Tecklenberg (aka Vaasili) v The the Queen

[2022] NZHC 1016

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2022-488-0014

[2022] NZHC 1016

BETWEEN

JULIA ELIZABETH ELLENOR

TECKLENBERG (ALSO KNOWN AS JULIA VAASILI)
Appellant

AND

THE QUEEN

Respondent

Hearing:	10 May 2022
Appearances:	A M Courtney for Appellant C S Taylor for Respondent
Judgment:	12 May 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 12 May 2022 at 2.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Courtney Legal, Kaitaia

Marsden Woods Inskip Smith, Crown Solicitor, Whangārei

TECKLENBERG v R [2022] NZHC 1016 [12 May 2022]

[1]    Following a Judge-alone trial before Judge Orchard on 26 October 2021, the appellant, Ms Tecklenberg, was convicted of being an accessory after the fact of robbery.1 On 16 February 2022, the Judge sentenced Ms Tecklenberg to 80 hours’ community work and nine months’ supervision.2

[2]Ms Tecklenberg appeals against both conviction and sentence.

Appeal against conviction

[3]    I must allow the appeal against conviction if satisfied a miscarriage of justice has occurred in the sense of s 232(4) Criminal Procedure Act 2011, whether because the trial Judge erred in her assessment of the evidence or otherwise.

[4]    An appeal against conviction following a Judge-alone trial is conducted by way of rehearing, but it is for the appellant to show an error has been made. In assessing whether there has been an error, the appellate court must take account of any advantages the trial Judge may have had. If the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise caution because of particular advantages the trial Judge derives from hearing the evidence.3

Appeal against sentence

[5]    I must allow the appeal against sentence if satisfied there is an error in the sentence imposed and a different sentence should be imposed.4 I must dismiss the appeal in any other case. The Court does not simply substitute its own view for that of the original sentencing Judge.5 Rather, it must be shown the sentence is manifestly excessive or wrong in principle.6 The focus is on the end sentence, rather than the process by which the sentence was reached.7

1      R v Vaasili [2021] NZDC 20883.

2      R v Vaasili [2022] NZDC 4094.

3      Sena v Police [2019] NZSC 55 at [38].

4      Criminal Procedure Act 2011, s 250(2).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

6      Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, above n 5, at [30]–[35].

7      Tutakangahau v R, above n 5, at [36].

Facts

[6]    On the evening of 13 September 2019, the complainant, M, won the jackpot ($999.90) on pokie machines at a bar in Kaitaia. Ms Tecklenberg and another person, Mr Paora, and many others were also present in the bar. The gist of evidence was that the  machine  lights  up  and  makes  a  noise  when  someone  wins.  The  gist  of  Ms Tecklenberg’s evidence was that she knew of M’s success, as would everyone present in the bar.

[7]    At approximately 1:00 am, Ms Tecklenberg was asked to give M a lift home. It is not entirely clear on the evidence whether M made that request herself or whether another person did so on her behalf. Regardless, Ms Tecklenberg agreed to so, and she drove M to the address where she lives with her parents.

[8]    M was sitting in the front passenger seat of the vehicle. Ms Tecklenberg’s evidence was that Mr Paora, who was or is a friend of her son’s, had asked if she could give him a lift too, and he was in the back seat.

[9]    As M got out of the vehicle, so did Mr Paora. M’s evidence was that Mr Paora grabbed her purse; that a struggle ensued; that Mr Paora punched her and pushed her; that this occurred on the passenger side, halfway down the vehicle; that the struggle went on for about a minute; that eventually Mr Paora wrestled the bag from her; that he then got into the front passenger seat; and Ms Tecklenberg drove away.

[10]    M also gave evidence that, as the vehicle was driving away, she grabbed the handle of the front passenger door, hung onto it, and that she was dragged along the ground for a few metres before she let go. That M was dragged along the ground was borne out by photographs of her injuries.

[11]   Ms Tecklenberg confirmed that both Mr Paora and M got out of the vehicle at the same time. She also gave evidence that she was wholly unaware of any struggle between M and Mr Paora or of M hanging on to her passenger door. She said the type of handle on the vehicle was such that this would have been impossible.8

8      This contention was not put to M in cross-examination.

[12]   Ms Tecklenberg’s evidence was that when Mr Paora got back into the front seat he said ““That’s us” and we were off”, and that she did not see M’s purse. Asked again in  cross-examination  about  what  Mr  Paora  had  said  when  he  got  back   in,   Ms Tecklenberg responded that Mr Paora had said “go”. Ms Tecklenberg’s evidence was that Mr Paora started to laugh when they were some distance down the road, that she asked him what he was laughing about, and he said he had stolen M’s  purse.   Ms Tecklenberg’s evidence was that she was unimpressed by this and put Mr Paora out of the vehicle.

Charges

[13]   Mr Paora was not charged. As I understand it, this was because there were some difficulties with identification. However, Ms Tecklenberg was charged with being a party to robbery under ss 234 and 66 of the Crimes Act 1961 and, in the alternative, as an accessory after the fact of robbery pursuant to ss 71 and 312.

[14]   To prove that Ms Tecklenberg was a party, the Crown had to prove beyond a reasonable doubt that there was a prior agreement between Ms Tecklenberg  and    Mr Paora to rob M.

[15]   Although the Judge was not satisfied the Crown had proved that prior agreement, she was satisfied that the alternative charge against Ms Tecklenberg was proved.

[16]   The elements of the offence of being an accessory after the fact are as follows. The defendant must know a person (Mr Paora) to have been a party to the offence (robbery) and must receive, comfort, or assist that person in order to enable him or her to, amongst other things, avoid arrest and/or conviction.

Judge’s decision

[17]The relevant paragraphs of the Judge’s decision are these:

Findings of fact

[21]      I do not believe Ms Tecklenberg. I am satisfied that she must have been aware of the struggle and must have seen the bag in the defendant’s hand

when he got back into the car. The struggle took place immediately outside her vehicle. I accept [M’s] evidence that she was pushed and punched and that there was a struggle over the bag. Even if it had been pitch dark the defendant cannot have failed to be aware that there was a struggle going on between [M] and [Mr Paora], but I infer that the car’s headlights must have remained on because there was no reason to extinguish them when she dropped [M] off. In addition, the courtesy light must have gone on when  [Mr Paora] got back into the car. Added to that the inference I  draw from  Ms King’s evidence is that she heard screams immediately on waking which must have come from the complainant. Given that she saw the car’s taillights disappearing after she had got up and moved through her kitchen and outside, I am satisfied that the initial screams she heard happened during the struggle. It would have been extraordinary if the punch and the struggle had happened without a sound coming from [M]. I prefer [M’s] evidence wherever there is conflict and in particular I accept that, while she had had about three drinks during the course of the evening, she was not drunk. I also accept that she hung onto the door handle after [Mr Paora] had got back into the vehicle. I do not believe that Ms Tecklenberg could have failed to see that.

Decision

[22]      In conclusion, while I cannot be sure that there was a prior agreement between [Mr Paora] and Ms Tecklenberg to rob the complainant, particularly since the complainant accepted that she had approached Ms Tecklenberg, not the other way around, and there is no evidence of the defendant and [Mr Paora] having the opportunity for conversation after that approach, I cannot be sure that Ms Tecklenberg was a party to the robbery. I am sure that she was well aware that [Mr Paora] had robbed [M] of her purse when he told her to go or drive off after getting back into the car.

[23]      I am also satisfied beyond reasonable doubt that when she drove  [Mr Paora] away from the scene she did so knowing that the police would be called and intending to help him avoid arrest and/or conviction for the robbery.

[24]      I find the alternative charge of being an accessory after the fact of robbery proved.

Conviction

[18] Ms Courtney, for Ms Tecklenberg, submits that there are errors in the Judge’s findings at [21].

[19]   First, Ms Courtney submits that there was no basis for the Judge’s inference that the headlights on Ms Tecklenberg’s vehicle remained on or that the courtesy light would have come back on when Mr Paora returned to the vehicle. Ms Courtney submits, and Mr Taylor, for the Crown, confirms, that there was no evidence on either point.

[20]   Secondly, Ms Courtney submits that  the  inference  the  Judge  drew  from Ms King’s evidence (a neighbour) as to M’s screams was also not open on the evidence. M’s evidence was that she could not recall whether she had screamed during the struggle with Mr Paora but that she had certainly screamed at her parents to open the door and let her in. Given that, Ms Courtney submits the screams that Ms King heard may have been M screaming at her parents to open the door.

Discussion

[21]   The starting point is that the Judge had to be satisfied Ms Tecklenberg knew that Mr Paora had robbed M. The Judge reached that conclusion because she considered Ms Tecklenberg must have been aware of the struggle between Mr Paora and M, and that would be so even if that struggle had occurred in pitch black darkness. There was, of course, only one reason for such a struggle, namely M’s winnings. The Judge was also satisfied that Ms Tecklenberg must have been aware of M hanging onto the handle of the front passenger door. This would have reinforced Ms Tecklenberg’s knowledge that Mr Paora had stolen M’s winnings.

[22]   The Judge’s conclusion that Ms Tecklenberg must have known of the struggle is unaffected by any issue there might be as to the headlights and courtesy light. They are also unaffected by whether or not M screamed at the time of the altercation. That said, having read the evidence I think it is quite possible the screams Ms King heard were indeed uttered at the time of the struggle.

[23]   I should add  that  I  agree  with  the  Judge  that  it  is  inconceivable  that  Ms Tecklenberg was unaware of a struggle taking place immediately outside her vehicle, no matter how dark it was.

[24]   The next issue was whether Ms Tecklenberg assisted Mr Paora. This she did by driving him away from the scene.

[25]   The remaining issue was whether Ms Tecklenberg did so to enable Mr Paora to avoid arrest and/or conviction.

[26] The conclusion the Judge reached on this point was inevitable given the findings referred to at [21] above.

[27]   To conclude, I am not able to identify any error the Judge may have made that has given rise to a miscarriage of justice.

Sentence

[28]   Ms Courtney submits that a sentence of supervision was the appropriate sentence in all the circumstances.

[29]   I am not persuaded there is anything in the sentence appeal. The sentence that the Judge imposed was well within the range of available options.

Result

[30]I dismiss this appeal.

Peters J