MAXWELL v NEW ZEALAND POLICE [2019] NZHC 2224

MAXWELL v NEW ZEALAND POLICE [2019] NZHC 2224 [2 October 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2019-488-000010[2019] NZHC 2224BETWEEN DANIEL ROY MAXWELLAppellantAND NEW ZEALAND POLICERespondentHearing: 26 September 2019Appearances: Appellant in PersonR B Annandale for the RespondentJudgment: 2 October 2019JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 2 October 2019 at 3:00 pmRegistrar/ Deputy RegistrarDate:Introduction[1] On 20 February 2019 in the District Court at Kaikohe Daniel Roy Maxwellpleaded guilty to three charges. These were:(a) receiving (over $1,000);1(b) burglary;2 and(c) possession of a utensil for using methamphetamine, namely a pipe.3[2] The same day Judge D J McDonald sentenced him.4 On the charge ofreceiving Mr Maxwell was sentenced to 150 hours' community work, nine months'intensive supervision and was ordered to pay reparation of $1,683.40. On the chargeof being in an enclosed yard he was sentenced to 150 hours' community work and onthe charge of possession of the methamphetamine pipe to 40 hours' community work.The community work terms were ordered to be served concurrently. Additionally, MrMaxwell's fines totalling approximately $8,600 were remitted and a sentence of 175hours' community work substituted. This was cumulative on the 150 hours so that thetotal community work sentence was one of 325 hours.[3] Mr Maxwell appeals his conviction and sentence in respect of the receivingcharge only. Before me he represented himself.The offending[4] In March 2018 a derelict mill near Rotorua was broken into. 500 kilograms ofcopper wiring was stolen.1 Crimes Act 1961, ss 246 and 247(1); the maximum penalty is seven years' imprisonment.2 Section 231; the maximum penalty is 10 years' imprisonment. On the appeal there was someconfusion as to the exact nature of the charge. The Judge's sentencing notes record the convictionwas entering a yard unlawfully while the charge list and other documents on the file, including thesummary of facts and PAC report, record the charge as burglary.3 Misuse of Drugs Act 1975, s 13(1)(a); the maximum penalty is one year's imprisonment or a fineof $500.4 Police v Maxwell [2019] NZDC 9324.[5] On 23 March 2018 Mr Maxwell was at home in Rotorua. An associate askedhim to sell some copper wiring. He offered Mr Maxwell $100 to do so. Mr Maxwellagreed. The pair unloaded an amount of copper wiring into Mr Maxwell's car.[6] Between 23 March and 4 April 2018, Mr Maxwell sold 443 kilograms of wiringto Macaulay Metals. He received $1683.40.[7] In the early hours of 8 June 2018 Mr Maxwell went to a vacant property inRotorua. The building had been gutted by a fire two months earlier. Mr Maxwellcrawled under the house and extracted copper piping and electrical wiring. He waslocated by Police nearby, covered in dirt and equipped with tools and a headlamp.When searched, Mr Maxwell was found in possession of a methamphetamine pipe.Procedural history[8] The procedural history of this matter is extensive and, in some places,confusing. However, in order to properly understand the circumstances of the appealit is necessary to set it out.[9] At the time his pleas of guilty were entered and he was sentenced on20 February 2019, Mr Maxwell was represented by counsel, Mr Murray.[10] On 1 April 2019 Mr Maxwell filed an appeal for leave to appeal out of time.At the time of doing so it appears he was no longer represented by Mr Murray becausein the field reserved for "Appellant's lawyer" he wrote "To be advised".[11] On 2 April 2019 he filed a notice of general appeal. In the field reserved for"Grounds" he wrote:"Charges of receiving unfounded due to person whom received from notguilty."[12] The appeal was set down for hearing on 11 June 2019. In the meantimeMr Maxwell engaged the services of Mr Harvey who, on 21 May 2019, filed amemorandum confirming he had received the documents relating to the appeal fromMr Murray but was struggling to contact Mr Maxwell. He sought an adjournment onthe basis he would not be able to file the appellant's submissions in time.[13] Mr Harvey's application was granted by Downs J on 23 May 2019. The appealwas adjourned to 30 July 2019.[14] On 16 July 2019 Mr Harvey filed a further memorandum. He said that theappeal, as he understood it:" flow[ed] directly from the fact that the alleged burglar who provided thecopper wires was found not guilty of the offence at trial."[15] Mr Harvey confirmed he had been in contact with Mr Maxwell but hisinstructions were incomplete. He also noted the following:(a) Mr Maxwell was seeking to appeal his conviction on the basis he shouldnot have pleaded guilty;(b) the fact that the alleged burglar had been found not guilty was not theend of the enquiry; and(c) Mr Maxwell sought only to appeal his sentence on the receiving chargebut had been sentenced concurrently for other charges.[16] Then, in a further memorandum dated 21 July 2019, Mr Harvey advised he hadreceived further instructions from Mr Maxwell. These were that he now pursued onlyhis appeal against conviction. Mr Harvey considered that he was conflicted and soughtleave to withdraw. He also sought a month's adjournment to enable Mr Maxwell tofind alternative counsel and file evidence in support of his appeal. Jagose J grantedthe adjournment on 25 July 2019. The appeal was placed in callover on 22 August2019 for the purpose of confirming whether Mr Maxwell would be represented bycounsel on the appeal or whether he would represent himself.[17] At the callover on 22 August 2019 Mr Maxwell did not appear. Downs J setthe appeal down for 26 September 2019. He made timetabling orders requiringMr Maxwell to file his submissions by 4 September 2019 and the respondent by11 September 2019. The Judge recorded:"[3] Mr Annandale said the Police "lack clarity" about the grounds ofappeal. Mr Maxwell must make clear in his submissions what these are.[4] I also record this: if Mr Maxwell fails to file and serve his submissionsin accordance with this timetable, his appeal may be dismissed for non-compliance. A copy of this Minute is to be given by the Registry toMr Maxwell."[18] On the afternoon of 4 September 2019 Mr Maxwell emailed the Registryrequesting an extension of time to file his submissions. He advised he was havingdifficulty applying for legal aid. The following day Lang J extended the time for filingsubmissions to 10 September 2019.[19] Then, on 6 September 2019, a representative of legal aid emailed the Registryadvising that a lawyer was available to represent Mr Maxwell at the hearing but wouldnot be able to comply with the new timetabling orders. She requested a furtherextension until 17 September 2019 which was granted by Lang J.[20] Ms Thode was assigned to Mr Maxwell on 9 September 2019. On17 September 2019 she filed a memorandum. She observed that she had reviewed theappeal materials and spoken with Mr Maxwell. She said she had advised Mr Maxwellshe was unable to advance the grounds he wished her to. As a consequence, he toldMs Thode he would represent himself and would file supporting documentation laterthat day.[21] At 4:18 pm on 17 September 2019 Mr Maxwell sent the Registry the followingemail:"Hi sir, this is my submission as a lawyer does not want to help me saying Ihave no case.I never knew at that time I received the copper that it was stolen as it was ourcustom to sell copper, led (sic), iron, aluminium regularly at our job metalcraft.Metal craft fired me based on these accusations who I raised a personalgrievance with the ERA and recently this case was settled in my favour.I realize that while I was on bail for the receiving charge in which I pleadednot guilty, I walked onto a property of a burnt down house as I could see scrapmetal and because I had no job and it was all burnt down I didn't think it wouldcause harm but a (sic) officer came and I was charged with burglary becauseI was on bail and possession of a utensil.While in jail for ten days I decided to plead guilty for all my charges, basedon what the police had told me I also changed my plea for the receiving chargefrom not guilty to guilty although I never knew at the time the copper wasstolen I thought based on Robert walker attitude at work and what the policehad told me it must have been, but I was wrong and so were they.Robert walker was found not guilty and therefore the copper he had given mewas indeed from a job he had done for metal craft.May I say that it is not actually the conviction that is hurting me right now butthe community sentence as we also work Saturdays and it heavily effects myattendance for affco moerewa. I would gladly welcome a change to that andleave the conviction if at all I get the opportunity to appear or appeal this case.Thanks."The hearing[22] Appearing for himself before me Mr Maxwell initially indicated that he wishedto advance his argument on the basis that he was appealing both the conviction andsentence in respect of the receiving charge. He said he was not guilty of the receivingcharge, that he misunderstood what it meant and had been happy to accept the Policeallegations. However, on reflection, he said he did not think he should have pleadedguilty because he:" had a little hunch [he] thought it might be stolen but [he] hoped itwasn't because of [the supplier's] body language at the time."[23] I explained to Mr Maxwell that one element of the charge of receiving isknowing the property to have been stolen or being reckless as to whether or not it hadbeen stolen. I also discussed with him the notion of wilful blindness.[24] I explained to Mr Maxwell that appealing his conviction having pleaded guiltywould require him to file evidence in the form of affidavits and to waive legalprofessional privilege so that the Crown could speak with Mr Murray about any advicehe gave him when he entered his plea of guilty and, if necessary, file evidence. Iexplained that this process would normally mean that any conviction appeal wouldprobably not be able to be heard within the next 10 weeks.[25] I emphasised that it was Mr Maxwell's absolute right to appeal and although Ihad no wish to place him under any pressure, he needed to understand theconsequences of his decision.[26] After a brief reflection, Mr Maxwell observed that his overwhelming concernhas always been the sentence of community work and the difficulties he isexperiencing in serving it. He advised he did not wish to pursue the conviction appeal;only the sentence appeal.[27] He estimated that he has completed approximately 30 hours of communitywork but this has been at the expense of his employment which he said was now atrisk. Mr Maxwell explained that he works as a boner at the Affco Freezing Works atMoerewa. This requires him to be available to work on Saturdays when required. Idid not understand him to say he worked every Saturday. While his employer willgrant dispensations from working on Saturdays in some circumstances, such asattending a tangi, Mr Maxwell said they have refused to grant him a dispensation toattend community work on those Saturdays when they have required his services atMoerewa. As a consequence he has been treated as an absentee and will be subject todisciplinary consequences. He has already received a written warning. He fears hemay lose his job.[28] Adding to these complexities and creating a further layer of tension is that ifMr Maxwell meets his employer's demands and works on a Saturday, he will be inbreach of his community work conditions and is liable to be charged. He advised methis has happened twice. As a consequence he has been obliged to attend Court makinghim absent from work and thus compounding his unenviable predicament.[29] Unsurprisingly, Mr Maxwell's employment is very important to him. As heexplained, not only does it provide the means for him to support himself and his family,but it also distances him from the distractions and the company of those others whichled to be involved in the instant offending.[30] As I observed in Court, I have considerable sympathy for Mr Maxwell'spredicament. I am satisfied, for reasons which follow later in this judgment, that itcannot be said that the sentence imposed on Mr Maxwell was manifestly excessive.In my view it was well within the range available to the sentencing Judge. Indeed, asMr Annandale, for the Crown, observed, a sentence of imprisonment would not havebeen out of place.[31] Having said that, one purpose of a sentence of community service is to imposea level of liberty deprivation while permitting the offender to remain in the communityand, if employed, continue their employment. It would not be in the interests ofMr Maxwell, his family or the community if, as a consequence of meeting theobligations of his sentence, he also lost his job.[32] I record my gratitude to Mr Gillard, a probation officer with the Department ofCorrections, who was in Court during my discussions with Mr Maxwell. He explainedto the Court that in practice community work can be undertaken on different days ofthe week and that the Department of Corrections is flexible and adaptive to theindividual needs of those serving community-based sentences. He said it wasimportant that Mr Maxwell engage with his supervising probation officer or officersin Kaikohe. He pointed out that this requires communication by Mr Maxwell and maynecessitate Mr Maxwell's employer providing a letter to Mr Maxwell's probationofficer.[33] The Court is indebted to Mr Gillard for intervening and in particular foragreeing to assist Mr Maxwell to make contact with his probation officer in Kaikohe.I direct a copy of this judgment be forwarded to Mr Gillard for the purpose ofinforming and facilitating any discussions with his counterparts in Kaikohe with aview to accommodating Mr Maxwell's needs. It may also be desirable forMr Maxwell's employer to receive a copy of this judgment but I leave that to theparties to advance if they think fit.Was the sentence manifestly excessive?[34] This leaves only the question of whether the sentence imposed for the receivingcharge was manifestly excessive. I have already recorded that I do not believe it was.My reasons now follow.[35] While the offending was not particularly serious in and of itself, it suggested afacility on Mr Maxwell's part to offend in order to fund a drug habit. I say this basedon the methamphetamine pipe found in his possession and his own admittedmethamphetamine use. Left unchecked, this is a habit which could easily spiral intomore serious offending and is plainly of concern. A sentencing response whichmonitored Mr Maxwell while keeping him in the community was clearly theappropriate response. The fact that he pleaded guilty early in the proceeding andexpressed remorse and insight into his offending are encouraging signs. But takinginto account all factors, including Mr Maxell's criminal history (which is notinsignificant), it cannot be said that the sentence was out of range.Result[36] The conviction appeal, having been abandoned, is dismissed.[37] The sentence appeal is dismissed.Moore JSolicitors:Crown Solicitor, WhangareiCopy to:The AppellantDepartment of Corrections, Kaikohe