Yukich v R

[2010] NZCA 499

IN THE COURT OF APPEAL OF NEW ZEALAND

CA459/2010
[2010] NZCA 499

BETWEENRAYMOND YUKICH

Appellant

ANDTHE QUEEN

Respondent

Hearing:2 September 2010

Court:Arnold, Keane and MacKenzie JJ

Counsel:R J Bowden for Appellant

A R Burns for Respondent

Judgment:2 November 2010 at 2.30 pm 

JUDGMENT OF THE COURT

Appeal against conviction and sentence dismissed.

REASONS OF THE COURT

(Given by Keane J)

[1]        On 28 May 2010 Raymond Yukich was sentenced after trial in the District Court, Whangarei, by Judge McDonald to imprisonment for one year, ten months for the burglary, on 16 March 2009, of a farm property at Waiotira, beyond Whangarei.[1] 

[1]      R v Yukich DC Whangarei CRI-2009-088-1311, 28 May 2010.

[2]        In appealing his conviction, Mr Yukich contends the Judge effectively directed the jury to convict him of being a party to the offence, when he was no more than an innocent and passive bystander.  At most, once the offence was accomplished by the principal offenders, Boss Halkyard and Santos Gillies, he might have become an accessory after the fact.  In adition, Mr Yukich appeals his sentence. 

[3]        Judge McDonald, Mr Yukich contends, ought not to have fixed his sentence from the one year, eight month starting point he took when sentencing Mr Halkyard and Mr Gillies in July 2009, after they had pleaded as principals to the offence.  Any part he played was, by contrast, peripheral and their previous convictions were greater than his own. 

Context

[4]        At Mr Yukich’s trial in March 2010, the Crown’s case was that he, Mr Halkyard and Mr Gillies, his daughter’s partner, burgled a farm house and shed and stole eight shotguns, three pistols, ammunition, alcohol, meat and groceries.  This offending only came to a halt, and an abrupt one, the Crown case was, when the owner arrived and assaulted Mr Halkyard and Mr Santos with a piece of wood. 

[5]        Mr Yukich, the Crown contended at trial, was a principal.  He too entered the house and shed and was equally complicit in the thefts.  Or he was a party.  He drove to the property knowing it was to be burgled.  Or he became a party when the others broke in and began to steal, beginning with the firearms, and then still remained and was the getaway driver.  Shortly after, just before they were apprehended, he as much as they, concealed what had been stolen. 

[6]        Mr Yukich, who elected to give evidence, said that he had come down from the north, where he lives at Horeke, to repair and collect his wife’s car.  His daughter had left it immobile in Whangarei.  The night before the burglary he stayed with his daughter and Mr Gillies at Ruakaka.  On the day of the burglary he obtained a ride with Mr Halkyard and Mr Gillies, who were driving to Whangarei.  He only happened to become the driver.  He had no sense that they, one or both, might have been intent on burglary.  He was an involuntary and reluctant bystander. 

[7]        Once the owner brought the burglary to a halt by assaulting Mr Halkyard and Mr Gillies with a piece of wood, Mr Yukich accepted, he did help them to escape.  Shortly after, just before the police apprehended him, he accepted, he did attempt to evade the police and to conceal what had been stolen.  By then, he said, there was little other choice.  He was caught in a fait accompli.

[8]        In advancing this defence Mr Yukich relied on consistent evidence from his wife and daughter as to why he was at Ruakaka and intent on travelling onwards to Whangarei.  To corroborate his account of the minimal and involuntary part he played during the offending, he relied on evidence from Mr Halkyard and Mr Gillies, each of whom had by then pleaded to and been sentenced for their part in this course of offending. 

[9]        During the trial Mr Yukich’s counsel, Mr Bowden, invited the Judge to direct the jury that they could, instead of finding Mr Yukich a principal or party, find him an accessory after the fact.  There was the risk otherwise, Mr Bowden said, that the jury might convict Mr Yukich despite the fact that when the burglary began he was an innocent and involuntary bystander.  The Judge did not give the jury that direction.  He instructed them that they could find Mr Yukich responsible as a principal or party. 

[10]       Mr Yukich could be a principal, the Judge said, if like the others he entered the house or shed and removed property.  He could be a party if he drove into the property knowing it was to be burgled and he was to be a getaway driver.  Or he could have become a party, and this is the contested aspect of the Judge’s direction, if he began to play an active and knowing part once the burglary got underway.  Each time the other two re-entered and stole more, the Judge said, they committed a fresh offence in which he might have become complicit. 

[11]       During their deliberations the jury asked a question about the principal/party distinction.  The Judge responded by explaining again how Mr Yukich could be a principal offender or party.  It was common ground that he did not repeat the direction challenged on this appeal.

Innocent bystander defence

[12]       In an opening statement on behalf of Mr Yukich at the trial, Mr Bowden confirmed that Mr Yukich accepted that there had been a burglary and that he was there when it happened.  He did not, however, know that it was to occur.  He did not play any active part in it.  He had no intention of participating in any way. 

[13]       On the day of the offence, Mr Yukich said in evidence, Mr Halkyard and Mr Gillies, who had already been out earlier that day in his daughter’s car, wanted to go to Whangarei.  Mr Halkyard’s terms of bail, Mr Gillies said, required him to report to the Whangarei police.  Mr Yukich’s daughter suggested they take Mr Yukich with them.  When they left Ruakaka, all three agreed, Mr Halkyard was the driver.  After they stopped at a service station Mr Yukich took over.  Mr Halkyard had been drinking and Mr Gillies was disqualified. 

[14]       They turned into the burgled address, Mr Yukich said, when Mr Halkyard suggested they should.  Mr Yukich thought they wanted to buy cannabis, or perhaps methamphetamine.  Mr Halkyard and Mr Gillies agreed, broadly, that this diversion was Mr Halkyard’s idea.  Mr Halkyard went there, he said, and he had never been there before, to collect a debt, perhaps $300, owed to him indirectly by the owner, or owed to a friend. 

[15]       When they parked outside the house, all three agreed, Mr Halkyard and Mr Gillies went up to the front door and Mr Yukich remained in the car.  They knocked.  When there was no response they kicked in the front door.  Mr Halkyard  said that he thought the owner might have been hiding from him.  Mr Halkyard and Mr Gillies began, all three agreed, to load the boot with items from the house and shed in a series of trips beginning with firearms.  To open the boot, Mr Gillies said, and Mr Yukich agreed, he released the boot using the driver’s side well lever. 

[16]       Mr Yukich went further.  He said that when Mr Halkyard and Mr Gillies kicked in the front door and went inside, that was completely unexpected.  It shocked him.  He started up the car, and began to leave.  But then he realised he could not leave them behind.  He went back.  He yelled out to them.  He told them that they had to get out.  They did not hear him. 

[17]       The owner, all three agreed, happened upon Mr Halkyard and Mr Gillies, just as they were completing the theft, and struck them both with a piece of timber, reducing one to the ground, and causing both to flee.  Mr Yukich, all three agreed, was still in the car. 

[18]       The owner said that the two he struck were standing by the car.  The first was bending into the boot, the second standing by a rear passenger door.  Both, he said, were in their twenties.  The first was short and fat and Māori, and the second was six feet tall with black hair.  The first, he said, had short hair, though he only saw him for perhaps a couple of seconds.  The second he described as having dreadlocks.  When taxed as to the second, he said that though their encounter was also very brief, he did get a good look at him.  He did remember the dreadlocks and that the person he struck was about his own size and younger. 

[19]       The owner did not see anyone in the car.  It started up just after he hit the second person with a piece of wood.  It had tinted windows.  He walked beside it as it turned.  He hit the window a couple of times but it did not break.  The car went slowly down the drive, with the boot and at least the front left hand side door still open.  The owner saw the two whom he had struck jump in.

[20]       Only Mr Yukich, it appears, had dreadlocks and though he is a great deal older than Mr Halkyard and Mr Gillies, the Crown contended that he must have been out of the car at some stage and been a principal to the offence; and that is the way in which this became a live issue for the jury.

[21]       Mr Yukich denied, when he gave evidence, ever getting out of the car.  He did accept that when the owner intervened he reversed and began to leave.  Mr Halkyard and Mr Gillies both said that they had to run to catch up and climb in.  Mr Yukich lost control briefly and hit one of the gate posts.  There was even some issue whether he made any attempt to wait.  He was, on the evidence, intent on getting away himself.

[22]       Once they left the property, Mr Yukich said, he did not know which way to go and drove as directed.  He accepted that when they saw the police he pulled off the road.  He and Mr Gillies, he accepted, threw the items stolen from the boot of the car under nearby bushes.  Mr Halkyard ran away.  The evidence of Mr Halkyard and Mr Gillies was consistent. 

[23]       The Crown’s evidence, from the police officers who apprehended them using a dog, was that Mr Halkyard was apprehended first some distance from the car and Mr Gillies second a little closer.  Mr Yukich was apprehended last.  He had remained concealed in bushes not far from the car and the items stolen.

[24]       In closing Mr Bowden accepted that Mr Yukich had driven away after the offending and had attempted to evade the police and to conceal the items stolen.  He accepted that if Mr Yukich had managed to get away, he would not have reported the offence to the police.  The issue was, he said, whether the Crown could prove that Mr Yukich had given knowing assistance when Mr Halkyard and Mr Gillies first broke in.  Did he know that was to happen?  Did he knowingly assist then or afterwards?

[25]       Mr Yukich might, Mr Bowden said, have driven the principal offenders to the door.  But, he had to know a burglary was about to take place.  Again, he might have driven them away afterwards.  Clearly he then knew a burglary had taken place.  But by then it was complete.  The jury had to be satisfied that he had intentionally done something to assist, as and when the offence began and before it ceased.  There was no evidence that he had. 

Directions to jury

[26]       The Judge directed the jury to consider on the proven facts the issue “what has been proved against Mr Yukich, and what he knew or did not know, at the time the burglary was committed”.[2] As to that, as a matter of common sense, the Judge said, they had to assess “what, if anything he knew [at] the time this burglary was taking place”.[3] 

[2] At [5].

[3] At [9].

[27]       There was no real dispute, the Judge said, that there had been a burglary in which Mr Gillies and Mr Halkyard were clearly complicit.  They had entered the house and shed without authority for the purpose of theft.  The issue, the Judge said, was what part Mr Yukich had played, if any.  As he then said:[4]

The sole issue in this trial, I suggest, is whether Mr Yukich was part of the plan to burgle this house.  Did he take part in some way in that endeavour as the Crown says he did? Or is he, as he says, an innocent caught up quite unintentionally in his son in law’s, Mr Gillies, and Mr Gillies’ mate, Mr Halkyard’s crime?

[4] At [10].

[28]       If the jury were satisfied that Mr Yukich had played some part in entering the farm house and shed and stealing property, the Judge said, he would be a principal to the offence.  But if the jury could not be satisfied about that, Mr Yukich could be party to the offending if he drove to the property knowing that a burglary was to take place and that he was to drive away afterwards.  The Judge then said this:[5]

If you came to that conclusion ...  then obviously Mr Yukich, by sitting behind the driver’s wheel ...  has helped in the same way that the getaway driver at the bank robbery sits outside waiting for the people to come out, run into the bank, hold up a teller to run back out and get into the car and drive away... 

[5] At [15].

[29]       The Judge then directed the jury that to be a party Mr Yukich had to be actively encouraging.  “Mere passive presence”,[6] he said, was not enough especially if Mr Yukich were an innocent bystander.  Then the Judge said:[7]

... [I]f you stop and you watch, you do not intervene, you do not do anything else, you do not say anything, you just stand and watch, you do not become a party to that offence by your mere presence.  You are just innocently there watching. 

[6] At [16].

[7] Ibid.

[30]       The Judge went on to say that a party need not know the precise details of the crime to be carried out but must know essentially what was going to happen.  A person cannot, he said, become a party accidentally or inadvertently.  He gave as an instance a person who holds open a door for someone who has committed a bank robbery not knowing that the robbery had just happened.  Then, when describing the Crown case, the Judge gave the direction challenged on this appeal. 

[31]       The Crown’s case was, he said, that Mr Yukich must have known that when Mr Halkyard and Mr Gillies entered the house that was for an unlawful purpose; a purpose given immediate and obvious effect.  It was also open to the jury, the Judge said, to take into account that “there were a series of comings and goings”.[8]  As to that he continued to say: “[i]t is a matter of law, there could be a series of discrete burglaries here because it is every entry with the intention to commit a crime without permission”.[9]  Thus, the Judge said, the jury was entitled to conclude:[10]

... [M]aybe it has not been proved that he knew the first time they went in after kicking the door, that they were going to commit a burglary, but the second time if you find it proved they went in, he must have known at that point or the third time they went back gathering up all the stuff because it is each entry, you see. 

[8] At [19].

[9] Ibid.

[10] Ibid.

[32]       That being so, the Judge said, Mr Bowden was not quite correct when he had told the jury they should focus only on the point at which the door was kicked in.  Rather, he said, Mr Yukich’s part in the offence was to be assessed factually. 

[33]       The Judge then continued to narrate the Crown’s case, the effect of which was that Mr Yukich must at least have been a party, as was evident from his attempt afterwards to evade the police and to hide what had been stolen; and then the defence case that Mr Yukich was on the road that morning for a lawful reason, to pick up his wife’s car in Whangarei, and that he did not anticipate and was not party to the burglary. 

[34]       The defence case was, the Judge said, that nothing was untoward until Mr Halkyard and Mr Gillies went up to the front door of the farm house.  Then, as the Judge expressed it:[11]

... [I]t is only at the point where he hears the door being kicked in that he knows something else is happening.  He goes to drive off.  It is not his way to leave his two mates high and dry, so he backs up and remains, but takes no part in the burglary and the events after that are just the events of a person knowing he has been caught up in something innocently; that he would do his best to distance himself from it and that is why he tries to get rid of some of the guns, hides, and is unhelpful.

[11] At [22].

[35]       In continuing after that to review whether Mr Yukich might have been a principal or a party, the Judge said nothing more to enlarge the direction he had given that Mr Yukich might have been a party to discrete offences after the point of entry. 

[36]       When the jury was considering its verdict it sent out this question:

Could you please clarify if he (Raymond Yukich) needs to have entered the building as stated/charged in the indictment, to be found guilty. 

Please clarify what the charge is, is it entering the building as stated in the [indictment] or is it burglary which includes being a party to it?

[37]       The Judge answered the first question “no” and, in answering the second, described three ways in which a participant in an aggravated robbery could be a party though he or she was not the robber.  He or she could, to assist the robber, have made a reconnaissance, or been the lookout, or the driver of the getaway car.  What was called for, the Judge said, was some intentional act to assist in the commission of the offence. 

Direction orthodox

[38]       The sole issue with which we are confronted is whether that direction, given as it was when the Judge summarised the Crown case, was orthodox or whether it constituted, as Mr Bowden contends, a direction to find Mr Yukich guilty as a party.

[39]       The direction was, we consider, orthodox.  The Judge was right to say that each time Mr Halkyard and Mr Gillies entered the house or the shed without authority and with intent to commit a crime, they committed a burglary.  That is simply the effect of s 231 of the Crimes Act 1961.  As the Judge said, Mr Yukich could have become a party to any such offence after the first constituted by that initial entry. 

[40]       The issue is, rather, whether, in charging all three with a single count of burglary, the Crown confined itself to the offence alleged at the initial entry, leaving it open to Mr Yukich to contend, as he did, that then at least he was an innocent and passive bystander.  Here too, we consider, there is actually no issue. 

[41]       The Crown’s case was unambiguous and in main outline was largely undisputed by the defence.  It was that to burgle the property Mr Halkyard and Mr Gillies, certainly, entered the house and shed a number of times to take items stolen to the car; and that Mr Yukich either entered the house and shed with them, or at the very least remained in the car and, once they were interrupted, became the getaway driver.

[42]       The defence Mr Yukich advanced might have been open had the Crown been required to charge each discrete offence alleged in a separate count, but had elected to confine itself to one count only.  It was entirely open to the Crown, however, to charge all the offences alleged, a continuous course of offending, as a “single transaction”, as s 329(6) of the Crimes Act allows.  In Qiu v R, the Supreme Court held:[12]

Section [329(6)] of the Crimes Act provides that every count shall in general apply only to a single transaction.  However, it is not uncommon for a pattern of offending to be charged by one or more representative counts, particularly when criminal acts of a similar character are alleged to have happened frequently and, for understandable reasons, a complainant is unable to distinguish between them in terms of their dates or details.  Further, it is appropriate and not unusual to charge as a single count a continuing course of conduct which it would be artificial to characterise as separate offences.  But it is another thing to charge as a single count repetitive acts which can be distinguished from each other in a meaningful way.  In such cases, it is appropriate to have distinguishing counts even if they relate to more than one act of a certain class or character.

[12]      Qiu v R [2007] NZSC 51, [2008] 1 NZLR 1 at [8].

[43]       In that case the Supreme Court accepted that though threats made on different occasions could each have been the subject of a separate count the indictment assumed a continuing series of threats made directly and indirectly.  The Court did not consider that any miscarriage of justice had resulted.  The result in that case, however, was to lay a greater onus on the Judge to direct the jury carefully and clearly to ensure unanimity.[13]

[13] At [9].

[44]       A closer instance to this is where on a single occasion a number of items are stolen, each constituting a discrete theft, but all capable of being seen as part of a single unfolding transaction.[14]  Only where party liability is advanced on different bases in respect of such discrete offences within a transaction may separate counts be called for.[15]  That is not the case here.  Mr Yukich’s part, on the Crown case, was constant.  Either he was actively involved in one or more of the entries and thefts, or he was the getaway driver. 

[14]      R v Ellerm [1997] 1 NZLR 200 (CA).

[15]      R v Shaw [2009] NZCA 232.

[45]       Finally, in no sense could the Judge’s direction, even though it was set in his summary of the Crown case, be construed as a direction to convict Mr Yukich as a party.  He merely described how Mr Yukich could have become a party even if he went to the property innocently.  His party direction was orthodox.  To become a party, he said, Mr Yukich had to play some active part.  He invited the jury to assess that on the evidence. 

Sentence appeal

[46]       Judge McDonald sentenced Mr Yukich having already sentenced Mr Halkyard and Mr Gillies for the burglary and also, in the case of Mr Gillies, for unrelated offending.  He sentenced all three for the burglary identically as principal offenders.

[47]       There is, the Judge said on each occasion, no tariff for burglary; there are only general categories.  He was obliged, he said, to assess the actual burglary; and, having regard to the factors listed in R v Nguyen,[16] he took a starting point of 20 months imprisonment.  When he sentenced Mr Santos and Mr Gillies he summarised his reasons in this way:[17]

This was a burglary of a rural residential home.  You got away with a large number of firearms.  The home owner arrived home and chased you from the property.  Luckily for him, and for you, you ran rather than confronting him three on one.  He is a much more elderly man than the three of you.  That is the real danger for this type of offending. 

[16]      R v Nguyen CA110/01, 2 July 2001.

[17]      Police v Gilles DC Whangarei CRI-2008-088-6076, 31 July 2009 at [11].

[48]       The Judge sentenced Mr Halkyard to 18 months imprisonment.  He increased the 20 month starting point by six months for Mr Halkyard’s previous convictions, 28 in number, none for burglary but some for dishonesty and violence, but allowed him a full credit for his guilty plea, reducing the sentence to 17 months.  Then he increased that by one month when he remitted Mr Halkyard’s fines.

[49]       The Judge sentenced Mr Gillies to two years imprisonment.  He increased the 20 month starting point by six months for his 17 previous convictions, including one for burglary and five for thefts and unlawful taking.  He increased it by 12 months for Mr Gillies’ unrelated offending but allowed him a full credit for the guilty plea.  Though the sentence he imposed was 17 months imprisonment for the burglary, he imposed cumulatively two seven month sentences for unrelated offending. 

[50]       When the Judge came to sentence Mr Yukich, Mr Bowden relied on the jury question to contend that it must have concluded Mr Yukich was innocent of any intent until after the initial point of entry and only assisted by not driving away.  The Judge did not accept that interpretation of the jury’s question and his own view of the evidence was that Mr Yukich had been a principal from the outset.

[51]       Whether or not Mr Yukich left Ruakaka unaware of what was intended, the Judge held, he must have known what that intent was once they left State Highway One and drove to the property.  He found further that Mr Yukich also went into the house and was also standing outside the car when the owner intervened.  His conduct afterwards, driving away with the items stolen, evading the police, and attempting to conceal what was stolen, the Judge said, was all consistent with acting as a principal. 

[52]       The Judge therefore took the same starting point for sentence as he had when sentencing Mr Halkyard and Mr Gillies, 20 months, in this emphasising that it was especially troubling that firearms, including pistols, that none of them had any lawful reason to possess, were the first fruits.  He inferred that they must have stolen them to use them in further offending or to sell them to those who might use them criminally.

[53]       In the case of Mr Yukich, the Judge increased by two months the 20 month starting point on account of his previous convictions, and that resulted in the sentence under appeal, one year, ten months imprisonment.  He declined to impose a sentence of home detention.  The need to deter and denounce, having regard to s 16 of the Sentencing Act 2002, and the need for consistency, he considered, required a sentence of imprisonment.

[54]       The Judge was entitled to reach his own view of the evidence and, therefore, to conclude that Mr Yukich must have been a principal as opposed to a party.  We do question, however, whether the evidence supported that inference.  Mr Bowden may have conceded, faintly, on this appeal that the jury could have concluded Mr Yukich was a principal.  Though that, he said, was against the preponderance of the evidence.  On sentence, relying on the jury’s question, he made no such concession and that has led us to review the evidence on which the Judge must have relied. 

[55]       The owner of the property was the only Crown witness able to say what part the three had played and his account is not inconsistent with theirs.  His evidence as to who was in the house may suggest more than one person but he was not more particular.  He was clear that, beside the car, he struck only two people and both were younger than he was.  He also said that when he struck the second person, who then ran away, the car began to move off.  He could not see the driver, but he did see the two younger men, whom he had struck, climb in.  Whether or not Mr Yukich did enter the house, he cannot have been one of the two outside the car. 

[56]       The Judge was, nevertheless, clearly entitled to conclude that Mr Yukich was an equally culpable party.  Getaway drivers may be as culpable as those who actually rob or burgle, relying on them.  They are indispensable to the commission of the offence.[18]  Mr Yukich clearly was in this case.  The burglary was of a remote property.  The items stolen were substantial.  Mr Halkyard and Mr Gillies needed him, not just to take them there, but to take them and the fruits of the offending away.  He was equally complicit in attempting to conceal what was stolen. 

[18]      See R v Mako [2002] 2 NZLR 170 (CA) at [64] and R v Smart CA57/94, 24 May 1994 at 3.

[57]       In the sentences he imposed the Judge carefully distinguished between the three offenders.  He took account of the extent to which they had previous convictions and, in the case of Mr Gillies, further offences for sentence.  There can be no suggestion that he simply equated Mr Yukich with Mr Gillies and Mr Santos and for that reason imposed a sentence that was disparate and disproportionate.

Result

[58]       For these reasons Mr Yukich’s appeal against conviction and sentence are dismissed.

Solicitors:

Crown Solicitor, Auckland for Respondent