The Queen v Tukuafu
[2002] NZCA 325
•18 December 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 34/02 CA 39/02 CA 40/02 CA 46/02 CA 48/02 CA 52/02 CA 56/02 |
THE QUEEN
V
PHILLIP WAYNE TUKUAFU
STEVEN JAMES TUKUAFU
ALEX MARK TUKUAFU
REX BARTHOLOMEW TUKUAFU
REECE WILLIAM TUKUAFU
JOHN SELWYN ADELAI TUKUAFU
LEON TERENCE WHITE
| Hearing: | 23-26 July 2002 |
| Coram: | Anderson J Williams J Paterson J |
| Appearances: | P J Kaye for Phillip Tukuafu L O Smith for Steven Tukuafu R Wade for Alex Tukuafu M I Koya for Rex Tukuafu M A Edgar for Reece Tukuafu G J Foley and G R Anson for John Tukuafu G C Gotlieb for Leon White A E Kiernan, J C Pike and S N Haszard for Crown |
| Judgment: | 18 December 2002 |
| JUDGMENT OF THE COURT |
Table of Contents Paragraph Number Common ground of appeal against conviction [8] Crown arguments on trial length and complexity [14] Discussion on appeal ground of undue length and complexity [16] Appeal against conviction by Phillip Wayne Tukuafu [26] Crown response in respect of Phillip Tukuafu [41] Discussion in respect of Phillip Tukuafu [43] Appeal against conviction by Steven Tukuafu [47] Crown response in respect of Steven Tukuafu [54] Discussion in respect of Steven Tukuafu [55] Appeal against conviction by Alex Tukuafu [56] Crown response in respect of Alex Tukuafu [64] Discussion in respect of Alex Tukuafu [67] Appeal against conviction by Rex Tukuafu [72] Crown response in respect of Rex Tukuafu [83] Discussion in respect of Rex Tukuafu [87] Appeal against conviction by Reece Tukuafu [93] Crown reply in respect of Reece Tukuafu [104] Discussion in respect of Reece Tukuafu [106] Appeal against conviction by John Tukuafu [108] Crown response in respect of John Tukuafu [117] Discussion in respect of John Tukuafu [126] Appeal against conviction by Leon White [131] Crown response in respect of Leon White [140] Discussion re Leon White [145] Appeals against sentence [148] Sentencing notes [152] Submissions [161] Discussion and decision [169] Result [189]
These appeals against conviction and sentence relate to 85 counts of burglary and 33 counts of unlawful or attempted unlawful conversion of motor vehicles, covering a period from March 1999 to June 2000. All but one of the offences occurred in the greater Auckland metropolitan area and all had features indicating the work of a single gang. The objects of the burglaries were small business premises such as service stations, superettes or liquor stores and the goods stolen were almost exclusively tobacco products. Almost all the burglaries occurred between 4.30 a.m. and 6.30 a.m. Most of the premises had audible alarm systems but their activation upon entry by the burglars was ignored. Entry was usually by way of jemmying open the front door but in the case of some service stations the glass front door was smashed. As disclosed by security cameras at a number of premises the modus operandi was for three heavily disguised burglars to arrive at speed in a converted vehicle. One would leap out and open the door; another would enter the premises in order to abstract the tobacco products; a third would carry a large polyethylene bale, similar to a wool bale, into which the tobacco products could be rapidly transferred from shelving and display stands. Typically, a raid would take less than a minute between arrival and flight. The disguises involved total head covering, including balaclavas worn back to front with small eye holes cut for vision. Hands were invariably covered with gloves or socks to prevent the leaving of fingerprints.
The antecedent unlawful taking of motor vehicles also had signature features. The vehicles were either late model large Ford sedans or Ford Telstars and their Mazda analogue the Mazda 626. Generally the vehicles were taken from residential addresses reasonably near the locality of the target premises and would subsequently be discarded in the South Auckland area. The large Ford sedans were invariably recovered undamaged having been entered and started with a modified key. The ignition lock was found in the auxiliary position which could not occur if a genuine key had been used. In the case of Telstars and Mazdas there was damage to the driver door lock and ignition.
The distinctive nature of the offending pointed to the involvement of the Tukuafu family, five members of whom, Rex, John, Phillip, Alex and Reece, had been convicted in respect of 38 burglaries investigated by the Police in an operation known as “Crystal”. That operation involved burglaries of 253 commercial premises between 1991 and 1995. The entry of guilty pleas in 1996 relating to 38 burglaries occurred after discussions between the Crown and counsel for the offenders. In respect of the 38 burglaries the similarities as to time of morning, nature of premises, points of entry, indifference to audible alarms, number of offenders on any particular raid, nature of the disguises, and the use of a large bale into which goods could be loaded at speed indicated a modus operandi strikingly similar to the offending in the present case. The proximate conversion of motor vehicles for the Operation Crystal burglaries exhibited features different only in the type of vehicle which was typically a Toyota Corona or Corolla station wagon.
The only significant difference between Operation Crystal and the present offences, investigated under the name “Operation Bird” was in respect of the goods targeted. As we have mentioned, the stolen goods were invariably tobacco products in Operation Bird but in Operation Crystal various small goods were taken. Even so, there was a congruence in relation to the amenability for ready “fencing” of the stolen goods in each operation.
The Police put the Operation Crystal malefactors under close observation. Towards the end of the operation they obtained interception warrants from a Judge of the High Court pursuant to which they monitored communications at the work premises of Rex Tukuafu, known as Muffin Mania and the residence of Leon White at 1A Ruth Street, Manurewa. One of Leon White’s daughters is the partner of Phillip Tukuafu. Amongst other things, activity at his residence proximately to a number of the burglaries was said by the Crown to indicate complicity in the planning of them and disposal of the stolen property.
At trial the Crown case was that the offending had the clear signature of the Tukuafu family and the issue for the jury would be what particular members of that small group were criminally implicated in any particular offence. This approach required a large amount of evidence in respect of the Operation Crystal offences in order to demonstrate the signature features attributable to the five appellants who had pleaded guilty in respect of 38 burglaries, and the signature features of each of the burglaries and car conversions the subject of the indictment. The large number of counts and indeed accused, all of whom were resolute in their defence, mandated a very lengthy trial.
The trial began before a District Court Judge and jury on 6 June 2001 and ended with the delivery of 261 verdicts on 18 December of that year. The need to deal with interlocutory matters as the trial progressed and consideration for the jury’s convenience meant that the jury sitting days were not continuous but were spread over 90½ days during the six months span of the trial. The closing addresses began on 8 November and proceeded on a staggered basis until 11 December. The Judge began summing up at 10 a.m. on Wednesday 12 December and the jury retired on Saturday 15 December. After three and a half days of deliberation they returned with 247 verdicts of guilty and 14 of not guilty. Sentences of imprisonment ranging from nine months, suspended, to thirteen and a half years, were imposed.
Common ground of appeal against conviction
Unsurprisingly, the first and a common ground of appeal, is that the complexity and length of the trial resulted in such unfairness to the appellants as to amount to a substantial miscarriage of justice warranting the quashing of the verdicts of guilty. It was submitted that the length and complexity of the indictment, the evidence, the closing addresses and summing up, made it impossible for the jury to consider the case against each accused on each count fairly and dispassionately. There being nothing on the record, nor empirically, indicative of difficulty in these respects, any conclusion that there is a real risk that there has been a miscarriage of justice must be a matter of inference. But, as counsel for the appellants submitted, there is an inherent risk in length and complexity and the risk increases proportionately to those features. Counsel invoked many cases where appellate courts have been severely critical of overloaded indictments. In R v Tuckerman (CA 280/86 31 October 1986) this Court considered an indictment containing 55 counts against a single accused relating to the fraudulent use of documents to obtain a pecuniary advantage and theft by failing to account. It was of the opinion “that the number of charges is oppressive and carries with it the possibility of confusion by the jury and the possibility, consequent upon that, of a miscarriage of justice”. This Court indicated that the proper course in the particular case was for the Crown to select a number of counts not exceeding 20 and proceed to trial on those alone.
In Carless v Stapley (1934) 25 Cr App Rep 43, the English Court of Appeal cited with approval the comments of Hawkins J in the case of R v King [1897] 1 QB at 216 to the effect that it was a scandal to require an accused person to answer an indictment containing 40 counts of obtaining and attempting to obtain goods by false pretences.
In Novac (1977) 65 Cr App Rep 107, at p118, Bridge LJ, referring to an indictment containing 19 counts against four defendants, commented upon the “enormous burden on both Judge and jury” in a trial of such dimensions and that “in the course of a four or five day summing up the most careful and conscientious Judge may so easily overlook some essential matter”.
In what is believed to be the longest English criminal trial, R v Kellard & Others [1995] 2 Cr App Rep 134, an indictment containing 29 counts resulted in a trial lasting 252 working days. A major ground of appeal was that the length and complexity of the trial rendered it unfair or the verdicts otherwise unsafe. The Court of Appeal considered that the most important of those concerned in the trial was the jury. If the jury were unable to understand the evidence, or the directions it received were not reliable or accurate, there would be grounds for saying that the convictions were unsafe. But in the particular case it was evident that the jury itself manifested no such incapacity and it should not be too readily assumed that a jury cannot properly understand a case merely because of its length. No complaint was ever made that the jury did not comprehend. Complexity lay in the detail and the amount of evidence which was called but not in the issues, which were clear enough, namely whether the appellants had acted dishonestly. The appeals did not succeed on that or any other ground.
In the present appeal counsel submitted that the identification evidence was complex, involving such matters as shoe prints analysis, multiple video views and observation; the indictment was complex; the defence could not adequately be summed up because of the complexity. It was argued that it was impossible for the jury to cope with and understand the evidence on identification in respect of each count and that it was impossible for the Judge to sum up accurately and fairly. The jury’s task was aggravated by the need to bus them every sitting day to and from Manukau District Court because the trial could be accommodated only at the Auckland High Court.
In Novac (1977) 65 Cr App Rep 107 at 118 the English Court of Appeal expressed the view that “nothing short of the criterion of absolute necessity can justify the imposition of the burdens of a very long trial on the Court.” Counsel submitted that it was not necessary in this case for the indictment to have contained so many counts. The car conversion counts, for example, could have been omitted and the indictment thereby shortened by some 30 counts. We think this submission overlooks the relevance of the evidence on those counts in relation to modus operandi.
