PENNIKET V R [2016] NZCA 154

PENNIKET V R [2016] NZCA 154 [29 April 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA216/2015[2016] NZCA 154BETWEEN TIMOTHY ANDREW PENNIKETAppellantAND THE QUEENRespondentHearing: 7 April 2016Court: Stevens, Asher and Williams JJCounsel: J C Gwilliam for AppellantM J Lillico for RespondentJudgment: 29 April 2016 at 10.00 amJUDGMENT OF THE COURTThe appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Asher J)Introduction[1] Following a jury trial in the Tauranga District Court, Mr Penniket wasconvicted of three charges of burglary and two charges of theft. He was acquitted ona fourth charge of burglary. On the morning the trial commenced, Mr Penniket hadpleaded guilty to a seventh charge of wilfully attempting to prevent the course ofjustice.[2] Mr Penniket was sentenced by Judge Wolff to an overall term of five years'imprisonment.1 He appeals both conviction and sentence. His conviction appealcentres on the conviction for preventing the course of justice.[3] Mr Penniket is alleged to have burgled three holiday homes, two in the Rotorua area and one on the Thames coast in February and early March 2012. ThePolice carried out various searches and discovered stolen property in Mr Penniket'shouse. On 25 March 2012, Mr Penniket flew out of New Zealand destined forBrisbane. He returned on 14 September 2012 and was arrested and charged.Appeal against convictionApproach to appeal against conviction after a guilty plea[4] Mr Penniket initially pleaded not guilty to all charges. His counsel wasMr Barnett. The first submission on appeal is that Mr Barnett's advice and conductin relation to Mr Penniket's guilty plea to the attempting to pervert the course ofjustice charge led to a miscarriage of justice. Incorrect legal advice is said to haveled to the change of plea. Mr Gwilliam for Mr Penniket puts this on the basis ofcounsel error of a type discussed in Sungsuwan v R.2[5] There is no dispute as to the applicable law. The approach to conviction appeals where there have been pleas of guilty was set out in R v Le Page where thisCourt said:3 it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.1 R v Penniket [2015] NZDC 4672.2 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.3 R v Le Page [2005] 2 NZLR 845 (CA) at [16].[6] There are at least three broad categories where, notwithstanding a guilty plea, there can be a miscarriage of justice.4 These are:(a) where the defendant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;(b) where on the admitted facts the defendant could not in law have been convicted of the offence charged; or(c) where the plea was induced by a ruling which embodied a wrong decision on a question of law.5[7] As acknowledged in a number of cases, a fourth category can be added to these three.6 That is where trial counsel errs in the advice given as to the non-availability of certain defences or potential outcomes. Counsel, for example, may act wrongly or negligently to induce a decision on the part of a defendant to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced. The Court in R v Merrilees observed:7It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.[8] It will often be the case that a defendant will make a decision to plead guiltydespite the existence of possible defences. There is no miscarriage if the appellant,knowing the existence of possible defences, makes an informed decision to plead4 Richmond v R [2016] NZCA 41.5 J B Robertson and F B Adams (eds) Adams on Criminal Law (looseleaf ed, Thomson Reuters) at [CPA232.14] notes three further possible circumstances where an appeal against convictionfollowing a guilty plea may provide a ground for an appeal. None of these have any applicationin the present case.6 R v Merrilees [2009] NZCA 59 at [34]. See also Lyttelton v R [2014] NZCA 638 at [52].7 At [35].guilty.8 The existence of a defence at the time of the guilty plea, even a possiblyviable defence, is not enough to allow a change of plea. There may be defences thatcould be run, but which are put to one side because they are unlikely to succeed, orcarry other disadvantages. In the absence of material counsel error, such decisionscannot be revisited on appeal save in rare circumstances. The sole fact that apossible defence was known to exist at the time the appellant pleaded guilty does noton its own show a miscarriage of justice.The facts of the offences[9] The first charge related to the burglary of a holiday home between28 February and 3 March 2012. The three offenders, including Mr Penniket, brokeinto the house through a window. What was taken included a kayak, a wakeboard, awooden kneeboard, a water ski and a life jacket. A $15,000 boat and trailer werealso stolen from the same address.