NGAWHIKA V R [2017] NZCA 535

NGAWHIKA V R [2017] NZCA 535 [21 November 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA297/2017[2017] NZCA 535BETWEEN CARL KIATIKA NGAWHIKAAppellantAND THE QUEENRespondentHearing: 15 November 2017Court: Harrison, Lang and Ellis JJCounsel: J U Mooney for AppellantJEL Carruthers for RespondentJudgment: 21 November 2017 at 11.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Carl Ngawhika was found guilty by a jury in the District Court at Invercargill on four charges of theft. All of the charges related to the theft of money belonging to restaurant businesses at which Mr Ngawhika was working or had formerly worked.[2] On 30 May 2017, Judge Mark Callaghan sentenced Mr Ngawhika to concurrent sentences of two years and four months' imprisonment on each charge.1Mr Ngawhika appeals against both conviction and sentence.Background[3] The most serious charge related to the theft of $17,713.00 from theJack's Point Golf Clubhouse and Restaurant in Queenstown (the Jack's Point charge).[4] Mr Ngawhika had worked at Jack's Point until mid-2014. During that time he became aware that takings from both the golf shop and the restaurant were stored in a safe on the premises before being banked. He also knew the combination of the safe, which was located in a cleaning room under a flight of stairs leading to the management office. This room was close to the toilet area, and access to the toilets could be gained from the carpark without having to enter the premises through themain doors.[5] At the time of the offending, Mr Ngawhika's wife worked at the premises andMr Ngawhika knew some of the staff who were still working there. At 7.30 am on 16 March 2015, Mr Ngawhika travelled to the premises in a separate vehicle to that driven by his wife. He told police later that he was intending to catch up with his former workmates at the restaurant. Staff then observed him acting in a furtive manner in the toilet area adjacent to the area where the safe was located.[6] At about 8.30 am staff discovered that a bank bag containing more than $17,000 had been removed from the safe. They called the police, who executed a search warrant at Mr Ngawhika's address in Queenstown later the same day. The police found two bank bags in Mr Ngawhika's vehicle. One of these had a serialnumber or bank code written on it that was one of a series of numbers written on bank bags being used by Jack's Point at that time. The second banking bag was subsequently identified as belonging to another of Mr Ngawhika's former employers, the Styx Restaurant in Nelson. Mr Ngawhika had worked at that restaurant until1 R v Ngawhika [2017] NZDC 11587 [Sentencing notes].mid-February 2015. Enquiries by the police revealed that cash takings from that restaurant had not been banked on six separate occasions between 18 January and 14 February 2015. This led to Mr Ngawhika facing six further charges of theft.[7] The jury found Mr Ngawhika guilty on the Jack's Point charge and on three of the charges relating to the Styx restaurant. These related to the theft of money from that business on 29 January, 8 February and 14 February 2015. The jury found him not guilty on the remaining four charges.The appeal against convictionThe disappearance of the Jack's Point banking bag[8] During cross-examination of the Crown's final witness, the officer in charge of the case, it became apparent that the Jack's Point banking bag had been lost. Other police officers had given evidence that the bag had been examined and photographed after it was found in Mr Ngawhika's vehicle. The police officer whoexamined the bag also recorded the banking code or serial number written on the bag on the exhibit form that he completed when he lodged the bag in the Exhibits Room at the Queenstown Police Station. The officer in charge of the case said he believed the bag had subsequently been lodged with the Court. By the end of the Crown case, however, it was clear that none of the police witnesses knew the present whereabouts of the bag.[9] Mr Mooney submitted on Mr Ngawhika's behalf that the banking bag was a crucial exhibit in relation to the Jack's Point charge, and that the disappearance of the bag rendered the verdict on that charge unsafe.[10] We do not accept this submission. There was no challenge to the fact that the police had found the bag when they searched Mr Ngawhika's vehicle, and itsexistence was independently confirmed by the photograph that was subsequently taken. As we have already observed, the serial number on the bag was recorded on the police exhibits form and this was subsequently found to correspond with numbers on banking bags that Jack's Point was using at the time of the theft. There was no suggestion that the police officer who recorded the number on theexhibits form was aware when he did so of the numbers on banking bags being used at that time by Jack's Point. In those circumstances the disappearance of the bag, whilst unfortunate, was of no moment so far as the case against Mr Ngawhika was concerned. This ground of appeal fails as a result.Error in Judge's summing-up[11] This issue arises because of the following observations made by the Judge when initially dealing with the defence position in relation to the Jack's Pointcharge:2[24] The defence response in relation to that charge is that, firstly, theysay that no money was stolen from Jack's Point Clubhouse and Restaurantsafe. Secondly, they say that if any money was stolen, then it was not stolen by the defendant but was stolen by some other person. They do not deny that the defendant was at the Clubhouse on the 16th of March 2015 but he was there to see former work colleagues. The defence said that he had previously worked at the Clubhouse and Restaurant and did know the combination [to the safe].(Mr Mooney's emphasis.)[12] This was wrong, because the defence case had always been that Mr Ngawhika had forgotten the combination to the safe and was therefore not in aposition to open it and take the money from it.[13] The Judge corrected his error a short time later in the summing-up when he said:[41] In response, the defence says that the defendant went to theJack's Point Clubhouse for a legitimate reason, namely to see work colleagues whom he had known over a number of years; that he did not know the combination to the safe as he had forgotten it; he did not behave in a strange manner; and the entry to the Clubhouse via the toilet was so that he could use the facilities prior to meeting up with his friends; as to the bag, it is missing and therefore you cannot be sure that it was from the Clubhouse; and also they point to the fact that the vehicle was left unlocked and that someone could have placed the bag in the vehicle, some unknown third person.(Mr Mooney's emphasis.)2 R v Ngawhika DC Invercargill CRI-2015-059-223, 4 May 2017 [Summing-up].[14] Mr Mooney submits that these conflicting comments may have led the jury to be confused in respect of an important issue. We disagree. We consider the jurywould have been well aware of Mr Ngawhika's position in relation to the issuebecause he told the police in his videotaped interview that he had forgotten thecombination to the safe at Jack's Point. We therefore do not consider that there isany risk of a miscarriage of justice having occurred as a result of the Judge's initialerror.Introduction of prejudicial evidence[15] This issue arises in relation to a charge alleging that Mr Ngawhika had stolen the sum of $1,310.90 from the Styx Restaurant in Nelson on or about 29 January 2015. The evidence revealed that Mr Ngawhika did not work at the restaurant on 29 January 2015, but that he did work the following day. At 1.52 pm on 30 January 2015 the sum of $1,310.00 was deposited to Mr Ngawhika's bank account in Queenstown. The Crown contended that Mr Ngawhika had stolen the money when he returned to work on the morning of 30 January. He then arranged for it to be banked to his account in Queenstown later the same day.[16] The timing and location of the deposit naturally raised the question of how Mr Ngawhika could have arranged for the money to be banked in Queenstown on 30 January 2015 when he was working at the Styx Restaurant in Nelson on that date. The Crown had no ready answer to that question.[17] After Mr Mooney raised this issue during cross-examination of Detective Jones, the Judge ruled that Mr Mooney had raised Mr Ngawhika's locationon 29 and 30 January 2015 as an issue.3 He therefore permitted Detective Jones to refer in re-examination to a schedule setting out transactions on Mr Ngawhika's bank account during January 2015. This included an EFTPOS transaction that occurred at Nelson Airport on 29 January 2015.[18] Mr Mooney submitted that the Judge should not have permitted the Crown to adduce this evidence because it was irrelevant and unfairly prejudicial to3 R v Ngawhika [2017] NZDC 9144.Mr Ngawhika's defence. We agree that the Judge should not have permitted the Crown to introduce the evidence because it had no relevance to the facts in issue. The transaction at Nelson Airport occurred well before the point at which the Crown alleged Mr Ngawhika stole the takings for 29 January 2015. It could therefore have no bearing on that particular theft.[19] This is demonstrated by the manner in which the Crown prosecutor attempted to deal with the evidence in his closing address:Now of course the Queenstown one was made on the 30th, the money was taken or related to the takings on the 29th in Detective Jones' [sic] spreadsheet, but there were, there was money taken before that too, three times, before the 29th and one of those, or two of those sorry, were for amounts over that 1300 and something dollars put into the account. I just want to clear something up here. In re-examination there was a referred [sic] to a transaction from Nelson Airport on the 29th of January. I'm certainlynot suggesting that related to a flight or that the defendant flew down that day because we know he was working on the 30th, but there was a transaction which is made in Queenstown, in his account, on the 30th andhe's at the airport on the 29th, Nelson Airport.This passage makes it clear that the prosecutor was struggling to explain how the evidence might be relevant.[20] We do not consider, however, that the introduction of this evidence created any risk of illegitimate reasoning on the part of the jury. To prove this charge the Crown relied primarily on the second banking bag that the police found in Mr Ngawhika's vehicle on 16 March 2015. Handwritten notations on this bag confirmed that it had contained the takings from the Styx Restaurant on 29 January 2015. The manager of the restaurant identified the writing on the bag as being hers, and said that the notations on the bag also confirmed that it had contained the sum of $1,310.90. In addition, the Crown was able to rely on the fact that the sum of $1,310.00 had been deposited to Mr Ngawhika's bank account the following day.Although the Crown was not able to explain how this sum may have found its way to Queenstown, we consider that the Crown case was nevertheless compelling. The jury was also entitled to rely upon propensity reasoning in relation to all charges. Furthermore, Mr Ngawhika elected not to give evidence at trial, so the jury did not have the benefit of his explanation as to how the banking bag came to be in his vehicle and the money came to be deposited to his account.[21] This ground of appeal fails as a result.Inconsistent verdicts[22] Mr Mooney submitted that the jury's guilty verdicts on three of the Styx charges were plainly inconsistent with those on the three charges on which he was acquitted. During argument Mr Mooney realistically accepted, however, that the guilty verdicts were readily explicable by the fact that in each case a deposit of a sum very similar to that stolen from the Styx Restaurant the previous day had been made into Mr Ngawhika's account.[23] As argument developed, it transpired that Mr Ngawhika's real concern was that the evidence relating to the EFTPOS transaction at Nelson Airport on 29 January 2017 rendered all the guilty verdicts on the Styx charges unsafe. Mr Mooney submitted that the jury may have been unduly influenced by this evidence, and it may have led them to find Mr Ngawhika guilty on all the charges relating to thefts that occurred after 29 January. He pointed out that Mr Ngawhika was acquitted on all charges relating to alleged thefts that had occurred prior to 29 January 2015.[24] We do not accept this submission because we do not consider the effect of the evidence relating to the EFTPOS transaction would have resounded beyond the charge relating to the theft that occurred on or about 29 January 2015. In addition, the jury found Mr Ngawhika not guilty on a charge relating to the alleged theft of takings from the Styx Restaurant on 12 February 2015. This demonstrates that the jury was considering the issues on a charge-by-charge basis and that they did not find him guilty on all charges that related to thefts after 29 January 2015.[25] We accept the Crown's submission that the explanation for the guilty verdicts lies in the fact that Mr Ngawhika was only found guilty on charges where funds had been paid into his bank account very shortly after the theft of a very similar amount from the Styx Restaurant. This ground of appeal fails as a result.The appeal against sentence[26] Not surprisingly, the Judge regarded the Jack's Point charge as the most serious offence.4 It involved Mr Ngawhika using knowledge gained from his previous employment at Jack's Point to gain access to the safe and steal a large sum of money that has never been found. This involved premeditation both in the use of the combination to the safe and attendance at the premises at a time when Mr Ngawhika knew there would be very few staff around. The theft also had considerable impact on the business because it cast suspicion on other staff members, including the manager.[27] The offending in relation to the Styx Restaurant was also serious because it was premeditated and occurred on three separate occasions. It involved total loss to the business of the sum of $4,784.10.[28] The Judge fixed a starting point of two years and three months' imprisonmenton the Jack's Point charge.5 He then applied an uplift of six months to reflect the charges relating to the Styx Restaurant.6 This produced an end sentence of two years and nine months' imprisonment. The Judge did not consider that sentence to require an adjustment to reflect totality principles.7 He then applied a discount of five months, or 15 per cent, to reflect the fact that Mr Ngawhika had no previous convictions.8 This produced the end sentence of two years and four months'imprisonment.[29] By the time Mr Ngawhika was sentenced none of the stolen money had been recovered. For that reason the Judge made an order requiring Mr Ngawhika to pay reparation to both victims in respect of the amounts stolen from them.9 He did not, however, direct how that was to be paid.[30] Mr Mooney submits that the sentence was manifestly excessive because Mr Ngawhika's circumstances differed considerably from those of the offender in4 Sentencing notes, above n 1, at [23].5 At [28].6 At [29].7 At [30].8 At [31].9 At [33].R v Duncan, the case to which the Judge referred in fixing the starting point.10Mr Mooney pointed out that the impact on the victim had been far greater in Duncanthan in the present case. The victim in Duncan had been operating a small retail business and was severely affected by the offending. That feature was absent fromMr Ngawhika's offending. Mr Mooney also pointed to the fact that, unlike theoffender in Duncan, Mr Ngawhika had no previous criminal history prior to the offending. For these reasons Mr Mooney submitted that "a nominal sentence" of approximately 18 months would have been appropriate, and that an electronically monitored sentence would therefore have been available.[31] We do not accept these submissions. The offending involved four separate instances of premeditated theft of significant sums from Mr Ngawhika's employer or former employer. It involved a considerable element of breach of trust because he used knowledge of his employers' banking procedures to carry out the thefts. None of the money has been recovered.[32] We also consider the circumstances in Duncan to be of limited assistance. That case involved a customer in a café opening a safe and stealing the sum of $16,500. In that case the sentencing Judge adopted a starting point of two years and six months' imprisonment. The offending in the present case can be viewed as considerably more serious than that in Duncan because of the fact that Mr Ngawhika was stealing from an employer or former employer. The offending also occurred on four separate occasions and involved a greater total sum than that stolen in Duncan.When viewed against the offending in Duncan, the overall starting point selected in the present case might be regarded as lenient.[33] Having regard to the aggravating features of the offending in the present case, we are satisfied the Judge was entitled to take a starting point of two years and nine months' imprisonment. The allowance he made for lack of previous convictions could also be described as generous. For those reasons, the end sentence of two years and four months' imprisonment cannot be regarded as manifestly excessive.10 R v Duncan [2009] NZCA 408.Result[34] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent