BURTON v R [2018] NZCA 355

BURTON v R [2018] NZCA 355 [11 October 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA643/2017[2018] NZCA 355BETWEEN IRAIA ARANGA NGAMOTU BURTONAppellantAND THE QUEENRespondentHearing: 14 August 2018Court: Kós P, French and Miller JJCounsel: Appellant in personK S Grau and R K ThomsonJudgment: 11 October 2018 at 2.30 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Burton was charged with a number of burglary and receiving offences,unlawful taking of a motor vehicle and assault with intent to injure. The latter chargearose out of an incident while he was in custody on remand for the dishonestyoffending. The dishonesty offending was alleged to have all occurred between11 September 2015 and 2 December 2015.[2] There were in total four burglary charges relating to properties situated atStansfield Street, Balmacewen Road, Lynn Street and Calvert Place in Dunedin.Mr Burton pleaded guilty to the Balmacewen Road burglary. The unlawful taking ofa vehicle charge concerned a vehicle belonging to the Balmacewen Road occupierswhich Mr Burton used to remove the property taken in the burglary. He pleaded guiltyto that charge as well.[3] There were three receiving charges, each of which concerned items stolen fromthree of the burgled properties, namely Stansfield Street, Calvert Place andLynn Street. Each receiving charge was charged as an alternative charge to theassociated burglary. On Mr Burton pleading guilty to all the receiving charges, two ofthe burglary charges — those relating to Calvert Place and Stanfield Street — werewithdrawn. The Lynn Street burglary charge was not withdrawn.[4] Mr Burton also pleaded guilty to the assault with intent to injure.[5] The various guilty pleas, which were entered at different times, ultimatelyresulted in only one charge — the Lynn Street burglary — being defended.A judge alone trial of that charge was held before Judge Crosbie. The Judge foundMr Burton guilty of the Lynn Street burglary1 and sentenced him on it and all the otheroffences to an overall term of imprisonment of five years and three months.2[6] Mr Burton now appeals his conviction for the Lynn Street burglary and thesentence.[7] The appeal was filed out of time. However, this was because of anunderstandable mistake over jurisdiction. The Crown did not oppose an extension oftime being granted and we so order.1 R v Burton [2017] NZDC 13558 [reasons for verdict].2 R v Burton [2017] NZDC 13924 [sentencing notes] at [4].Appeal against convictionThe Judge's decision[8] At trial, it was not in dispute the Lynn Street property had been burgledbetween 22 and 26 October 2015. What was disputed was the identity of the burglar,the Judge describing the Crown case that the burglar was Mr Burton as being whollyinferential and circumstantial.3[9] In finding the charge proven, the Judge identified the circumstances reliedupon by the Crown linking Mr Burton with the Lynn Street burglary. Havingconsidered and rejected the defence response to those circumstances, he concludedthat the combination of them allowed him to infer and be satisfied beyond a reasonabledoubt that Mr Burton had committed the Lynn Street burglary.4 The circumstanceslisted were:5(a) Property stolen during the Lynn Street burglary was found at twoaddresses associated with Mr Burton at the relevant time. He occupiedone (Harrow Street) and used the other (Carr Street sleepout).(b) Property stolen from the Stansfield Street and Calvert Place burglarieswas also found at those same addresses.(c) Mr Burton was connected to the property stolen from Lynn Street,Stansfield Street and Calvert Place by admitting to having received it.(d) Mr Burton's admission to the burglary of Balmacewen Road and thefact property stolen in that burglary was found at both the Harrow andCarr Street addresses.(e) The Lynn Street burglary was committed on approximately the samedates as the Balmacewen Road burglary for which he admittedresponsibility.3 Reasons for verdict, above n 1, at [4].4 At [20]–[23].5 At [19(a)–(l)].(f) The two properties are less than one kilometre apart.(g) A vehicle owned by Mr Burton was seen driving past the Lynn Streetproperty at a date proximate to the burglary.(h) Lynn Street is not on a route between either of the two addressesassociated with Mr Burton at the time.(i) The Lynn Street burglary included the theft of a shotgun found atCarr Street.Grounds of appealDid the Judge err in in his assessment of the evidence?[10] Mr Burton submits the Judge erred in his assessment of the evidence to suchan extent that a miscarriage of justice has occurred. In support of this contention headvances four specific arguments:(a) The Judge wrongly applied propensity reasoning in respect of chargesthat were not part of the Crown's application to adduce propensityevidence.