LANDON v R [2018] NZCA 264

LANDON v R [2018] NZCA 264 [23 July 2018]NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAME, ADDRESS, OCCUPATION AND IDENTIFYING PARTICULARS OFVICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA566/2017[2018] NZCA 264BETWEEN LAURA JEAN LANDONAppellantAND THE QUEENRespondentHearing: 18 June 2018Court: Brown, Duffy and Katz JJCounsel: C J Tennet for the AppellantS K Barr and K L Kensington for the RespondentJudgment: 23 July 2018 at 11.30 amJUDGMENT OF THE COURTA The application for extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)[1] Laura Landon, together with two male co-offenders (M1 and M2) went to thecomplainant's home at night. The complainant had been deceived into believing hewould be meeting a young man he had been exchanging text messages with. When thecomplainant went to open the gate, however, he was ambushed by M1 (who was armedwith a shotgun), M2 (who was carrying a baton) and Ms Landon. The complainantwas then taken back to his apartment and subjected to degrading and homophobicabuse over an extended period, and threatened with serious violence. As the offendersdeparted, they stole multiple items of property, including the complainant's car.[2] Ms Landon was subsequently arrested and charged with aggravated robbery.In November 2016, she sought a sentence indication. Judge Field indicated that, ifMs Landon pleaded guilty at that stage, the sentence imposed would be a term of threeyears and five months' imprisonment. Ms Landon rejected that indication and electedto proceed to trial. On the second day of trial, however, Ms Landon changed her pleato guilty. She was subsequently sentenced by Judge Paul to four years and six months'imprisonment.[3] Ms Landon appeals her sentence on the basis that, if she had been given correctlegal advice at the time of the sentence indication, she would have accepted theindicated sentence. She seeks to have her sentence reduced on appeal to three yearsand five months' imprisonment, being the sentence indicated by Judge Field inNovember 2016.[4] The appeal falls to be determined under Part 6 of the Criminal Procedure Act2011, as a first appeal against sentence under s 244.[5] The appeal was filed 35 days late. Ms Landon explained that the fact it wasnecessary for her to find a new lawyer and that although from Auckland she was incustody in Wellington presented her with difficulties and contributed to the delay.We are satisfied in the circumstances that an extension of time should be granted.The Crown's evidence regarding the relevant events[6] The complainant gave evidence at trial, prior to Ms Landon changing her plea.He said that on 24 Apri1 2016, he was chatting to a person who identified himselfas "Tim" on Grindr, a gay dating platform. The complainant subsequently received atext message, at about 6.00 pm, from a person claiming to be ''Tim's younger brother",who said he was 17 years old and had been given the complainant's number by hisbrother because the complainant was after someone younger. After a brief interactionvia text message, the complainant invited "Tim's younger brother" around to hisapartment at 10.00 pm that night. The complainant's apartment is in a warehouse in asemi-industrial area, and is isolated from other residential dwellings.[7] At around 10.30 pm the complainant received a text message stating "I here".The complainant left his apartment, walked up the driveway and was then ambushedby Ms Landon and her two male co-offenders, who were hiding in the shadows behinda wall. The larger male, Ml, had a shotgun. M2 was holding an extendable baton.The complainant ran towards a nearby motorway to try and escape, but was chaseddown and captured by M2. He was placed in a headlock and forced to return tohis apartment.[8] All three offenders then verbally abused the complainant, subjecting him to asustained tirade of homophobic abuse. Their hostility was so great, and theirbehaviour so irrational, that the complainant feared for his life. Amongst other things,they accused him of being a child molester, and said that homosexuality should bepunished by death. M1 forced the complainant to kneel and say a prayer.The complainant said in evidence that "I think I got called dirty faggot 100 times ifnot 200".[9] Ms Landon participated in the verbal abuse, and took the lead in ransackingthe house, including going through all the complainant's drawers and cupboards andgathering up anything of value.[10] At some stage during the incident, M1 had Ms Landon perform a sex act onhim (M1) to show the complainant "how it's supposed to be done". M2 held thecomplainant's head and made him watch. M1 (paradoxically, given his intense andsustained homophobic attack on the complainant) then told the complainant to performthe same act on him (M1), but the complainant refused.