The Queen v Wayne Trevor Roycroft
[2002] NZCA 250
•4 September 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 312/01 |
THE QUEEN
V
WAYNE TREVOR ROYCROFT
| Hearing: | 22 July 2002 |
| Coram: | Anderson J Williams J Paterson J |
| Appearances: | J W Mackey for the Appellant H D Lawry for the Crown |
| Judgment: | 4 September 2002 |
| JUDGMENT OF THE COURT DELIVERED BY PATERSON J |
Introduction
Mr Roycroft, after pleading guilty to a charge of injuring with intent to cause grievous bodily harm, was on 15 May 2001 sentenced to a term of five years imprisonment. He did not appeal either his conviction or sentence within the prescribed periods, and now seeks leave to appeal out of time against both.
Background
In the early hours of 4 November 2000, Mr Roycroft went to the home of his de facto partner. The partner asked him to leave as she was expecting a visit from a male friend. Mr Roycroft left the property but returned later and found his partner and a male sitting in a vehicle parked in the right of way outside her house. He approached the man and punched him in the face while he was seated in the vehicle, and then ran down the right of way towards the road. The man chased him, whereupon Mr Roycroft got into his vehicle and drove it into the right of way towards the man, who was at that point in the middle of the driveway.
When Mr Roycroft’s vehicle was about 10-15 m. away from the man it accelerated towards him. The vehicle struck the man, causing him to spin in the air and strike a boundary fence. Mr Roycroft then continued to drive towards the victim and pinned him against the fence with his vehicle. The victim’s body was wedged between the driver’s door and the fence and prevented the driver’s door being opened. Mr Roycroft then climbed across the front seat and approached the victim who was pinned under the vehicle with his torso and head exposed. He was unable to free himself. Mr Roycroft allegedly then kicked and stomped on the victim.
As a result of the incident, the victim sustained a broken ankle which was subsequently operated on, a broken finger, bruises, and abrasions. The victim spent almost a week in hospital and was incapacitated for approximately three months.
Approximately two weeks after the incident, Mr Roycroft’s partner contacted the police station and advised Mr Roycroft wanted to talk to the police. He went to the police station where he was given the normal cautions. Mr Roycroft told the interviewer that he wanted to tell the police his side of the story. In reply to a question, he acknowledged he came up to the car, punched the victim in the face and was then chased by him. He apprehended the victim, a “big guy”, was wanting to have a go at him. Mr Roycroft said he wondered whether he was big enough for the Falcon, “so I lined him up and bowled him with the car.” After suggesting the victim caused the whole incident he said:
I know that doesn’t justify what I did. I know I am guilty, and that’s what I’m here for. I want to sort this out. I haven’t been able to sleep at night. I know it was wrong, but I just lost it. When he was there and I was in the car I saw him and I just snapped, something inside of me just snapped.
He was then asked whether he agreed he ran into the victim with his car and his response was:
Yeah. I shouldn’t have but I just lost it, you know.
Mr Roycroft then gave an interview which was videotaped. At the conclusion of that interview, he was charged “with intent to cause grievous bodily harm he injured”, the victim.
Mr Roycroft appeared in the North Shore District Court on 20 November 2000, when he was remanded without plea so he could seek legal aid. There were further hearings and adjournments in the District Court before a deposition hearing on 20 February 2001. He was represented by counsel at that hearing. The hearing was conducted on a “hand-up” written statement basis. Mr Roycroft was committed for trial and ordered to attend a callover in the Auckland District Court on 5 April 2001.
On 5 April 2001, at the callover in the Auckland District Court, Mr Roycroft pleaded guilty. At that hearing, he was represented by the same counsel who appeared at the deposition hearing, and who also represented Mr Roycroft at his sentencing on 15 May 2001.
Grounds for appeal
The ground of appeal against conviction is that Mr Roycroft had not been properly advised by counsel at the time he entered his plea. In particular, it was submitted that Mr Roycroft had a defence available, namely, that he did not intend to injure the victim.
The underlying ground for the appeal against sentence was that a term of five years imprisonment was manifestly excessive. Subsidiary grounds for the appeal against sentence were:
(a)Mr Roycroft did not accept the statement of fact which was not discussed with him by his counsel;
(b)Counsel did not avail himself of the “sentence indication” procedure;
(c)The sentencing Judge erred in not requesting a “full” probation report;
(d)The sentencing Judge erred in allowing the production of the caption summary for Mr Roycroft’s previous manslaughter conviction;
The leave application
This Court’s discretion to grant leave to bring an appeal out of time is to be exercised so as to do justice in the case. Relevant matters in assessing the overall justice of a case are the strength of the proposed appeal, the practicality of the remedy sought, the length of and reasons for delay, the impact on others similarly affected and on the administration of justice, and the absence of prejudice to the Crown: see R v Knight (1997) 15 CRNZ 332. In assessing the interests of justice in this case, it is appropriate to first consider the likelihood of Mr Roycroft succeeding on his appeals.
The conviction appeal
Mr Roycroft’s initial problem is that he pleaded guilty to the offence. An appellant who has pleaded guilty after being advised by counsel can succeed in an appeal against conviction, in limited circumstances. This Court in R v Stretch [1982] 1 NZLR 225 said at p229:
“There may be cases where a line of defence is sufficiently tenable to call for a fuller and more explicit explanation to the accused by counsel than seems to have occurred in the present case. We do not say that a miscarriage of justice can never be established on such a ground. But when the accused has the advice of experienced counsel, such cases will be rare.”
Mr Roycroft waived privilege and the Crown obtained an affidavit from the counsel who represented Mr Roycroft up until the time he was sentenced. That counsel no longer lives in New Zealand. Mr Roycroft swore two affidavits in support of his allegations that he was not properly advised by counsel. There are unresolved factual disputes on the affidavits which this Court cannot resolve. Neither Mr Roycroft nor counsel was cross-examined.
Mr Roycroft now contends that he did not intentionally drive the car into the victim, and that he was never told by his counsel that if the car accident was unintentional, he had a defence to the charge. On his present version of events, he punched the victim once, accidentally drove the car into him, and did not kick him in the head.
Mr Roycroft’s evidence of the legal assistance he received differed markedly from the evidence given by counsel. The appellant’s evidence was that counsel’s initial interview was for five minutes only when he was told he had no chance of defending the charge and would have to plead guilty. He expected the evidence of the victim and his partner to be tested at a deposition hearing but was advised by his partner the day before the proposed hearing that evidence was not to be given at the hearing as he was pleading guilty. Counsel was said to have arrived about five minutes before the deposition hearing and then without consulting Mr Roycroft agreed to a hand-up of the depositions. At that hearing, Mr Roycroft pleaded not guilty. Mr Roycroft said that at the first callover he again refused to accept counsel’s advice and plead guilty, and only pleaded guilty at the second callover after counsel had advised him that he had “done a deal with the Crown/Judge” and he had been promised a 25%-35% discount on sentence if he pleaded guilty. He then relented and pleaded guilty. Further, he said he was never shown the summary of facts and first learnt of the contents of the summary during the Judge’s sentencing of him. He disagreed with many of the statements made during sentencing.
Counsel in his affidavit gives a very different version of events. He said the first attendance was at the Waitakere District Court which was a bail hearing. Bail was granted. Counsel categorically denied he advised Mr Roycroft that he had no chance and would have to plead guilty. His evidence was that he consulted Mr Roycroft weeks before the deposition hearing in regard to the proposed conduct of the hearing and, in particular, that it would be on a “hand-up” basis. Counsel stated that Mr Roycroft’s instructions from the first time he met him were that he would eventually be pleading guilty and it was simply a matter of timing his plea so that he could retain his liberty for as long as possible, and in the meantime get his affairs in order before he received, what he accepted, would be an inevitable term of imprisonment. Further, he stated that he went through and discussed the statement of facts with Mr Roycroft and that the summary was “referred to numerous times during the many months that followed up until the date of sentencing.” Counsel described as “total nonsense and absolutely untrue” the allegation that Mr Roycroft did not hear of the matters in the statement of fact until the Judge was sentencing. He accepted that he discussed the likely outcome with Mr Roycroft and in particular the common practice of receiving sentencing discounts of up to 30% for timely guilty pleas. Counsel denied that he told him he had “done a deal with the Crown or Judge.”
The issue on the possible conviction appeal is whether this is one of the rare cases where an accused, after being advised by counsel and pleading guilty, can establish there was a miscarriage of justice.
Mr Mackey submitted that the affidavit from the former counsel is long on generalisations and short on specifics. As such, it supports Mr Roycroft’s claim that he did not receive appropriate legal advice when he pleaded guilty, nor at the sentencing, nor subsequently when he failed to lodge his appeal within time. It was submitted that the former counsel, in his affidavit, confirms Mr Roycroft’s allegation that he was not adequately advised on his plea, as counsel merely says that “it had been my understanding leading up to the depositions hearing that the Appellant would be entering a guilty plea at that stage …”.
On an objective view of the facts, we cannot accept some of the statements made by Mr Roycroft in his affidavits. He has a moderately long list of previous convictions, including manslaughter, burglary, wilful damage, operating a vehicle carelessly, and threats to injure. His record suggests that he has appeared in Court for sentencing on at least 13 previous occasions. On three of those occasions he was sentenced to imprisonment. It is difficult to accept that in these circumstances Mr Roycroft was unaware that the information charging him and the subsequent indictment referred to “intent to injure”. Mr Roycroft would have been fully aware, in our view, that his intentions were an ingredient of the offence. The steps taken in this matter are consistent with the counsel’s statement that Mr Roycroft intended to plead guilty from the time he saw the police but delayed doing so to enable him to put his affairs in order.
Mr Roycroft’s own actions on 16 November 2000 were inconsistent with his present position. His statement that
I lined him up and bowled him with the car.
and his answer:
Yeah. I shouldn’t have, but I just lost it, you know.
In his video interview on the same date, Mr Roycroft was not quite so forthcoming. He accepted that for the car to go down the driveway towards the victim he would have put it into “drive” but did say he did not “remember putting it into ‘drive’ and running into him or anything and he didn’t remember any of that.” However, he said he was not saying it did not happen. The pre-sentence report completed in May 2001 noted that Mr Roycroft “accepts the Police Summary of Facts in outline but not in detail.” As this report was obviously prepared before the sentencing hearing, we cannot accept Mr Roycroft’s sworn statement that:
the first I heard what was in the caption summary was when the Judge was sentencing me and when the Crown Solicitor was talking about it.
Clearly, the probation officer had previously discussed the statement of facts with Mr Roycroft. Further, Mr Roycroft’s description in his latest affidavits as to what actually happened that night contain a specific recollection which he did not have at the time he gave his police interviews on 16 November 2000. There are two further points of lesser importance that raise doubts as to Mr Roycroft’s latest evidence. First, when Mr Roycroft sought leave at a reasonably late stage to appeal, his initial application was to appeal sentence only and not conviction. Secondly, the record shows Mr Roycroft pleaded guilty at his first callover after depositions, and not, as he claims, at a second callover.
Against the background of an accused who made a voluntary admission to the police, was familiar with the Court system, was represented by counsel, and at a late stage makes sworn statements which are inconsistent with the objective facts, we are not persuaded that this is one of those rare cases where a miscarriage of justice can be established by a person who has elected to plead guilty. In these circumstances the appeal against conviction cannot succeed.
Appeal against sentence
Although Mr Mackey raised various matters on the appeal against sentence, the only issue, in our view, is whether the sentence was manifestly excessive. We do not accept, because of the statement in the pre-sentence report, that Mr Roycroft did not see the statement of facts before sentencing. It appears from the pre-sentence report that it was done very much at the last minute but the file indicates that the Judge requested the pre-sentence report when Mr Roycroft pleaded guilty. A submission that the Judge erred in allowing the production of the statement of facts for Mr Roycroft’s earlier manslaughter conviction is not in itself a point of appeal, although the weight given by the sentencing Judge to the manslaughter as an aggravating factor is a matter properly to be taken into account in considering whether the sentence was manifestly excessive.
The pre-sentence report noted that Mr Roycroft admitted punching the victim and chasing him up the drive and accepting that he accelerated his vehicle into the victim. However, he denied kicking the victim when the latter was trapped. The Judge, in her sentencing notes, noted that Mr Roycroft kicked and stomped the victim on the head approximately five to six times. There is nothing in the former counsel’s affidavit which suggests consideration was given to requesting a factual hearing prior to the sentencing. Counsel stated that the summary was referred to Mr Roycroft numerous times before sentencing. It is obvious from the pre-sentence report that Mr Roycroft did not accept all the statements in the statement of fact, and it is unfortunate that there was not a factual hearing at that time to establish the facts.
After considering R v Hereora [1986] 2 NZLR 164, and various aggravating features, Her Honour fixed a starting point of five years and expressed a view that a term of seven years imprisonment would be justified in this case. She gave credit for Mr Roycroft’s guilty plea and fixed the term of imprisonment at five years. The aggravating features included four related to the incident and one related to a previous conviction. The four related to the incident were the punching, the striking by the car, the continuation with the car pinning the victim, and the subsequent kicking and stomping. Mr Roycroft now challenges the fourth factor.
The previous offence which was treated as an aggravating feature was the manslaughter conviction in 1987. In that case, Mr Roycroft and another were in a motor vehicle which ran into the back of a parked vehicle at 3.30 one morning. They threatened and abused the driver of that vehicle who got into his car and drove back the way he came. Mr Roycroft and his co-accused, who was convicted of murder, pursued the driver, stopped his vehicle and physically assaulted him. The co-offender struck the victim around the head with a jerry can. The injuries caused led to the death of the victim. When sentencing Mr Roycroft the Judge referred to the manslaughter in terms of “some glaring similarities with this present case.” She said she found “extremely disturbing … the similarity with the pursuit with the vehicle.” We do not see the same similarity. The relevance of this previous offending is that Mr Roycroft then, and in the present incident, was unable to contain his anger and was prepared to react physically to the subject of that anger. This suggests the need to impose a further deterrent aspect in the sentence imposed.
The issue in this case is whether the starting point was within the three to five year category or the five to eight year category referred to in Hereora. In that case, it was noted that commonly an impulsive act of violence involving the use of a weapon or intent to inflict serious injury will attract a sentence within the bracket of three to five years. Terms of five to eight years are reserved for cases exhibiting a combination of aggravating features. In our view the offending falls into the three to five year category. The extra deterrent element required because of the past offence would put the sentence at the top of the range. We do not see the disputed fact of whether or not Mr Roycroft kicked the victim would make any substantial difference. An allowance of one year for the guilty plea would have been adequate in the circumstances. In our view, a sentence of four years imprisonment is appropriate.
Leave to appeal and result
In the circumstances the appeal for leave to appeal against both the conviction and the sentence is granted. The conviction appeal is dismissed.
The sentence of five years imprisonment is quashed and a sentence of four years imprisonment substituted in lieu thereof.
Solicitors
Crown Solicitors, Auckland
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