The Queen v Gregory Anthony Simon
[2000] NZCA 282
•18 April 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA10/00 |
THE QUEEN
V
GREGORY ANTHONY SIMON
| Hearing: | 18 April 2000 (at Auckland) |
| Coram: | Blanchard J Anderson J Robertson J |
| Appearances: | GEH Wilson for Appellant |
| KBF Hastie for Crown | |
| Judgment: | 18 April 2000 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
The appellant was found guilty of one count of aggravated burglary by a jury in the District Court at Hamilton. He was sentenced to six years imprisonment. He now appeals against conviction and against sentence.
The appellant was in a dispute with one of his associates who allegedly owed him money. On 10 July 1999 the appellant went round to the house of the associate’s partner at three o’clock in the morning in order to confront him. On entering the house he called out to one of three teenage boys who were asleep upstairs. During a conversation, in which the boy told the appellant that the associate was not at the house, it was asserted that the appellant displayed a knife to the boy. (The jury acquitted Mr Simon on a charge of breaking and entering having with him a knife, and convicted him of having broken and entered and whilst still in the building having a knife. It must therefore have proceeded on the basis that, as he claimed, the knife was picked up in the garage, not brought to the house by the appellant.) He then exited the residence through the garage. Before leaving he slashed the tyres on two cars, cut telephone cables and inflicted a superficial wound to the throat of the family dog (a Rottweiler).
During the course of the appellant’s trial the Crown sought leave to recall a witness to give evidence of being threatened by the appellant during an adjournment which occurred during his testimony. Defence counsel opposed the application but it was allowed by the trial Judge. It is this ruling which is the subject of the appellant’s appeal against conviction.
The witness the Crown sought to recall was the 15 year old school boy who had been awoken by the accused on the night of the burglary. His evidence was thought to be crucial to the prosecution because it was anticipated he would say that Mr Simon was in possession of a knife. He gave evidence from just prior to the lunch break until approximately 4pm on the first day of the trial. At the end of the day’s sitting Crown counsel informed the Judge that the witness had made a complaint to the officer in charge, Detective Eckersley, that the appellant had threatened him as he returned to the courtroom after the lunch break. The witness alleged that the appellant used words to the effect that if he kept telling lies he would smash him. It was suggested that as a result of that threat the rest of the witness’s evidence had been affected. The witness had stated in his examination in chief that the appellant was carrying a concealed knife on the evening of the burglary. He said the appellant had the knife in his hand in his pocket and that he saw the blade, roughly 20cm in length, when Mr Simon took his hand out of his pocket. Under cross-examination, which began after the lunch break on the first day, the witness accepted that it could have been the zip of the appellant’s jacket that he had seen and not a knife at all. He also said he did not see the appellant take the knife out of his pocket, thus entirely contradicting his earlier evidence on this point.
The Crown applied to recall the witness to take him through his evidence in chief again and also to explain to the jury why, if that evidence differed from the evidence he had given the day before, that was so.Defence counsel opposed the application on the basis that it would be seriously prejudicial to the appellant, with the result that he would not receive a fair trial. With the consent of both counsel the Judge conducted a voir dire to hear the evidence relating to the threat. The Judge heard evidence from the witness, Detective Eckersley, the appellant’s defacto partner and from the two prison escorts present in the courtroom on the first day of the trial.
As a result of the voir dire the Judge concluded that some time before the luncheon adjournment there had been an exchange between the appellant and Detective Eckersley, in which the appellant said words to the effect of “haven’t you got a case without relying on fucking lies.” The fact of this exchange was supported by the evidence of Detective Eckersley, the appellant’s partner and the prison guards. However, the Judge could not be certain whether the threat alleged to have emanated from the appellant towards the witness after the luncheon adjournment had been made. It was not supported by any evidence other than that of the witness.
Notwithstanding this the Judge concluded that:
because the Crown has not yet closed its case there is nothing to stop the Crown recalling one of its witnesses to give evidence concerning a matter which, when that witness first gave evidence, he was unable to relate either because it had not then happened or because its effect was so immediate that, particularly in the case of Mr Meerton a 15 year old boy, he felt unable or ill-prepared to do so.
We agree that as the prosecution had not closed its case the authorities governing the ability of a party who has closed its case to call additional evidence did not apply. In the absence of any challenge to the admissibility of the witness’s evidence, the Crown was entitled to recall its witness. Indeed it may have been open to the Judge to allow the witness to be recalled in rebuttal.
Evidence as to the presence or absence of a knife in the appellant’s possession constituted an element of the alleged alternative offences of aggravated burglary. The issue was one of credibility as direct evidence on the knife was given only by the witness and by the appellant. Accordingly any matter which impacted on the witness’s credibility, particularly one raising an issue of alleged interference with a witness by the making of a threat during trial, was relevant and probative, and the jury were entitled to hear and form their own judgment on it.
As to potential prejudicial effect, the Judge noted that defence counsel would have a complete opportunity to cross-examine the witness and that he would instruct the jury:
to the extent that they consider it necessary to determine whether Mr Meerton’s evidence has changed between yesterday and today if that in fact occurs, and if they consider a threat was or may have been made, that is a matter which goes only to credibility and that even if they conclude that the threat was made they should not from that conclude that the accused was guilty of the aggravated burglary with which he is charged.
Defence counsel cross-examined the witness after he had been recalled and given further evidence. In view of this and of the Judge’s warning to the jury (no objection being taken to the summing up), we are satisfied that the recall of the witness and the subsequent testimony did not give rise to any illegitimate prejudice against the appellant, and that no miscarriage of justice has occurred. Indeed, it is probable that the jury convicted on the basis that the appellant had broken into the house and had admitted having the knife when he was in the garage. The appeal against conviction is dismissed.
The appellant also submits that his sentence was manifestly excessive. First, it is submitted that the Judge’s finding that the appellant chose to “create something of a climate of terror at the house” was not supported by the evidence, in particular the appellant’s dealings with the teenage boy. Secondly, it is submitted that the sentence was excessive having regard to the actual degree of violence used by the appellant. Counsel suggested that the appropriate sentencing range would have been two to four years imprisonment.
The offending comes within the ambit of the Crimes (Home Invasion) Amendment Act 1999 and accordingly the maximum term of imprisonment for this type of offending has been increased to nineteen years. The Judge viewed the offending as within category three of R v Moananui [1983] NZLR 537 attracting a sentence of between four and six years imprisonment. However, in light of the legislation the Judge considered that the appropriate starting point was six years imprisonment. There were no factors calling for any discount.
Contrary to counsel’s submission, we think the Judge was entitled to view the appellant’s conduct when exiting the property, slashing tyres, wounding the dog and cutting the telephone cables, as being intended to cause fear to the occupants and as being related to the dispute concerning the debt. There was also other damage done to the house - to the front door and to a wall in the lounge. An aggravating feature was that this occurred in a home in the middle of the night. But, on the basis of the verdict, it must, we think, be taken that there is doubt about whether Mr Meerton was threatened with the knife.
The Judge had to bear in mind this 28 year old appellant’s long criminal history, including many convictions for violence or wilful damage. In 1996 Mr Simon had been in prison for injuring with intent and was subsequently convicted of threatening to kill and aggravated robbery. The present offending occurred shortly after his release from prison on these matters. No credit was available for any guilty plea.
Prior to the home invasion legislation we consider a sentence of three and a half or even four years imprisonment would have been upheld. This naturally would have contained an element of punishment for the entry into the house at night. Re-visiting this aspect, and in accordance with Parliament’s wish that additional punishment be given where there is such an element in the offending, a sentencing Judge necessarily had to impose a heavier sentence.
In this Court’s recent decision in R v Mako (CA 446/99, 23 March 2000) we said:
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
However, here there was only the one offender, no actual robbery and no violence towards any person, so the appropriate starting point would be very significantly less. We have come to the conclusion that the six year sentence at which the Judge arrived is in the circumstances excessive and that the appropriate sentence should have been one of five years.
The appeal against sentence is allowed, the six year sentence is quashed and we substitute a sentence of five years imprisonment.
Solicitors
Crown Law Office, Wellington
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