[11] The shotgun was passed from person to person, with all three offenders,including Ms Landon, taking turns holding it. The offenders also found thecomplainant's cut throat razor, and all three of them held it at various times.Just before they left, M2 held the complainant's hand down on the kitchen table andM1 threatened to cut the complainant's fingers off with the razor.[12] A number of valuable items of property were taken, including jewellery,clothing, cash, an iPhone, bank cards and antique weapons. The keys to thecomplainant's vehicle were also taken, and the complainant was told that he had topay $5,000 for its return. Ms Landon wrote down a phone number for him to callwhen he had the money, and gave it to him on a piece of paper. After Ms Landon,Ml and M2 had left the property, the complainant phoned the police.[13] An analysis of text message data revealed that the text messages that thecomplainant had purportedly received from "Tim's younger brother," arranging themeeting with the complainant, came from Ms Landon's phone. Her phone was alsosubsequently used to message people about selling the complainant's vehicle.In addition, Ms Landon used one of the complainant's bank cards to obtain petrol andgrocery items.1Ms Landon's police statement and initial instructions to counsel[14] Ms Landon was arrested on 7 August 2016 and agreed to participate in aninterview with police. She admitted going to the complainant's address on the nightof 24 April 2016. She stated she had been given the complainant's number by a friendand believed it was to be an escort-type job. However, once there, she said thecomplainant told her he liked males and ''little boys". She contacted the man whohad driven her to the complainant's house, who came up and "flipped out".She acknowledged that there was a second male who "came for the ride".[15] Ms Landon told the police that she did not know about the items stolen fromthe house. She did not take anything. She said the complainant's vehicle was takenbecause he had signed a piece of paper that gave permission to take it. When asked toexplain her use of the complainant's bank card, she that that it was given to her by afriend who told her to use it. She said that she did not know whose card it was.1 This resulted in one charge of dishonest use of a document pursuant to s 228(1)(b) of the CrimesAct 1961. Ms Landon pleaded guilty to this charge and received a concurrent sentence ofthree months' imprisonment at the time she was sentenced for the aggravated robbery.[16] Ms Landon denied any knowledge of weapons taken by M1 and M2 to thecomplainant's address. She told the police that she did not know they had anyweapons and did not see any. When questioned about the fact she had messaged thecomplainant claiming to be a 17-year-old male, she said someone had told her to dothat to "see what he would say." She maintained that she went to the complainant'shome to do an escort-type job.[17] Ms Landon's instructions to her counsel prior to the sentence indicationhearing in November 2016 were recorded in handwritten notes that were made on thepolice summary of facts and opposition to bail form.[18] Ms Landon told her counsel that she had never heard of Grindr. Rather, shehad been given the complainant's phone number to text message. She denied luringthe complainant out of his home, and claimed that she had been invited over by him.She said that there was no shotgun at the scene. Further, it was not true that she hadcollected things from around the house. She had no intent to rob the premises, and didnot do so. On the contrary, she did not know anything was taken. She denied that anyhomophobic comments were made towards the complainant, or that the complainantwas targeted due to his sexual orientation.[19] Ms Landon further instructed that she did not know that the credit card that shehad subsequently been caught using belonged to the complainant. She said that shewas not the person who had taken it. Rather, she was given it by M1 or M2. She saidthat although she had not done anything, she did feel sorry for the complainant.Sentence indication — November 2016[20] Trunelle Massyn appeared as counsel for Ms Landon at the sentence indicationhearing. (The file was transferred from Ms Massyn to another solicitor atthe Public Defence Service, Christopher White, the following month).