SHARPE v R [2020] NZCA 475

SHARPE v R [2020] NZCA 475 [23 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA233/2020[2020] NZCA 475BETWEEN STEPHEN SHARPEAppellantAND THE QUEENRespondentHearing: 27 August 2020Court: Gilbert, Thomas and Dunningham JJCounsel: W C Pyke for AppellantE J Hoskin for RespondentJudgment: 23 October 2020 at 9.30 amJUDGMENT OF THE COURTA The appeal against conviction is allowed. We direct that a judgment ofacquittal be entered on the charge of aggravated burglary.B The record of the first strike warning given to the appellant bythe District Court on 24 January 2020 is cancelled in respect of the convictionquashed.C The concurrent sentences of 12 months' imprisonment on the charges ofassault with a weapon and careless use of a firearm (x 2) are set aside.Concurrent sentences of two years and two months' imprisonment aresubstituted on these charges.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Sharpe was found guilty by a jury on one charge of aggravated burglary,two charges of careless use of a firearm and one charge of assault with a weapon, allarising out of events on the evening of 2 February 2019.1 Mr Sharpe was convictedand sentenced by Judge Butler to three years and six months' imprisonment on the leadcharge of aggravated burglary and concurrent sentences of 12 months' imprisonmenton each of the other charges.2 Mr Sharpe now appeals against his conviction onthe charge of aggravated burglary. He also appealed against his sentence, but this wasnot pursued at the hearing. Counsel advised that the sentence will only need to berevisited if the conviction appeal is allowed.[2] Two grounds of appeal were identified in the notice of appeal. The contentionthat the jury's verdict on the aggravated burglary charge was unreasonable is notpursued. The sole remaining ground of appeal is that the Judge misdirected the juryand there is a risk of miscarriage as a result.The facts[3] Mr Sharpe had been in a four-year relationship with one of the complainants,Ms Beckham. The relationship ended in November 2018, but Mr Sharpe remainedliving as a tenant in Ms Beckham's house. At the time of the offending, Ms Beckhamwas living in the house with her new partner, Mr Hyett, the second complainant.[4] On 1 February 2019, Ms Beckham gave Mr Sharpe 28 days' notice to vacate.On the evening of Saturday, 2 February 2019, the three of them were out drinkingtogether at a local tavern. During the course of the evening, Mr Sharpe tried severaltimes to take Ms Beckham aside to talk to her, causing her to become distressed.The three of them then returned home and Ms Beckham and Mr Hyett went to theirbedroom which was upstairs and situated directly above Mr Sharpe's bedroom.[5] A short time later, Mr Sharpe went to their bedroom and knocked on the door.He said, although they were friendly, they indicated they did not want to talk to him.Mr Sharpe said he went back downstairs. However, he felt "frustrated", so he went1 Mr Sharpe was also found guilty on one charge of possession of a Class C controlled drug.2 R v Sharpe [2020] NZDC 1099 [Sentencing judgment].back up and again knocked on the door. This time, he said they told him to "fuck off".He said he went straight back downstairs in a "fit of depression". While he was sittingdown there, he said he started hearing noises that sounded to him like they were havingsex. He said he felt "really sad", like he was "going to snap". He said he walked tothe gun safe and pulled out the shotgun. He thought about shooting himself but thendecided he was not going to "let her get away with this". After taking two sleepingpills and lying down for five to 10 minutes, he said "I just thought bugger it.She's gonna see this". He said he walked back upstairs and entered their bedroomwith the loaded shotgun.[6] There was a dispute at the trial about what happened next. Ms Beckham saidshe was woken by Mr Hyett screaming. She saw Mr Sharpe standing at the end ofthe bed pointing the shotgun at them. Mr Hyett also said he woke up to see Mr Sharpepointing the gun at them. He said he could see Mr Sharpe's finger on the trigger.A struggle ensued as Ms Beckham went for the gun and pointed it towards the floor.Mr Hyett said that Mr Sharpe then racked the shotgun and a cartridge was ejected fromit. During the struggle, Mr Sharpe said "you're lucky I didn't pull the trigger straightaway". Mr Hyett assisted in subduing Mr Sharpe and safeguarding the shotgun untilthe police arrived.[7] Mr Sharpe's evidence as to what occurred in the bedroom was somewhatdifferent. He said he did not go there to hurt anybody and did not point the gun atMs Beckham or Mr Hyett. He said he pointed the gun at the bed to scare them. He saidthat when they both started screaming, he actioned the shotgun by pumpingthe mechanism. He said he did this because "I wanted them to know I was serious".He agreed he was then wrestled to the ground.The charge — aggravated burglary[8] The charge of aggravated burglary, an offence under s 232(1)(a) of the CrimesAct 1961, was the first charge in the charge list. It read: while entering part of a building, namely a bedroom, without authority andwith intent to commit an imprisonable offence in that building had a weapon,namely a shotgun.[9] The charge does not specify the imprisonable offence Mr Sharpe intended tocommit when he entered the bedroom.[10] In opening, the prosecutor identified the imprisonable offence as being"[t]he careless use of a firearm or to deal with a firearm, the second charge, that isan imprisonable offence". This was a reference to charge 2 — careless use ofa firearm, an offence under s 53(3) of the Arms Act 1983 and punishable by up to threeyears' imprisonment. Charge 2 alleged that Mr Sharpe, without reasonable cause dealtwith a firearm, namely a shotgun, in a manner likely to endanger the safety ofMs Beckham.3 The particulars given for this charge read — "Racked the weapon".Charge 3 contained the same particulars.[11] In closing, the prosecutor again identified the imprisonable offence as beingcareless use of a firearm:The Crown say that [Mr Sharpe] went into that bedroom with an intent tocarelessly use the firearm. Because we cannot know what [Mr Sharpe] wasthinking at the time, that would be impossible, we need to think aboutthe evidence that you have heard and what were the circumstances at the time.There was a loaded firearm. Detective Constable Cooper said that when heretrieved the firearm located on the deck the safety was off. He went to a safeplace and actioned the firearm and that a cartridge came out of the chamberfollowed by five further cartridges as he has pump actioned the shotgun.We know that [Mr Sharpe] walked from his bedroom to the gun safe toretrieve the gun and he has then walked back to his bedroom and he has loadedit load after load. He said that to Detective Constable Cooper the day afterthe offending and he has also accepted that that is the case today.You may recall he told Detective Constable Cooper that, and I quote, "I loadedit by pumping the mechanism which forced a round into the chamber. I thenreplaced the bullet by feeding another shell into the holding chamber. I don'tknow what I was thinking I just wanted to make them listen. I walked upstairswith the shotgun and went to their room. Their door was shut, I tried to talkto them but they both told me to fuck off. I then entered the room and pointedthe shotgun at the bed to scare them. I then actioned the shotgun bypumping the mechanism, I wanted them to know that I was serious.The Crown says that all of these comments and the circumstances at the time,the reality of the situation for both Ms Beckham, Mr Hyett and Mr Sharpedemonstrate that [Mr Sharpe] did, in fact, go upstairs into that room with3 Charge 3 was an identical charge save that it referred to endangering the safety of Mr Hyett.The jury found Mr Sharpe guilty on both these charges.an intent to use the firearm, to deal with it in some way and to use it to scarethem, to rack the firearm, demonstrating that it was loaded so that they wouldtake him seriously and listen to him.[12] Defence counsel closed on this issue on the basis that Mr Sharpe went tothe bedroom with the intention of committing suicide, which is not an imprisonableoffence:Well, we know careless use of a weapon is an imprisonable offence, but that'snot what the evidence showed, is it? [Mr Sharpe] went in that room to tophimself, to put it in crude terms. He'd had a gutful. He had put up [with it]for weeks and it had festered and festered, and we know that he had hadsuicidal intentions earlier because Ms Beckham confirmed that twice in herevidence, didn't she? She confirmed that on a previous occasion after thisbreakup he'd wanted to kill himself with a gun. Committing suicide is notan imprisonable offence. You can't be sent to prison for committing suicide.That's why he went in that room. He'd had a week or two of constant havingit in his face, seeing a relationship that he'd had for four to five yearsevaporate, he told you how he was feeling.So did he go in the room to use the firearm carelessly or did he go intothe room to commit suicide because he'd had enough? He simply couldn'ttake it anymore. I suggest to you that's why he went into that room and thatevidence wasn't seriously challenged when he gave it this morning and it wasaccepted by Ms Beckham that after, at the start of this breakup, he was veryupset about it, so I would suggest that charge 1, the one of aggravated burglary,it won't take you very long at all to come back with a verdict of not guilty onthat.The Judge's directions[13] Question 4 in the question trail was not tailored to the facts of the allegedimprisonable offence. It read as follows:Has the Crown made you sure that at the time Mr Sharpe entered the bedroom,he intended to commit an imprisonable offence?[14] The Judge addressed the jury on question 4 in his summing up in this way:And then question 4 which is the key part to this charge of aggravatedburglary, "Has the Crown made you sure that at the time Mr Sharpe enteredthe bedroom he intended to commit an imprisonable offence?" I have to tellyou that suicide and/or attempted suicide are not imprisonable offences, theyare not offences under our Crimes Act. If you find that there was a reasonablepossibility that he went into Ms Beckham's bedroom to shoot himself or to tryand do so then you must acquit him on charge 1 because the imprisonableoffence element will not have been made out.[The Judge then summarised the evidence on the issue of Mr Sharpe's intentwhen he entered the bedroom.]If [Mr Sharpe] went into the bedroom not to shoot himself or attempt to shoothimself but to threaten, coerce or scare the complainants or indeed to kill themthen that intention would amount to an imprisonable offence. To present afirearm, that means to point a firearm at someone, is an imprisonable offence.Did [Mr Sharpe] have the barrel pointed at the floor or at the couple in the bed?You have got to decide that issue.[15] The Judge concluded his summing up with a summary of the Crown anddefence cases. Returning to the question of the imprisonable offence for the purposesof charge 1, the Judge said this:The Crown limits itself in that discussion to what is actually charges 2 and 3,careless use of the firearm, but you are entitled to consider any imprisonableoffence as his intention. You are not confined to what the Crown suggests asfar as that is concerned. And as I said to you a few moments ago, if you decidethat he intended to kill them, intended to coerce them or threaten them, thenthose would constitute imprisonable offences obviously and you can work onthat basis.Submissions[16] Mr Pyke, for Mr Sharpe, submits that the Judge was wrong to venture beyondthe Crown case, without alerting the defence to this before closings were given.The defence argued for a not guilty verdict based on the imprisonable offence reliedon by the Crown, namely careless use of the weapon by racking the shotgun. The issuewas therefore whether this is what Mr Sharpe intended to do at the time he enteredthe bedroom.[17] Mr Pyke argues that the legal basis for the jury's verdict is in doubt because ofthe Judge's directions concerning the offence of presentation of a firearm. The jurymay have concluded that Mr Sharpe intended to rack the shotgun when he enteredthe bedroom, and this was careless use of the weapon. However, because ofthe Judge's directions, the jury may have found it proven that Mr Sharpe enteredthe bedroom with the intention of presenting the weapon by pointing it at Ms Beckhamand Mr Hyett. Mr Pyke submits this is unfair because defence counsel did not havethe opportunity to present argument on this alternative thesis. A further risk is that,even if the jury found it proven that Mr Sharpe did point the shotgun at the couple,they might still have doubted that this was the imprisonable offence Mr Sharpeintended to commit at the time he entered the bedroom. Defence counsel made noargument on that point because the possibility the Judge might sum up on thatalternative basis was not signalled.[18] In summary, Mr Pyke submits there is a risk of a miscarriage of justice.The outcome could have been different. If the Judge's directions had aligned withthe Crown case and the defence argument in closing, there is a reasonable possibilityanother verdict would have been reached.[19] Ms Hoskin, for the Crown, submits the Judge's directions were correct andcaused no prejudice to Mr Sharpe. She contends there is no risk of a miscarriage ofjustice.[20] Ms Hoskin says the Crown's position from the outset of the trial was clear,namely that Mr Sharpe entered the bedroom, pointed his loaded shotgun atthe complainants as they lay in bed and then racked it. She says that if the juryaccepted this evidence then the intention element of the charge was proved —Mr Sharpe entered the bedroom with intent to commit an imprisonable offence.Ms Hoskin says this was effectively the point being made by the Judge. So long asthe jury accepted the factual narrative advanced by the Crown witnesses, this elementwas made out. While the Judge referred to offences other than those specificallyreferenced by the Crown, this made no practical difference and caused no prejudicebecause these offences were all based on acceptance of the same factual narrative.This narrative had been put to Mr Sharpe and rejected by him in his evidence and inthe closing address of his counsel.[21] The defence case was founded on a competing narrative, namely thatMr Sharpe entered the bedroom with a loaded shotgun with the intention ofcommitting suicide. The Judge made it quite clear to the jury that if they accepted thisevidence, or they considered this was a reasonable possibility, their obligation was tofind Mr Sharpe not guilty. Mr Sharpe's evidence about his intention in enteringthe bedroom with the loaded shotgun could not have been any different, even if he hadknown how the Judge was going to sum up. The imprisonable offences mentioned bythe Judge were all offences that were raised by the prosecution evidence and rejectedby Mr Sharpe in his evidence. He categorically denied pointing the gun atMs Beckham or Mr Hyett and he said he did not intend to threaten them.Assessment[22] Burglary and aggravated burglary are crimes of specific intent — the defendantmust be shown to have intended to commit an imprisonable offence at the time of entryto the premises. The Crown should particularise the imprisonable offence said to havebeen intended by the defendant at the relevant time. If this has not been done beforethe trial commences, the trial judge should require the prosecutor to specifythe imprisonable offence alleged to have been intended by the defendant at the time ofentry. This is a matter of basic fairness. The defendant is entitled to know the case heor she is facing. It is also necessary to ensure the jury is focused on the alleged stateof mind and is not left to speculate whether the intended conduct amounts toan imprisonable offence.4 The charge can only be amended during the trial ifthe defendant has not been misled or prejudiced in his or her defence bythe amendment.5 Judicial directions should be confined to the imprisonable offencethe Crown relies on.[23] It is unacceptable and contrary to basic fair trial rights for a defendant to hearfor the first time during the course of a judge's summing up that he or she is vulnerableto conviction on a basis other than that advanced by the Crown. The judge should notdirect the jury in summing up that they are free to substitute their own analysis ofthe case and determine the charge on a different basis from that advanced bythe Crown and responded to by the defence. A summing up is intended to bea balanced summation of the case the jury has heard after both sides have closedtheir respective cases. It is not the role of the judge in summing up the respectivecases to reformulate the case by changing or expanding the parameters of the chargesbrought by the Crown. Certainly, this should never be done without first discussingthe suggested amendment with counsel to ensure there is no prejudice and noobjection.4 R v Berking CA56/06, 4 September 2006 at [22]–[26].5 Criminal Procedure Act 2011, s 136.[24] While, in the present case, the alleged imprisonable offence intended was notspecified in the aggravated burglary charge, the Crown made it clear in their openingand closing addresses that it was careless use of a firearm, namely dealing with afirearm in a manner likely to endanger the safety of any person by racking the weapon.The defence understood that was what was being alleged throughout and conductedtheir case accordingly. Everyone understood that the alleged intention was to committhe offences particularised in charges 2 and 3. The competing narratives were fullyaddressed on that basis in the evidence and in closing submissions. To that point, therewas no unfairness or prejudice arising from the Crown's failure to provide particularsof charge 1 in the charging document.[25] However, the Judge did not follow best practice in formulating his questiontrail. Ideally, question 4 ought to have been tailored to the facts the jury needed to besure about on the Crown case to find Mr Sharpe had the alleged intention when heentered the bedroom. While this is best practice, the failure to tailor the question trailin that way was not fatal. The question posed was correct, just not as helpful to the juryas it might have been.[26] Had the Judge directed the jury on question 4 in terms of the Crown case andthe defence response to it, there would have been no issue. However, the Judge didnot do this. We agree with Mr Pyke that the Judge should not have summed up onthe basis of an intended offence not relied on by the Crown or addressed bythe defence, certainly not without first discussing this with counsel. We acceptMr Pyke's submission that the Judge erred in directing the jury that they were notconfined to what the Crown contended was Mr Sharpe's intention on enteringthe bedroom and could consider other possibilities such as whether he intended to"kill them", "coerce them", "threaten them", "point a firearm at someone", or indeed"any imprisonable offence".[27] As we have said, it is fundamental to a fair trial that a defendant should knowwhat is alleged against him or her at the outset. Here, Mr Sharpe was entitled toproceed on the basis that the Crown was obliged to prove to the requisite standard thatat the time he entered the bedroom, he intended to carelessly use the firearm by rackingit — in other words at the time he entered the bedroom, he intended to commitcharge 2. While charge 1 did not specify this, it was clear from the time of the Crown'sopening that this was the allegation. The Crown did not depart from this coreallegation during the course of the trial and it closed its case on that basis, as did thedefence. The Crown should have been treated as being bound by those particulars,just as if they had been written into charge 1 (subject to any amendment with leave).[28] We see this case as being distinguishable from Kirby v R, relied on byMs Hoskin.6 There, the Judge's failure to specify the offence in his summing up or inhis question trail was considered not to be fatal because the Crown had made clear intheir opening that the intended crime was arson. Everyone in the courtroom knewthe intended crime was alleged to be arson and that arson was a crime.7 That is notthe position here because of what the Judge said in his summing up. While it may bethat by the end of closing addresses, the jury clearly understood that the Crown casewas that Mr Sharpe entered the bedroom with the intention of carelessly usingthe firearm by racking it, the Judge directed the jury that they were not constrained bythis and could consider any other imprisonable offence. Any clarity as to the crucialissue of intent that existed prior to the Judge's summing up was removed by thisdirection.[29] The Crown did not allege that Mr Sharpe entered the bedroom withthe intention of killing Ms Beckham or Mr Hyett, coercing them, threatening them,presenting the weapon by pointing it at them, or committing some other unspecifiedimprisonable offence. The jury should not have been directed to consider thesepossibilities, raised only by the Judge. They formed no part of the Crown case andhad not been addressed by either counsel in their closing addresses.[30] It is also not clear what imprisonable offence the Judge was referring to withhis reference to "coerce" or "threaten". More problematic was the Judge's furtherreference to "any imprisonable offence". This opened the field wide, with the juryreceiving no other assistance on what the specific intent might have been or whetherthe alternative act or acts intended would constitute imprisonable offences. The juryshould not have been left to speculate on these matters.6 Kirby v R [2013] NZCA 451, (2013) 26 CRNZ 740.7 At [41].[31] We consider the Judge erred in his directions in summing up on the crucialissue of intent on the aggravated burglary charge, charge 1. In our view, this wasa fundamental error. Because these alternative possibilities were raised for the firsttime by the Judge in his summing up, the defence was deprived of any opportunity toaddress them in evidence or in closing argument to the jury. The error has resulted inan unfair trial on this charge and a miscarriage of justice has occurred.8[32] Further, we cannot be confident that the guilty verdict reflected that the jurywere sure that Mr Sharpe entered the bedroom with the intention of carelessly usingthe weapon as the Crown had alleged. There is a reasonable possibility, based onthe Judge's directions, that the jury concluded Mr Sharpe had some other intention,including to commit an act that does not constitute an imprisonable offence.For example, the jury might not have been sure that the Crown had proved tothe required standard that Mr Sharpe intended to rack the gun at the time he enteredthe bedroom. The evidence was that the weapon was not racked until Ms Beckhamwrestled with Mr Sharpe and the gun. It was then that he stepped back and rackedthe gun. In view of this evidence, the jury may have been left in doubt about whetherthis was Mr Sharpe's intention at the time he entered the bedroom.This uncertainty may explain why the Judge raised other possible scenarios.[33] Because of the Judge's directions, there is no way of knowing the basis onwhich the jury found Mr Sharpe guilty on the aggravated burglary charge. We cannotexclude the reasonable possibility that a not guilty verdict might have been deliveredhad this error not been made.9[34] For the reasons we have given, justice has miscarried on the aggravatedburglary charge. The conviction appeal on that charge must be allowed.8 Criminal Procedure Act, s 232(4)(b).9 Section 232(4)(a). See also R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] perTipping J.Disposition[35] The Crown does not seek a retrial on the charge of aggravated burglary, norwould this be appropriate in all the circumstances. We therefore set asidethe conviction on that charge and direct a judgment of acquittal.[36] Because aggravated burglary was the lead charge for the purposes ofsentencing, s 236 of the Criminal Procedure Act 2011 is engaged. The sentenceimposed on that charge was taken into account in imposing the sentences on the lessercharges. The parties agree that the concurrent sentences of 12 months' imprisonmentimposed on the lesser charges — assault with a weapon and careless use of a firearm(x 2) — should be set aside and substituted with a more appropriate sentence for thoseoffences given the appeal against conviction on the charge of aggravated burglary hasbeen allowed.[37] Mr Pyke submits that a starting point in the range of two to two and a halfyears' imprisonment is warranted given the firearm was loaded and posed a real riskto the safety of the terrified victims. Ms Hoskin submits the appropriate range shouldbe six months higher — two and a half to three years' imprisonment. Having reviewedthe authorities relied on by both counsel, we consider a starting point of two and a halfyears' imprisonment would be appropriate.10[38] The Judge allowed a discount of six months from the four-year starting pointhe adopted on the aggravated burglary charge to reflect Mr Sharpe's emotional stateat the time of the offending, his genuine remorse and the rehabilitative steps he hadtaken while remanded in custody (equating to 12.5 per cent).11 The sameproportionate discount applied to the lower starting point we have adopted for the lessserious offending equates to approximately four months. This results in an endsentence of two years and two months' imprisonment.10 R v W (CA352/97) 19 November 1997; Freakley v R [2010] NZCA 497; and McNeilly v R [2011]NZCA 481.11 Sentencing judgment, above n 2, at [14].Result[39] The appeal against conviction is allowed. We direct that a judgment ofacquittal be entered on the charge of aggravated burglary.[40] The record of the first strike warning given to the appellant bythe District Court on 24 January 2020 is cancelled in respect of the convictionquashed.[41] The concurrent sentences of 12 months' imprisonment on the charges of assaultwith a weapon and careless use of a firearm (x 2) are set aside. Concurrent sentencesof two years and two months' imprisonment are substituted on these charges.Solicitors:Crown Law Office, Wellington for Respondent