RIZVI v NEW ZEALAND POLICE [2020] NZHC 411

RIZVI v NEW ZEALAND POLICE [2020] NZHC 411 [6 March 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-57[2020] NZHC 411BETWEEN REGAN JOEL RIZVIAppellantAND NEW ZEALAND POLICERespondentHearing: 26 February 2020Counsel: L A Caris for AppellantK L Kensington for RespondentJudgment: 6 March 2020JUDGMENT OF THOMAS JIntroduction[1] Regan Rizvi pleaded guilty in the District Court to a number of charges,including burglary, relating to an incident where he, while being subject to a protectionorder, entered his former partner's home and assaulted her. He was sentenced to12 months' intensive supervision. Mr Rizvi appeals the burglary conviction on thegrounds that a miscarriage of justice occurred because the admitted facts do notamount to a burglary.[2] The central issue is whether, as a matter of law, on the admitted facts, a properlydirected fact-finder could reasonably conclude that the appellant possessed theintention to commit an imprisonable offence when he entered the house withoutauthority.11 As required in the circumstances of this case for a conviction of burglary.Factual background[3] On 10 September 2017, a final protection order was issued against Mr Rizviwith his former partner, the victim, named as the protected person.[4] The summary of facts to which Mr Rizvi pleaded guilty records that, at12.12 am on Thursday 28 March 2019, Mr Rizvi cycled to the victim's address. Heknocked on her bedroom window and called out her name. She told him to go away.Mr Rizvi then gained access to the house through the dining room window. The victimfound him in the hallway of her house and again asked him to leave. He demanded toknow who had been in the house.[5] Mr Rizvi then grabbed the victim with two hands and tried to drag her out ofthe house through the front door. The victim's 10 year old son woke up, saw whatwas happening and shouted at Mr Rizvi to leave. Mr Rizvi then left.[6] The victim did not give Mr Rizvi permission to enter her property or her house.Procedural history[7] Mr Rizvi was charged with burglary,2 assault on a person in a familyrelationship,3 contravention of a protection order by trespass4 and breach of releaseconditions.5[8] Mr Rizvi applied to the District Court for dismissal of the burglary chargepursuant to s 147 of the Criminal Procedure Act 2011. Burglary requires the defendantto have had the "intent to commit an imprisonable offence in the building".6 It wasargued there was insufficient evidence to infer an intent to commit an imprisonableoffence when Mr Rizvi entered the victim's house. The charging document did not2 Crimes Act 1961, s 231(a), maximum penalty 10 years' imprisonment.3 Section 194A, maximum penalty two years' imprisonment.4 Domestic Violence Act 1995, ss 19(2)(d) and 49, maximum penalty three years' imprisonment.The Family Violence Act 2018 came into force on 1 July 2019, after the date of the offending andafter the date the charge was laid.5 Sentencing Act 2002, s 96, maximum penalty one year's imprisonment or $2,000 fine.6 Crimes Act 1961, s 231(1)(a).particularise the imprisonable offence that Mr Rizvi allegedly intended to commitwhen he entered the house.[9] Counsel for Mr Rizvi, Ms Caris, also appeared for him in the District Court.There, she submitted that Mr Rizvi had trespassed in breach of the protection order assoon as he entered the property and before he entered the house. Therefore it couldnot be said that he intended to commit an offence upon entry into the house, as he hadalready committed it.[10] Judge Hastings dismissed the s 147 application.7 He observed that, whileMr Rizvi had been charged with breach of a protection order by trespass, that chargedid not "control what intention the person must have on entry with respect to theburglary charge. They are separate charges containing different elements".8 TheJudge also rejected Ms Caris' argument that Mr Rizvi would face double jeopardy,saying:[17] Defendants who assault a protected person in breach of a protectionorder will often be charged with assault and with breach of the protection ordernotwithstanding both charges arise from the same set of facts. Each chargerequires different elements to be satisfied from those facts for a defendant tobe found guiltyThat all three charges arise from the same incident issomething the sentencing judge is able to take into account at sentencing[footnotes omitted][11] Mr Rizvi subsequently pleaded guilty to all charges.Relevant law[12] The appeal is on the grounds that a miscarriage of justice has occurred.9[13] An appeal against conviction following a guilty plea will only be entertainedin exceptional circumstances.10 Those circumstances include where, on the admittedfacts, the appellant could not have been guilty of the offence charged.117 New Zealand Police v Rizvi [2019] NZDC 16036.8 At [13].9 Criminal Procedure Act 2011, s 232.10 R v Le Page [2005] 2 NZLR 845 (CA) ("Le Page") at [16] and McIntyre v R [2017] NZCA 579("McIntyre") at [3].11 Le Page, above n 9, at [18] and McIntyre, above n 9, at [3].