The Queen v Artemiy Vldimirovich Dubovsky

IN THE COURT OF APPEAL OF NEW ZEALAND

CA278/00

THE QUEEN

ARTEMIY VLDIMIROVICH DUBOVSKY

Coram:	Blanchard J Tipping J McGrath J
Judgment (On the papers):	16 November 2000

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

The appellant was found guilty by a jury in the District Court at Christchurch of aggravated burglary and unlawful possession of an imitation firearm and was sentenced to four years imprisonment. He appeals against both his conviction and his sentence.
The appellant applied for legal aid in respect of this appeal. The Registrar declined the application after the necessary consultation pursuant to s15 Legal Services Act 1991. Following a review the Registrar’s decision to decline legal aid was upheld. The appeal was, as a result, determined on the basis of written submissions made by the appellant.
The facts relating to this offending can be briefly summarised. Some time during the afternoon of Friday 22 October 1999 the appellant gained entry to a residential address via a small window in the kitchen. He reached inside and unlatched a larger window, enabling him to gain entry. The appellant then waited inside the house for the two occupants to arrive home from work. When they did so the appellant confronted the male complainant and presented a replica Luger pistol at his head. The complainant, believing the pistol to be real, grappled with the appellant and succeeded in taking the pistol from him. The complainant then escaped, located his wife outside and went to another address in the area.
The Armed Offenders Squad was alerted and two days later the appellant gave himself up to police. When spoken to by police the appellant recalled being at the complainants’ address but could give no explanation as to why he had been there or what had happened. This was said to be due to his state of intoxication at the time of the incident. The appellant’s defence at trial was primarily one of lack of intent due to drunkenness. This was clearly not accepted by the jury who only took 20 minutes to find the appellant guilty.
The appellant sought leave to introduce evidence from an alibi witness who he said would give testimony that he was in fact in Lyttelton at the time of the offending. We have determined that the application for leave to introduce fresh evidence should be declined. The evidence is not fresh. It could have been called at trial. Further, it cannot be said to be sufficiently cogent to justify a retrial in light of the other evidence tendered against the appellant and his own admission that he was at the address on the night in question. We are satisfied that there was no miscarriage of justice in the present case.
We mention a matter previously raised by the appellant and now referred to in his submissions on this appeal. Prior to his trial in the High Court the appellant challenged the admissibility of his videotaped statement to the police. It was argued that the confession was made involuntarily in that it was induced by a promise on behalf of the police, the interpreter lacked neutrality and that there was a breach of the Bill of Rights Act 1990 in that the appellant did not fully understand his right to consult and instruct a lawyer in private and without delay. The trial judge held that the confession was made voluntarily and that even if there had been an inducement the means used were not in fact likely to cause an untrue admission of guilt. He also considered that, even though the interpreter had earlier been used as a go-between the appellant and the police, no bias existed. His Honour went on to say that even if bias could have been said to exist then it was directed in favour of the appellant in any event. As to the breach of the Bill of Rights the trial judge held that there was no factual basis for the submission that the appellant did not fully comprehend his rights.
That ruling was subsequently appealed to this Court. Ultimately two arguments were advanced: that in terms of R v Mallinson [1993] 1 NZLR 528 the police should have facilitated the appellant’s consultation with a solicitor, or alternatively, that in all the circumstances the manner in which the confession was obtained involved such unfairness as to require its exclusion as a matter of discretion. In a judgment dated 25 May 2000 the appeal was dismissed. That Court held as follows:
Properly analysed the argument for the appellant required acceptance of two factual conclusions as the basis for findings of breach of the New Zealand Bill of Rights Act and of unfairness. These were that the appellant laboured under the misunderstanding at interview that he was not in criminal peril, rather that the issues to be confronted were mental health ones, and that this misapprehension, coupled with Mr Topshij’s promptings, effectively negated the exercise of his rights pursuant to s23(1)(b). In short had he appreciated his predicament and had Mr Topshij not influenced him against it, the appellant would probably have taken legal advice and the interview may have taken a different course.
We are unable to accept either proposition. These very issues were raised in the District Court, although in the context of an argument which has undergone considerable refinement since then. Nonetheless the learned Judge made express findings that the appellant was aware of his situation throughout the interview and, equally, well understood his right to counsel when that issue was raised. As to the former we think the finding made was inevitable. The background was a serious criminal allegation which resulted in deployment of the armed offenders squad. Following a two day stand off the appellant voluntarily surrendered to the police with the assistance of Mr Topshij and his father. Once at the police station a formal interview ensued. There was a camera recording the event, a translator to ensure proper understanding, the presence of a parent, and the administration of warnings that the appellant was not obliged to answer questions and, if he did, such answers could be used in evidence. Moreover, the situation was not an unfamiliar one for him, given the appellant’s recent previous involvement in formal police interviews.
With reference to s23(1)(b), we are satisfied the conclusion reached, that the appellant understood his rights and elected not to consult a solicitor, was entirely open. Significantly the exchange relevant to this aspect was preserved on video tape and we therefore enjoyed the advantage of viewing it with the assistance of an agreed translation. We accept that Constable Taylor did not exert close control over the interpreter at the point when the right to counsel was offered. However, we do not accept that Mr Topshij influenced the appellant against instructing counsel. To the contrary, we are satisfied he deliberately abstained from influencing Mr Dubovsky conscious that the decision to be made was his alone.
For completeness, and with reference to the unfairness argument, we note certain other features of the case. The appellant’s presence at the police station followed a period of about two hours during which he was in the company of his father and Mr Topshij. This time was utilised to enable the appellant to shower and obtain refreshments. The interview itself occupied only about 35 minutes. Moreover, we agree with the assessment of the learned Judge that it was conducted in a low-key, indeed sympathetic, manner. Consistent with that approach the police sought a psychiatric assessment of the appellant as a condition of his remand when he appeared in court the following day. These matters we see as further indicators of the manner and fairness of the process which was adopted.
It follows that the challenges pursuant to s23(1)(b) and on grounds of unfairness, are rejected. The appeal is dismissed.
In the absence of anything new in the appellant’s written submissions on this appeal we see no reason to differ from this Court’s decision on the earlier appeal as outlined above. For the reasons given in that judgment the appeal against the admission of the appellant’s videotaped confession must fail.
The appellant submitted two further grounds in support of his appeal against conviction. Firstly it was said that no jury properly instructed could have returned a guilty verdict and secondly that the conviction was against the weight of the evidence. These two grounds of appeal are essentially the same and challenge the jury’s verdict on the basis that there was insufficient evidence to support it.
In order to assess this ground of appeal it is necessary to consider the evidence that was before the jury in the present case. The appellant was known to the complainants and was identified as the intruder by the male complainant. In his statement to police the appellant admitted he was the intruder but said he could not recall many aspects of the incident on account of his intoxication. In particular he could not remember if he was carrying a weapon on entering the house. A bag was found in the house and footprints on the floor were also linked to the appellant on the evidence. Really the appellant’s only tenable defence was one of lack of intent due to drunkenness. This was rejected by the jury, quite properly in our view. On sentencing the judge described the case against the appellant as overwhelming. We agree. There is ample evidence to support the jury’s verdict and this ground of appeal must fail.
The appellant also appeals against his sentence of four years imprisonment on that basis that it was manifestly excessive. The sentencing judge took a starting point of three years and gave credit for mitigating factors of 12 months. His Honour considered that because of the mitigating factors involved and the fact that the appellant was so easily disarmed due to his intoxication the burglary was towards the lower end of the scale. These mitigating factors included the fact that the appellant suffers from post traumatic stress disorder and his need for treatment in this regard and the absence of any previous convictions for property offending. Aggravating factors were the appellant’s previous convictions, his level of intoxication, the effect on the complainants, the fact that the appellant was on bail at the time and the fact that the appellant was attempting to disguise himself by wearing a balaclava.
To this overall penalty of two years was added an additional penalty of two years for the home invasion component of the offending. This was in the context of a five year increase in maximum sentence as a result of the home invasion legislation. The sentencing judge considered this reflected both the aggravating factors, the appellant’s lack of remorse and refusal to co-operate with any treatment, and the mitigating factors that there was no violence, the appellant was easily disarmed and the imitation pistol was incapable of use as a pistol. A concurrent sentence of one year imprisonment was imposed on the other charge.
We do not consider that the sentence imposed in this case was excessive. This was a sufficiently serious incident that the Armed Offenders Squad was called out. It also involved a home invasion. While the pistol was an imitation the effect on the complainants was much the same as if it was real. The appellant may have acted in the way he did only because of intoxication, but a drunken intent is nevertheless an intent and the appellant seems unrepentant. We are satisfied that the sentence of four years is entirely appropriate for this offending.
For the reasons given the appeals against both conviction and sentence are dismissed.

[2000] NZCA 331

16 November 2000