[21] Judge Field gave a sentence indication on 17 November 2016.2 He observedthat although Ms Landon did not take part in the attack, she must have known what2 R v Landon DC Waitakere CRI-2016-090-4401, 17 November 2016.was going to occur. She must therefore bear responsibility as a party to the offending.The Judge accepted, however, that she was vulnerable at the time and was used by theothers (who took a more aggressive and active role) to a certain extent. He gave creditfor the fact that she had not previously appeared before the Courts, and for herassistance to the police. Taking these matters into account, the end sentence indicationgiven was three years and five months' imprisonment. The Judge noted that this couldbe adjusted subsequently in light of the contents of any pre-sentence report.[22] On 24 November 2016, Ms Landon declined the sentence indication.She signed a note of instructions to her counsel on that date that recorded, amongstother things, that:I have been advised that I will lose my discount for guilty plea.I understand that I have been advised I have a very weak defence.(Emphasis as per original)[23] In Ms Landon's affidavit of 13 November 2017 in support of her appeal shedeposes that:On 24 November 2016 I was advised that I had a "very weak defence" but Iunderstood that I did have a defence in law. I wanted to go to trial on thatbasis.I was not advised about the law of compulsion and that this was NOT adefence to the charge. I had not heard of this until it was raised by the judgeat the trial. Once this was made clear to me I entered a guilty plea on 31 May2017.Had I been advised in November 2016 that I had no defence I would haveaccepted the sentence indication and entered a guilty plea.[24] In her reply affidavit, Ms Landon accepted that she had not said anything tosuggest compulsion or duress at the time of the sentence indication hearing "but noneof the PDS lawyers raised that and told me that duress was not a defence".The lead up to trial[25] Mr White, Ms Landon's trial counsel, filed an affidavit for the appeal hearing,on which he was cross-examined. His evidence was that he had difficulty obtainingfull instructions from Ms Landon following her decision to decline the sentenceindication. As a result, he filed a memorandum with the Court, dated14 February 2017, seeking leave to withdraw if Ms Landon failed to appear for trialcallover on 28 February 2017. Ms Landon did, however, appear for trial callover.Mr White did not withdraw, and a trial date of 29 May 2017 was set.[26] Mr White met with Ms Landon in an interview room at the courthouse on thecallover date. His file note of that meeting records that Ms Landon's trial brief ofevidence would consist of her handwritten annotations on the police summary of facts(which we have summarised above at [17]–[19]), the relevant content of hervideotaped police interview, and further handwritten notes that she was to make inresponse to the disclosure material she had been provided with (which included thecomplainant's police interview).[27] A week after the trial callover, on 7 March 2017, Mr White wrote to Ms Landonrecording that, as discussed, she was to urgently prepare and send to him a draftstatement of her trial evidence, which they would then discuss and finalise together.[28] On 31 March 2017, Ms Landon emailed Mr White a copy of some handwrittennotes she had made, some of which are cross-referenced to paragraphs in thecomplainant's police statement. Ms Landon (again) stated that she had never heardof Grindr. She further said that "NO SHOTGUN was involved" — the only guns sheheard about were the complainant's (antique) guns, but she had no idea wherethey were, or what had happened to them. As for the complainant's evidence thatMs Landon had performed a sex act on M1, Ms Landon's notes recorded that this"DID NOT HAPPEN!!". She acknowledged that her phone had been used tocommunicate with the complainant, but noted that that does not mean that she was theperson who was sending the texts. She said that she did not get the complainant'sphone number from Grindr. Rather, another person had given her the number.[29] In subsequent correspondence Mr White reiterated to Ms Landon that what shesaid in her notes and in her police interview would be her evidence at trial and wouldalso be the things that he would question other witnesses about. He asked her to readthrough the transcript of her police interview carefully and get back to him to confirmthat the contents were true and correct, or to let him know if she had got anythingwrong in it.[30] Mr White did not hear further from Ms Landon until the trial date of30 May 2017.The trial[31] As outlined above, Ms Landon's instructions throughout the pre-trial periodwere that she was present at the aggravated robbery, but was not an active participantin it. Rather, she had been at the scene as a mere bystander.[32] Mr White deposed, however, that during the first day of trial, after she hadheard the complainant's evidence, Ms Landon's instructions changed:She said she had indeed done the things the victim said in evidence she haddone, but she had done them because she was forced to do it by the principalmale offender, of whom she was afraid.[33] Mr White said that he was "seriously troubled" by Ms Landon's changedinstructions, not least because they were a dramatic turnaround from her position upto that time:For example, she was now accepting that not only was there a shotgun usedduring the offence but also that at some point she was in possession ofitThis allegation of her being in possession of the shotgun was made for thefirst time during the victim's evidenceand was not contained in his formalstatement or in any of the disclosure.[34] Junior trial counsel, Mr Claasen, prepared a document setting out Ms Landon'srevised instructions, which she then signed, most likely during the afternoonadjournment. Ms Landon said in that document, amongst other things, that "I wasforced to take part when we arrived". She said that she had tried to leave the addressbut was told to "get the fuck back up here". M1 was leading everything. Ms Landonsaid that she was scared of him, as he had assaulted her before. M1 told her that if shedid not do what he said she would "end up in the boot". M1 was bigger and olderthan her. She said that M1 told her to perform a sex act on him. She did not do it, butM1 pulled her head down. She said that she tried to leave straight after that.[35] This was the first time that Ms Landon had raised the issue of compulsion withher legal counsel. There was some debate before us as to whether or not the issue wasdiscussed with the Judge in chambers on the first day of trial, but nothing turns on that.It is clear, however, that that evening, Mr White and Mr Claasen undertook some legalresearch on whether it would be possible to raise compulsion as a defence.They discovered, however, that pursuant to s 24(2)(l) of the Crimes Act 1961,compulsion is not a defence to a charge of aggravated robbery.[36] Ms Landon was advised the next day (the second day of the trial) thatcompulsion is not a defence to a charge of aggravated robbery. Following that advice,she gave updated instructions to her counsel that included the following passage:I have discussed my options with my lawyers including the unavailability ofa compulsion defence and any defence of necessity and the prospects of mydefence being successful at trial.In the same document, Ms Landon recorded that she now wished to plead guilty, whichshe then did.[37] In Ms Landon's reply affidavit she denies Mr White's claim that herinstructions had changed "except to mention that where I was and my presence wasbecause of duress". She accepts that she had not said anything previously about beingunder duress, but said that "none of the PDS lawyers raised that and told me that duresswas not a defence". Ms Landon asserts that she was otherwise "consistent throughout"with what she said. In particular, Ms Landon denies having acknowledged toMr White that she had ever held the shotgun.Sentencing — July 2017[38] Ms Landon was sentenced on 17 July 2017. In her pre-sentence reportinterview, Ms Landon maintained that her involvement was because of "extremeduress" from M1 and M2. She stated that they told her that if she did not complywith their wishes her life would be in danger and she would end up dead.[39] At sentencing, Judge Paul described the incident as "dramatic, bizarre, andfrightening".3 The complainant was subjected to "threats against his sexualorientation" and threats against his life, and his property was ransacked. Judge Paulsaid he had no doubt the complainant thought at times he would never leave thebuilding alive, and Ms Landon was "an integral part of that".4[40] Judge Paul had no doubt that Ms Landon was involved as a "willingparticipant".5 He rejected Mr White's submission that the sentence starting point couldbe reduced because of her secondary involvement and the elements of compulsionrelied upon.6 He accordingly set the sentence starting point at six years' imprisonment,to reflect the planning involved, the number of participants, the luring of thecomplainant outside, the use of weapons, the degree of violence (including chasingthe complainant down, forcing him into the house, and the threats made), thesignificant items of property taken, and the home invasion element in what was anisolated location.7[41] A 10 per cent discount for lack of previous convictions and good character wasgiven, as well as a 10 per cent discount for Ms Landon's co-operation with the police.8A five per cent discount was given for the late guilty plea.9 This brought the endsentence to one of four years and six months' imprisonment.Did Ms Landon lose the opportunity to accept a lesser sentence due to failures onthe part of counsel?[42] The sole ground of appeal is that Ms Landon lost the opportunity of acceptinga sentence indication of three years and five months' imprisonment in November 2016,due to the failure of counsel to advise her properly at that time.[43] As we have outlined above, in her affidavit of 13 November 2017, Ms Landondeposed that, at the time of the sentence indication, she was advised that she had a3 R v Landon [2017] NZDC 15598 at [7].4 At [11].5 At [14].6 At [15].7 At [20].8 At [22].9 At [21]."very weak" defence but a defence nonetheless. She was not advised about the law ofcompulsion or told that this was not a defence to the charge at that time. Once thatwas made clear to her at trial, in May 2017, she pleaded guilty. Had she been advisedin November 2016 that she had no defence, she says that she would have accepted thesentence indication and pleaded guilty. Mr Tennet accordingly submitted, on herbehalf, that this Court should substitute the sentence of three years and five monthsindicated by Judge Field for the sentence of four years and six months' imprisonmentultimately imposed by Judge Paul.[44] Although much of the evidence on appeal focussed on what happened at trial,the real issue is whether Ms Landon was correctly advised at the time of the sentenceindication in November 2016 as to the strength (or lack thereof) of her defence.[45] The Crown needed to prove at trial that either:(a) Ms Landon, being together with another person or persons, robbed thecomplainant (principal liability);10 or(b) Ms Landon was a party to an aggravated robbery committed byM1 and/or M2, for example because she sent text messages to thecomplainant to set up the offending, or otherwise helped or encouragedM1 and M2 to commit the offence.11[46] Ms Landon's instructions at the time of the sentence indication hearing werethat she was simply a passive bystander who was at the scene, but was not involved inthe events that took place there. Further, she had no knowledge of the shotgun andwas not involved in the planning of the burglary, or its implementation.[47] In our view Ms Massyn was correct to advise Ms Landon that this constituteda "very weak" defence. The Crown case was a strong one, including multiple strandsof evidence such as Ms Landon's acknowledged presence at the scene, text messageevidence (both before and after the offending), a detailed statement from the10 Crimes Act 1961, s 235(b).11 Crimes Act, s 66.complainant, Ms Landon's own rather implausible police interview, her subsequentuse of the complainant's bank card, and her attempts to sell his car. Considering thetotality of the evidence, a jury would likely treat with considerable scepticism anyclaim by Ms Landon that she was simply a passive bystander who had been takenentirely by surprise at the turn of events.[48] It would have been inappropriate, however, for Ms Massyn to have advisedMs Landon that, based on her instructions, she had no defence at all. On the contrary,if the jury accepted Ms Landon's evidence as credible, she would have had a defence.Counsel clearly realised, however, that there was a real likelihood that the jury wouldnot accept Ms Landon's evidence, in which event she would be convicted.[49] It was common ground that Ms Landon did not say anything to Ms Massynthat raised any suggestion that her attendance or involvement was under compulsionor duress. We reject Mr Tennet's submission that there was anything in the informationavailable to counsel at that time that would have reasonably alerted her to thepossibility of duress or compulsion. It was accordingly not an error for Ms Massynnot to have advised Ms Landon regarding the law of compulsion at the time of thesentence indication.[50] Ms Landon received correct advice at the time of the sentence indicationregarding the strength of her defence, in light of all of the information available todefence counsel at that time. She nevertheless elected to continue to trial. Ms Landoncannot now seek to turn back the clock and, in effect, obtain the benefit of the sentenceindication that she rejected, despite having been (correctly) advised that she had a veryweak defence.[51] Events subsequent to the sentence indication hearing are of peripheralrelevance to the appeal (despite being a key focus of both the evidence andsubmissions before us). In essence, Mr Tennet's argument was that if Mr White wascorrect to conclude that Ms Landon did not have a defence at trial, Ms Landon mustalso not have had a defence at the time of the sentence indication hearing, because herinstructions did not materially change during the intervening period. For thereasons outlined above, however, we are satisfied that Ms Landon was correctlyadvised, on the basis of her then instructions, that she did have a defence at the timeof the sentence indication hearing (albeit a very weak one). She nevertheless electedto proceed to trial.[52] Mr White's evidence was that after Ms Landon had heard the complainant'sevidence at trial, her instructions shifted from "I was merely a passive bystander" to"I was involved in the offending, but was forced to do it by M1". In particular,Mr White deposed that Ms Landon told him that she had indeed done the things thatthe complainant said in his evidence, but she had done them because she was forcedto. Mr White's understanding was that this included an acknowledgment fromMs Landon that she had held the firearm.[53] Mr White also noted that the complainant's evidence-in-chief that all threeoffenders had held the firearm at some stage was entirely new (and unexpected).The complainant had not mentioned Ms Landon holding the firearm in his policestatement. However, if the jury accepted his evidence on this issue, that placedMs Landon squarely at the heart of the offending, not simply as a passive bystander.Mr White was obviously well placed to assess the complainant's performance as awitness, and whether the jury would be likely to find this aspect of his evidencecredible.[54] Ms Landon, in her reply affidavit, denied acknowledging to Mr Whitethat she had held the firearm, or that her instructions had changed in any way(other than telling Mr White that her presence at the scene was by duress).[55] The written instructions dated 30 May 2017 that Mr Claasen prepared, andMs Landon signed, do not refer to Ms Landon holding the firearm. They state thatMs Landon was not aware of the plan or any weapons, she did not send the textmessages as her phone was stolen, and "I was there but I was forced to take part whenwe arrived". There is no real elaboration as to the manner in which Ms Landon"took part" in the incident. Mr White's clear understanding, however, was that afterhearing the complainant's evidence, Ms Landon acknowledged that she had behavedin the way the complainant had described in his evidence (which included ransackingthe apartment and holding the firearm) and was not simply a mere bystander.[56] It is possible there was some misunderstanding between Mr White andMs Landon as to whether her "taking part" in the incident extended to holding thefirearm. Even if Mr White was wrong on this particular issue, however, we aresatisfied that Ms Landon's instructions did change materially following thecomplainant's evidence, in that she acknowledged taking part in the offending,albeit under compulsion. Our conclusion is supported, in part at least, by the writtennote that Ms Landon signed. It is also supported by Mr White's evidence as tohis verbal discussions with Ms Landon, and the fact that following the conversationsbetween Ms Landon and her counsel, the defence focus immediately shifted from the"passive bystander" defence to researching the law of compulsion.[57] Ms Landon's revised instructions, combined with what appears to have beenfairly compelling evidence from the complainant, resulted in what was already a veryweak defence becoming untenable.[58] Incompetent or erroneous legal advice regarding an early plea can found asuccessful appeal against sentence.12 In this case, however, there was no error. For thereasons outlined above, we are satisfied that Ms Landon was correctly advised at thetime of the sentence indication hearing. What subsequently happened at trial has littlerelevance to that issue. We have traversed subsequent events in some detail, however,given the criticisms that were made of Mr White on appeal. We are satisfied that thosecriticisms are unfounded.[59] There is no basis for finding that the end sentence was manifestly excessive,or for substituting the sentence that was indicated in November 2016 for the sentencethat was ultimately imposed. The offending was serious. The Judge correctlyidentified a number of aggravating features. Indeed, a further serious aggravatingfeature was not expressly referred to in the Judge's sentencing notes (although it maywell have been in his mind). Section 9(1)(h) of the Sentencing Act 2002 provides thatthe Court must take into account at sentencing, as an aggravating feature, thatoffending was committed wholly or in part because of hostility towards a particulargroup in society who have an enduring common characteristic, and the offender12 R v Patrick [2008] NZCA 115; and Singh v R [2017] NZCA 398.believed the victim has that characteristic (commonly referred to as "hate crimes").This offending clearly fell into that category.Result[60] The application for extension of time to appeal is granted.[61] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent