The Queen v Clarke
[2000] NZCA 143
•27 July 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 202/00 |
THE QUEEN
V
TREVOR CLARKE
| Hearing: | 25 July 2000 (at Auckland) |
| Coram: | Thomas J Anderson J Robertson J |
| Appearances: | J A Westgate for Appellant B H Dickey for Crown |
| Judgment: | 27 July 2000 |
| JUDGMENT OF THE COURT DELIVERED BY THOMAS J |
Introduction
On 12 June 2000 the appellant, Mr Clarke, was convicted in the Dunedin District Court on one count of injuring with intent to injure and one count of theft. He pleaded guilty to both charges. At sentencing, the Judge held that the offence of injuring with intent involved home invasion and he applied s 17B(1) of the Crimes Act 1961. He sentenced Mr Clarke to four and-a-half years imprisonment for this offence with a concurrent six month term for the theft. He remarked that, had s 17B(1) not been applicable, he would have sentenced Mr Clarke to three years’ imprisonment for injuring with intent.
The primary issue in this appeal is whether the Judge was correct in applying s17B(1), that is, whether the offence of injuring with intent involved home invasion.
Facts
The facts may be stated shortly. On Thursday 16 December 1999, the victim had been drinking in a Dunedin hotel. At around midnight he walked directly from the hotel to the premises where he lived, located 50 metres away. His premises comprise a record and book shop, known as the Sanctuary, and a living area. The victim’s living area is located off a larger room used by him as both a store room and for personal use. The toilet is situated in the far corner of this room. Access to the living area is through the shop and then through the store room. Both the doors from the shop to the store room and the store room to the victim’s living area are screened by curtains only.
The victim unlocked and opened the shop door. As he entered the building he was set upon from behind by three people, one of whom was Mr Clarke. The intruders forced the victim towards the rear of the shop where Mr Clarke headbutted him twice and then punched him, causing him to lose consciousness. The victim only regained consciousness the following afternoon. His wristwatch was stolen. Two jackets and several items of musical equipment, including a guitar, were taken from his bedroom. Twenty dollars was also taken from the till.
The relevant definitions
The Crimes (Home Invasion) Amendment Act 1999, which increases the penalties for certain specified offences where their commission “involved home invasion”, includes the offence of injuring with intent to injure (s 17B(1)). The three key definitions in s 17A(1) read as follows:
(1) In this section and in sections 17B and 17C, unless the context otherwise requires,-
"Dwellinghouse" means-
(a) A building or other structure, or part of a building or other structure, that is used by the occupant principally as a residence; or
(b) A mobile home, caravan, or houseboat, that is used by the occupant principally as a residence:
"Home invasion", when used in the expression "the offence involved home invasion" or in any other provision, means that the person who committed the offence did so-
(a) While breaking and entering, or otherwise unlawfully entering, an occupied dwellinghouse; or
(b) While in an occupied dwellinghouse, after having broken and entered, or otherwise unlawfully entered, the dwellinghouse; or
(c) While breaking out of an occupied dwellinghouse; or
(d) While otherwise unlawfully in an occupied dwellinghouse:
"Occupied", in relation to a dwellinghouse in which a home invasion occurred, means that a person (other than the person convicted of the offence concerned or any co-offender) was lawfully present in the dwellinghouse for all or part of the time that the offender was in the dwellinghouse.
The definitions make it clear that an offence involves home invasion where it is committed while breaking into, while inside of, or while breaking out of an occupied dwellinghouse. A dwellinghouse is occupied where a person other than the intruder or his or her co-offenders are present. In this case the victim’s presence satisfies this element. The issue in this appeal, therefore, is the correct meaning of the word “dwellinghouse”, in particular the meaning of para (a) of the definition.
The sentencing notes
The sentencing Judge concluded that the offence was committed in a dwellinghouse even though the victim was assaulted in the shop part of the premises. The Judge’s reasoning appears from the following paragraph:
[The victim] regarded this particular building that he returned to as his place of accommodation, and that returning to it at midnight it was clearly intended that he was occupying that particular building or structure as his principal place of residence. While that actual offence itself took place in the shop area, I am satisfied that having unlawfully entered his home there was entry into the dwelling house where the guitar was taken. I am satisfied that the complainant regarded this particular building at that time of night as his place of sanctity and that you invaded that, together with others, and then committed the offence which involved injuring him. I therefore find that this was a home invasion within s 17(A) and (B) of the Home Invasion Amendment Act.
In determining that the offence was subject to the home invasion legislation the maximum sentence for the offending became eight years. But for the application of that legislation the maximum term of imprisonment which can be imposed is five years. The Judge therefore proceeded on the basis that the maximum sentence was eight years imprisonment and, in effect, added one and-a-half years’ imprisonment because he believed the home invasion legislation applied.
“Dwellinghouse”
The use of the word “principally” in the definition of “dwellinghouse” indicates that Parliament clearly contemplated that a building could be occupied for purposes other than a residence. Such other purposes, however, must be subsidiary to the residential function. Similarly, the phrase “or part of the building or other structure” indicates that Parliament accepted that part of a building could be used as a residence while other parts of that same building are used for other purposes. Only that part used as a residence, or principally as a residence, is to be subject to the new provisions.
The question whether a building or part of a building is used principally as a residence is essentially a question of fact to be resolved having regard to the particular circumstances of each case.
The Judge in this case resolved this question by holding that, notwithstanding the shop at the front, the building was used principally as a residence. He was influenced by the fact that the victim regarded the building as his home and referred to it as his “accommodation”. The Judge felt that the same considerations relating to the sanctity of the home and the need to protect people within the sanctuary of their home which underlies the home invasion legislation applied to the present circumstances.
We fully understand the Judge’s reasoning but cannot accept that the question whether a building is used principally as a residence (or whether a part of a building is used principally as a residence) can be determined by reference to the subjective belief of the occupant or occupants. The question must be determined on an objective basis. It may well be that the perception of the occupant or occupants, or even of third persons will be relevant, but the determination whether a building or part of a building is used principally as a residence must essentially be based on an objective assessment of the facts.
Adopting this approach in this case we are unable to agree that the building, including the shop, was used principally as a residence. A rear part of the building was undoubtedly used as a residence but the front part was equally undoubtedly used as a shop. The fact that access to the part used as a residence is through the shop does not detract from the essential character of the two parts of the building.
Nor do we consider that premises can change their character depending on the hour of the day. Thus, we do not accept that the shop can fall outside the definition of dwellinghouse during the day when the shop is open but lose its character as a shop and become part of the building used as a residence by night. The character of the building or part of the building used as a shop does not change as the day progresses.
We have therefore concluded that the Judge was in error. The offence of injuring with intent did not take place within a “dwellinghouse” for the purposes of the home invasion legislation. In the result, the Judge should have proceeded on the basis that the maximum sentence was five years’ imprisonment.
The correct approach
Our finding that the offending in issue is not subject to the home invasion legislation, however, does not mean that the Court should be uninfluenced by the factors underlying the home invasion legislation in imposing a sentence. In this case the sentencing Judge has indicated that, but for the application of the legislation, he would have sentenced Mr Clarke to three years’ imprisonment. But as we apprehend it, in arriving at that sentence, the Judge excluded from consideration the location and circumstances of the offending which he concluded, erroneously, brought it within the scope of the legislation. Where the home invasion legislation applies it is necessary to avoid taking the element of home invasion into account twice. See R v Palmer [2000] 1 NZLR 546, at paras [29] to [31]. But where the Act does not apply considerations which would, in the absence of that legislation, have led the sentencing Judge to increase the sentence should still be taken into account. Indeed, unless such considerations are taken into account the offender will obtain a more lenient sentence as a result of the home invasion legislation than otherwise would have been the case. As emphasised in R v Palmer, at para [42], that is not what Parliament is to be taken to have intended.
In this case, therefore, the fact that Mr Clarke and his co-offenders set upon the victim in the shop which is used as access to his residence can be taken into account. Considerations relating to the sanctity and privacy of one’s home remain relevant even though the shop cannot be said to be principally used as a residence. The right of a person to feel secure in certain circumstances and the need to preserve the sanctuary of such places remain matters which may be treated as aggravating factors in fixing the appropriate sentence to match the culpability of the offending.
It is necessary to adopt this approach in order to minimise the artificial situation which would arise where the offence takes place within the home, and where the offence occurs outside the home but in such close vicinity as to give rise to much the same considerations. Otherwise, the resulting disparity in the sentences will be anomalous and unacceptable. Consequently, in cases where the offence takes place outside the home as defined in the home invasion legislation but in circumstances which aggravate the offending, those aggravating circumstances must not be overlooked. This is to do no more than apply sentencing practice prior to the home invasion legislation to the same offending subsequent to its enactment. In this case, therefore, we consider that the factors which motivated the sentencing Judge to conclude that the shop was part of the residence should still be taken into account.
This being the case, the question of the appropriate sentence is at large. The assault was particularly vicious and its impact on the victim was serious. The consequences could have been even worse. Mr Clarke was in the company of others and must be considered fortunate to have escaped a charge of aggravated robbery. He has a criminal record including a number of violent offences, the most serious of which are convictions for manslaughter and threatening to kill. The present offending occurred while he was on parole and on bail in respect of other offences. Then, there are the facts already adverted to. The victim had entered his shop and was locking the door. He was attacked by the three co-offenders and brutally assaulted by Mr Clarke in the shop. Notwithstanding that it does not come within the definition of dwellinghouse for the purposes of the home invasion legislation, it was a place where the victim was entitled to feel secure. In all these circumstances, the starting point must be at or near the maximum penalty. We would take four and-a-half years. A reduction is required, however, for the guilty plea entered by Mr Clarke. Although he did not plead guilty at the earliest opportunity, we have been persuaded by Mr Westgate, who appeared for Mr Clarke, that in the circumstances it is appropriate to allow a credit of one year for the plea of guilty.
The appeal is allowed. The sentence of four and-a-half years’ imprisonment is quashed and a sentence of three and-a-half years’ imprisonment is substituted.
Solicitors
Crown Solicitor, Auckland for Crown
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