture of vitafresh and water;
(g) admissions contained in DVD interview of police should not have been admitted because Mr Skerten was mentally impaired through being on the methadone programme.
(h) his counsel at sentencing allowing a drug and alcohol assessment to be put in front of the Judge;
The Crown’s response
[11] The Crown’s solicitor, Mr Smith, had filed detailed submissions for the respondent. In addition, he had filed an affidavit from Mr More, Mr Skerten’s counsel at trial. Mr More was given leave to withdraw before sentencing and a different counsel appeared for Mr Skerten when he was sentenced.
[12] Mr More says he was not counsel when Mr Skerten was first assigned to the
Public Defence Service but he wrote to Mr Skerten after he had appeared in Court on
17 December 2014 and sent him a full disclosure of everything that had been received from the police at that time. He says that this would have included a copy of the disclosure index. He also says that he met with Mr Skerten on 15 January
2015 at the Public Defence Service office and went through all the evidence which would be presented by the prosecution at trial and took his instructions.
[13] Mr More explained that he had not called Mr Skerten’s partner, firstly because Mr Skerten had been unable to provide him with contact details for her. Mr More had also found out from a previous lawyer for Mr Skerten that this person had applied for a protection order against Mr Skerten. The police had also spoken to her when Mr Skerten was arrested. They had noted that she was uncooperative and
refused to give a statement. Mr More did not consider that her evidence, if it had been available, would have assisted Mr Skerten.
[14] Mr More did not believe that Mr Skerten had discussed his being on a methadone programme in relation to his mental capacity at the time he was interviewed by the police. In any event, Mr More had viewed the DVD interview and did not consider there were grounds on which it could have been ruled inadmissible. Mr More had not sought to produce the text messages that preceded the incident because he considered production of those documents would probably not have assisted the defence. The text messages, in Mr More’s opinion, could have shown that Mr Skerten went to the victim’s address in the context of some sort of retaliation when Mr Skerten’s defence was that he had not gone to the brother-in- law’s address and acted in a threatening manner. Mr More said the Judge had cut short cross-examination over the texts on the basis they were not relevant to the issues the Judge had to deal with.
Appeal against conviction - miscarriage of justice?
[15] In his notice of appeal, Mr Skerten said he had made three complaints to the Ministry of Justice and he had not been able to get a lawyer because of the complaints.
[16] I do not consider there is anything in the detailed notice of appeal or the associated correspondence which Mr Skerten has sent to the Court to suggest there has been a miscarriage of justice in this case. The statements made by Mr Skerten in his notice of appeal are not evidence. The Judge was entitled to reach a decision about what happened on the basis of the evidence which was given by the witnesses, having regard also to admissions and statements made by Mr Skerten in his interview.
[17] If Mr Skerten had in fact been carrying an axe handle rather than a sledgehammer, that could still have constituted an offensive weapon. If he was carrying a container of liquid which looked like methylated spirits, that would still have been consistent with him making the threats of burning Mr Holmes, as the Judge found he had threatened to do. It was what happened when he arrived at Mr
Holmes’ address that was relevant to the Judge in deciding whether the charges had been proved, not any communications that had taken place before then by text. The Court had required the drug and alcohol assessment before sentencing so Mr Skerten’s new counsel was not in a position to prevent the Court taking it into consideration when determining his sentence.
[18] Mr Skerten’s statement about tools being damaged before the incident is not evidence. This proposition was put to Mr Holmes in cross-examination. He was adamant that this was not the case and tools were damaged as a result of what Mr Skerten did. The Judge was entitled to accept that evidence.
[19] There was ample evidence on which the Judge could reasonably find the crucial elements of the charges had been proved beyond reasonable doubt.
Appeal against sentence
[20] The pre-sentence report of 9 April 2015 indicated that the likelihood of Mr Skerten reoffending was high and the risk of harm to others was high. The Judge’s assessment, having regard to what he had heard of the incident, was that the risk was very high. The pre-sentence report indicated that Mr Skerten had no remorse, blamed the victim for the offending, had made numerous threats towards him and had a harmful pattern of alcohol and drug abuse.
[21] At the time of his sentencing, Mr Skerten had approximately 77 prior convictions dating from 1989, including:
· 10 breaches of community based sentences;
· four previous offences for possession of offensive weapons;
· seven previous offences of violence;
· two previous offences of wilful/intentional damage;
· five previous offences of breaching bail; and
· four previous offences of driving while disqualified.
Judge Phillips’ sentencing process
[22] Judge Phillips adopted a starting point of 15 months’ imprisonment for the
threatening grievous bodily harm charge associated with the incident of 24 August
2014. He regarded this as serious offending and noted that it must have been extremely frightening and alarming to the victim. He noted that Mr Skerten was out of control as Mr Skerten had acknowledged when he was interviewed by the police. Mr Skerten was fortunate that the Judge did not add anything to that starting point on account of Mr Skerten’s bad record of criminal offending. He was also fortunate that the starting point was reduced to 12 months on account of Mr Skerten’s problems with alcohol and drug abuse as disclosed by the report that had been provided to the Court.
[23] The associated offending attracted concurrent sentences so that the sentence imposed for all that happened on 24 August 2014 was 12 months’ imprisonment. To that, the Judge added four months for the further charge of threatening to kill (reduced from a starting point six months’ imprisonment by giving him credit for his plea of guilty in relation to that charge). The sentences for breach of bail and driving while suspended attracted concurrent sentences so that the overall sentence for all the offending was 16 months’ imprisonment. I do not consider there was any error in the Judge’s approach or that the ultimate sentence imposed was manifestly excessive.
Conclusion
[24] Having considered all the points that Mr Skerten made in his notice of appeal and associated correspondence with the Court, I do not consider that his appeal had any merit either with regard to his appeal against his convictions or the appeal against his sentence. He has now been released from prison.
[25] Mr Skerten did not appear for the hearing of his appeal. In those circumstances, the Court would be entitled to treat his application for leave to appeal
as being abandoned for want of prosecution.1 His application for leave to appeal out of time was made more than three months after the time within which it should have been filed.
[26] In all these circumstances, Mr Skerten’s application for leave to appeal his convictions and the sentences imposed is declined.
Solicitors:
Mr E D Skerten, Dunedin
RPB Law, Dunedin.
1 Mangu v R [2015] NZCA 151; Ellis v Police [2014] NZHC 3076; Hapi v Police [2014] NZHC
2696.