[10] The next charge of burglary related to a burglary of another holiday homebetween 25 February and 7 March 2012. The items stolen included two televisions,a stereo, two fishing rods, reels, tackle box, four wetsuits, a wakeboard and a largeamount of alcohol. In total, approximately $4,000 worth of property was taken andthe victim spent $800 on repairing his property and on insurance.[11] A third holiday home was burgled between 25 February and 7 March 2012.Items taken from this address included jewellery, bedding, furniture, kitchenware,household ware, food and alcohol. The jewellery alone had an approximate value of$15,000, with the total value of the property taken in the region of $35,000. Therewas also the theft on that occasion of a $30,000 caravan.[12] The Police searched the houses of Mr Penniket's associates on 7 March 2012and discovered a substantial amount of the stolen property. On 23 March 2012, thePolice searched Mr Penniket and his partner's house, and discovered other propertystolen from the holiday homes.8 Lyttelton v R, above n 6, at [52], citing R v Le Page, above n 3, at [16].[13] Mr Penniket fled the country to Brisbane on 25 March 2012. This gave rise to the attempting to prevent the course of justice charge.The circumstances of the guilty plea[14] Much of the argument focused on the circumstances surrounding Mr Penniket entering the guilty plea to the preventing the course of justice charge. By consent weconsidered new affidavit evidence filed for the appellant in this Court ofMr Penniket, his mother Ms Laureen Marsden, and in reply by the Crown, fromMr Penniket's counsel at the trial, Mr Barnett.[15] Mr Penniket in essence claimed counsel incompetence on the part of Mr Barnett in not defending the preventing the course of justice charge.Mr Gwilliam argued that when Mr Penniket departed from New Zealand forBrisbane, he was not aware that he was a suspect in relation to the burglary chargesand that the Police wished to talk to him about them. Mr Penniket claimed that hisdeparture was not an attempt to escape prosecution, but was because he believed thathe could get a job in Brisbane and make a new start. His mother deposed that shehad paid for the renewal of his passport unaware that he was facing an investigation,and she had believed that he had a genuine reason to make a new start in Brisbane.[16] The evidence of Mr Penniket and Ms Marsden was rather unspecific on dates and facts. Ms Marsden did exhibit dated passport documentation indicating that there was indeed an application to renew Mr Penniket's passport lodged on 8 March2012. This was after the searches of the associates' houses but prior to the Policesearch of his house. She deposed that she paid for that application and his ticket, notknowing he was a suspect.[17] The Crown did not seek to cross-examine Ms Marsden, but did cross-examine Mr Penniket and challenged his evidence that his departure wasinnocent. We record that we found Mr Penniket's evidence vague and unconvincing.For instance, he protested that he did not think that the case against him on thepreventing the course of justice was strong, or that he might get a discount forpleading guilty. He said he always believed the decision to plead guilty was notright. However, he gave no believable explanation as to why, if that were true, hedecided to plead guilty and signed two documents expressing his wish to do so.[18] It further damages his credibility that, in a letter to the Court at the time of hissentencing, he expressed his regret at the absconding, and referred to the fact that hehad opted for "flight" from New Zealand like a coward, rather than facing theinvestigation. This contradicted his evidence before us.[19] The established facts do not bolster his claim of an innocent intention todepart the country for reasons unconnected to the Police investigation of theburglaries. Indeed, those facts indicate the contrary. In particular:(a) text messages show that he became aware on 7 March 2012 that the Police had raided his co-offender's house. He appears to have appliedto have his passport renewed the day after. The text messages show an intention on his part thereafter to move to Auckland; and(b) his family home was searched by the Police on 23 March and on that same day he moved to Auckland, leaving for Brisbane two days later on 25 March 2012.The strong inference is that his actions to leave were driven by him becoming aware of the investigation.[20] These particular factors were known to Mr Barnett who was advisingMr Penniket prior to trial. It is not surprising that he would have considered that thepreventing the course of justice charge would be hard to defend. Mr Penniket'sclaim that the proximity of the dates of search and the steps he took to leave NewZealand was just a coincidence was unlikely to be credible. Mr Penniket had earlierpleaded guilty to another preventing the course of justice charge, concerning a laterdeparture from New Zealand prior to trial following his return from Brisbane. Hehad been sentenced on that charge already to 18 months' imprisonment.[21] Having heard Mr Barnett, we conclude that he was careful and legally accurate in his advice and actions. By the time of his last visit to Mr Penniket the Saturday before the trial, he was very familiar with the file and the issues involved having had a number of discussions with Mr Penniket as well as appearances for him on issues such as bail, challenges to evidence, and an appeal on evidence issues to the Court of Appeal. Mr Barnett prepared a detailed four and a half page document that Mr Penniket signed at the Saturday meeting recording his instructions. Mr Barnett was commendably thorough.[22] He spent some hours talking to Mr Penniket at that meeting. The strengths and weaknesses of the evidence were canvassed. As a consequence Mr Penniketchanged his mind about defending the preventing the course of justice charge anddecided to plead guilty. He signed a handwritten letter of instruction prepared byMr Barnett stating that "after considering my options and discussing the evidenceI have decided to plead guilty to the preventing the course of justice charge." Heacknowledged that the Crown might use it against him as an indication of a guiltymind, and concluded "I am making my decision based on the weight of evidenceagainst me [on] the preventing charge". Further, on the Monday morning of the trialhe signed a typed document to similar effect. He acknowledged that the earliersentence indication on the other preventing the course of justice would not bind theJudge.[23] Despite Mr Penniket's assertions to the contrary, the case against him on theperversion charge was strong. Having seen him give evidence, we doubt that a jury would have considered that his explanations for leaving created a reasonable doubt. In any event, he had made a firm decision not to give evidence at the trial, makingthe task of establishing a reasonable doubt even harder.[24] The plea was entered by Mr Penniket knowing his options, perceiving an advantage in obtaining a guilty plea discount, and perhaps achieving some strategic advantage in not having the issue contested at trial against a strong Crown case. We do not consider that calling his mother, Ms Marsden, would have strengthened his defence. Even if she appeared to give credible evidence, her actions could be explained by the fact that Mr Penniket did not disclose to her his true intentions.[25] We reject the criticism made of Mr Barnett in not getting a brief from Ms Marsden. Mr Barnett did not wish to approach her, given a potential conflictbetween her interests and those of her son, and he left it to Mr Penniket to approachher to give evidence. Mr Penniket did not do so and did not pursue her as a witness.Although Ms Marsden had earlier been acquitted of a preventing the course ofjustice charge concerning Mr Penniket's absconding, there were risks in her givingevidence in her son's trial and her assistance to her son being explained.Ms Marsden's evidence could have harmed Mr Penniket's position, as Mr Pennikethad told her about the 23 March 2012 search warrant and his concern about it.[26] In terms of availability, Ms Marsden was present in Court at the start ofMr Penniket's trial. Whatever the reason, it was Mr Penniket and Ms Marsden whochose not to pursue her giving evidence. There was no error by Mr Barnett in notpursuing her himself.[27] This is not a case of an arguable or tenable defence not being explored or advanced. Mr Penniket chose, for reasons that can be readily understood, not todefend that charge. Later regret at the entry of a guilty plea and the presentation ofhypotheses of a better outcome do not come close to meeting the threshold for asuccessful appeal against conviction following a guilty plea.[28] We conclude that there has been no error by counsel, and that the entry of the plea of guilty has not given rise to any miscarriage of justice. This ground of appeal fails.Summing-up – the direction on the preventing charge[29] As Mr Barnett warned Mr Penniket might well happen, the Crown in closingreferred to Mr Penniket's absconding following the Police search as supporting thecase against him in that it implied a guilty mind. The appellant criticised the lack ofa fuller jury direction, akin to a propensity direction, to avoid unfair prejudice on thatpoint.[30] In Boyd v R, the Court of Appeal stated that although evidence of defendant attempting to flee New Zealand was admissible, it should be accompanied by directions to the jury about the circumstantial nature of the evidence:9At trial the Judge will have to direct the jury that the evidence is circumstantial only and does not directly prove the offences with which Mr Boyd is charged; and that evidence of Mr Boyd absconding is only relevant if the jury is satisfied Mr Boyd's conduct amounts to an admissionof guilt. The trial Judge will also have to direct the jury that it is entitled to draw an inference that Mr Boyd's conduct in absconding while on bail, soclose before the trial was due to commence, is evidence amounting to such an admission, provided the jury is satisfied that Mr Boyd's conduct is notcapable of any other reasonable explanation.[31] Although Boyd v R is a recent Court of Appeal case issued subsequent to the conclusion of Mr Penniket's trial, these proposed directions were adopted from the earlier cases R v Ali10 and R v Luczynski.11 In those cases, the Courts consistently suggested that the trial Judge would need to give a direction as to the inferences which may be drawn from the evidence of the flight, the possibilities of innocent explanations,12 and the fact that the evidence is circumstantial and does not directly prove the guilt of the defendant.13[32] While Judge Wolff did not in a strict sense give a propensity type direction, he gave a full and satisfactory direction as to the relevance of Mr Penniket leaving the country, which necessarily pointed out its evidential limitations. The Judge told the jury that the Crown had referred to Mr Penniket's departure as indicating a guiltystate of mind and something to hide. He mentioned the defence position that therecould have been a number of other explanations for his departure, including theinstinctive reaction of an innocent person who is suddenly accused to flee. He said:Defence says, well of course on the evidence that you have he could easilyface many charges of receiving stolen property, so he had a good reason torun anyway. So it adds nothing to whether he was involved with theburglaries or the thefts. All it indicates is that he was a little bit troubledabout what had been found at his property. Then again people sometimesrun simply because that's the first thing that they think of. You could beinnocently passing a shop and someone yell out, "Stop, thief." And, you'd9 Boyd v R [2015] NZCA 527 at [15] (footnotes omitted).10 R v Ali CA129/06, 6 July 2006.11 R v Luczynski [2003] 2 NZLR 860 (HC).12 R v Ali, above n 10, at [9].13 R v Luczynski, above n 11, at [18].see people looking at you and you suddenly just take to your scrapers because though you are not the thief you are not going to stick round to find out. So you might think that in relation to count 7 there is a little bit of relevance but not a whole lot. But, it was in the indictment and he pleaded guilty to it and so it needed to be addressed, otherwise it would be the elephant in the room.[33] The Judge clearly emphasised the limited relevance of the flight and thepossibility of explanations other than a guilty mind. While it was open to him tospecifically warn against assuming Mr Penniket's guilt because he had left thecountry, the clear import of the Judge's warning was that the evidence of the flightcould not be used in that way. He gave the usual prejudice direction as well.[34] We consider that the Judge's explanation of the relevance of the preventingthe course of justice charge was accurate and in accordance with Boyd v R.14 The jury would have been aware that the evidence of the absconding had limited relevance and did not prove the charges. The Judge did what was necessary to warn the jury against taking inferences arising from the absconding too far.[35] This ground of appeal therefore fails.[36] A further ground of appeal concerned an alleged failure by the Judge to give a tripartite warning following the defence offering evidence from one of Mr Penniket's associates, Mr Wilkin. However, Judge Wolff in his summing-up warned the jury that, if Mr Wilkin's evidence was not accepted, they could not thenassume Mr Penniket's guilt, and that the Crown still needed to prove its case. It was also pointed out that Mr Wilkin's earlier plea of guilty was irrelevant. The Judgesaid all that was required. This ground of appeal was not pursued before us, in our view for good reason.Sentence appeal[37] On sentence, Judge Wollf assessed the burglary and theft offending as spree offending by a group of professional burglars. He fixed a starting point of three anda half years' imprisonment. He considered the preventing the course of justicecharge warranted a starting point of two years' imprisonment. The combined starting14 Boyd v R, above n 9.point was reduced to four and a half years' imprisonment given that a cumulative sentence was to be imposed. This was then uplifted by six months to five years'imprisonment to account for Mr Penniket's past record of offending.[38] The Judge made the sentence concurrent with the one and a half yearsentence that Mr Penniket was already serving on the other preventing the course ofjustice charge. This was effectively a further discount on sentence, given thatMr Penniket had served only six months of that one and a half year sentence. Thenet effect of all the sentences, including the prior sentence, was five and a half years'imprisonment.