Crown arguments on trial length and complexity
The Crown submitted that unfairness must be made out on an empirical and not a theoretical basis; that, in principle, lengthy and complex trials should be avoided having regard not only to the fairness of the trial process but also to the impact on Judges and jurors; and that the correct approach to an appeal based on the length and complexity of the trial is to consider whether the length of the trial created a situation at any point whereby a fair trial was not possible and in particular whether the case revealed any feature which tended to establish that any of those taking part in the trial were, by reason of its length, unable to discharge their functions. That submission is consistent with the approach of the English Court of Appeal in Kellard. It was also submitted that cases decided before the development of modern, extensive, pre-trial disclosure, are of little relevance in determining whether there has been prejudice to an accused in respect of ability or otherwise to meet allegations in an indictment.
In this case the jury and the Judge had the benefit of evidence management systems. These included folders containing witness and exhibit lists tabulated for each count, booklets of photographs and other exhibits, charts relating to forensic scientists’ conclusions on various matters, transcripts of intercepted communications and other documentary aids. In closing, the Crown and some defence counsel used Microsoft Power Point presentations. The factual circumstances were not complex but simple, albeit repetitious. There are no empirical indications of jury difficulty in assessing the evidence which, on a count by count basis, required a conclusion whether or not it was a Tukuafu crime and if so, whether any of the accused was specifically involved. There was reasonable equality of arms in terms of resources and access to materials. Counsel for the accused conducted the defence with tenacity. Indicative of this is that 36 witnesses, who were called to give evidence because there was not unanimity amongst counsel to their depositions being read, were not asked a single question in cross-examination.
Discussion on appeal ground of undue length and complexity
It would of course be wrong in principle for an indictment to contain a large number of counts if such a course could reasonably be avoided. This is because, as a matter of common-sense, prolixity is inherently distracting and diffusive. Whether it is wrong in any particular case will depend on the circumstances of that case. However, that a prosecution might require a lengthy or complex trial is plainly insufficient reason to ignore serious criminal offending. Criminals should not be rewarded with immunity for bulk or frequency of offending. Here there was a prima facie case of resurgent and unremitting criminality, the true seriousness of which could not be reflected in a mere sample of counts. The Crown had a duty to prosecute; but of course it also had a duty to ensure a fair trial. If it failed in that respect there would be a miscarriage of justice warranting the quashing of guilty verdicts on appeal.
A potential for injustice, which will inform a pre-trial decision on an issue of severance, is unlikely to be a real issue on an appeal, which is concerned with outcome not prognostication. The issue for us is whether, by reason of length or complexity of the trial, there has in fact been a miscarriage of justice. Any anxiety that a Judge may “overlook some essential matter” (Novac) is displaced on appeal by an inquiry whether the Judge did actually err in some material way, such as by a misdirection or by a wrong decision in relation to evidence. If so, miscarriage will lie in that error, not the reason for it. So in a case such as the present, complaints of undue length and complexity fall to be examined largely independently of actual, material error.
It was anticipated that the trial would be lengthy, some ten to twelve weeks, but only two appellants applied before trial for severance. Those applications were heard on 5 June 2001, the day before trial commenced. Reece Tukuafu applied in respect of the seven counts he faced, on the grounds that the jury would have difficulty in putting aside evidence relating to other accused when considering admissible evidence against him. The Crown opposed on the basis that there was a considerable body of evidence directly affecting Reece and that the modus operandi of Operation Crystal, in which he featured, was relevant to him in the current case. The Judge declined the application on the grounds that the seven counts represented a “particular window of offending” which permitted the jury to assess it independently of evidence admissible only against others. Also, the significance of the modus operandi applied to him as well as to the others, including John Tukuafu, with whom he jointly faced some of the counts.
Leon White also sought severance on similar grounds but the Judge saw no reason to differentiate between him and Reece Tukuafu. A health ground, pursued apparently with more hope than expectation, was unpersuasive. Nor was the Judge moved by the argument that Leon White was not a participant in the Operation Crystal offences. Although he did not say so, the Judge would have realised that the associations with those who were connected with the Operation Crystal offending and the correspondence between that and the Operation Bird crimes, made the earlier evidence as relevant to Leon White as to any other accused.
We think it significant that the appellants did not consider it warranted to seek severance, en masse, on the grounds that a trial could not be fair. The number of counts and the nature of the evidence excited insufficient concern to stimulate such an application. We are not surprised by this. Although a broad, initial view may suggest a difficult complexity, yet analysis in terms of the theme (the modus operandi of Operation Crystal compared with that of Operation Bird) and in terms of modules (the specific evidence relative to a count or associated counts implicating an accused) shows that the case was not one of unmanageable complexity. There was a very large stock of evidence and sensible systems for managing it would obviously be needed. But given such systems, the trial could be conducted in a fair way. In our view, the jury was provided with adequate management systems. They could note, as the case developed, what evidence went to the alleged modus operandi, to the association of criminal incidents and the implication of any particular accused. We have examined the tabulated bundles with which the jury were provided. Typical of the format is, for example, count 87 which falls, unsurprisingly, under tab 87. The count in the indictment is duplicated. It identifies four accused, the date of the burglary, the name and address of the burgled premises. There follows, extending over several pages, the name and description of each relevant Crown witness with a space under each name and description for the jury to make notes. Towards the end of the sheets, under that tab, relevant exhibits are identified and there is a space for general notes. Information provided under other tabs includes maps or plans where relevant. Some police officers gave evidence more than once, so that their testimony was focused on a count by count basis.
This was not a case where a vast amount of evidence had to be synthesised and explained in the last stages of the trial when counsel were making their final addresses. The evidence was laid before the jury progressively, permitting an orderly, sequential evaluation.
Before us, counsel criticised the duration of the jury’s deliberations, three and a half days, on the basis that this represented about six minutes deliberation per count. Counsel referred to the fact that deliberation ended only ten days before Christmas and we were invited to infer from these matters that the jury’s consideration of each count must have been a cursory response to an incomprehensible body of evidence. We think such a view ignores the reality that the jury had an opportunity for over a month after the conclusion of the evidence to consider the notes they would have made and to measure counsel’s submissions against them. They would have, in any event, been evaluating and discussing the evidence as it was revealed to them over a very long period and they would have been able to evaluate the cogency of counsel’s submissions and final addresses with the benefit of that preparation. The time they took in retirement is, in all likelihood, a testament to the management systems with which they were provided as well as the nature of the evidence, which the trial Judge remarked, in sentencing, was on the vast majority of the counts and the individual charges, “overwhelming”.
A very long trial will always impose strains on juries, whose own work and family lives will be disrupted for the duration. The longer the trial, the greater the risk of losing jurors for personal or health reasons; and there is always a potential for that risk to be exploited by obdurate accused. How far this trial may have been extruded by the appellants’ defence in the face of overwhelming evidence is speculative and does not call for consideration in this case, where all the jurors lasted the distance. As the Crown pointed out, there was at no stage any complaint by the jury about difficulty in following the evidence. They were not required to sit full weeks, a management technique which has been used in very long trials in recent years. It allows jurors some relief from the demands of the trial and opportunity to maintain their own personal lives.
Nor, as the Crown also pointed out, was this case complicated by any “cut-throat defence”, that is, where accused cast the blame on other accused creating internal conflicts and complications amongst jointly charged people. Much of the evidence was relevant to issues on which the defence would have a common cause and there were 14 defence counsel to promote that. Indeed, of the appellants, all but Leon White had two counsel.
So, we have on the one hand, a general inference of difficulty and unfairness in that an accused had to meet an extraordinarily large number of counts in a trial covering an extraordinarily long period; and on the other hand, no empirical evidence of any jury concern, coupled with the adoption of management systems conducive to the orderly appreciation of the evidence and issues. We return then to the crucial issue whether we are persuaded that there has been a miscarriage of justice in respect of any accused, occasioned by the length and complexity of the case. In our view, there has not been any miscarriage of justice, for the reasons we have explained. Accordingly we move from the common ground of appeal to the more subjective grounds in the case of each particular appellant.
Appeal against conviction by Phillip Wayne Tukuafu
Mr Kaye acknowledged that the sole issue at trial, as far as his client was concerned, was whether the evidence identified him as one of the offenders in the counts he faced. The evidential method was both general and specific, the general relating to similar fact evidence directed to identifying a limited class of offenders and the specific being directed to prove that Phillip Tukuafu was criminally implicated in the counts he faced. In this last respect the evidence for the Crown included a comparison of shoe prints left at various scenes with the shoes worn or otherwise in this appellant’s possession at the termination of Operation Bird; an analysis of video footage taken at the scenes of the various burglaries; intercepted communications; and visual observations made at Leon White’s address.
In respect of shoe prints expert evidence was given by an ESR scientist, Mr Morgan-Smith, concerning identification method. A shoe might be excluded where evidence supported the theory that a particular print was not made by a particular shoe. Or there might be a sufficient conjunction of features to prove conclusively that a particular print was made by a particular shoe. In between these extremes weighted conclusions might be possible. These were that on the evidence a particular shoe could not be excluded from having made a particular print; or that the evidence supported that the shoe made the print; or that the evidence strongly supported that the shoe made the print; or that the evidence very strongly supported that the shoe made the print.
Mr Kaye submitted to us that it was important when the Judge was summing up, count by count, to advert to the correct level of probability in terms of the methodology adopted by the scientist.
Similar care was needed, in counsel’s submission, in directing on the evidence of analysis of video tapes from various burglary scenes in so far as the Crown contended that specific identification features were present. Such features might be similarity of physique or clothing.
In respect of intercepted conversations where, obviously, the identification of voices was relied on by the Crown, both the quality of the identification in a particular case and the relationship between instances of identification and particular counts was important. Similar comments may be made about visual observations, including at Leon White’s address.
Mr Kaye summarised this aspect of his grounds with a submission that much of the defence case involved detailed criticism of the crucial Crown witnesses in these areas relative to identification; and given the different areas of the evidence and the sheer volume of evidence it would have been impossible for the jury properly to isolate Phillip Tukuafu’s case from the others.
This is, of course, a specific application to Phillip Tukuafu of the common ground of appeal already discussed; but for similar reasons we are no more persuaded by the specificity than we were by the generality of the ground. Accordingly we turn to the second major ground of appeal for this appellant, which is that the defence was not adequately put by the trial Judge resulting, inferentially, in the jury having adopted a general principle of guilty involvement.
The first point examined by Mr Kaye under this head relates to the Judge’s summing up in respect of the similar fact evidence. He directed the jury that they were not entitled to draw any conclusions about Operation Crystal in relation to Operation Bird unless they were satisfied of five things upon which he elaborated. Put shortly, they were that, first, the jury had to be satisfied that the accused did actually commit the offences in Operation Crystal. This was an area where he anticipated little difficulty on the jury’s part in respect of the relevant five because they had pleaded guilty. Second, the offences had to have some particular characteristic or features and in this respect it was more important for the jury to focus on whether or not there were similarities rather than differences, because there would always be some differences. Third, whether the offences under consideration had striking similarities. Fourth, whether the similarities in each case supported the proposition that the people involved in Operation Crystal were also involved in Operation Bird. Fifth, whether there was a reasonable possibility that the offenders in Operation Bird were persons other than those in Operation Crystal.
Mr Kaye submitted that the defence approach was to emphasise differences, but the only reference the Judge made to the defence position were the following remarks appearing at the foot of page 48 of the summing up:
While Counsel have produced to you a number of schedules setting out the similarities and listing dissimilar characteristics. Mr Koya went into detail through it. You wrote it down. Mr Kaye put them up on his Power Point. Mr Foley did the same. So it is a matter for you as to whether from what the Crown says are striking similarities you in fact determine them to be so.
By way of contrast, submitted counsel, the Judge highlighted the Crown case in relation to alleged similarities.
The criticism that the Judge emphasised the Crown case and depreciated the defence case is repeated in relation to other issues which the defence raised about the Crown evidence. Although at page 76 of the summing up the Judge notes the defence challenge to shoe print evidence, video identification evidence and the observation and surveillance evidence as well as a submission by Mr Kaye that the Police were obsessed with the case and determined to “pay back” the Tukuafu family, those points were, it was submitted, demeaned by the Judge’s criticism of the submission about obsession. The Judge commented, rhetorically, whether the Police were obsessed because they worked long hours, often late at night in unpleasant conditions, sitting for long periods monitoring and investigating burglaries being undertaken by a similar group of people occurring almost daily and sometimes more than once a day. Further, although noting the criticism of the shoe print evidence, the Judge, in Mr Kaye’s submission, did so in a very dismissive way.
Mr Kaye submitted that the Judge, when dealing with individual counts, highlighted the Crown case and rarely put the defence case properly to the jury. By way of example, counsel referred to the Judge’s comments about the defence submission in respect of the video identification evidence. The Judge said “similarly with regard to the video evidence not conclusive, there must be a doubt in his submission”. Mr Kaye argued on appeal that the defence case in this area was not that there was a reasonable doubt but that the video analysis was clearly wrong. We note, however, that the Judge then referred to counsel’s submissions that important Crown witnesses came into Court from a position of bias, subject to the guiding hand of Detective Sergeant Howard and in one case seeing what they wanted to see.
Mr Kaye submitted that the trial Judge dealt with some of the defence points in a very cursory way, resulting in an unfair imbalance in favour of the Crown.
By way of summary in relation to Phillip Tukuafu’s defence the Judge said:
In the final analysis you may think what Mr Kaye is saying to you is this. The Crown have brought a considerable amount of evidence against his client. However, Mr Kaye says if you look at that evidence count by count it is fallible. If you look at that evidence count by count it is inconclusive. It leaves an area of doubt his client, Phillip Tukuafu, is entitled to. He is entitled to the benefit of the doubt. That is in a nutshell how Mr Kaye addressed you over a space of some five days.
Mr Kaye submitted to us that this was an erroneous summary. The defence case was that the identification was wrong. The video analysis was not reliable and the shoe print analysis did not identify his client. The video observation analysis was wrong as shown by the defence evidence and the conversations which had been recorded on the intercept devices were capable of perfectly innocent explanations. Counsel was not pitching the case on the basis that there was a doubt. It was, rather, that the identification evidence was clearly wrong. In the result, the defence case was never effectively put to the jury.
Crown response in respect of Phillip Tukuafu
The Crown points out that, when dealing specifically with the case of Phillip Tukuafu in relation to the similar fact evidence, the Judge said:
With regard to similar fact evidence in Operation Crystal, Mr Kaye you will remember, performed a similar exercise to Mr Koya listing the number of charges and the differences in each charge. He contended there were more differences than similarities, but as I said to you earlier it is the similarities that count. Nevertheless you must be satisfied there are similarities, that there is a striking similarity, there is a pattern of similarity before you can take Operation Crystal into account, and then only in this question of identification. If you cannot and you are not so satisfied you put the Operation Crystal evidence to one side.
The Crown submitted that the Judge’s directions in this respect were both correct and adequate and that the Judge similarly dealt adequately with other facets of the defence case, making specific reference to Police obsession, criticism of the Crown theory of an A Team and a B Team amongst the Tukuafu family, the absence of evidence, allegedly, that all the burglars were males, the alleged absence of reliable evidence that Phillip Tukuafu was always the driver of the vehicles, absence of proof of ownership of relevant clothing, inadequacies of shoe recognition, submitted impossibility of ascertaining physical characteristics from video recordings, bias on the part of the shoe print expert and the lack of proper note taking in the course of visual observations. All the Judge was required to do was remind the jury of the points made, not recite them in detail. In fact he reminded the jury of every important point made by the defence. This was not a case where the accused were putting affirmative defences but one where the Crown case was attacked on various fronts. The Judge’s responsibility in such circumstances is fairly to put the alleged weaknesses. R v Anderson [1951] NZLR 615; R v Foss (1996) 14 CRNZ 1.
Discussion in respect of Phillip Tukuafu
As we have mentioned, we are not persuaded that, by reason of the length and complexity of the indictment and trial, there has been a miscarriage of justice in relation to any of the appellants. Nor do we have any concern about the Judge’s direction in respect of similar facts. The probative value and therefore the admissibility of evidence on a similar fact basis, lies in the nature of relevant similarities, not their differences. In a case such as the present, where the purpose of the similar fact evidence is proof of identity through modus operandi, mere differences will have a neutral quality. It is the identifying features of particular conduct which will be relevant and in each particular case the question will be whether a person or category of persons is identified by the features which are present. There may be an identifying feature which is so inconsistent with a pattern as to raise doubt about identification in the particular case but this possibility is adequately dealt with by the Judge’s direction to the jury that they must be satisfied that there are striking similarities, a pattern of similarity. We are not persuaded that in the context of this case there was a misdirection. The similarities were so constant and striking as to show a pattern irrespective of incidental differences. It is difficult to imagine a stronger case in the paradigm similar fact area of identification by modus operandi.
Nor are we persuaded that there has been a miscarriage of justice in relation to the Judge’s directions relating to the defence. This Court remarked in R v Anderson, supra at p677, that:
A summing-up is not bound to deal with every contention put forward by the accused. The trial Judge is entitled to assume that the jury will give consideration to the whole of the matters put forward on behalf of the accused, and the administration of justice would be gravely impeded if the Judge had to traverse in his summing-up seriatim all the arguments put forward on behalf of an accused. He performs his duty of summing-up if he directs its attention sufficiently to the issues it has to decide.
Again, at p627, the Court said:
In the course of performing his duty, the Judge has to deal with the evidence upon which the Crown relies, and to indicate its weakness and, at times, its strength. While doing this, he is not bound to include in his summing-up every criticism adduced on behalf of the accused, even though his counsel may think that criticism of very great weight. If it is of great weight, there seems little doubt that some members of the jury at least will have formed that opinion, and will express it in the deliberations of the jury.
At least by the time Mr Kaye began his five days of closing submissions, the jury would have been steeped in the issues in the case. They had heard evidence for months and they must have been able to assimilate that in reliance on the management systems; the Crown had addressed for ten days and three defence counsel had already made their submissions. Of course the Crown evidence would capture greater mention because it represented the great bulk of the evidence in the trial. We are left with no concerns about the fairness of the trial or the justice of the verdicts.
Appeal against conviction by Steven Tukuafu
This appellant was convicted on one count of burglary and one count of unlawfully taking a motor vehicle, counts 97 and 98 of the indictment. Count 97 alleged that he, along with Rex Tukuafu and Wayne Tukuafu, on or about 9 May 2000, converted a gold 1989 Toyota Town Ace van. Count 98 alleged that those three along with Leon White on 9 May 2000 broke and entered BP Pine Hill Service Station with intent to commit a crime therein.
The grounds of appeal are that the guilty verdicts were not substantiated by the evidence and that the duration of trial, number of counts and the amount of evidence called by the Crown meant that there could be little likelihood of a fair trial. This last ground is the common ground which we have already dealt with and which fails to persuade us in this case as in the case of all other appellants.
The first ground, that the verdicts are unreasonable or cannot be supported having regard to the evidence, is best understood in the context of the evidence relied on by the Crown with particular reference to this appellant. The owner of the vehicle testified it had been taken from her address in Milford on 9 May 2000. At 3.51 a.m. Rex Tukuafu and a person whose description matched Phillip Tukuafu were seen leaving Leon White’s residence at 1A Ruth Street. A little later that morning the BP Pine Hill Service Station was burgled. At 6.24 a.m. a vehicle which from the descriptions of observing police officers was, the Crown said, the Town Ace vehicle arrived at 1A Ruth Street along with a Subaru vehicle owned by Rex Tukuafu. Two people alighted from that car. A person who, the Crown allege, was Steven Tukuafu, came down the drive of the property and obtained something from Rex Tukuafu’s car. The Crown asked the jury to infer that this third person had been the driver of the Town Ace van.
The observing officers’ description of the van included initial characters of the registration plate. Mrs Smith submitted that the evidence was insufficient to support an inference that the van which arrived at Leon White’s house was the converted Town Ace van because there was no evidence as to how many vans consistent with the first characters of the registration plate number were in existence.
Nor did the evidence relating to a man in a baseball cap who obtained something from the Subaru, show he was ever in the van or had anything to do with it. There was no evidence that Steven Tukuafu ever wore a baseball cap and none was found in his home when a search warrant was executed.
Because proof of the burglaries in respect of count 98 relied parasitically on the evidence said to support count 97, the burglary count was similarly evidentially flawed.
Counsel pointed out the constraints on observation by the police officers, which would have affected the quality of recognition and the generality of the features of the person observed. These were that the man seen going to the Subaru was between 20 and 30 years old, slim and athletic, wearing a light brown coloured sweat shirt, wearing a light coloured baseball cap and was “distinctive looking”. Counsel submitted that the age range was wide. Steven Tukuafu was visibly not slim and athletic. Three weeks after the incident, a beige jacket seized by the Police from Steven Tukuafu’s car was not a “sweatshirt”. No baseball cap was recovered and the description “distinctive looking” is incapable of evaluation. These matters made identification of him unsafe and the consequential convictions similarly unsafe, warranting their being quashed.
Crown response in respect of Steven Tukuafu
The Crown’s response was that apart from the observations there was other evidence relating to the stolen van in the intercepted audio conversations and there was the general context of the modus operandi evidence and inferences to be taken from it. The van was stolen on the morning of 9 May shortly before the burglary and there was a reasonable proximity between the place of conversion and the place of burglary, consistent with aspects of the modus operandi. Other evidence showed that at this time the burglars would return to Leon White’s residence and disperse from there. There was accordingly a link between the conversion of the van and the BP Pine Hill Service Station burglary. If it could be proved that Steven Tukuafu was the man who obtained something from Rex Tukuafu’s Subaru there would be an adequate evidential basis for the jury’s guilty verdicts on counts 97 and 98. The modus operandi evidence showed that such person would be a member of the Tukuafu family. The age was consistent with Steven’s. A jacket conforming to the one which had been observed was found in Steven’s car on termination date. Other Police evidence linked Steven Tukuafu with the preparatory stages of more offending the following morning, indicating that he was criminally active at the relevant time. Importantly, Detective Bowden who gave the description referred to above, testified that she saw the same person again in Police custody on 2 June 2000 and it was Steven Tukuafu.
Discussion in respect of Steven Tukuafu
If Steven Tukuafu had been found in possession of a baseball cap that would have been evidence supporting the Crown case but the absence of evidence of his possessing such an item of clothing is relatively insignificant. It is also insignificant whether the brown or beige item of clothing is more or less accurately described as a sweatshirt. It is plainly similar enough to a sweatshirt to carry that description. It was open to the jury to accept Detective Bowden’s evidence that she recognised the person again in Police custody and could identify him as Steven Tukuafu. That evidence is contextually supported in the ways mentioned by the Crown. We are not satisfied that the verdicts were without an adequate evidential foundation and the appeal against conviction fails.
Appeal against conviction by Alex Tukuafu
This appellant was convicted on nine counts. His appeal in respect of all of them is founded on the common ground of unfair length and complexity and alleged misdirections as to law, fact and the nature of the defence case. The verdicts on counts 3, 4, 42 and 55 were said to be unreasonable and cannot be supported having regard to the evidence. In respect of count 55 the argument was that significant Crown evidence of a hearsay nature was wrongly admitted.
We say no more about the common ground than to note that it is raised on behalf of this appellant and for the reasons already given is rejected. Accordingly we turn immediately to the question of the evidential adequacy of the guilty verdicts in respect of counts 3, 4, 42 and 55. Counts 3 and 4 are linked. The Crown case was that the unlawful conversion of a red Falcon saloon on 11 August 1999 is connected in terms of Tukuafu modus operandi to the burglary on the same date of Shell New North Road. On behalf of Alex Tukuafu Mr Wade conceded that there was ample evidence that the converted Falcon was used in connection with another burglary, occurring on 12 August 1999 in respect of Food Town Onehunga, but he submitted there is no evidence that it was used in the Shell New North Road burglary. A passer-by at the time of that burglary described, as his impression, the involvement of “a large car, a Falcon or possibly a Commodore… Dark coloured, I thought it could be reddish but it was dark and it happened quickly.” He did not get the registration number and in cross-examination thought it could have been a Commodore with two occupants. Counsel submitted that this evidence does not establish that it was a Ford Falcon at all and the only description of its occupants does not fit that of Alex Tukuafu who far from having an “Afro hair cut” as described by the passer-by, is practically bald.
Count 42 relates to the burglary of Food Town Mangere on 18 January 2000. The evidence of the store manager showed that he was alerted to the burglary at 4.45 a.m. on 18 January. At 5.30 that morning a vehicle registered to Alex Tukuafu’s son Steven was stopped by a police officer who noted its only occupant as this appellant. The police officer did not see any cigarettes, goods stolen in the burglary, or any burglary tools.
Count 55 refers to the burglary of Kingsway Superette at Hamilton on 25 February 2000, this being the only burglary outside the greater Auckland metropolitan area with which the trial was concerned. Whether there was an adequate evidential basis for the jury’s verdict on this count was characterised by counsel as dependent upon the admissibility of the evidence of a hearsay nature which we now deal with. That burglary exhibited Tukuafu modus operandi. In the early hours of 25 February, at a time relevant to the occasion of the burglary, a cell phone call was made via the Papatoetoe cell phone transmitter and a second call was made via a cell phone transmitter on the roof of Waikato Hospital. The execution of a search warrant on this appellant’s address on 20 July 2000 disclosed a cell phone belonging to this appellant’s son Stewart. One of the entries in that cell phone’s electronic memory, identified with the letters “DAD”, was an 021 number from which the message had been sent through the Waikato Hospital transmitter. The Crown case sought to link Alex Tukuafu to the Hamilton burglary by way of a message, at a relevant time, from a cell phone in the locality of the burglary. Unless the information stored in Stewart Tukuafu’s cell phone were admissible there would be no adequate evidential basis for inferring complicity by Alex Tukuafu.
The Crown sought and obtained from the trial Judge a ruling that the information was admissible as documentary evidence in the nature of a business record of which the maker had personal knowledge and was unavailable to give evidence, in terms of s3 of the Evidence Amendment Act (No 2) 1980. The challenge to admissibility was on the basis that the maker of the document, Stewart Tukuafu, was not “unavailable to give evidence”, which is a condition of admissibility in terms of the said s3, because, by reference to s2(2)(d) it was not demonstrated by the Crown that Stewart Tukuafu could not with reasonable diligence be found, that being the condition relied on by the Crown. And even if the evidence were admissible there was still an insufficient evidential basis for a conviction of Alex.
Counsel then submitted that the trial Judge had misdirected the jury in certain respects including as to similar facts. In counsel’s submission the Judge directed the jury in terms suggesting that Reece, Alex and Steven could be implicated by reference to the modus operandi without, in counsel’s submission, adequately focusing on the need for specifically identifying evidence in respect of any particular member of the Tukuafu family. A further alleged misdirection is that the jury were told that the Ford Falcon vehicle, the subject of count 3 was seen at the Shell New North Road premises and that the jury were not told that they could not convict Alex Tukuafu of count 3 or 4 unless they were sure that the same vehicle was used in both the burglaries referred to in counts 4 and 5.
In relation to count 7 the Judge is said to have misdirected the jury by misrepresenting the evidence of Detective Vickers in relation to the identification from a video film of a pair of shoes consistent with a type worn by this appellant. Mr Vickers evidence was not to that effect. He had used the word “consistent” in comparing the shoes which is qualitatively different from indicative. In counsel’s submission the difference might not be significant in a short, simple issue trial but became significant in the context of a long and complex trial. The Judge was asked after he had summed up to correct these matters but declined to do so.
Counsel also took issue with the conciseness of the Judge’s summary of the closing address on behalf of this appellant. The Judge took four paragraphs to summarise counsel’s submissions. Counsel had used a Power Point presentation during his address, which was relatively brief, (two hours fifteen minutes) and had sought the trial Judge’s permission to provide hard copies of that presentation. That request was declined notwithstanding that at the beginning of the trial the Crown had been permitted to give the jury the three Eastlight folders relevant to information management referred to earlier in this judgment. Counsel submitted that the jury was therefore not only reminded of the Crown case on each count when they retired but deprived of a corresponding hard copy aide-memoire on behalf of the defence. In these circumstances the defence case needed adequate cover during the summing up and in respect of this particular appellant the Judge failed to remind the jury of any point made in relation to any of the specific counts. The result was a wholly inadequate and unfair summing up in respect of this appellant.
Crown response in respect of Alex Tukuafu
The Crown submitted that there was an adequate evidential basis for the jury to link the conversion of the Ford Falcon with the burglaries on that and the following day. For this and other related purposes they could take into account the modus operandi. In respect of count 42 the appellant has been selective in his choice of relevant evidence. It was not merely a case of the appellant being stopped in a car at a relevant time but also that the car was travelling at speed, the appellant gave two addresses neither of which was his real address and could not explain what he was doing so driving at 5.30 in the morning. One of the explanations he gave was contradicted by independent checking. On a broader front there was evidence sufficient to convict Rex Tukuafu and John Tukuafu of the burglary and the latter was in the same general area as Alex Tukuafu at the time he was stopped. John Tukuafu gave an explanation which the jury was entitled to find was spurious. Significantly, in the Crown’s submission, after these close encounters with the Police by members of the Tukuafu family, no Tukuafu style burglaries occurred for ten days.
Concerning the admissibility of documentary hearsay in relation to count 55 the Crown focused on the issue whether the maker of the statement was unavailable and submitted that there was a proper basis for the Judge’s conclusion in that respect.
The appellant’s submissions as to misdirection and unfairness are rejected by the Crown although it was accepted that the Judge did err in referring to Detective Constable Vickers’ evidence in terms of identification rather than consistency. In this last respect counsel submitted that the jury would not have been misled by that slip in view of the information available to them and in particular because the Judge put to the jury the appellant’s contention that the shoe identification was actually wrong because of the absence of a particular feature on the heel.
Discussion in respect of Alex Tukuafu
Although it should be obvious, we think it helpful to note that in a case of this nature one may tease and pick at a few threads of the tapestry without significantly affecting the general scene which it captures. The submissions for most if not all of the appellants, but including the present appellant, are of that nature. If there was one thing the jury was able to do through the months of evidence and weeks of argument it was to see the true picture, count by count, in a way which no amount of fibre plucking could distort.
In the case of Alex Tukuafu counts 3, 4 and 5 are clearly related by way of method and the evidence of the passer-by as to “a Falcon or possibly a Commodore, dark coloured, possibly reddish,” is adequate in its context to show that connection. Many New Zealanders would associate the two brands, and red would look dark in low light.
The selective evidence relied on by the appellant in connection with count 42 similarly cannot withstand the broader evidential picture referred to by the Crown.
Concerning count 55 we mention the circumstances in which the objection to admissibility was taken and dealt with. In what seems to have been a strategically delayed objection this appellant took issue with the admission of the evidence just at the point the Crown was about to lead it. Be that as it may, evidence taken on a voir dire showed that Police attempts to locate the whereabouts of Stewart Tukuafu had been met by obstruction and obscene abuse by a member of the Tukuafu family, leaving him with no indication where Stewart might be, although Customs inquiries indicated that he had not left the country. The Judge found that in the circumstances the Police had made sufficient inquiry as to the whereabouts of the witness and that the evidence was in the nature of a link in a chain unlikely to be determinative of the count to which it related. That finding was clearly open to the Judge. He could, indeed, have gone further and found that the whereabouts of the potential witness was being deliberately concealed by his family. We are not persuaded the Judge was wrong to admit the evidence.
Concerning the alleged inadequacy of the Judge’s summary of the defence case for Alex we note that counsel was himself relatively concise in putting his client’s case. We make that point by way of compliment not criticism. The cogency of an argument is not necessarily enhanced by prolixity. Having examined the Judge’s remarks we are unpersuaded that there was any such inadequacy as to amount to a miscarriage of justice. The Crown conceded that the Judge misrepresented consistency as indication but submitted the jury would not have been misled by this slip. We agree. The similar fact directions were, in all the circumstances, not inapt. In this case also the appeal against conviction must be dismissed.
Appeal against conviction by Rex Tukuafu
Counsel for Rex Tukuafu supported the common ground of appeal which we are not disposed to examine further. He also submitted that the trial Judge misdirected in respect of similar fact evidence by telling the jury to concentrate on similarities not differences. For the reasons already given we reject that ground of appeal.
A further ground of appeal is that the Judge did not direct the jury that questions put by the Crown in cross-examination of this appellant and not accepted by the appellant did not become evidence merely by reason of the questions having been put. Counsel gave examples of cross-examination put, he argued, not on the basis of accepted evidence but in terms of Crown theories, in order to score points.
It was further submitted that the jury’s verdict was unreasonable and could not be supported having regard to the evidence and various charges were examined for the purposes of this ground. Counts 11 and 12 refer to a vehicle conversion on 27 September 1999 and an allegedly connected burglary of Caltex Mt Roskill the following morning.
Counts 26, 27 and 28 refer to incidents on 16 and 17 November 1999, the earliest being a vehicle conversion and the other two being burglaries of Tukuafu target premises on 16 and 17 November. The appellant’s car was seen in the same street at approximately the same time and place as when and where the converted vehicle was abandoned. The converted vehicle was found to contain cigarette trays, cigarette lighters and bread trays. Mr Koya said a crucial issue for the defence was the fact that although bread crates were found in the converted vehicle a certain witness saw bread crates near the abandoned vehicle on the lawn. In counsel’s submission this indicates that either that witness was lying or that the constable was lying or even that the bread crates were planted in the abandoned car. This argument assumes, amongst other things, that there could not have been bread crates both inside and outside of the car. We think in any event that the point is an irrelevant side wind.
This appellant was convicted on count 42 which referred to a burglary at Food Town Mangere on 18 January 2000. The appellant was seen by a police sergeant to arrive at his home at 5.32 a.m. and leave at 5.37 a.m. with two children. At 5.30 a.m., as previously mentioned, Alex Tukuafu was in the general locality driving fast and falsely representing his address and reasons for being about while John Tukuafu, about half an hour later, was acting in a similarly suspicious way. Counsel submitted that the sighting of the three brothers early in the morning of the burglary is at best suspicious and that there was no similar fact evidence to prove identity.
In respect of count 53 the Judge directed the jury that on its own the evidence in relation to that count did not identify any of the accused but that the unlawful taking of the particular green Falcon saloon was connected to the burglary the subject of count 57. That count referred to premises in East Tamaki Road which were burgled on 1 March 2000 in respect of which this appellant and Phillip Tukuafu were charged and convicted. Counsel submitted that there was inadequate identification of the burglars and that there were relevant dissimilarities in the modus operandi.
In a submission which wants for nothing in terms of assiduousness, counsel then examined 20 or so further counts of which his client was convicted, submitting that they were inadequately founded on evidence or in some cases the subject of misdirections by the Judge. In our discussion of this appellant’s appeal we will indicate our reasons for dealing with these grounds in a fairly broad way.
A further major ground of appeal was that the trial Judge misdirected the jury in respect of the failure by the officers keeping surveillance on Leon White’s residence to keep their contemporaneous working notes prepared in the course of observation. Evidence had been given by those officers that they would make notes in the course of observation, sometimes on their hands or on bits of paper they could easily carry with them such as envelopes. At the conclusion of their observation shift they would return to the Police Station and fill out a job sheet of the observations they had made during that shift using their contemporaneous notes for that purpose. Photocopies of the notes written on hands or scraps of paper were not kept and counsel were astute to cross-examine about that procedure. It was even suggested that evidence in the form of original notes was deliberately destroyed but we have not been referred to any evidence which could properly support such a suggestion. Notwithstanding, counsel submitted to this Court on appeal that the Police cleverly manipulated the system to deprive the defence of not one but two sources of original evidence of the observations carried out at Leon White’s residence. The other source of original evidence was static video camera recording of the address, which, before trial, the Judge had ruled inadmissible on the basis that such evidence could tend to disclose the identity of persons who had co-operated with the Police in relation to the observation phase of the operation. That ruling had been upheld by this Court.
The Judge had directed the jury that the original notes were not evidence before the Court. He told them this was not to say that the original notes were not of value but their value lay in the fact that they might be referred to in order to refresh memory. Counsel submitted that this direction covered the question of the utility of such notes for Police purposes but did not cover them from the defence perspective. The prime use of the original notes to defence counsel was to compare them and the evidence before the jury in terms of consistency.
A further ground of appeal was that the Judge refused to allow evidence to be put before the jury of a burglary which occurred on 20 June 2000, following the termination of Operation Bird, when Rex Tukuafu and some other accused were in custody. There had been evidence from Detective Vickers that a person, whom he said he could identify as Rex Tukuafu from photographic evidence of burglaries, was wearing clothing which included a dark blue ribbed jacket made of nylon or a similar shiny material. On 20 June 2000 a burglary occurred at a BP service station in Howick. This crime displayed many of the features of the modus operandi of the Tukuafus. One of the burglars was wearing the dark blue jacket. Unfortunately for the criminals a passing police patrol saw what was happening and chased the offenders who absconded in a stolen Ford Falcon car. That car crashed and two of the criminals were caught.
Counsel for this appellant submitted that the evidence of that burglary should have been admitted and that there has been a miscarriage of justice because, persuaded by other defence counsel, the Judge excluded that evidence.
Crown response in respect of Rex Tukuafu
The Crown submissions in respect of the length and complexity of the trial and indictment and in respect of the similar fact directions have already been noted and need not be repeated. As to the submission that the Judge erred in not directing the jury about the evidential quality of questions put in cross-examination but not accepted, it was submitted that the theory and propositions put to the appellant were based on evidence that had been presented during the course of the Crown case and that it was appropriate for the accused to be given an opportunity to comment on matters which the Crown would emphasise in closing. The fact that the appellant was obviously and repetitively denying the allegations must have been obvious to the jury. He maintained a general denial of involvement and the jury could not possibly have thought that the questions put by the Crown had an evidential quality of themselves.
As to the submission that the verdicts were unreasonable or could not be supported having regard to the evidence the Crown responded count by count with the evidential justification. As to the alleged misdirection on failure by the Police to keep notes the Crown submitted that the direction which was given needs to be evaluated in the context of defence allegations that the information had been deliberately destroyed. Seen in that context the directions were entirely appropriate.
In relation to the complaint that evidence of the 20 June burglary was not presented to the jury, the Crown examined the circumstances in which the matter came about. At the termination of Operation Bird the five Tukuafu brothers were kept in custody but Leon White, Steven Tukuafu and Gene Erickson were granted bail. Within three weeks a burglary occurred at a BP service station in Howick in circumstances consistent with the Tukuafu modus operandi. As we have noted, a passing police patrol saw what was happening and gave chase to the burglars as they absconded in a stolen car. The car crashed and although one participant managed to escape capture, two were arrested. They turned out to be Leon White and Gene Erickson’s brother Leo. One of them had been wearing the jacket which a police officer had attributed to Rex Tukuafu in some of the burglaries relevant to the trial. Leon White and Leo Erickson gave videotaped statements confessing that they had staged the burglary to help the Tukuafu brothers. Obviously there was a plan to manufacture evidence which would or might mislead the jury into thinking that the alleged Tukuafu modus operandi was not exclusive and in fact the trademark of some other group of criminals. Leo Erickson and Leon White pleaded guilty to burglary, unlawful conversion of the motor vehicle and conspiracy to defeat the course of justice.
In the course of the Operation Bird trial counsel for this appellant indicated he wished to raise the 20 June burglary. Counsel for other accused were, understandably, opposed to this course and counsel then received instructions from his client of such a nature that the matter was not pursued. The Crown’s response to this ground of appeal is that the appellant is mistaken in his submission that the Judge directed that the videotape should not be shown. That response has a quality of understatement which we have difficulty in emulating.
Discussion in respect of Rex Tukuafu
For the reasons given we are unpersuaded by the submissions relating to the length and complexity of the indictment and trial and the Judge’s directions in respect of similar facts.
With regard to the submission that the Judge should have directed the jury not to treat unaccepted questions as having an evidential value, we think that the ironical tone of some of the questions was inappropriate but we are unpersuaded that a direction was called for in the particular case. Trial Judges sometimes give such a direction to the jury but, in our experience, only when there seems, subjectively, to be some risk in the particular case that a jury might be misled. Plainly this was not such a case. This appellant clearly rejected the implications of the questions in issue put to him.
As previously indicated we intend to deal in a fairly general way with the submission that the jury’s verdicts were unreasonable or could not be supported having regard to the evidence in respect of 20 or more counts. We had the benefit of counsel’s extensive written submissions and oral argument which led us through the points in question. Neither then nor with the benefit of subsequent examination and reflection can we see anything in the arguments advanced on behalf of the appellant. Essentially they are not appellate arguments pointing to the absence of any adequate evidential basis for verdicts but jury arguments as to why there should have been verdicts of acquittal. We take but one example out of many available. This concerns evidence linking this appellant to certain offences by reference to foot print identification examined in respect of a pair of shoes said to have been worn by him. There was Crown evidence that this footwear was malodorous and Rex Tukuafu gave evidence in chief that they still smelled. He was then asked by his counsel whether he had smelly feet and said he did not. He then proceeded, under counsel’s direction, to smell the shoes he was wearing and he declared them to be not smelly. Before us, counsel made the point that his client was not cross-examined on that issue nor was rebuttal issue sought by the Crown. We can only comment that we are hardly surprised. The probative value of that exercise was negligible.
Nor are we persuaded that there has been a miscarriage of justice in relation to any omission to direct or misdirection by the Judge in connection with the destruction of transient ephemeral observation records. It was, of course, a legitimate trial tactic for counsel to complain about the inability to check viva voce evidence for consistency with initial records. However the point is not pursued on the basis that there was a miscarriage of justice by reason of the absence of such records. Rather, the point made is that the Judge misdirected the jury as to the significance of the unavailability. We accept the Crown submission that the Judge’s direction was appropriate in the context of unsubstantiated allegations to the effect that Police witnesses had deliberated destroyed notes in order to cover their tracks with the intention of giving grossly perjured evidence in the trial.
We turn finally to the question of the staged burglary of 20 June 2000. It hardly surprises us that counsel for other accused were resolutely opposed to the introduction of this highly prejudicial evidence. That the appellant should have instructed his counsel to raise the matter is incomprehensible except on the basis of unrealistic obduracy.
In short we are entirely unpersuaded that there is any basis for allowing the appeal against conviction.
Appeal against conviction by Reece Tukuafu
Both the written and oral submissions on behalf of this appellant were put succinctly and lost nothing thereby. There are three major grounds of appeal. The first concerns the length and complexity of the indictment and trial of which, for reasons already indicated, we need say no more. The second ground is expressed discretely but is in fact related. This is that the Judge was wrong to decline severance. We have made reference to the grounds of the pre-trial application and the Judge’s ruling earlier in this judgment.
Counsel expanded before us upon the justification for severance. He submitted that there was a larger volume of evidence against other accused compared with the evidence against his client and that it would have been impossible for a jury, having heard the whole of the evidence, to determine guilt or innocence by reference only to the evidence admissible against each accused separately. The reliance by the Crown on similar fact evidence created a similar risk, in counsel’s submission, that there would be improper prejudice experienced by the jury which could not be overcome by judicial direction. In a case where the probative value of the evidence against a particular accused was not strong the weight of prejudicial evidence would seem relatively increased.
Counsel pointed out that the alleged involvement of his client did not arise until count 43 fell to be considered and did not go beyond count 49. The alleged period of offending is only a week in the context of 15 months of alleged Tukuafu burglaries.
As previously mentioned, count 43 relates to the conversion of a 1987 Mazda 626 saloon on 28 January 2000. Counts 44, 45 and 46 relate to burglaries of premises all on the same date, that is 28 January 2000. Counts 47, 48 and 49 relate to the conversion of another Mazda 626 saloon, this time on 2 February 2000 and to allegedly related burglaries the following day.
Counsel submitted that at the trial only two salient pieces of evidence applied specifically to his client. These were the silver Mazda car found at the appellant’s home and the sighting of the appellant by the witness Mr Kumar. The superette known as Vine Street Super 7, referred to in count 44, was just over the road from Price Cutter Mangere, the subject of the burglary referred to in count 49. Mr Kumar said in evidence that at approximately 5.30 a.m. on 3 February he noticed a car which he described as a black Mazda approach at speed and pull up outside the Price Cutter store. He saw one person run towards the shop and position himself near a rubbish bin while two others ran into the store. When interviewed by the Police six weeks later he provided a description of the person who was apparently a look out. On 23 March he was shown a photo montage and pointed out the appellant. Counsel says that “However in cross-examination Mr Kumar conceded he might have been mistaken”. The circumstances of that claimed concession fall to be examined a little later in this judgment.
Counsel submitted that although his client was one of the family, evidence of actual association was lacking but there was nevertheless a distinct danger that his client would be subsumed in the body of evidence relating to the other accused such that a fair trial was not possible. In his submission the jury would have difficulty putting aside the evidence admissible against the other accused when considering the evidence admissible in respect of his client and that this difficulty could not be overcome even with judicial directions.
Counsel also submitted that the jury’s verdicts in respect of counts 47-49 should not only be set aside on the grounds that they are unreasonable and cannot be supported having regard to the evidence, as it stands, but that also the evidence of Mr Kumar identifying this appellant was such that the trial Judge should have directed the jury to disregard it. If that had been done the inadequacy of the evidence implicating his client would have been even more manifest.
To put that submission in context we need to refer to the evidence in chief and cross-examination of Mr Kumar. After giving evidence about the raid on Price Cutter Mangere involving a Mazda 626 car, he was asked by the Crown whether he recognised the person who was standing outside the store in photographs he was shown. He replied affirmatively and said that he had pointed out the photograph to the police officer. When asked if he recalled if the officer had asked him about how sure he was he said he did ask and said “It looks like he is the man”. The officer asked him if he was sure or not and he replied affirmatively. He expanded “I told him yes it looks like”.
The essence of counsel’s cross-examination, on which he relied on this appeal, is recorded in the transcript as follows:
Mr Kumar have you ever been out in public thought that you had seen someone that you thought you might have recognised and then later on found out you got the wrong person…Yes.
Have you ever done that…Yes
Is it reasonably possible given all the circumstances that the man you saw at 5.30 a.m. that morning from that distance across from your property over that period of time that you might have been mistaken that the man in the photograph you pointed out may not be the man you saw outside the shop. Might you have been mistaken…Yes.
Counsel submitted that given Mr Kumar’s concession as to the possibility of innocent mistake the particular appellant should have been discharged on counts 47-49. It was inherently unsafe, in counsel’s submission, to leave this evidence before the jury when one considers the Crown case overall.
In view of all of these matters, in counsel’s submission, there was a miscarriage of justice warranting the setting aside of the convictions, particularly in respect of counts 47-49.
Crown reply in respect of Reece Tukuafu
We need not discuss, for obvious reasons, the Crown’s response to this appellant’s wish to be associated with the common ground of appeal. Nor need we dwell on the Crown’s submissions in respect of the second ground of appeal. The significance, in the context of the case, of the similar fact evidence which if accepted would confine the scope of inquiry to a small class of people, is obviously relevant to the possible implication in relevant offending of a person within that class.
This leads us to the issue concerning Mr Kumar’s evidence. If his evidence was properly before the jury there was an adequate evidential basis for the jury’s verdict. The issue then is whether there was any proper basis for the jury to be directed to disregard his evidence and in the Crown’s submission there was none. It was given weight by the fact that he picked out a photograph of the appellant from 48 photographs and that he told Detective Constable Vickers that he was sure of his identification. There was evidence at trial that the Mazda car the subject of count 47 was used in the burglaries the counts of 48 and 49 and that car was abandoned in Glenfield a suburb neighbouring that where this appellant lived. This was the only stolen vehicle used for a South Auckland burglary that was ever abandoned on the North Shore. The Judge directed the jury in general terms about the weaknesses of identification evidence. These directions were entirely orthodox. He reminded the jury of those directions quite specifically in relation to Mr Kumar’s evidence and no objection is taken to the quality of his directions. In the Crown’s submission the issue then becomes one of weight for the jury and the weight they may have attached to Mr Kumar’s identification is not amenable to objection on appeal.
Discussion in respect of Reece Tukuafu
As we have indicated, the first and second of the three grounds of appeal for this appellant are largely inseparable. The first ground has been specifically dealt with and referred to several times in this judgment. The second ground is ultimately met by our response to the first. The issue is not whether, on the basis of risk prognostication before trial, severance should be granted but rather whether, after trial, the fact of non-severance has led to a miscarriage of justice. For reasons which by now will be apparent, not least by repetition, we are not persuaded that the unsevered trial of this appellant has led to a miscarriage of justice.
We turn therefore to the question of Mr Kumar’s evidence. It is perfectly plain to us, as it would have been to the jury, that this witness’ concession, in cross-examination, about the possibility of error was an honest response to an abstract hypothesis which the jury was entitled to think in no realistic way depreciated the value of his identification. The jury were not beguiled by counsel’s skill in this behalf and nor are we. The appeal does not deserve to succeed.
Appeal against conviction by John Tukuafu
John Tukuafu was convicted on 46 counts of burglary, one count of attempted burglary, 14 counts of unlawful taking and one count of attempted unlawful taking. His appeal against conviction was advanced before us on six grounds. The first is the common ground, which has not been made out before us.
The next ground is that the Judge was wrong to allow the trial to continue once it became clear that the prosecution had received the results of jury panel vetting by the Police; that is, upon receipt on the Friday immediately preceding the trial the jury list of the names of jurors was checked against the Wanganui Computer database of convictions. The defence were not given this information and in Mr Foley’s submission on behalf of John Tukuafu the receipt of such information by the Crown and the inability of the defence to obtain it gave the Crown an advantage over the defence in connection with the exercise of rights of peremptory challenge of jurors. Counsel conceded that this alone was insufficient to amount to a miscarriage of justice but it represented a subversion of the legislative scheme for the selection of an unbiased jury and in conjunction with other grounds of appeal contributed to an overall miscarriage of justice.
The third ground is that the trial Judge erred in allowing the introduction of surveillance videotape material by way of re-edited and enhanced recordings. That submission arises from the use at trial, by the Crown, of edited versions of surveillance tapes from security cameras at a number of burgled sites. Such security systems frequently have a multiplex operation, that is the staccato capturing of scenes from a rotating or sweeping camera or even series of cameras. This results in a visual syncopation of images. Such tapes can be edited to de-multiplex them. That was done in this case. The Crown intended to lead evidence from a Constable Vickers as to his identification of offenders by studying the videotapes. A defence challenge to the admissibility of that evidence was unsuccessful. During the Crown’s opening it played portions of demultiplexed tapes, copies of which were not available to the defence because of production delays. Objection was taken by the defence to the playing of such tapes and although on a first ruling leave was declined, on a renewed application leave was granted.
It is perfectly plain from the Judge’s directions concerning parties, for example, that the jury could not sensibly have thought that one could become a party unless one knowingly helped a person to commit a crime and accordingly we find no substance in Mr Gotlieb’s submission to the effect that the Judge should have directed the jury one could not be a party to burglary merely by being a receiver after the event. It was, moreover, perfectly plain from the nature of the Crown case that no such suggestion was made. The Crown position was that Leon White was “in on it”. The Judge succinctly summarised the respective cases, towards the end of his summing up, in these terms:
The Crown say Mr White was a supporting party to the burglaries offering encouragement throughout, offering his home for the planning or for the dropping off or storing of property. … In conclusion Mr Gotlieb suggested it may be Mr White has been up to something wrong but that does not mean he is directly involved as a party in any of these burglaries.
We refer to the observations we made earlier in this judgment about the duty of a Judge, when summing up, in relation to the defence case. That duty was adequately discharged in relation to Leon White as it was in respect of all the appellants. There is no merit in any of the points made on behalf of Leon White and his appeal against conviction is also dismissed.
Appeals against sentence
We now turn to the appeals against the sentences imposed. To recapitulate, by the time the jury retired the appellants were facing an indictment containing 110 counts requiring, including the joint charges, 261 verdicts. The jury convicted on 247 counts, acquitting the appellants on the remaining 14.
The only appellants to appeal against sentence were Rex, Phillip and John Tukuafu and Leon White. The results were :
[a]Rex Tukuafu was convicted on 42 counts of burglary and one of attempted burglary. He was sentenced to 9½ years imprisonment on each of the burglaries and 3 years imprisonment on the attempted burglary, with all those sentences to be served concurrently. He was convicted on16 counts of conversion of motor vehicles and one of attempted conversion and sentenced to 3 years imprisonment on each of the conversions and 18 months on the attempt, all those sentences to be served concurrently with each other but cumulatively upon the 9½ year sentence. The total sentence was accordingly one of 12½ years imprisonment.
[b]Phillip Tukuafu was convicted on 63 counts of burglary and one of attempted burglary. He was sentenced to 10 years imprisonment on each of the burglaries and 3 years imprisonment on the attempted burglary, with all those sentences to be served concurrently. He was convicted on 25 counts of conversion of motor vehicles and one of attempted conversion and sentenced to 3½ years imprisonment on each of the conversions and 18 months imprisonment on the attempt, all those sentences to be served concurrently with each other but cumulatively upon the 10 year sentence. Thus he was sentenced to 13½ years imprisonment.
[c]John Tukuafu was convicted on 46 counts of burglary and one of attempted burglary. He was sentenced to 9½ years imprisonment on each of the burglaries and 3 years imprisonment on the attempted burglary, with all those sentences to be served concurrently. He was convicted on 14 counts of conversion of motor vehicles and one of attempted conversion and sentenced to 3 years imprisonment on each of the conversions and 18 months on the attempt, all those sentences to be served concurrently with each other but cumulatively upon the 9½ year sentence, resulting in a sentence of 12½ years imprisonment.
[d]Leon White was convicted on 21 counts of burglary on each of which he was sentenced to 5 years imprisonment with the terms to be served concurrently and with the commencement of his imprisonment suspended for one month from the date of sentencing to enable him to undergo surgery.
We note for comparative purposes, the sentences imposed on the other appellants:
[a]Steven Tukuafu was convicted on one charge each of burglary and conversion. He was sentenced to 9 months and 6 months imprisonment respectively with the terms to be concurrent. They were suspended for 18 months and he was also ordered to serve six months Periodic Detention on both.
[b]Alex Tukuafu was convicted on six counts of burglary and three of conversion and sentenced to 5 years and 2 years imprisonment respectively, the terms to be concurrent.
[c]Reece Tukuafu was convicted on four counts of burglary, one count of conversion and one count of escaping from custody. He was sentenced to 3½ years and 1 year imprisonment on the burglary and conversions, with those terms to be served concurrently. He had pleaded guilty at an earlier stage to the escaping count and had served his sentence by the time of sentencing in relation to this matter.
Rex, Phillip and John Tukuafu and Leon White all appeal against the sentences imposed on them on the grounds that, taken together and separately, they were manifestly excessive and that the sentences imposed cumulatively on all those appellants other than Leon White should not have been ordered.
Sentencing notes
Sentencing took place on 31 January and 1 February 2002. The Judge commenced his remarks by reviewing the number of counts, convictions and acquittals and the length of the trial. He noted that all counts had been defended notwithstanding that the evidence against the offenders was (p2) “overwhelming”. He noted the starting-point for sentence in Operation Crystal had been set at eight years and that, by contrast with Operation Bird, the appellants could claim no credit for their guilty pleas. He observed (p3)
As a group, you were described by Crown counsel as being the most successful, organised and prolific commercial burglars in the Auckland area, and indeed in New Zealand. I do not consider that to be an over-statement. No case has been put before me in argument where the scale of offending approaches anywhere near the combined offending of you as a group and in that I include you, Mr Leon White.
In other cases individuals have appeared having pleaded guilty to their involvement in multiple burglaries, but in no case cited to me has there been the degree of offending by a criminally inclined gang, family or group. This makes this case quite unique involving as it does a number of brothers, the son of one of those brothers and a father-in-law. You, as a group, and I exclude from this comment Steven Tukuafu, can only be described as recidivist offenders.
The Judge then listed the participants’ previous convictions. As far as the present appellants are concerned, Rex Tukuafu had 88 previous convictions starting in 1976 of which 34 were for burglary and resulted in four separate sentences of imprisonment. Phillip Tukuafu had 112 previous convictions commencing in 1973 and included 46 for burglary and including five sentences of imprisonment. John Tukuafu had 54 previous convictions commencing in 1980 including 19 for burglary and had served four previous periods of imprisonment. Leon White had 77 previous convictions including 16 for burglary on which six terms of imprisonment had been imposed.
The Judge then commented (p4) on the “skilled and professional” modus operandi, elaborating on that remark by reference to the swiftness of the burglaries, the similarity of businesses burgled, the use of disguises and the wearing of hand coverings. The amounts stolen included $404,000 worth of property for Rex Tukuafu, $539,000 worth for Phillip Tukuafu, $356,000 worth for John Tukuafu and $170,000 for Leon White. He commented (p7) that the “selection of targets and the totality of the loss and damage weighs heavily with the Court”.
Turning to the conversion counts, the Judge expressed the view that vehicle owners were (p7) “separate and independent victims” so as to require “separate consideration from the burglary charges”.
The Judge then referred to a number of authorities including R v Nguyen (CA110/01, 2 July 2001), R v Mako [2000] 2 NZLR 170, R v Andrian (1996) 13 CRNZ 449 and Senior v Police (2000) 18 CRNZ 340 comparing the facts in those cases with those in Operation Bird. Then, after citing a passage in Hall on Sentencing on the topic of cumulative sentences, and the decisions of this Court in R v James (CA140/98) 10 August 1998 and R v Williams (CA91/00 31 May 2000) the Judge concluded (p12) :
I regard your offending to effect [sic] two separately legally protected interests. First of all, the legally protected interest of a person not to have his car stolen, and secondly, the legally protected interest of a person not to have their property broken into and their goods stolen.. They, in my view, are two separate and distinct legally protected interests, which the law sets out to protect on behalf of the public of New Zealand. Had you been charged, for example, with possession of instruments for burglary, and also been charged with burglary then concurrent sentences might have been appropriate, but you were not so charged. You have been charges [sic] separately and you have been found guilty separately.
Then, before dealing with the appellants individually, the Judge expressed the view (p14) that “the totality of your offending justifies higher penalties than has previously been laid down in the courts in this country”.
As far as Rex Tukuafu was concerned, the Judge then proceeded to impose the sentences earlier mentioned after noting the appellant’s refusal to participate in the preparation of a probation report. The Judge set out Rex Tukuafu’s background, described the number of his convictions thus putting the appellant in a “unique” category before imposing the maximum sentence available of 10 years on the burglary charges and the other sentences mentioned.
John Tukuafu had also refused to be interviewed by a probation officer and was sentenced to the same terms as Rex Tukuafu.
Having regard to his lengthy criminal history, the Judge did not accept the submission that Leon White was only secondarily involved notwithstanding that he did not personally carry out any of the burglaries. He said that Leon White had (p20) “been around in the criminal world for so long that it could not possibly be said that you did not know what was going on with regard to the activities of the other members”. He noted that Leon White had undergone surgery during the trial and was facing further surgery. That led to the deferment of the commencement of the imprisonment imposed.
Submissions
The principal submissions on this part of the case were advanced by Mr Kaye for Phillip Tukuafu and Mr Anson for John Tukuafu. Mr Koya for Rex Tukuafu and Mr Gotlieb for Leon White associated themselves with other counsel’s submissions and Mr Gotlieb pointed out that Leon White had been involved in only one burglary charge in Operation Crystal and most of his other burglaries were well in the past. He submitted Leon White was only of minor significance so that the starting-point of eight years was manifestly excessive and there was an insufficient discount for Leon White’s age and health.
After drawing attention to differences between the cases to which the Judge referred and the present, Mr Kaye submitted that the maximum sentence should not have been imposed because it was always possible to contemplate a case worse than the one under consideration though he accepted that something close to the maximum would have been appropriate for Phillip Tukuafu given his previous record and that sentencing courts are called upon to “decide whether a case falls within the broad band or bracket comprising the worst class of case” (R v Beri [1987] 1 NZLR 46, 48, R v Daley (1999) 1 CRNZ 388, 393 para 19).
Turning to the view that the sentences were for two categories of offences, and thus should be served cumulatively, Mr Kaye submitted that imposing a sentence just short of the maximum on the conversion count and then requiring those sentences to be served cumulatively offended the totality principle because the burglaries and conversions were closely connected.
He submitted the aggregate term was out of proportion to the gravity of the offences (R v Bradley [1979] 2 NZLR 262, 263) and that crushing sentences were to be reserved for the worst of cases (R v B (An Accused) ]1984] 1 NZLR 261, 263).
It followed, Mr Kaye submitted, that the total sentencing imposed on Phillip Tukuafu should have been one close to the 10 year maximum available for burglary.
For John Tukuafu, Mr Anson submitted that the Judge’s starting-point was too high, failed to recognise that the appellants targeted commercial rather than domestic premises, that the sentence was disproportionate, was too greatly influenced by the number of counts and failed to reflect the appellants’ overall criminality. He submitted that John Tukuafu fell within both the recidivist and spree burglar categories in Senior, thus indicating a sentence in the region of four years although Mr Anson accepted that the scale of John Tukuafu’s offending may have justified a sentence exceeding that term. He directed our attention to this Court’s observation that the nine year sentence imposed in Andrian (at 454) was “at or close” to the limit. Close analysis, Mr Anson submitted, indicated that Andrian was a more serious case than that of John Tukuafu in numbers of convictions and type of premises burgled. He drew our attention to Nguyen where a starting-point of nine years for 15 commercial burglaries was described by this Court as being “high”. He submitted the operation in Nguyen was more professional than that of the Tukuafus. He submitted that burgling commercial premises at night thus avoiding confrontation with the public was less culpable (R v Brewster [1998] 1 Cr App R 220, 225-226). Mr Anson also submitted that the starting-point for the sentences imposed exceeded the guideline sentences in Mako. Though accepting that Mako set guidelines for aggravated robbery, he submitted that a starting-point (para [54] p182-183) of six or more years for robbery of commercial premises showed the sentences imposed on John Tukuafu were disproportionate (paras [54]-[56]).
The Crown reminded us of the observations by this Court in Nguyen (at paras [[18]-[20] pp4-5) that circumstances of burglaries vary so greatly that, Senior apart, there is little guidance to be found in the cases on sentencing those convicted of burglary and still less for members of burglary “rings”. It was submitted that Nguyen was a much less serious example than that disclosed in Operation Bird. It was submitted that the situation with the Tukuafus was worse given the organised crime unit of which they were members. The Crown submitted that the sentences imposed in this case were towards the bottom of the available range and that the discount allowed to Leon White was substantial. Brewster stood for authority that a sentence of nine years for three burglaries was appropriate and was consonant with R v Gibbs [2000] 1 Cr App R(S) 261 where 10 years imprisonment was upheld after a guilty plea for seven burglaries. Though spoken in the context of domestic burglaries, the Crown submitted that Operation Bird presented most of the factors mentioned by the English Court of Appeal in Brewster (at 226) where the following appears :
Generally speaking, domestic burglaries are the more serious if they are of occupied houses at night; if they are the result of professional planning, organisation or execution; if they are targeted at the elderly, the disabled and the sick; if there are repeated visits to the same premises; if they are committed by persistent offenders; if they are accompanied by vandalism or any wanton injury to the victim; if they are shown to have a seriously traumatic effect on the victim; if the offender operates as one of a group; if goods of high value (whether actual or sentimental) are targeted or taken; if force is used or threatened; if there is a pattern of repeat offending.
Finally, the Crown submitted that the offending in Operation Bird was brazen, contemptuous of the rights of small business operators and private citizens and contemptuous of the security of their properties. The sentences imposed would have been justified in relation to Operation Bird alone even without the seriously aggravating feature of the appellants’ convictions in Operation Crystal.
Discussion and decision
In Andrian the appellant pleaded guilty to 16 counts of burglary and other dishonesty offences relating to homes with about $250,000 worth of property stolen. The offending began shortly after Mr Andrian had been released after serving a sentence of seven years imprisonment for previous offending including 23 burglaries. At the time of the appeal he had 78 convictions for burglary and numerous other charges. Starting-points of eight years for the burglaries and four years for receiving were chosen which, after giving credit for the pleas, resulted in a finite term of nine years. An appeal against sentence was dismissed, this Court observing, in reliance on R v Ward [1976] 1 NZLR 588, that where previous convictions indicated predilection for commission of a certain type of offence, the accused’s record can be taken into account to lengthen the appropriate term. Though the Court did observe that the nine years imposed on the appellant was at or close to the sentence to be imposed for broadly similar offending, the Andrian case was exceptional.
Senior was a decision of the Full Court of the High Court convened to provide guidance to the High and District Courts in burglary cases, particularly those involving repeated offending. After referring to Brewster the Court listed (para [19] p344) a number of features commonly aggravating burglary sentences including actual danger or confrontation with occupiers or the risk of such, targeting the same premises by repetitive burglaries, wanton destruction of property and vandalism, theft of items of high value and sophisticated training and execution.
In Nguyen the appellant had been found guilty on 15 counts of burglary and other offences of dishonesty and was sentenced to concurrent terms of 6½ years on the burglaries and five years imprisonment and conspiracy. He as a member of a major burglary ring said to have stolen property valued at more than $1m. This Court found Andrian of limited assistance given the difference in factual circumstances. It noted little guidance in the cases in relation to sentencing burglary rings (para [20]). It reviewed receiving sentences and also reviewed sentencing decisions in Australia and England where sentences of 10 and 12 years imprisonment for multiple offending had been upheld. This Court held (para [25]) that Mr Nguyen’s offending was not in the “highly professional range” despite the planning and the use of telephones and radio equipment. On that basis the starting-point of nine years was regarded as high but not out of range and the appeal was dismissed.
In this case the first question is whether the falling at the high end of finite sentences imposed for property offences not involving personal violence, the terms of imprisonment imposed on Rex, Phillip and John Tukuafu, are manifestly excessive. Leon White’s case warrants separate consideration.
In cases involving recidivist burglars – as the present appellants undoubtedly are – the authorities show that no great guidance can be gained by simply counting the number of convictions or measuring the duration of offending. What is required is a reasonably broad overall assessment of culpability within, for the worst cases, a “broad band or bracket comprising the worst class of cases encountered in practice.” R v Beri [1987] 1 NZLR 46 at p48.
Seen in that light, as counsel realistically acknowledged, the sentences to be imposed on Rex, Phillip and John Tukuafu were always either going to be the maximum or something close to it. In Operation Bird they were convicted of respectively 43, 64 and 47 burglaries or attempted burglaries. All were carried out in accordance with a well-rehearsed pattern designed to achieve maximum results in a brief time with minimal risk of apprehension. While it is correct that the burglaries were effected at times when few proprietors or bystanders were likely to be encountered, that was not out of concern for other persons but simply because the fewer people who were likely to be about at the time the burglaries were committed reduced the risk of arrest. The fact that almost no proceeds of the many burglaries were discovered when Operation Bird was terminated is testament to their disposal network and ought not to mask the seriousness of their offences. As the Judge commented, each was involved in burglaries where hundreds of thousands of dollars of goods were stolen.
And then there are their lists of previous convictions. All have been convicted on numerous occasions of burglaries and other crimes of dishonesty and must have been aware of the consequences when they embarked on the round of offending which constituted Operation Bird.
Finally there is Operation Crystal. Buckton DCJ, in sentencing the present appellants following their pleas of guilty for their parts in that operation, made it clear to them that further offending along the same lines would inevitably result in sentences at or near the maximum allowable. Yet, within a relatively brief period of their release from gaol, they again embarked on a series of burglaries using the same methods and committing offences which became Operation Bird. The firm sentences which had been imposed were manifestly inadequate to deter the resumption of wholesale offending, and an even more palpable deterrent was required.
Although it is always possible to imagine cases which might conceivably be worse than the offending of the three present appellants in Operation Bird, incontestably their offending fell within the “broad band or bracket comprising the worst class of cases” of burglary.
Accordingly, in all the circumstances we can see no ground for concluding that the Judge was in error in the sentences he imposed on Rex, Phillip and John Tukuafu for the burglaries and attempted burglaries.
There being no ground strongly advanced as to the excessive length of the three or 3½ year terms imposed on the conversions and the 18 months on the attempted conversions, the final question concerning these three appellants is whether the Judge was in error in ordering that the imprisonment imposed on the conversion should be served cumulatively on the terms imposed on the burglaries.
As is well-settled, the test – as now codified in the Sentencing Act 2002 s84 – is whether the conversions were different in kind from the burglaries or were part of a connected series of offences having regard to the time at which they occurred, the overall nature of the offending and any other relationship between them.
It is apparent, in the passages earlier cited from the Judge’s sentencing notes, that he regarded the conversions and the burglaries as separate and distinct offending. The question is, has the Judge been shown to be in error in that view?
The two bases on which it was submitted the sentences should not have been imposed cumulatively were, first, that the modus operandi adopted by the appellants was to convert vehicles, use them to commit the burglaries and to escape and then dump the vehicles and, secondly, that the overall sentences imposed offended the totality principle.
It is correct that the appellants routinely converted vehicles to transport them to and from the burglaries, but as the evidence made plain, those whose vehicles were converted felt the violation of their property rights just as keenly as those whose premises were burgled. The conversions took place not because the use of converted vehicles was an integral part of the burglaries but to reduce the chance of the vehicle used being identified and traced to the Tukuafus. That may well have been the reason they did not use their own vehicles or travel to and from the burglaries on foot. We can see no basis on this ground on which the appeal was advanced to differ from the trial Judge in his assessment that the conversions were offences separate from the burglary.
Even if the conversion were to be considered part of integral offending they were significantly aggravating so as to warrant an overall sentence in excess of the 10 year maximum sentence of imprisonment for a single burglary. As this Court has observed on many occasions the question of excess is to be examined in terms of the appropriateness of a sentence overall, rather than its mode of construction.
We turn now to consider the sentences in terms of totality. The Judge, of course, had the advantage of presiding over the trial. He saw the conversion aspect as separate offences from the burglaries. He was plainly at pains to impose appropriate sentences for each of the different kinds of offences and to ensure that the terms on each were sufficiently long to reflect the criminality of the offending. There was no hint in the sentencing notes that the Judge, as was faintly suggested, imposed the terms cumulatively to achieve a result greater than allowable for each of the burglaries: had that been the case, it was open to him to impose cumulative terms on some of the burglaries. Although the length of the terms involving imprisonment imposed on Rex, Phillip and John Tukuafu may well be amongst the longest imposed in this country on burglaries and conversions, their offending, particularly having regard to Operation Crystal and the balance of their criminal records, is equally amongst the worst the country has seen for such offences. Nothing short of a significantly punitive and deterrent sentence was called for. Although these sentences are severe in their totality we are not persuaded that they are manifestly excessive in the circumstances of this case.
Leon White is in a different category in the sense that he was not proved to have been directly involved in actually committing any of the burglaries. But nonetheless the jury was convinced to the required standard of his guilt on 21 burglaries in Operation Bird to which were added his 77 previous convictions including 16 for burglary. In those circumstances, we are not persuaded that the Judge’s starting-point of eight years imprisonment for Leon White was inappropriate.
The Judge then discounted the term that he imposed by three years partly on the grounds of Leon White’s health but partly also because of his secondary role in the offending. Again, we can see no error in that approach, particularly given the suspension of the commencement of the term of imprisonment to enable Leon White to have further surgery.
There are, accordingly, no grounds made out for this Court to intervene in the sentence imposed on Leon White.
Result
Every appeal against conviction and sentence is dismissed.
Solicitors
L O Smith, Auckland for Steven Tukuafu
McLeod & Partners, Kerikeri for John Tukuafu
Crown Law Office, Wellington for Crown
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