The Queen v Gary Victor Martin
[2000] NZCA 346
•23 November 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 214/00 |
THE QUEEN
V
GARY VICTOR MARTIN
| Hearing: | 23 November 2000 |
| Coram: | Richardson P Robertson J Goddard J |
| Appearances: | M Gibson for the Appellant K Raftery for the Crown |
| Judgment: | 23 November 2000 |
| JUDGMENT OF THE COURT DELIVERED BY GODDARD J |
The appellant was convicted in the District Court on 9 May 2000 of conspiracy to commit aggravated robbery of an Armourguard security van and unlawful possession of a firearm. He was sentenced to concurrent terms of 5 years’ and 18 months imprisonment respectively. He now appeals against his conviction and sentence on the conspiracy charge only.
Three grounds are advanced in support of the appeal against conviction. First, that the late filing of a new indictment rendered alibi evidence available to the appellant irrelevant. Secondly, trial counsel misconducted himself by failing to contact or call on behalf of the appellant the alibi witness. Thirdly, that trial counsel misconducted himself by failing to adequately represent the appellant in omitting to cross-examine a witness, James Jackson, on material inconsistencies arising out of Mr Jackson’s depositions evidence. Mr Jackson and a third man named Victor Barnes were the appellant’s co-offenders in the conspiracy to commit the aggravated robbery.
The appellant also sought leave to adduce the evidence of the proposed alibi witness, Leonie Newton, in support of his appeal.
In respect of the sentence imposed of five years’ imprisonment, the grounds of appeal advanced are that the sentence is manifestly excessive when viewed against the maximum penalty of seven years’ imprisonment; excessive in light of comments in R v Mako (unreported, CA 446/99, 23 March 2000); and excessive for the role played by the appellant and as accepted by the jury at trial. The issue of disparity with the sentences imposed on his co-offenders is also advanced.
The Facts at Trial
The trial Judge described the facts that emerged at the trial of the appellant and Messrs Jackson and Barnes for conspiring to rob an Armourguard Security van, as follows:
…You were observed by two members of the public behind the wheel of a van parked at the Mangere town centre. You appeared to be taking undue interest in the armoured security van which was servicing the automatic teller machines in the area. You were clad in clothing that was inappropriate for the weather and the suspicions of the public were aroused and the police were alerted. They went to the car park and as the police arrived, the vehicle you were driving, left. After a short chase and your vehicle crashing into a fence, the three occupants of your vehicle including yourself were arrested. In the van that you were driving, there was yourself, and hidden in the back of the van were the other two people. The van had been stolen some days previously and the back windows of the van had been screened to prevent people from seeing inside. The other occupants of the van were dressed in overalls and wearing gloves and one was wearing a gorilla mask. In a suitcase in the back of the van were two sawn-off shotguns and three live shotgun cartridges. One of the offenders, Jackson, aged 19 years, gave evidence for the Crown, of an agreement being made the night before between you, Barnes and Jackson to rob the armourguard van. His evidence was that you were to be the driver and the other two men were to be gunmen. The evidence of the roles each was to play is consistent with the evidence by other witnesses at the trial.
Background
The appellant’s explanation to the Police upon arrest was that he had been at the Mangere shopping centre in those circumstances for the purpose of exacting revenge upon an alleged perpetrator of a sexual assault suffered by his former partner. He told the interviewing officer that the intended victim had done the same thing to the partners of his co-offenders. This explanation contrasted with those given by his co-offenders, Messrs Jackson and Barnes, who admitted they were there to rob the Armourguard guards in accordance with a preconceived plan.
Both Messrs Jackson and Barnes entered early pleas of guilty to conspiring to commit aggravated robbery and other charges. Both were sentenced by the same Judge on 29 September 1999. Mr Jackson received a sentence of 18 months’ imprisonment on the basis of his guilty plea, his late inclusion in the conspiracy, his relatively young age of 18 years, and on the basis of a supporting comment by the officer in charge of the case. Mr Barnes received a sentence of three years’ imprisonment. His sentencing notes are not available but it appears from a remark of the Judge when sentencing Mr Jackson and from Mr Barnes’ pre-sentence report that a rehabilitative sentence was sought by his counsel on the basis of the early guilty plea and Mr Barnes’ long-term drug and alcohol addiction.
Mr Jackson made a deposition statement for the preliminary hearing into the charges against the appellant, which was held in August 1999. In his deposition brief, which was admitted in statement form, Mr Jackson made the following allegations:
That he and the appellant had met a week before the intended robbery, at which time the appellant had been planning the robbery for a few days already.
On the night before the intended robbery he and the appellant drove the “robbery route” together.
Later the same night they stole a van together from Ponsonby and drove it to an address in Otahuhu.
They then stole a car from One Tree Hill and drove that also to Otahuhu.
They then collected a “pre-stolen” vehicle from an address in Mount Wellington and took this to an empty house in Mangere.
On the morning of the intended robbery the appellant had provided the guns for the other two to use, from the boot of his car.
At the conclusion of the preliminary hearing the appellant was committed for trial.
The Crown presented an indictment alleging that the conspiracy had been entered into on 21 July 1999. The appellant was arraigned on that indictment and pleaded not guilty to it. A trial date of 13 March 2000 was set.
During the remand period before trial, the appellant had three different counsel assigned to him. In his affidavit filed in support of his appeal, the appellant has stated that he believes he advised each of these counsel to contact his case manager at Income Support in Northland, as she could provide alibi evidence. The appellant had kept an appointment with his case manager, Ms Newton, at the Department of Work and Income in Kaitaia on 21 July. Ms Newton confirms this in her proposed affidavit and also states that she saw the appellant later that same evening still in Kaitaia. It appears however that Ms Newton was never contacted by any of the counsel assigned to the appellant and that no notice of alibi was ever filed in the Court or served on the Crown.
In late February the Crown Solicitor wrote to the appellant advising that a new indictment was to be filed and requesting his consent to it. The new indictment charged a conspiracy to commit aggravated robbery between 20 and 29 July 1999, rather than specifying 21 July 1999 as the date the conspiracy was entered into. The appellant declined to consent to this new indictment.
On 7 March 2000 the appellant appeared at callover in the District Court. At this stage he was unrepresented. Following the callover he wrote to the Court requesting further time in which to prepare his defence. On 10 March 1999 the appellant appeared again in the District Court and Mr Hesketh was assigned as his counsel. The proposed trial date of 13 March was put back to 8 May 2000, to allow for adequate preparation.
The appellant states in his affidavit that he advised Mr Hesketh to contact Ms Newton. However Mr Hesketh did not do so and she was not called as a witness at the trial. The appellant also expresses disappointment that Mr Hesketh did not identify a number of inconsistencies in the evidence given by Mr Jackson at trial. The alleged failure to identify these inconsistencies at trial forms the basis of the third ground of appeal. These inconsistencies arose from Mr Jackson resiling from much of what he had said in his deposition evidence and thereby failing to come up to brief. All that Mr Jackson said in his evidence at trial was that he and Mr Barnes had planned the robbery together; that the night before there had been a bit of discussion about the intended robbery; that Mr Jackson learnt from the conversation the night before that the appellant “wanted to deal to some guy in relation to his missus”; that Mr Jackson had not known the appellant previously; that the appellant’s role at the intended robbery was “just driving”. Mr Jackson also said that he had stolen the van involved himself two days prior to the robbery and before any meeting with the appellant on 27 July. On this basis the trial Judge discharged the appellant on the charge of unlawfully taking a motor vehicle.
First Ground of Appeal : Late Filing of New Indictment
Leave to file an amended indictment is provided for in s 345D Crimes Act 1961. Such leave may be granted by the trial Judge if it is considered “conducive to the ends of justice” to do so. The consent of the accused is unnecessary. The criteria for determining such an application are the interests of all parties and include balancing the public interest as well as the rights of the accused to a fair and speedy trial. The criteria for determining an application to amend an indictment during trial are also relevant. The crucial consideration in both situations is prejudice to the accused person. The fact that an accused person may have conducted his case on one basis and be unable to recast it to meet charges that are amended during trial is determinative.
In the appellant’s case however the only real ground upon which he could claim prejudice as a result of the amended indictment would have been that of insufficient time in which to re-evaluate and prepare his defence. As the trial was delayed some two months to enable Mr Hesketh to take instructions and properly prepare the appellant’s case, no palpable reason presents as to why the decision of the trial Judge to amend the indictment was not appropriate. Certainly the appellant cannot claim to have been prejudiced by it.
Second Ground of Appeal: Conduct of Trial Counsel - Failure to Contact or Call Alibi Witness
In his affidavit filed in response to the appellant’s affidavit, Mr Hesketh states that the appellant did instruct him that he had an alibi for 21 July 1999, which was the date specified in the original indictment. Mr Hesketh says he attempted to contact Ms Newton but did not succeed in doing so. Also, that he “did not attach any significance to the alibi evidence as the Crown had extended the timeframe of the allegation in the indictment”.
It is well settled that a radical mistake on the part of trial counsel will support an allegation of miscarriage of justice: R v Pointon [1985] 1 NZLR 109. A failure to follow instructions can also give rise to a miscarriage of justice: R v McLoughlin & Isaacs [1985] 1 NZLR 106 (CA). Mr Gibson cited R v McLoughlin & Isaacs, which involved trial counsel, who was assigned at the last minute, electing not to call alibi evidence as he thought it unreliable. The appeal was allowed on the basis of the following principle stated at 107:
It is basic in our law that an accused person receive a full and fair trial. That principle requires that the accused be afforded every proper opportunity to put his defence to the jury. (cf s 354 of the Crimes Act 1961). The present appellant has been deprived of that opportunity and justice has therefore been denied to him. Such a denial can be made good only by the ordering of a new trial.
Mr Gibson submitted that in all the circumstances of the appellant’s case a substantial miscarriage of justice had also occurred, occasioned by Mr Hesketh’s failure to give notice of alibi and call Ms Newton.
However, it is clear from Mr Hesketh’s affidavit that he did not ignore the appellant’s instruction or fail to attempt to contact Ms Newton. Certainly he did not follow up on his failed attempt to contact her but, in the face of the expanded time frame in the amended indictment, her evidence has no real significance. Even if she had given evidence to establish that the appellant was in Kaitaia on 21 July 1999, it was still open to the jury to find the conspiracy was entered into on any of the remaining dates in the timeframe alleged in the indictment. Proving that Mr Jackson and the appellant did not meet on one particular evening within the alleged timeframe would not have answered the central allegation of conspiracy to commit an aggravated robbery. The cogent and compelling evidence at trial related to the events of 28 July itself. The appellant had no alibi for these events but was caught ‘red handed’ with his co-offenders in extremely incriminating circumstances. The events, by their very nature, must have been the subject of a degree of planning. Exactly when the conspiracy commenced or was joined was not of crucial importance so long as the jury were satisfied beyond reasonable doubt that the appellant joined in the conspiracy between 20 and 29 July 1999. At the very latest, planning must have taken place the night before and it was to the appellant’s ultimate advantage that Mr Jackson’s evidence at trial established this latest possible date as that upon which he joined the conspiracy.
Third Ground of Appeal: Misconduct of Counsel – Failure to Cross-Examine Mr Jackson on Prior Inconsistencies
As the evidence that Mr Jackson gave at trial was significantly more favourable than that contained in his deposition brief, the alleged failure by
Mr Hesketh to cross-examine on prior inconsistencies was to the appellant’s best advantage. As Mr Hesketh correctly says in his affidavit, Mr Jackson departed from his deposition by down-playing the appellant’s role in the planning of the robbery, giving cause for concern that excessive cross-examination might result in
Mr Jackson’s original statement becoming part of the trial. The deposition statement “was a detailed and damning statement”. Thus refraining from cross-examination on it was tactically sound. Mr Raftery, in his submissions, made it clear that had
Mr Hesketh chosen to go further and cross-examine Mr Jackson upon his brief in relation to the times and dates at which he and the appellant met, stole vehicles, and as to who supplied the guns and ammunition, the Crown would have been entitled to apply to have Mr Jackson’s deposition evidence produced in the trial. Had that happened it would have been most unhelpful to the appellant.Mr Gibson submitted that cross-examination on prior inconsistencies may have served to entirely destroy Mr Jackson’s credibility. On our assessment however, and no doubt on Mr Hesketh’s assessment at the time, that would have been an unjustifiably risky endeavour to embark upon.
This point of appeal falls within the category of a valid tactical decision by trial counsel. It does not come within the category of a “radical mistake or blunder” as in R v Pointon.
Appeal Against Sentence
The grounds of appeal against sentence have been referred to earlier in the judgment. Of those, all but the disparity point can be dealt with shortly. Essentially, the disparity point, which has substance, turns on the selection of an appropriate starting point for the crime itself followed by appropriate accreditation for the mitigating and aggravating factors in each individual offender’s case. As it happened, however, different Judges were responsible for sentencing both Messrs Jackson and Barnes at an early stage and for sentencing the appellant at a much later stage and following trial.
Only the sentencing notes for Mr Jackson are available from the earlier sentencing exercise. However those notes do contain reference to the starting point for the sentence imposed on Mr Barnes as well. In addition, the pre-sentence reports and conviction lists of both men are available. The trial Judge, who later sentenced the appellant, did not have the advantage of those sentencing notes although he was aware of the end sentences imposed. In the outcome, there are substantial inconsistencies in the approaches taken by the two different Judges in the two separate sentencing exercises.
Messrs Jackson and Barnes were sentenced on the basis of their early guilty pleas and on their ability to minimise their involvement to the greatest extent possible at that stage. Certainly it appeared as if the appellant were the prime mover at that stage. Mr Jackson was aged only 18 years and had a relatively modest list of previous convictions. Mr Barnes was aged 39 years and had previous convictions for aggravated robbery, burglary and possession of a pistol, although none of these convictions were recent. The sentencing Judge identified different starting points for each within the seven year maximum for conspiracy. In Mr Barnes case, the Judge identified 4 to 4½ years’ imprisonment as the appropriate starting point and then discounted his sentence to one of three years imprisonment to take account of his early guilty plea and other mitigating factors. In Mr Jackson’s case the Judge identified three years’ imprisonment as the appropriate starting point and then discounted that sentence to 20 months’ imprisonment to take into account his early guilty plea, youthfulness and the other mitigating factors. The desirable approach would however have been to identify the same starting point to reflect the seriousness of the crime and then to have embarked upon the individual discounting exercises.
The appellant is aged 44 years and has a long list of previous convictions, including aggravated robbery with a firearm and possession of explosives in 1990. His other convictions include numerous charges of burglary, receiving and possession of instruments and explosives. The failure of Mr Jackson to come up to brief at the appellant’s trial meant that his conviction was based on only slight and last minute input into the planning and preparation of the intended robbery and served to cast him in the lesser role of “just the driver”. The trial Judge at sentencing did not accept this however and took the view that the appellant was equally culpable. That, however, reads more into the evidence at trial than is warranted. The Judge did not identify a starting point but taking all factors into account, settled on a sentence of five years’ imprisonment as appropriate. The salient passages of his sentencing decision are as follows:
… In this case each participant had his own role. Your role was to be the driver, Jackson and Barnes were to be the gunmen. There was clearly premeditation involved in that the stolen van was made ready for the crime by the windows being screened off and also because weapons were obtained in advance. The second factor is the number of participants. In this case three, one driver, you, and two gunmen. The third factor is that disguises were employed, balaclavas, a gorilla mask, intended to both disguise and intimidate. The type and number of weapons involved is also important. In this case two sawn-off shotguns with ammunition at the ready. The nature of the intended target is important. In this case the potential proceeds were significant, exceeding a six-figure sum. The intended offence was to take place in a busy shopping centre car park, a large number of people would be endangered. I have no doubt that, but for the quick thinking of the two members of the public, who alerted the police, this aggravated robbery was only minutes away from being completed.
The jury took some 25 minutes to find you guilty of these offences
Mr Martin, and that is a reflection of the strength of the prosecution case. Even without the evidence of Jackson, the inferences available to a jury from the other evidence presented in Court were inescapable. Mr Hesketh, on your behalf, has urged the Court to conclude that the principal planners in this were Barnes and Jackson and to regard you as a late ring-in. The evidence does indicate that Barnes and Jackson were discussing committing a crime such as this some days before your involvement but it is clear that the night before the offence, a meeting took place with all three of you in which it was agree who would do what. Your involvement from that point on makes you as culpable as the others.
Two aspects stand out as tending to disparity. The first is the lack of a common starting point to reflect the gravity of the crime of conspiracy committed. The second is the view of the facts which the trial Judge took in the appellant’s case and which was not borne out by the evidence as it fell. The situation had changed and whereas at the time Messrs Jackson and Barnes were sentenced the appellant was cast as the prime mover, that situation was reversed by Mr Jackson at the appellant’s trial. If all three men had been sentenced at the same time, their culpability could well have been assessed as equal but that is not the way matters ultimately turned out.
Two factors persuade us that the appellant’s sentence ought to be reduced on the ground of disparity. The first is the lack of a common starting point and the second is the failure of the trial Judge to recognise that the appellant was convicted by the jury on a less culpable basis. If 4 years’ imprisonment is taken as the appropriate starting point for the crime committed, then although the appellant is entitled to no discount for a guilty plea, the aggravating feature of his more serious conviction list can be balanced against the lesser role for which he was convicted. Therefore an appropriate end sentence for him is one of four years’ imprisonment. Thus the sentence of five years’ imprisonment imposed can objectively be regarded as “not consonant with the appearance of justice”: see R v Rameka[1973] 2 NZLR 592 (CA) and R v Lawson [1982] 2 NZLR 219, 223 (CA).
Judgment
The appeal against conviction is dismissed. The appeal against sentence is allowed. The sentence of five years’ imprisonment for conspiracy to commit aggravated robbery is quashed and in lieu a sentence of four years’ imprisonment imposed.
Solicitors:
Meredith Connell, Auckland for the Crown
M Gibson, Auckland, for the Appellant
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