[39] Mr Gwilliam submitted that the starting points were too high for both the burglary and preventing the course of justice charges, and that there was a lack of sufficient credit for Mr Penniket's guilty plea and his efforts to rehabilitate while inprison.[40] We consider first the starting points for the burglary and theft charges byconsidering some recent cases. There is no tariff decision.[41] In Marsh v R, the appellant, with two co-offenders, drove to a house, forced their way inside, and took $90,000 of property.15 The appellant was also sentenced for a residential burglary of items valued at $2,820, and an attempted residential burglary in which he triggered a silent alarm. This Court upheld a sentence of threeyears and six months' imprisonment, although in that case the offender had a significant past history of burglary and dishonesty offending and was on parole at the time of the burglary. Taking into account the other burglary and attempted burglary, a five year starting point was held to be appropriate.16[42] In Harrison v R a starting point of four years' imprisonment was upheld forthe burglary of four residential homes where the amount stolen was valued at $66,000 and included televisions, cellphones, jewellery, sports equipment and other household items, as well as sentimental items.17 The Court noted the short space of15 Marsh v R [2010] NZCA 445.16 At [13].17 Harrison v R [2011] NZCA 80.time over which the offending occurred, the serious impact on the victims, and the fact that the offending was committed soon after release from prison. The Court also surveyed a number of Court of Appeal cases, confirming a range of three years and six months' to four years' imprisonment in serious, high-value residential burglaries.18[43] Here, there were three major burglaries involving total losses to the victims of around $85,000. We reject a submission that burglaries of holiday homes involve a lower level of culpability to that of residential homes. There is still the significant possibility of the victims being present, and the victim impact reports show how the losses of valued personal items affected the residents and their ability to enjoy their dwellings. These factors can apply equally to residential or holiday homes.[44] In light of this case law, a starting point of three years, six months'imprisonment for three significant residential burglaries was well within range, andtowards the lower end. An uplift of around six months was not out of line givenMr Penniket's relatively significant previous dishonesty offending history, whichincluded burglaries.[45] We turn to the starting point of two years' imprisonment for the preventing the course of justice. Mr Penniket achieved his goal in departing New Zealand on 5 March 2012 and frustrated the Court process for about six months until his return on 14 September 2012. He did ultimately return of his own volition, a factor whichmeans that a starting point of two years' imprisonment was at the top of the availablerange although not out of it. We accept that it is difficult to see why this sentencewas six months more than the earlier preventing the course of justice sentence, giventhat the later absconding, involving obtaining a British passport in a different name,was if anything more serious. Nevertheless, the absconding to Australia was acynical attempt to frustrate the course of justice, and a condign sentence had tofollow.18 At [10] citing R v Sherlock [2008] NZCA 555, R v McAllister (2001) 18 CRNZ 606, andSwinburne v R [2010] NZCA 568.[46] When we consider how the Judge dealt with matters in the round we are satisfied that the end sentence imposed was appropriate. The stern starting point on the preventing the course of justice charge is to be contrasted to the more lenientstarting point for the burglary charges. While the Judge made no specific discountfor the guilty plea, or Mr Penniket's rehabilitation efforts in prison, he made generaldiscounts which can be seen as reflecting these matters. He discounted thecombined starting points by one year. He made the sentences concurrent with thesentence for the earlier preventing the course of justice conviction, with the effect ofdiscounting that sentence significantly.[47] Looked at overall, the end sentence for all the offending of five years'imprisonment was fair for three major burglaries and a significant preventing the course of justice charge, including an uplift for relevant past convictions.[48] We are conscious of Mr Penniket's apparently effective rehabilitation efforts while in prison, and they are to be encouraged, as he is at the crossroads. However, they are not of the order or type to warrant more recognition than was given by the Judge. Those efforts will undoubtedly be considered at any parole hearing.Result[49] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent