Wooster v The Queen - [2017] NZHC 893

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2017-441-008 [2017] NZHC 893

BETWEEN
JOSHUA RAYMOND WOOSTER

Appellant

AND

THE QUEEN Respondent

Hearing: 2 May 2017

Counsel:

R D Stone for Appellant
J E Mildenhall for Respondent

Judgment:

5 May 2017

JUDGMENT OF WILLIAMS J

Introduction

[1] Mr Wooster and his then partner Ms Peebles, were jointly charged with aggravated burglary and demanding with menaces.1

[2] The pair were convicted of both counts following a Judge-alone trial in the District Court at Napier.2 Mr Wooster was sentenced to five years and five months’ imprisonment.3 He now appeals both conviction and sentence.

Facts

[3] The case for the Crown was put on the basis that the complainants Mr Broughton (who is Ms Peebles’ cousin) and Ms Duckworth had encouraged Mr Wooster and Ms Peebles to join them in some kind of Internet banking fraud, the
details of which remain opaque to say the least. The Internet banking fraud scheme

1      Ms Peebles faced other additional charges: possession of a firearm, possession of ammunition, and possession of cannabis. It is unnecessary to address these further.
2      R v Peebles [2016] NZDC 26706.
3      R v Peebles [2017] NZDC 5186.

WOOSTER v THE QUEEN [2017] NZHC 893 [5 May 2017]

failed and produced none of the expected profits. Mr Wooster and Ms Peebles were upset and decided to pay Mr Broughton and Ms Duckworth a visit.

[4] On the morning of 13 April 2016, Ms Duckworth was staying at her parents’ home while Mr Broughton (with whom she was in a relationship) had stayed elsewhere. Sometime before 7.30am, Mr Wooster and Ms Peebles went to that address, entered the dwelling through an unlocked door and found Ms Duckworth in bed. They demanded to know where Mr Broughton was and did not believe Ms Duckworth when she advised he was elsewhere. Ms Duckworth tried to call Mr Broughton but without success. Mr Wooster then unzipped his jacket and produced a sawn-off .22 calibre rifle. He levelled it at Ms Duckworth and repeated his demand. The pair indicated that Ms Duckworth had until later in the morning to locate Mr Broughton with the money they said he owed them, in the absence of which they would take Ms Duckworth’s father’s truck.

[5] A text message sent by Ms Duckworth to Ms Peebles at 7.29 that morning indicates that the pair had departed at some point prior to this time.

[6] Over the next three days, Mr Wooster and Ms Peebles were in regular text contact with Ms Duckworth and Mr Broughton demanding payment. They threatened to take the complainants’ possessions to recoup some of this debt if it was not paid voluntarily.

[7] Mr Broughton eventually called the police. Ms Peebles was arrested at her home in Flaxmere. And when the police arrived, she showed them a white backpack containing a sawn-off .22 calibre rifle, ammunition and cannabis. She said the gun and the cannabis were hers and she admitted to threatening Ms Duckworth with…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Wooster v The Queen

Details

AGLC: Wooster v The Queen [2017] NZHC 893
Case: [2017] NZHC 893
Decision Date: 5 May 2017

CaseChat Overview and Summary

Joshua Raymond Wooster appeals his conviction and sentence for aggravated burglary and demanding with menaces. The Crown case was that the appellant and his partner, Ms Peebles, went to the complainants’ house to demand repayment of money they had lost in a failed banking fraud. The appellant presented a firearm to one of the complainants while demanding repayment of $4000. The appellant contends that the Crown failed to call Mr Broughton, one of the complainants, as a witness, that the trial judge should have recalled Napierana Duncan, Ms Peebles’ daughter, and that the identification evidence was not sufficient to prove that the appellant was the person who presented the firearm. The appeal against conviction was dismissed. The starting point for the sentence was appropriate, and the sentence appeal was also dismissed.

The appellant and Ms Peebles were jointly charged with aggravated burglary and demanding with menaces. The appellant was sentenced to five years and five months’ imprisonment. He now appeals both conviction and sentence. The appellant contends that the Crown failed to call Mr Broughton, one of the complainants, as a witness. The court held that the absence of Mr Broughton did not produce an unsafe conviction because Ms Duckworth gave evidence that there was no debt owed. The appellant also contends that the trial judge should have recalled Napierana Duncan, Ms Peebles’ daughter. The court held that the Judge was entitled to infer from the texts that Ms Peebles and the appellant were not at home when Napierana awoke, and refusing to permit her recall could not have resulted in a miscarriage. The appellant further contends that the identification evidence was not sufficient to prove that the appellant was the person who presented the firearm. The court held that the identification evidence was reliable enough to be admitted, and that the inference that the male with Ms Peebles was the same male engaged in the fraud who was known by Ms Duckworth was irresistible. The appeal against conviction was dismissed.

The appellant contends that the starting point was too high. The court held that a starting point of five years and three months on the aggravated burglary charge was within range given the characteristics of this offending. The court also held that it was open to the Judge to reach his own view of the facts in the context of the sentencing exercise, and that the sentence was within range. The sentence appeal was dismissed.

Orders