(b) There was no evidence to support the Judge's finding that Mr Burtonhad rented a sleepout at Carr Street.(c) The Judge erred in relying on the guilty pleas to receiving becauseMr Burton only pleaded guilty to receiving property found atHarrow Street, not Carr Street.(d) The Judge failed to take into account the absence of any DNA, forensic,identification or recent possession evidence.66 See Simon France (ed) Adams on Criminal Law – Offences and Defences (online ed,Thomson Reuters) at [CA219.09].Analysis[11] Mr Burton's DNA was found in the Balmacewen property but it was not foundat Lynn Street. This was noted by the Judge as was the fact that Mr Burton was notidentified as the driver of the car that drove down Lynn Street.7 It is clear the Judgedid take those matters into account but did not consider, in the light of all the otherevidence, that they were sufficient to raise a reasonable doubt as to Mr Burton's guilt.That was a view he was entitled to take. It does not amount to error.[12] As regards the propensity evidence, the Crown's original propensityapplication was filed at a time when Mr Burton was defending all the charges whichwere to be heard together. The application related to his previous convictions as wellas cross-admissibility between charges.8 Later, the Crown amended its application byremoving the previous convictions as well as updating the Court that it now intendedto rely on Mr Burton's subsequent guilty pleas and convictions relating to theBalmacewen Road burglary and associated taking of the motor vehicle.[13] The guilty pleas to the receiving charges were entered on the day of trial.That did not mean, as Mr Burton appears to suggest, that the receiving offences wereno longer relevant and admissible. They remained relevant.[14] We therefore do not accept that the Judge "overstepped the mark" in hisreliance on the admitted offending.[15] We also reject Mr Burton's arguments relating to the Judge finding that he wasassociated with Carr Street. There was ample evidence to support that finding, mostnotably from a Mr Braines who was living at the Carr Street address and who saidMr Burton rented the sleepout where stolen property from all four burglaries wasfound. Mr Braines described the sleepout as Mr Burton's own space and that nobodyelse had permission to use it. There was also evidence of a letter written by Mr Burtonto Mr Braines' partner advising he was in custody and asking her to pass on hisapologies to the landlord of Carr Street.7 At [20(c)] and [20(a)].8 R v Burton DC Dunedin CRI-2015-012-2918, 19 September 2016 (Minute) at [2].[16] It was put to Mr Braines that the sleepout was insecure and could be accessedfrom the street. However, he said there was a lock on the door and although thewindow was ajar it had a security latch and that it would be difficult for anyone goingto the sleepout without someone in the house knowing.[17] Mr Braines also gave uncontested evidence that he had seen Mr Burton loadingproperty at the time of the burglaries into the sleepout, some in boxes, some coveredwith blankets. The boxes included a firearm carton which Mr Burton gave him tounderstand was a container for an airgun he had purchased on Facebook. The cartonwas later found to contain a shotgun stolen from the Lynn Street burglary.[18] We accept the Judge erred when he said it was "difficult to rationalise" defenceclaims someone else could have placed the property in the sleepout with the factMr Burton had pleaded guilty to receiving stolen property from Lynn Street located inthe sleepout.9 That was an error because Mr Burton had through counsel toldthe Judge at the time he entered his guilty pleas to the receiving charges, he did so onthe basis he was only admitting to receiving the property found at Harrow Street andwas disputing receiving the property at Carr Street.[19] However, the evidence of Mr Braines, which the Judge was fully entitled toaccept, was capable of amounting to proof beyond a reasonable doubt that Mr Burtonhad received the property found at Carr Street. The error did not therefore, in ourview, create any risk of a miscarriage.[20] Finally, we note that, having regard to the strength of the Crown case, theabsence of recent possession evidence was not significant.Was there operative trial counsel error?[21] Mr Burton makes numerous allegations against trial counsel, Mrs Stevens.Most of his complaints involve alleged conduct that had no connection with theoutcome of the hearing and we therefore do not address them, other than to observethat on the basis of the evidence before us, the allegations are not well founded.9 Reasons for verdict, above n 1, at [20(e)].[22] There are three complaints that are relevant. They are that Mrs Stevens failedto follow Mr Burton's instructions about calling three witnesses, and failed to askquestions of witnesses that he wanted to be asked. The third complaint relates to issuessurrounding the propensity evidence.[23] One of the witnesses Mr Burton wanted to call was his probation officer,Mr Williams.10 However, any evidence the latter might have been able to give wasnot relevant to the Lynn Street burglary. It was confined to the Balmacewen Roadburglary and implicated Mr Burton in that burglary. According to Mrs Stevens'evidence, which we accept, she appropriately advised Mr Burton the evidence was notrelevant and would not assist him.[24] Mrs Stevens had no recollection of Mr Burton asking for the other twowitnesses to be called. One of them was Mr Keogh who was a victim of theLynn Street burglary. His evidence was read by consent in accordance with an emailMrs Stevens sent at the time to the prosecutor saying Mr Burton agreed Mr Keogh wasnot required to give oral evidence. Mr Burton now says he wanted Mr Keogh to appearto give his evidence.[25] It is not necessary for us to resolve this conflict because we are satisfied thatcalling Mr Keogh would not have made any difference. His statement was helpful toMr Burton in that Mr Keogh was unable to identify Mr Burton and also mentionedanother car not linked to Mr Burton driving suspiciously past the house.Calling Mr Keogh would not have improved on that evidence and there is nosuggestion he could have added anything more that would have assisted Mr Burton.[26] The other witness Mr Burton says he wanted to call was a Ms Wendy Powell.He did not however provide the evidence he says she would have given had she beencalled. The Crown says the only Powell involved in the case is a police constable,Judith Powell, who produced a spreadsheet listing items seized from Mr Burton'saddress in Harrow Street. Mr Burton pleaded guilty to receiving items found at thataddress.10 Another of Mr Burton's probation officers, a Mr Broughton, did provide evidence.[27] As regards ignoring instructions about questions to be put to witnesses,Mrs Stevens said — and we accept — that Mr Burton never gave her questions to ask.His only instruction was that the police could not prove he committed the Lynn Streetburglary and she focused her cross-examination on the areas that were available tocreate a doubt. That is borne out by the transcript. Mr Burton was unable to identifythe questions he claims he instructed her to ask. We would add that questions to beasked in cross-examination are generally regarded in any event as a matter forcounsel's judgment.11 What counsel must do is ensure through the questions that theirclient's defence is fully put before the trier of fact. This Mrs Stevens did.[28] In relation to the propensity evidence, Mrs Stevens deposed that she initiallyobjected to the Crown's application to adduce evidence of previous convictions.As already mentioned, by the time the case went to hearing, the propensity wasreduced to cross-admissibility of the charges arising from the same set of offending.She advised Mr Burton correctly that, given the similarity of the offending and itsprobative value, its admissibility could not be successfully challenged and he acceptedthat advice.[29] Mrs Stevens said further that when Mr Burton pleaded guilty on the morningof trial to the receiving charges, he knew and accepted that the Judge would be takingthe other burglaries and receiving offending into account for the purposes of the oneremaining charge. This is borne out by a discussion between counsel and the Judge inMr Burton's presence before he pleaded guilty to the receiving charges.[30] The record of the discussion also refutes another of Mr Burton's allegationsnamely that Mrs Stevens did not tell the Judge that he disputed receiving the propertyfound at Carr Street. It is clear she did advise the Judge of that.[31] We are satisfied Mrs Stevens represented Mr Burton with care and skill indifficult circumstances, and that this second ground of appeal based on trial counselerror also lacks merit. The appeal against conviction is accordingly dismissed.11 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [75].Appeal against sentenceFurther details of the offending[32] In order to explain the sentencing arguments, it is necessary to set out somefurther details of the offending.[33] All of the houses burgled were dwelling houses. A large number of itemsincluding irreplaceable items were stolen. The details in relation to the specificoffences committed by Mr Burton are as follows:(a) Stansfield Street receiving: 38 items stolen from the property found atMr Burton's addresses, out of 173 stolen items worth approximately$30,000.(b) Balmacewen Road burglary/unlawful taking of motor vehicle:143 items taken with an estimated value of $20,000 and a vehicle worth$16,000.(c) Lynn Street burglary: 78 items stolen with an estimated value of$15,000.(d) Calvert Street receiving: 24 items stolen from the property found atMr Burton's addresses, out of 35 stolen items worth $9,000.[34] As regards the assault with intent to injure, the victim was a fellow prisoner onremand. Mr Burton punched him in the head 20 times with a closed fist and kickedhim four times in the leg and body. Mr Burton ignored a Corrections officer shoutingat him to stop, walking away only when Corrections staff entered the room. The victimsuffered swelling and bruising to his head and face as well as temporary headaches,dizziness and blurred vision.Sentencing in the District Court[35] The Judge identified the aggravating features of the burglary offending asbeing premeditation, the large number of items taken including items of sentimentalvalue, the value of the items taken, the extent of the burglaries and the damage caused,as well as the taking of a firearm from secure storage. The Judge said further that theeffect on the victims had been profound, one of the victims of the receiving wanted tosell their home.12 The high value of the items taken was also identified as anaggravating factor of the receiving charges.13[36] In relation to the assault, the Judge noted that it occurred in the prisonenvironment and had involved significant violence including an attack to the head.14[37] Having identified the aggravating factors, the Judge adopted a starting point inrespect of the burglaries of four years' imprisonment.15 He then uplifted that by twoyears on account of the receiving charges (nine months) and the assault (15 months),arriving at an overall starting point of six years' imprisonment.16[38] Turning to aggravating factors personal to Mr Burton, the Judge increased thestarting point by a further six months to reflect Mr Burton's criminal history and thefact that at the time of the offending he was serving a sentence of intensivesupervision.17 Mr Burton, who was aged 29, had been committing burglaries since hewas 14 years old. He had a total of 58 offences proven in the Youth Court, many forburglary and taking motor vehicles, and had been sentenced to imprisonment eighttimes in the District Court for 47 offences including aggravated robbery, assaults andburglary.[39] It was common ground that Mr Burton was entitled to a 10 per cent discountfor his guilty pleas, which the Judge accepted.18 He also granted a further discount onaccount of the constructive approach taken at the hearing in terms of agreeing toevidence being read, a letter of apology Mr Burton had written, and his undertakingof programmes while in prison.1912 Sentencing notes, above n 2, at [24].13 At [25].14 At [26].15 At [30].16 At [31] and [34].17 At [35].18 At [37].19 At [38]–[41].[40] All of that resulted in a deduction of 15 months,20 leaving an end sentence offive years and three months imposed in respect of the burglary charges, withconcurrent sentences of 15 months on all the other sentences.21 The Judge did notimpose a minimum period of imprisonment.22Analysis[41] In contending the sentence was manifestly excessive, Mr Burton submits thatthe uplifts were a 90 per cent increase on the initial starting point. In fact, the upliftwas a 50 per cent increase for the other offending and 62.5 per cent if the uplift forcriminal history is included.[42] We are satisfied the sentence was available. Substantial uplifts for aggravatingfactors, including previous convictions, may be necessary to respond to calculatedoffending by recidivists. As pointed out by the Crown, the two burglaries were majorburglaries where the houses were cleaned out. One involved the taking of a vehicleand the other a firearm, making it consistent with comparator cases such as Arahangav R.23[43] We are also satisfied the uplifts were amply justified, appropriate credits givenand totality properly taken into account.[44] The appeal against sentence is accordingly dismissed.Result[45] The application for an extension of time to appeal is granted.[46] The appeal against conviction is dismissed.20 A total discount of 19 per cent from the six years and six months.21 At [41].22 At [43].23 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189. Although there may have been a greaterrisk of violence in Arahanga, it involved two burglaries of homes and theft of high value property.The Judge also referred to Shierney v Police [2014] NZHC 2963.[47] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent