T v Police HC Rotorua CRI-2010-463-65

[2010] NZHC 2216

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-65

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 December 2010

Appearances: Mr P Birks for Appellant

Ms L Owen for Respondent

Judgment:      9 December 2010

(ORAL) JUDGMENT OF LANG J

[on appeals against conviction and sentence]

Solicitors/Counsel: Crown Solicitor, Rotorua Mr P T Birks, Rotorua

T V NEW ZEALAND POLICE HC ROT CRI-2010-463-65  9 December 2010

[1]      Mr T   faced a charge in the District Court of stealing items from a motor vehicle.   After a defended hearing, His Honour Judge Weir convicted Mr T   and sentenced him to 150 hours community work.  He now appeals to this Court against both conviction and sentence.

Factual background

[2]      In order to understand the issues that the appeal raises, it is necessary to say something about the factual background that led to the charge against Mr T  . That has its genesis in an incident involving a stolen motor vehicle that occurred on the evening of Saturday 10 April 2010 in Rotorua.   On the morning of Sunday

11 April 2010, the police received information that the vehicle had been abandoned in Eruera Street, Rotorua.  Two police cars then made their way to the scene.

[3]      The first police officer to arrive in Eruera Street was Constable McLaughlan. When he located the abandoned vehicle he saw a male person walking away from the vehicle carrying some fishing gear.   The constable did a U-turn and passed within five to ten metres of this person.  He was able to identify him as a male Maori wearing distinctive olive green camouflage clothing on both his upper torso and lower body.  He was able to say that the person was wearing gumboots and that he had a beanie on his head.  He was able to see a ponytail protruding from the beanie, and he was also able to see that the person was wearing a blaze orange shirt under the camouflage top.

[4]      Constable McLaughlan’s primary interest at this point was in the abandoned motor vehicle.   For that reason he stopped his vehicle and began to check that vehicle.   Before doing so, however, he arranged for Sergeant Brunt, who was following in another car close behind, to check on the male person he had seen walking away from the abandoned vehicle.  Constable McLaughlan had last seen this person turning left into Whakatau Street, approximately one hundred metres from the abandoned vehicle.

[5]      Sergeant Brunt believed that he would see the man when he drove down

Whakatau Street.  When that turned out not to be the case, Sergeant Brunt travelled

on down Eruera Street and turned left into Amohau Street.  After travelling a short distance along Amohau Street, he saw a male person answering the description given to him by Constable McLaughlan on Pererika Street.  Pererika Street runs parallel to Amohau Street.   He saw this person in the vicinity of a residential address at 12

Pererika Street.   The man appeared to be acting suspiciously, and appeared to be trying to evade detection by the police.

[6]      In order to approach this person Sergeant Brunt was required to travel further along Amohau Street and then turn right into Ranolf Street, before turning right again into Pererika Street.  By the time that Sergeant Brunt arrived in Pererika Street there was no sign of the person he had seen in the vicinity of 12 Pererika Street.

[7]      Sergeant Brunt had not been able to get a close look at the person’s face, but was able to identify his clothing in quite similar terms to those used by Constable McLaughlan.

[8]      Sergeant Brunt then commenced searching the address of 12 Pererika Street, because he believed that the person may have escaped through that address.  When he looked over the fence, he found two fishing rods lying on the tarmac.  When he went round the back of the address, he found a number of other items including items of building equipment.  The police later ascertained that these items had been removed from the abandoned vehicle in Eruera Street.

[9]      The next event that occurred is that another police patrol car, this time driven by Constable Alp, saw a male person answering the description given by Constable McLaughlan standing outside an address at the corner of Ann Street and Pererika Street.  This person was standing by a vehicle, talking to an associate and drinking from a cup of coffee.

[10]     When Constable Alp approached this person, he found it to be Mr T  . Constable Alp contacted Constable McLaughlan, who travelled to the scene a short time later.   Constable McLaughlan considered Mr T   to be the same person that he had seen near the abandoned vehicle in Eruera Street.  He was still wearing the same clothing, although he had put on an additional hunting top above the

camouflage top that the constable had seen earlier.  When Mr T   took off the hunting top, he was dressed in exactly the same way as Constable McLaughlan had seen the male person earlier in Eruera Street.

[11]     The police took Mr T   to the police station and interviewed him.  He denied having been near the abandoned vehicle and denied any knowledge of removing items from the vehicle.

The appeal against conviction

[12]     When the matter came before Judge Weir, counsel for Mr T   advised him that the only issue was one of identification.   As a result, the Judge made reference in his decision to s 126 of the Evidence Act 2006.   As counsel for the respondent concedes, this was an error, because s 126 of the Evidence Act 2006 relates to the caution that a Judge must give a jury when the issue of identification is before it.  It does not have any place in summary proceedings.  Instead, s 67A of the Summary Proceedings Act 1957 requires a Judge hearing a summary prosecution to recognise the need for special caution when considering identification evidence.

[13]     It  is  clear  that  the  Judge  had  the  need  for  caution  in  mind,  because  he mentioned it on several occasions.

[14]     On appeal, counsel for the appellant submits that the Judge wrongly directed himself in relation to the need to exercise care when considering identification evidence.  He submits that the Judge also failed to take the necessary caution when considering the evidence that the prosecution adduced.

[15]     I do not consider, however, that this case involved identification evidence. There is no dispute that the person that the police located at the corner of Ann Street and Pererika Street was Mr T  .  The real issue was whether the prosecution could prove beyond reasonable doubt that Mr T   was also the person that Constable McLaughlan had seen near the abandoned motor vehicle, and that he had removed the fishing rods and other items from that vehicle.  In other words, the issue

was whether the circumstantial case offered by the prosecution was sufficient to establish the charge beyond reasonable doubt.

[16]     When the case is viewed in that light, I am satisfied that there was ample evidence to justify the Judge’s conclusion.  The male person was seen very close to the abandoned vehicle, and was seen at that time to be carrying fishing rods.  As it turned out, fishing rods had been stolen from that vehicle.

[17]     That person was dressed distinctively in clothing that would not generally be seen on the streets in the central city.   It would also be somewhat unusual for a person in that area and at that time of day to be carrying fishing rods.   A person answering  a  very  similar  description  was  then  seen  a  very  short  time  later  by Sergeant Brunt a short distance away.  There is then the evidence about the items that were stolen from the vehicle being found at 12 Pererika Street near where that person was seen by Sergeant Brunt.

[18]     Then, a short time later, the police located Mr T   a short distance away. He, too, was dressed in the same type of clothing as the person that Constable McLaughlan and Sergeant Brunt had seen a little earlier.

[19]     When those factors are taken together, I consider that they are sufficient to establish beyond reasonable doubt that Mr T   was the person who was seen walking away from the abandoned vehicle, and that he was also the person who removed the items from it.  I therefore conclude that the Judge was fully entitled to conclude that the charge had been proved beyond reasonable doubt.

The appeal against sentence

[20]     Counsel advances the appeal against sentence on the basis that Mr T   has never been convicted on a previous occasion of offences involving dishonesty. He has a number of previous convictions, but these relate to excess breath alcohol offences and resisting arrest.   He has also been convicted of driving whilst disqualified and refusing to  accompany an  enforcement officer.   None of those convictions carry any sense of dishonesty.

[21]     When  that  factor  is  taken  into  account,  counsel  submits  that  the  Judge selected a penalty that was not the least restrictive outcome in the circumstances. For that reason he contends that the sentence was manifestly excessive and should be reduced to a fine.

[22]     There is no tariff, or guideline, judgment in respect of the charge of theft. That is because the offence can be committed in a multitude of ways.  Counsel for the respondent has cited a number of authorities to me in which sentences of community work have been imposed on charges of theft.  For present purposes the most helpful of these is Hoet v Police HC Timaru CRI 2007-476-009, 30 March

2007.   In that case an offender had stolen $588 worth of pork from his employer. That is similar to the value of the property that was stolen in the present case.  On appeal a sentence of 180 hours community work was reduced to 125 hours.   The Judge noted that, standing alone, the sentence of 180 hours was unremarkable.  The reduction  occurred  because  another  offender  who  had  been  convicted  of  taking

$20,000 worth of meat from the same employer had received a sentence of just 200 hours community work.  The Judge considered that it is likely that the latter offender had received a sentence that is unduly lenient.  He took the disparity between the two sentences  into  consideration,  however,  when  deciding  to  reduce  the  sentence imposed on the appellant.

[23]     Mr T   was not able to claim the benefit of a discount as a result of any guilty plea.   Neither could he claim any form of discount in respect of a clean criminal record.

[24]     Viewing matters in that light, I do not consider that a sentence of 150 hours community work can be said to be out of the range.   This was relatively serious offending in the sense that it involved removal of property from a car parked on the street.   As the Judge remarked, that is a matter of concern in this locality where numerous tourists park their vehicles.  The courts need to be seen to act firmly when this type of offending is established.

[25]     The sentence has not been shown to be manifestly excessive.   The appeals against conviction and sentence are accordingly both dismissed.

Lang J