[14] Turning to protection orders and their conditions, the Domestic Violence Act1995 (the Act) specifies the standard conditions of a protection order:1219 Standard conditions of protection order(1) It is a condition of every protection order that the respondent mustnot—(a) physically or sexually abuse the protected person; or(b) threaten to physically or sexually abuse the protected person;or(c) damage, or threaten to damage, property of the protectedperson; or(d) engage, or threaten to engage, in other behaviour, includingintimidation or harassment, which amounts to psychologicalabuse of the protected person; or(e) encourage any person to engage in behaviour against aprotected person, where the behaviour, if engaged in by therespondent, would be prohibited by the order.(2) Without limiting subsection (1), but subject to section 20, it is acondition of every protection order that at any time other than whenthe protected person and the respondent are, with the express consentof the protected person, living in the same dwellinghouse, therespondent must not,—(a) watch, loiter near, or prevent or hinder access to or from, theprotected person's place of residence, business, employment,educational institution, or any other place that the protectedperson visits often; or(b) follow the protected person about or stop or accost theprotected person in any place; or(c) without the protected person's express consent, enter orremain on any land or building occupied by the protectedperson; or(d) where the protected person is present on any land or building,enter or remain on that land or building in circumstances thatconstitute a trespass; or(e) make any other contact with the protected person (whether bytelephone, electronic message, correspondence, orotherwise), except such contact—12 Domestic Violence Act 1995 (since repealed). The Court may also impose special conditions:Domestic Violence Act 1995, s 27. There was no evidence of any special conditions of theprotection order to which Mr Rizvi was subject.(i) as is reasonably necessary in any emergency; or(ii) as is permitted under any order or written agreementrelating to the role of providing day-to-day care for,or contact with, or custody of any minor; or(iii) as is permitted under any special condition of theprotection order; or(iv) as is necessary for the purposes of attending a familygroup conference within the meaning of section 2 ofthe Oranga Tamariki Act 1989; or(v) as is necessary for the purposes of attending asettlement conference convened under section 46Q ofthe Care of Children Act 2004.Analysis[15] Ms Caris framed her submissions around the following issues:(a) what was the imprisonable offence Mr Rizvi intended to commit in thehouse?(b) if the imprisonable offence was a breach of s 19(2)(e) of the Act – abreach of a protection order by making contact – whether theprosecution could prove that Mr Rizvi had the intention to contact theprotected person within the meaning of s 19(2)(e);(c) if the imprisonable offence was a breach of s 19(2)(d) of the Act – abreach of a protection order by trespass – whether the prosecution couldprove Mr Rizvi had the requisite intention when he entered the housegiven the trespass had already occurred; and(d) whether a burglary charge should have been laid."Imprisonable offence"[16] The charging document alleging burglary did not specify what "imprisonableoffence" Mr Rizvi intended to commit when he entered the house. Prior to the DistrictCourt hearing, the police indicated to the appellant that the alleged imprisonableoffence was a breach of the protection order.[17] It is not necessary for the charge to particularise the crime alleged. Morespecificity is required at the stage the allegation goes to the fact-finder. The Judge hasa discretion to grant leave to the prosecution to amend the particulars at a later stage,should the interests of justice so require.13 In the present case, the appellant pleadedguilty after his unsuccessful s 147 application.[18] Therefore, it was sufficient for the prosecution to advise the appellant that thealleged imprisonable offence was breach of the protection order. Further particularsidentifying which particular condition it was alleged Mr Rizvi intended to breachmight have assisted but were not essential. As I will now discuss, the fact-finder couldhave reasonably concluded that Mr Rizvi intended to breach a number of conditionsof the protection order.Intention to contact[19] Ms Kensington for the respondent submitted that "[m]ost simply, [Mr Rizvi]intended to make contact with the protected person". Ms Kensington pointed out that,once he entered the house, Mr Rizvi immediately confronted the victim, demandingto know who was in the house.[20] Ms Caris' central argument was that Mr Rizvi's contact with the victim did notfall within the type of "contact" covered by s 19(2)(e). She submitted that the statutorywording precluded a finding that direct contact amounts to a breach of s 19(2)(e). Shereasoned that the wording "other contact" is distinct from any contact which arisesfrom s 19(2)(a)-(d). Furthermore, in her submission, the examples of the type ofcontact set out in s 19(2)(e) (whether by telephone, electronic message,correspondence, or otherwise) should be read consistently with the ejusdem generismaxim so that the "otherwise" involves indirect contact only.[21] Contact is defined in the Act as "all forms of direct and indirect interaction".14Ms Kensington was clearly correct in her submission that s 19(2)(e) acts as a catch-allprovision to prohibit all types of contact that is not a permitted exception15 and that it13 Kirby v R [2013] NZCA 451 at [40].14 Domestic Violence Act 1995, s 2 definition of "contact".15 Domestic Violence Act 1995, s 19(2)(e)(i)-(v).is unlikely the legislature intended s 19(2)(e) to refer to indirect contact only.16 Werethat not the case, it would lead to an absurd situation whereby indirect contact wouldbe a breach of the protection order but direct contact which did not fall withins 19(2)(a) and (b) would not.[22] In any event, the exceptions listed in s 19(2)(e)(i)–(v) demonstrate thats 19(2)(e) is not limited to indirect contact – for example subss (iv) and (v) allowcontact for the purposes of attending a family group conference and settlementconference respectively. Ms Caris suggested that the words "for the purpose of" couldbe read as meaning subss (iv) and (v) apply to indirect contact for the purposes ofarranging any such attendance. Were that the case, the subsections would havesaid so.[23] Ms Caris advocated a purposive approach to interpreting s 19. The object ofthe Act is:5 Object(1) The object of this Act is to reduce and prevent violence in domesticrelationships by—(a) recognising that domestic violence, in all its forms, isunacceptable behaviour; and(b) ensuring that, where domestic violence occurs, there iseffective legal protection for its victims.(2) This Act aims to achieve its object by—(a) empowering the court to make certain orders to protectvictims of domestic violence:(b) ensuring that access to the court is as speedy, inexpensive, andsimple as is consistent with justice:(c) providing, for persons who are victims of domestic violence,appropriate safety programmes:(d) requiring respondents and associated respondents to attendnon-violence programmes that have the primary objective ofstopping or preventing domestic violence:(e) providing more effective sanctions and enforcement in theevent that a protection order is breached.16 Austin v Police (2000) 19 FRNZ 373 (HC) at 376-377.(3) Any court which, or any person who, exercises any power conferredby or under this Act must be guided in the exercise of that power bythe object specified in subsection (1).[24] Given the object of the Act, it would be strange indeed if the circumstances ofthis case, where Mr Rizvi broke into the protected person's house at midnight despitebeing told to leave the property, was not the type of behaviour intended to be capturedby s 19.[25] The summary of facts provides an evidential foundation for the intendedimprisonable offence of breach of a protection order by making contact with theprotected person. Mr Rizvi knocked on the victim's bedroom window and called hername prior to breaking into the house. Once in the house, he confronted her. Mr Rizviclearly intended to make contact with the protected person.Trespass[26] Ms Caris then submitted that Mr Rizvi had committed the breach of s 19(2)(d)(trespass) before entering the house and therefore it could not be said that his intentionon entering the house was to breach the protection order by trespass because thetrespass was already complete.[27] There is nothing in this point.[28] The fact a defendant is charged with breaching a protection order by one actdoes not preclude their being charged with burglary by intending to breach a protectionorder by another act.[29] Furthermore, s 19(2)(c) specifies that the respondent must not, without theprotected person's express consent, enter or remain on any land or building occupiedby the protected person. This provision could also have been relied on for the intendedbreach of protection order. I am not convinced of the distinction Ms Caris tried todraw between s 19(2)(c) and (d). She maintained that subs (d) applies when theprotected person is present and subs (c) applies when the protected person is notpresent. Section 19(2)(c) is not, however, limited in terms to circumstances when theprotected person is not present. To my mind, the distinction is more that s 19(2)(c)applies to any land or building occupied by the protected person, whereas subs (d)applies when the protected person is present on any land or building.[30] Ms Caris also referred to the definition of psychological abuse in the FamilyViolence Act 2018,17 which includes being present on, entering or remaining on or inland or a building which constitutes a trespass, as an example of intimidation orharassment. In her submission, this confirms that intimidation or harassment shouldbe interpreted in the context of a trespass rather than a burglary.[31] The reference to trespass is one of three examples given of intimidating orharassing behaviour. The fact that the examples do not include more seriousoffending, such as burglary of the protected person's home, does not prevent the latterbehaviour constituting intimidation or harassment and therefore being a breach of aprotection order. The changes made by the Family Violence Act do not assist theinterpretation of s 19 of the Act.Should a burglary charge have been laid?[32] Ms Caris cited three cases where a defendant charged with breaching aprotection order by trespass was not also convicted of burglary:(a) Duckett v Police,18 where Mr Duckett was convicted of breach of aprotection order, two charges of assault with intent to injure and onecharge of threatening to kill. Although Mr Duckett entered theprotected person's home through a window, he was not convicted ofburglary.19(b) Lutu v Police,20 where Mr Lutu was convicted of breaches of aprotection order, wilful damage and an unrelated charge of theft under$500. Although Mr Lutu repeatedly returned to the protected person's17 Family Violence Act 2018, s 11(1).18 Duckett v Police [2019] NZHC 274.19 In each of the three cases, it is not clear whether a charge of burglary was laid.20 Lutu v Police [2018] NZHC 2037.home and entered it without permission, he was not convicted ofburglary.(c) Palmer v Police,21 where Mr Palmer was convicted of beaches of aprotection order and physical abuse. Although Mr Palmer was stayingat the protected person's house, he refused to leave when asked, andwas not convicted of burglary.[33] These cases do not preclude a finding of burglary in the present case in additionto a breach of the protection order by trespass. What charges are laid against adefendant is a matter of prosecutorial discretion. The Judge was entirely correct whenhe observed that there is nothing to preclude the prosecution laying different chargesrequiring proof of different elements arising from the same set of facts. This is acommon occurrence. That all three charges arise from the same incident is somethingto be taken into account at sentencing.[34] When one considers this case, the reason for the prosecutorial decision isobvious. Not only did Mr Rizvi trespass on the protected person's property, he brokeinto her house at 12.00 am, despite her instruction that he go away.[35] Ms Caris then submitted that Mr Rizvi's behaviour did not reach the same levelas that in Mitchell v R,22 where Ms Mitchell was convicted of burglary and breachinga protection order when entering the protected person's yard and attempting to openthe rear door of his house. The "imprisonable offence" was the intention to "annoy,intimate or threaten the occupants, to damage their property, or to assault the protectedperson".23 Ms Caris pointed to Ms Mitchell's surreptitious entry late at night, with noattempt to knock and announce her presence, among other factors.[36] The Mitchell case is analogous to the present case, although notablyMs Mitchell did not gain access to the house. Given the propensity evidence in thatcase, there was ample evidence to infer an intention to commit an imprisonable21 Palmer v Police [2015] NZHC 143.22 Mitchell v R [2019] NZHC 3264 ("Mitchell").23 At [8].offence.24 However, even without propensity evidence, the same could be said in thepresent case.Conclusion[37] When the facts of Mr Rizvi's behaviour are considered, it is plain that therewas an evidential foundation for the burglary charge, with the intended imprisonableoffence being breach of the protection order. Mr Rizvi, being subject to a protectionorder, went to the protected person's house after midnight and, after being told to goaway, he instead climbed through a window and entered the house. He then confrontedthe victim. That behaviour clearly provided an evidential foundation for an intendedbreach of the s 19(2)(c) and/or (e) conditions of the protection order. It also providedan evidential foundation for a breach by engaging in behaviour, including intimidationor harassment, which amounted to psychological abuse of the protected person unders 19(1)(d). To contend that, in these circumstances, there was no case to answer on aburglary charge is ill-founded.[38] There is no doubt that, on the basis of the agreed summary of facts, a properlydirected fact-finder could reasonably find Mr Rizvi broke into the victim's houseintending to commit a breach of the protection order and was therefore guilty ofburglary.Result[39] For the reasons given, the appeal is dismissed.Thomas JSolicitors:Crown Solicitor's Office, Wellington24 Mitchell, above n 23, at [24].