WOOSTER v THE QUEEN [2017] NZHC 893

WOOSTER v THE QUEEN [2017] NZHC 893 [5 May 2017]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYCRI-2017-441-008[2017] NZHC 893BETWEEN JOSHUA RAYMOND WOOSTERAppellantAND THE QUEENRespondentHearing: 2 May 2017Counsel: R D Stone for AppellantJ E Mildenhall for RespondentJudgment: 5 May 2017JUDGMENT OF WILLIAMS JIntroduction[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 scheme1 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.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 ofwhich 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. Theythreatened to take the complainants' possessions to recoup some of this debt if it wasnot 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 the gun. But she said that Mr Wooster was not involved in the altercation.[8] Mr Wooster's perspective was that he was not there when Ms Duckworth wasconfronted so was not guilty of aggravated burglary. And he claimed he was entitled to demand payment from Mr Brougton and Ms Duckworth because they owed him money. Whether this was a loss of expected profits from the Internet banking fraud venture or a separate legitimate debt was a matter of debate to which I will return.Conviction appealDistrict Court decision[9] In the District Court, Judge Courtney accepted the essence of Ms Duckworth's account of the aggravated burglary. He rejected alibi evidence offered by Ms Peebles' daughter, Napierana, and by Ms Dawn Mita, Ms Peebles'mother. Both witnesses gave evidence that Mr Wooster and Ms Duckworth were at home in Taradale when the confrontation took place in Flaxmere. The Judge found that this evidence was inconsistent and unreliable.[10] Judge Courtney also rejected Ms Peebles' version of events – that is that shealone was at Ms Duckworth's house. Instead, the Judge accepted Ms Duckworth'sevidence that both Mr Peebles and Mr Wooster were present, that neither of them had authority to enter the property, and that Mr Wooster presented the firearm to Ms Duckworth while Ms Peebles was guilty either as a party or because she too had access to the weapon. The aggravated burglary charge was made out accordingly.[11] The demanding with menaces charge did not relate to the confrontation in Flaxmere. Rather, it related to the subsequent text messages over the three days from 13 to 15 April. The Judge rejected the defence argument that a debt was properly owed to them, and they had a claim of right sufficient to justify the demands they made by text. Instead the Judge accepted Ms Duckworth's evidencethat she did not owe any money to Mr Wooster or Ms Peebles.[12] Although Mr Broughton did not give evidence, the Judge then referred to texts from Mr Broughton to Mr Wooster that he had ruled were admissible as context rather than to prove the truth of their contents. The Judge found that they did not establish Mr Broughton owed any debt either (even if they were admissible to prove their content). They did not necessarily, he said, refer to money owing in the sense of a debt. They simply reflected a sense of obligation arising from the failure of the Internet bank fraud venture, but that did not necessarily mean there was a liquidateddebt to be repaid. The Judge referred to the texts in his reasoning. It is convenientsimply to set out the Judge's treatment of the relevant exchanges as follows:4On the 12th of April 2016 which is the day before the confrontation at Dover Road there was an exchange of texts between Mr Wooster and Mr Broughton. Those appear to relate to the bank transaction not working as expected and there was discussion by Mr Wooster as to whether or not there were different accounts that may apply. At 11:39:47 that morning and from then on there is text communication from Mr Broughton in which he is saying that he is trying to get someone else, his mate, to help out with theexercise. He goes on at 14:11:05 to say, "Found him," which is a reference to his mate. The next text says, "Just talking to him," and then there is a text from Mr Wooster and he says, "? So what's up." The text from Mr Broughton says, "Sense other acc didn't work don't worry about my money all red bro". A response from Mr Wooster, "Wat if it ant clear Wednesday" and a response from Mr Broughton, "Then I owe you."As I have said those texts from Mr Broughton are not proof of their contents but even if I did accept them as being proof of what was said in them I donot see the reference to saying, "Then I owe you," as in the context of owing any money in terms of a usual debt. I see that statement in the context of Mr Broughton saying, "Well if this scam doesn't work out we can do something else." It was an obligation in that sense, not a debt of money.There are further texts from Mr Broughton which were referred to on 14 April but they need to be understood against a background of what had happened by then. By now the events of the morning of 13 April had happened, the defendants were seeking out Mr Broughton, there were demands made by Mr Wooster that morning of 13 April, there had been athreat to take Mr Duckworth's father's truck if Mr Broughton was not found.Those texts include the ones that I have referred to earlier about, "you and yaman new tha risk and yous owe 3g," and payment of a further one grand and, "dnt hide coz il cum take everything in your house." Against thatbackground of those threats having been made and further on in texts from Ms Peebles to Ms Duckworth, "When do u get paid wont be walking awaywit nothing find him or we take wat eva."Against that background there are further texts from Mr Broughton on 14 April from 21:06:37 hours on in which he makes comments including, "Iwas at my mates getting him to find out away around the bank machine had cash n drugs to." "My mate did find away around and & yuo get more wa need to see him again to get introductions you'll get ur money n sum." "Text me don't ring me don't want to talk to use or have anything to do with use but I will get ur money."He then received a text from Mr Wooster which said, "The next move is everywhere and I will let it rip and bark loud bro told u I'm real now pay me wat u have." There was a further text from Mr Broughton where he says,"How much money are you expecting from me?" Further on, "If you kum bk in a couple of days or so I'll use this money i got to reload so I got more money to give you." Further on, "Waste ov time only got 200 pick ticks up4 Peebles v Wooster above n 2 at [64]–[69].tomorrow but it'll be better if I get a grand at least before you kum bk," andfurther on, "I'll pay you."I consider those texts no more, even if I rely on the content of them as true, than confirming that Mr Broughton will pay something as a result of the failed scam and the threats that have been made against him by then. No valid debt in my view was established. Neither of the defendants gave any evidence to support a claim that there was a valid debt owing from Mr Brought to either or both of them. In my view the defendants cannot allege a claim of right with regard to an acknowledged obligation to compensate for a failed criminal activity. I find that there is, therefore, no claim of right in terms of the money that was being demanded or other property.[13] The demand was for $4000, and the threat or menace was that they wouldtake Ms Duckworth's father's truck if it was not paid. The Judge was satisfiedtherefore that the charge was made out.Summary of grounds of appeal[14] Mr Wooster advanced three grounds in the conviction appeal:(a) that the Crown was obliged to call or summons Mr Broughton as his evidence was crucial to a claim of right defence, and in its absence, the demands with menaces conviction was unsafe;(b) the Judge failed to allow Mr Stone to recall Ms Peebles' daughter toallow counsel a further opportunity to put questions to her in relation to an out of court statement she made. This was to the effect that Mr Wooster was in bed with Ms Peebles at her home at the time these events on 13 April 2016 took place; and(c) the requirements of s45 of the Evidence Act 2006 in relation to identification evidence were not met in Ms Duckworth's identificationof Mr Wooster as the person who presented the firearm to her on 13 April 2016.Failure to call Mr Broughton[15] In a separate ruling, Judge Courtney permitted the Crown to adduce the text messages sent by Mr Broughton. This was not to prove the truth of their contents, the Judge said, so they were not hearsay. Instead they were admissible to allow the Judge to make sense of the exchange between Mr Wooster and Mr Broughton. I have referred to the texts above.[16] Ms Duckworth failed to appear on the first day of trial and when a police officer visited her home that day, it was Mr Broughton who answered the door. The Crown then obtained a summons for him too. He failed to answer the summons and no statement was able to be obtained.[17] Mr Stone submitted that this unsatisfactory situation went to trial fairness. As the hearing before me progressed, he narrowed his focus to a submission that in this case the absence of Mr Broughton meant that Mr Stone was unable to properly develop a claim of right defence in relation to the demands with menaces charge. Mr Stone submitted that Mr Wooster participated in the banking fraud in order to recover a separate debt which Mr Brought owed him – referred to in the pre-sentencereport as a "gang debt" – and the absence of Mr Broughton meant he could not establish that such a debt existed, that it was unrelated to the banking fraud, and legitimate in terms of establishing the reasonable possibility of claim of right.[18] Mr Wooster submitted that the circumstances in which Mr Broughton was found indicate that the Crown had made no reasonable effort either before or after Mr Broughton was found, to obtain a statement from him or ensure that he attended at court and gave evidence. The effect of this was to leave a fatal gap in the evidence making it impossible for the Judge to safely discount the reasonable possibility that Mr Wooster was entitled to demand repayment of a legitimate debt.[19] As a matter of first principle, the tribunal of fact must focus on the evidence actually given rather than speculate on what evidence could be given. Juries are routinely warned about this.[20] The Crown is right to submit that the prosecutor has a wide discretion as to the witnesses it chooses to call, but takes the risk of failing to prove the charge if the absence of a witness leaves a gap in the necessary chain of reasoning that cannot be bridged. In this case, I am not satisfied there was such a gap. It is true that Mr Wooster now says there was a legitimate prior debt. Although it is not entirely clear whether the defence was pitched in quite that crisp a fashion during trial, in the end it does not matter. Ms Duckworth did give evidence and was questioned by Mr Stone with respect to this alleged debt.5Q: Because you and Sam owed them $4,000 didn't you?A: No, we didn't owe them anything. It was just a bank, a bank thing that Sam was tryn' do (sic) for his cousin and it didn't work so there's nothing we could do about that and Sam offered to give themthe car, offered to give them some other stuff as well just so Q: He did owe them some money?A: No, just so they could stop harassing us I guess but we didn't owethem anything. We never got anything off them. They never gave us money. All they did was start bank accounts and travel from Palmy I think.[21] The crucial element of this passage of evidence is the acceptance that whatever debt was alleged to be owed was a joint debt of Mr Broughton and Ms Duckworth. Ms Duckworth was adamant that there was no such debt and that the money apparently owed related only to the loss of expectation in the failure of the bank fraud. In those circumstances, it cannot be said that Mr Broughton'sabsence from the court room produced an unsafe conviction. On the contrary, Ms Duckworth's evidence closed off the claim of right possibility.Failure to recall Napierana Duncan[22] Napierana Duncan is Ms Peebles' 12 year-old daughter. She had been proposed as an alibi witness for her mother. However, she had sent text messages on 13 April at 5.53 am and 7.45 am which indicated that Ms Peebles and Mr Wooster had not been home at the time of the aggravated burglary. The text at 5.53 was to Mr Wooster and asked why "u guys" had left "us" home alone. "Not cool" the textcomplained. The text exchange at 7.45 was with her mother, and indicated that5 Notes of Evidence, at 25, lines 13-21.Napierana could see Ms Peebles at the petrol station across the road from their house. The defendants nevertheless indicated at the start of the trial that they were relying on an alibi defence. Napierana was summonsed overnight and called by the Crown on the second day to give evidence of the text messages.[23] Napierana's evidence-in-chief consisted primarily of her inability to remember or explain the text messages. In cross-examination, Napierana was asked about the morning of the burglary. She said that her uncle and her mother were at home when she woke, that she had gone to wake her mother between 6 and 6.30 am, and that they had taken birthday presents to her father between 7.30 and 8 am. She said Mr Wooster was in the shed when her grandmother returned from her taxi shift. She then said she did not remember whether Mr Wooster was in bed with her mother.[24] The Crown called the officer in charge. Mr Stone put to him a notebook entry recording of his conversation with Napierana a month earlier on 12 October 2016. The officer confirmed that when asked whether anyone was in bed with her mother on 13 April, Napierana told him that Josh (Mr Wooster) and her baby sister were there. Having established the notebook entry, Mr Stone said that he had made a mistake in omitting to put this evidence to Napierana. At the conclusion of thedetective's evidence, he sought to recall Napierana and put the statement to her, but this application was declined.[25] Mr Stone now argues that the Judge's decision to decline to recall Napieranawas premised on him accepting that she had made the statement to the detective, and that she would only confirm it if recalled. But, Mr Stone submits, in his decision Judge Courtney did not refer to let alone discount this statement. If the statement was correct (or even reasonably possible), it would be a complete alibi. Judge Courtney had concerns about Napierana's reliability and referred to her sayingshe couldn't remember seeing Mr Wooster that morning. He did not refer to herinconsistent out of Court statement. Given this, Mr Stone submitted it was vital that Napierana be recalled so the statement could be put to her.[26] In my view, there is nothing in this point. Napierana's statement was inevidence through the officer in charge. The Judge rejected her inconsistent after-the-fact statements in favour of her more reliable contemporaneous text messages. Part of his reason for finding her unreliable was that she had changed her account in Court about whether her siblings were home, and she had given an unconvincing explanation about whether Mr Wooster had been sleeping in the house.[27] In my view, adding yet another version of events, this time saying she had seen Mr Wooster in the bed, would have rendered her evidence even less reliable. The Judge was entitled to infer from the texts that Ms Peebles and Mr Wooster were not at home when Napierana awoke. They were spontaneous, contemporaneous, and could not have been made up retrospectively. Refusing to permit her recall cannothave resulted in a miscarriage. Such recall is likely to have strengthened the Judge'sview that Napierana was not being truthful.Identification of Mr Wooster[28] At the conclusion of the Crown's case, Mr Stone made an application unders 147. It was argued that the evidence that had been called did not identify Mr Wooster as the person who presented the firearm and that there was no specific identification of him made in Court. The Judge rejected this submission and declined the application.[29] Ms Duckworth identified the person that presented the firearm as "Josh", andsaid she met Josh shortly before the incident through the arrangements put in place for the unsuccessful banking fraud. When Ms Duckworth was asked what relation"Teresa and Josh" were to herself and Sam (Mr Broughton), she replied that Teresa(Ms Peebles) was Sam's cousin. When asked "who Josh is in relation to Teresa", she responded "Partner I believe". Mr Stone submitted in the District Court that this was the extent of identification of "Josh" and it was not sufficient to link withMr Wooster. He argued that there was no description of Mr Wooster.[30] Judge Courtney noted that there were a number of texts between the two defendants, indicating that they were in a relationship just as Ms Duckworth described. For example, Mr Wooster referred in texts to Ms Peebles as "my wife" and "baby". Further, Napierana referred to Josh as being her mother's partner. There was no suggestion in the evidence that there was any other person who couldbe the "Josh" referred to. Accordingly, the application was dismissed. The Judgethen referred to this ruling in his verdicts decision, and repeated that there was no evidence to suggest that the offender was anyone other than Mr Wooster.[31] On appeal, Mr Stone submitted that while the Judge in his s 147 decisionfound that there was some evidence that "Josh" was Ms Peebles' partner, theevidence referred to did not prove beyond reasonable doubt that Mr Wooster was the person who presented the gun at Ms Duckworth on 13 April. He noted Ms Peebles'statement that it was not Mr Wooster who presented the firearm. And again, he pointed to Napierana's alibi evidence.[32] Mr Stone compared Ms Mita's alibi evidence. Her evidence was thatMr Wooster was home between about 7.10 and 7.50 am. Ms Duckworth sent a text to Ms Peebles at 7.29. It is a 20 minute drive between Flaxmere where Ms Duckworth was staying and Onekawa where Mr Wooster and Ms Peebles were staying. Counsel submitted that Ms Mita's evidence would mean that Mr Wooster and Ms Peeebles had to leave the Flaxmere address by 6.50. But Ms Duckworth'sevidence was that they had just left the house when she sent the text. The Judge didnot refer to this timing, and dismissed Napierana's evidence because of her textmessages. Mr Stone argues that those text messages did not indicate when (or whether) Mr Wooster and Ms Peeebles were present at the Onekawa address. The suggestion that Ms Peebles was at the petrol station at 7.45 am would make it difficult for her to have been in Flaxmere at around 7.23 (when the offending is alleged to have occurred).[33] Mr Wooster then submitted that in the circumstances, s 45 of the Evidence Act applied in relation to the identification of Mr Wooster. In addition to the evidence of other witnesses that called in to question whether Mr Wooster could have been there at all, he submitted the evidence was that Ms Duckworth did not know Mr Wooster well, and could well have been mistaken as to who the male with Ms Peebles was (if Ms Duckworth's evidence about that was to be believed at all).[34] I agree with the Crown that there is no merit in this point. Since the issue of the quality of identification evidence was fully traversed before Judge Courtney inMr Wooster's s 147 application, there can have been no admissibility question under s 45. The Judge's ruling was that the identification evidence was reliable enough tobe admitted.[35] In my view, the Judge was plainly right about that. Ms Duckworth knew Mr Wooster. She had met him earlier in April of that year during the course of discussions over the Internet banking fraud venture. Section 45 is less potent in those circumstances.6 There is no question that Mr Wooster and Ms Peebles were in a relationship at the relevant time, and he would be the natural person to accompanyMs Peebles on the visit. Subsequent texts confirm Mr Wooster's intimateinvolvement in the threats levelled at Mr Broughton. When this is added to theJudge's finding that the alibi evidence of Napierana and Dawn Mita was unreliable,the inference that the male with Ms Peebles was the very same male engaged in the fraud who is known by Ms Duckworth is frankly irresistible.Conclusion[36] The conviction appeal is dismissed.Sentence appeal[37] Judge Courtney adopted a starting point of five years and three months'imprisonment on the aggravated burglary charge. He noted the aggravating features of planning and premeditation, the fact there were two participants, a firearm was presented, the associated threats, and that specific people were targeted.[38] The Judge did not uplift for the demanding with menaces charge. He said the ongoing threats were a continuation of the original offence. He uplifted by sixmonths for Mr Wooster's previous convictions, and deducted four months for effortsto resolve the matter swiftly (by electing judge-alone trial and being available for trial at short notice). That resulted in a sentence of five years and five months.[39] Ms Peebles received the same starting point, the same deduction for efforts to resolve the matter swiftly, a four month deduction for personal circumstances, no6 See R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762.uplift for prior convictions, and a five month deduction for time on EM bail. Her sentence was four years and two months.[40] Mr Stone submits the starting point was too high. He submitted that one of the aggravating factors referred to by the Judge was that property would have been taken had it been available at the time. But, he submitted, there was no evidence at trial that any property was demanded during the aggravating burglary, so this factor was not proved beyond reasonable doubt. Secondly, he submitted the starting point was 35 per cent higher than in Melgren v R, where the starting point was three and a half years.7 While it was accepted that the present case involved a rifle which is more serious than the hunting knife in that case, Mr Stone submitted disguises were used in that case. This according to R v Mako8 is also an aggravating feature. Accordingly, Mr Stone submitted, the starting point should have been three and a half to four years but no higher.[41] Mr Stone submitted in his written submissions that the six month uplift for prior convictions was double-counting because this offending was his second strike meaning he would serve the entire term of his sentence. Mr Stone abandoned this point at the hearing before me in light of Palalagi v Police.9[42] Finally, Mr Stone submitted that Ms Peebles received a four month discount for personal circumstances and that Mr Wooster was entitled to the same reduction. This is because he has an infant baby who was born while he was in prison, and suffered the death of his son in 2010. He had, it was submitted, a relatively positive PAC report in which he expressed genuine remorse.[43] It is clear in my view that a starting point of five years and three months on the aggravated burglary charge was within range given the characteristics of this offending.7 Melgren v R [2016] NZHC 2482.8 R v Mako [2000] 2 NZLR 170 (CA).9 Palalagi v Police [2015] NZHC 1832.[44] As the Crown pointed out, the sentencing Judge is entitled to reach his own view of the facts in the context of the sentencing exercise.10 All the more so when he was, as here, also the tribunal of fact.[45] It was open to the Judge therefore to conclude that a threat to take property from Ms Duckworth and her father, and from Mr Broughton was made at the time ofthe entry into Ms Duckworth's residence. In fact the Judge found that to be theposition at [13] of his verdict judgment, all of which was plainly repeated in text messages over the following three days.[46] In addition, the suggestion that Melgren should be relied upon to provide a baseline for the starting point in this case is not easy to justify. That case involved no direct confrontation with the intended victim and no entry into his house (although the wrong house was entered, but again without confrontation). This case is plainly a good deal more serious than Melgren.[47] Mr Stone may have been entitled to ask whether the difference in seriousness between Melgren and this case justified a 21 month variation, but it is to be remembered that in the case before me, Judge Courtney did not uplift the starting point for the demands with menaces charge. The Judge would have been entirely justified in imposing such an uplift from a lower baseline (say around four and a half years) and would have ended up at roughly the same point. And the starting point is consistent with other cases in any event.11[48] The Judge's refusal to discount Mr Wooster's sentence for personalcircumstances in comparison to his willingness to do so in Ms Peebles' case isunderstandable. She is the mother and primary caregiver of five children, includinga baby. Mr Wooster's participation, it appears, was somewhat more transient. Andwhile, as the PAC report indicated, there was remorse, Mr Wooster maintained his denial of possessing or using a firearm, or of being in Ms Duckworth's residence.10 See for example R v Connelly [2008] NZCA 550 at [14].11 See for example R v Kaukau [2007] NZCA 66, Morrison v Crown Law Office [2016] NZHC 534, and Tribble v Police [2016] NZHC 187.[49] In addition, a generous discount was given for co-operation. I conclude that this sentence was within range, and the sentence appeal is dismissed.Williams JSolicitors:Souness Stone Law Partnership, Hastings for AppellantCrown Law Office, Wellington for Respondent