The Queen v Mason - [2006] NZCA 63

IN THE COURT OF APPEAL OF NEW ZEALAND
CA517/05
THE QUEEN
v
JOHN MAJOR MASON
Hearing:11 April 2006

Court:William Young P, Chambers and O'Regan JJ
Counsel:R D Stone for Appellant

A Markham for Crown

Judgment:11 April 2006

JUDGMENT OF THE COURT

AWe substitute for the jury’s verdict a verdict of guilty of burglary.
BIn substitution for the sentence imposed by the trial Judge, we sentence the appellant to 14 months imprisonment.
CWe decline leave to apply for home detention.

REASONS
(Given by William Young P)
Introduction
[1]       Late last year the appellant was found guilty by a jury in the Napier District Court of aggravated burglary. He was acquitted on a further charge of assault with intent to commit sexual violation. He was subsequently sentenced by the trial Judge (Judge Adeane) to 18 months imprisonment. Leave to apply for home detention was declined.
[2]       He now appeals against conviction and sentence.
Background
[3]       On 24 November 2004 the complainant was to commence working a late shift as a machine operator. In anticipation of this, she went to bed at about 3.00pm to have a sleep. She awoke at around 5.00pm to find a man standing in the doorway to her bedroom. He was carrying a broomstick and had a red bandanna across his face. He was wearing what are known as colours. The man said something to the complainant at which point she realised that it was the appellant (who lived nearby). He approached the bed and told her to move over so he could sit down. It is not clear whether he still had the broomstick at this point. The appellant asked the complainant for $20 and began rummaging on a shelf for money. The complainant grabbed her wallet and tried to hide it under the bedclothes. The appellant took the wallet from her, and removed $20. He also took her cellphone.
[4]       The complainant also gave evidence of the appellant making sexual advances to her – evidence which formed the basis of the charge of assault with intent to commit sexual violation. As the appellant was found not guilty on that charge, we need say no more about this aspect of the case.
[5]       The appellant eventually left the complainant’s house (according to her unchallenged evidence saying “Seig Heil” as he did so). He took with him her $20 note and cellphone. Not long afterwards he was found by police at his house with the complainant’s cellphone in his possession and her $20 note tucked into his shoe.
[6]       The appellant did not give evidence at trial.
The offence of aggravated burglary
[7]       Section 232 of the Crimes Act 1961 provides as follows:
232     Aggravated burglary
(1)       Every one is liable to imprisonment for a term not exceeding 14 years who,—
(a)       while committing burglary, has a weapon with him or her or uses any thing as a weapon; or
(b)        having committed burglary, has a weapon with him or her, or uses any thing as a weapon,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Mason

Details

AGLC: The Queen v Mason [2006] NZCA 63
Case: [2006] NZCA 63
Decision Date: 11 April 2006

CaseChat Overview and Summary

The appellant, John Major Mason, was found guilty by a jury in the Napier District Court of aggravated burglary but acquitted on a charge of assault with intent to commit sexual violation. The appellant was sentenced to 18 months imprisonment, with leave to apply for home detention declined. The appellant appealed against conviction and sentence. The primary issue was whether the trial judge misdirected the jury on the definition of a weapon under the Crimes Act 1961, specifically section 232 relating to aggravated burglary. The Court of Appeal found that the trial judge's direction was incorrect, as the jury should have been asked whether the appellant intended to use the broomstick as a weapon if necessary, rather than whether it was capable of being used as a weapon. The Court also considered whether to substitute a verdict of burglary and re-sentence the appellant. The Court found that the jury necessarily concluded that the appellant committed burglary, and thus substituted the verdict of guilty of burglary. The Court re-sentenced the appellant to 14 months imprisonment and declined leave to apply for home detention, considering the appellant's history of previous convictions and the seriousness of the offence.

Orders