TITFORD V R [2017] NZCA 331

TITFORD V R [2017] NZCA 331 [31 July 2017]ORDER PROHIBITING PUBLICATION OF THE INFORMATION IN [68]OF THIS JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OROTHER PUBLICLY AVAILABLE DATABASE UNTIL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFWITNESSES UNDER 17 YEARS OF AGE PROHIBITED BY S 139A OF THECRIMINAL JUSTICE ACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA854/2013[2017] NZCA 331BETWEEN ALLAN JOHN TITFORDAppellantAND THE QUEENRespondentHearing: 14 July 2017Court: Harrison, Winkelmann and Gilbert JJCounsel: R M Mansfield for AppellantZ R Johnston for RespondentJudgment: 31 July 2017 at 3 pmJUDGMENT OF THE COURTA The application for leave to adduce fresh evidence is declined.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.D Publication of the information in [68] of this judgment in news media or on the internet or other publicly available database is prohibited. Publication in law report or law digest is permitted.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)ContentsPara NoIntroduction [1]Background [5]Crown case [5]Offences [16]Mr Titford's defence [17]Fitness to stand trial [20]Mr Titford's case [20]Appellate jurisdiction [22]Personal history [25]Experts' reports [27]Analysis [32]Right to present defence [48]Failure to call evidence [53]Severance [57]Sentence [65]Result [77]Introduction[1] In October 2013, following a trial before Judge Duncan Harvey and a jury in the Whangarei District Court, Allan Titford was found guilty of 39 charges, principally of raping his former wife and assaulting his children with weapons, and also of perjury, obstructing justice, arson, dishonesty and recklessly discharging a firearm. He was acquitted of 14 charges including rape, arson, threatening to killand assault. He was convicted and sentenced by Judge Harvey to 24 years'imprisonment with no minimum period of imprisonment.1[2] Mr Titford appeals against his conviction on the generic ground of a miscarriage of justice, specifically because he was unfit to stand trial, he was deprived of his right to present his defence because he had inadequate time to instruct counsel before trial, and the charges against him should have been severed. He appeals against his sentence on the ground that it was manifestly excessive.1 R v Titford DC Whangarei CRI-2010-029-1480, 20 November 2013 [Sentencing notes].[3] Mr Titford has filed an extensive affidavit in support of his appeal together with affidavits from Gavin Evans, Ross Baker, Martin Doutre, Sheryll Titford and Noel Hilliam. He applies for leave to adduce fresh evidence from these witnesses on the ground that if admitted it would raise doubts about the safety of his conviction. The Crown has filed affidavits from Mr Titford's counsel at trial, John Moroney andSumudu Thode, and Detective Edward Evans, the officer in charge of Mr Titford'sprosecution. Counsel did not require any of these witnesses for cross-examination.[4] Also, in May 2016 Judge Harvey submitted a report on the trial in response to a request from this Court.2BackgroundCrown case[5] Mr Titford's trial occupied a month of hearing evidence spanning multipleoffending over a 22-year period. With the constructive assistance of both counsel, we have been able to summarise the essence of the Crown case as follows.[6] Mr Titford married Susan Titford, now Susan Cochrane, in 1987. Together they had seven children. Six of them are the subject of Mr Titford's offending whichcommenced when he raped Ms Cochrane in 1987 and ended when she and the children left him after further rapes in 2009. The family lived for most of the marriage on a farm owned by Mr Titford at Maunganui Bluff, on Northland's westcoast, except for a period in Australia between 1993 and 1999.[7] Mr Titford first raped his wife within a few months of their marriage when she refused to participate in sexual activity following a day of verbal abuse and argument. Mr Titford responded by punching and sexually violating her without her consent. He also raped her regularly towards the end of the marriage in 2008 and 2009. Whenever Ms Cochrane resisted, he said that it was his right as a husband to have sexual activity with her, whether consensual or otherwise. He expected her to participate whenever he wished, which was virtually daily. She said that before2 Court of Appeal (Criminal) Rules 2001, r 17.raping her he would invariably squeeze her ankles in a painful manner, so that she knew what would follow.[8] Mr Titford also beat his children, often with whatever weapon happened to be available like a belt, an alkathene pipe, a baton, a shovel, a hammer and a knife, as well as punching and kicking them. He made the older children do heavy work on the farm and hit them if they failed to perform to his satisfaction. Some assaults were caused by such misbehaviour as putting too much butter on a piece of bread. Others were entirely unprovoked.[9] Examples of Mr Titford's cruelty were reflected throughout the charges. His daughter Ulanda was born with a painful hip deformity. He would kick her in this area and make her run around the farm, and withhold her asthma inhaler when she needed it. Mr Titford's second child, James, was singled out for particular violence. According to Ms Cochrane, before James was born Mr Titford warned her that hewould "treat [James] like hell". Mr Titford beat James regularly. On one occasion he kicked James in the ribs a few days after he had suffered a cracked rib. Mr Titford made the children work on the farm without drinking water, often when they were unwell. He physically abused farm animals in front of them.[10] Ms Cochrane and the children lived in a state of constant fear. The Crown'scase was that Mr Titford's violence was relatively controlled — it was designed to demonstrate his power and instil maximum fear, while minimising the risk of detection by outsiders or authorities. Ms Cochrane spoke of her former husband smashing up furniture, throwing heavy objects near the younger children and pointing his shotgun at them.[11] Mr Titford refused to allow Ms Cochrane to go out alone or attend hergrandmother's funeral. He warned her that he would kill her parents, then her andthen the children if they attended the funeral. He frequently told her relatives in his presence that Ms Cochrane would never be able to escape him. He would find her and kill her. He knew how to make murder look like a farm accident.[12] In 2009, after the last rape, and after Mr Titford had held a knife to James'throat and threatened to stab him, Ms Cochrane, assisted by her eldest child, Alyssa, escaped the relationship.[13] Mr Titford threatened repeatedly to kill his wife's younger brother,Richard Cochrane, who was then a teenager working on his farm. On another occasion he fired a high-powered rifle several times at an unknown person who was gathering watercress on his property.[14] Mr Titford also used Ms Cochrane and Alyssa in a particularly cynical way. In 2008 he was charged with assaulting a neighbour with a wooden batten. He was tried before a Judge alone in the District Court. Not only did Mr Titford give perjured evidence, but he also forced his wife and Alyssa to do so in his defence. He was nevertheless convicted at trial. His appeal was successful in part because of the false evidence given by his family.3[15] Finally, a separate set of offending related to Mr Titford's bitter, long-running and heavily publicised dispute with local iwi who had made a claim to part of his farm in the Waitangi Tribunal. In order to garner public sympathy and support for his position, Mr Titford decided to burn down a house on his property, and blame it on the iwi. His attempt to burn down a vacant farm house in July 1992 was successful after he had earlier failed in October 1988. As planned, he publicisedboth events, blaming local Māori. And in 1988 he made a fraudulent insuranceclaim for damage to his own bulldozer for which he received a payment of $1,250.Offences[16] The nature and duration of Mr Titford's offending is reflected in this table prepared by Ms Johnston of the jury's guilty verdicts on individual charges:Sexual violation (Susan [Cochrane]) Second ½ 1987Reckless discharge of a firearm 1987–1992Using a document for pecuniary advantage 1988Arson 12 October 1988Arson 4 July 19923 Titford v Police HC Whangarei CRI-2008-488-24, 3 February 2010.Threaten to kill (Susan [Cochrane])Representative chargeUncertainAssault on a child (Alyssa Titford) 2002Assault with a weapon (Alyssa Titford)Alkathene hose2002Assault with a weapon (Alyssa Titford)BeltRepresentative charge2008Assault with a weapon (Susan [Cochrane])Alkathene hoseRepresentative charge2002–2009Assault with a weapon (Alyssa Titford)Alkathene hose2003Assault on a child (James Titford) December 2003Assault with a weapon (Soreya Titford)Computer monitor2006Assault with a weapon (James Titford)Belt2007Assault with a weapon (James Titford)BeltUncertainSexual violation by rape (Susan [Cochrane])Representative charge2008Assault with a weapon (Ulanda Titford)BeltEarly 2009Assault with a weapon ([S] Titford)BeltEarly 2009Assault with a weapon (James Titford)Baton2009Perjury 3 February 2009Wilful obstruction of justice 3 February 2009Assault with a weapon (James Titford)ShovelFirst ½ 2009Assault with a weapon (James Titford)KnifeFirst ½ 2009Male assaults female (Susan [Cochrane]) 2008–2009Assault on a child (Ulanda Titford) 2008Assault with a weapon ([J] Titford)BeltRepresentative charge2008Assault with a weapon ([S] Titford) Hammer 2008Assault with a weapon ([S] Titford) Belt 2009Male assaults female (Susan [Cochrane]) First ½ 2009Assault with a weapon (James Titford)Alkathene pipeFirst ½ 2009Assault with a weapon (Ulanda Titford)BeltApril 2009Assault with a weapon ([S] Titford)BeltFirst ½ 2009Assault with a weapon (Ulanda Titford) Belt First ½ 2009Assault with a weapon ([S] Titford) Belt January 2009Threatens to kill (Richard Cochrane)Representative chargeJuly 2009Male assaults female (Susan [Cochrane]) June–July 2009Sexual violation by rape (Susan [Cochrane]) June–July 2009Male assaults female (Ulanda Titford) July 2009Assault (James Titford) July 2009Mr Titford's defence[17] Mr Titford denied the offending when interviewed by police in November 2010. He specifically denied raping his wife or assaulting his children, although he did admit to smacking his children lightly with his hand or a ruler for disciplinary reasons. Once, he volunteered, he slapped James' hand with a belt.He accused his wife of violence towards him.[18] Mr Titford explained his denials by attributing false motives to incriminate him to Ms Cochrane and her family, and to the police and others. He accused his wife and her family of pursuing a scheme to obtain his assets by indoctrinating the children and attempting to blackmail him. He claimed he had been harassed and persecuted by the police and other agencies relating to his protracted land-claim battle. He gave evidence consistent with his police statement in his defence at trial.[19] Mr Titford was originally remanded in custody following his arrest in November 2010. However, in December 2010 he was granted bail and remained on bail until the trial started on 3 September 2013. He was remanded in custody during the trial. He successively instructed five different counsel, who then withdrew for various reasons, before instructing Mr Moroney and Ms Thode in July 2013. During this time legal aid had been granted and then withdrawn. We shall return to this issue when addressing Mr Titford's discrete ground of appeal that he was denied anopportunity to present his defence.Fitness to stand trialMr Titford's case[20] The primary ground of appeal advanced by Mr Mansfield on Mr Titford'sbehalf is that he was unfit to stand trial. We must record immediately that Mr Titforddoes not accept that he is mentally impaired. Nevertheless, we accept that this ground of appeal is arguably available to Mr Titford and that Mr Mansfield has acted properly in advancing it.[21] Mr Mansfield submits that defence counsel or Judge Harvey should have raised a question before trial about Mr Titford's fitness to stand trial. Mr Titford was not assessed at any stage prior to or during trial. Mr Mansfield focuses on Mr Titford's pursuit of what he says was an irrational conspiracy-based defence, which was not in his best interests. In Mr Mansfield's submission Mr Titford was in fact delusional, even though he may have presented as being able to provide instructions and, if he had been assessed, he would likely have been found suffering from a mental impairment and unfit to stand trial. Mr Mansfield acknowledges that on the evidence available to the Court Mr Titford would be assessed as fit, applying the conventional standard for assessing fitness to stand trial adopted by this Court inSolicitor-General v Dougherty.4 But he asks this Court to apply a different test to protect a person like Mr Titford whose mental condition results in his advancement of a delusional defence.Appellate jurisdiction[22] An appellate court on a general appeal is not empowered to make a finding of unfitness to stand trial in the absence of such a finding by the trial Court following the process mandated by s 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.5 Ms Johnston accepts our jurisdiction to intervene, however, if we find that a miscarriage of justice has occurred because the statutory process was not followed.[23] The statutory requirements are well settled. A defendant is "unfit to stand trial" if he or she is unable, due to mental impairment, to conduct his or her defenceor instruct counsel; and includes a defendant who, due to mental impairment, is unable to plead to the charge or charges, adequately understand the nature and purpose or possible consequences of the proceedings, or communicate adequately4 Solicitor-General v Dougherty [2012] NZCA 405, [2012] 3 NZLR 586 at [62].5 Cumming v R [2008] NZSC 39, [2010] 2 NZLR 433 at [13].with counsel for the purposes of conducting a defence.6 The prescribed process must be invoked where a question is raised about a defendant's fitness, or real doubt existsabout it.7[24] The Court is required to conduct a three-step inquiry when determining adefendant's fitness to plead: first, to assess his or her participation in the act oromission charged, to be determined on the balance of probabilities;8 second, to obtain evidence from two health assessors as to whether the defendant is mentally impaired;9 and, third, if so satisfied, to determine whether that impairment means the defendant is unfit to stand trial.10 While the term "mental impairment" is notdefined, we accept Mr Mansfield's submission that it is a condition which impairs mental function to the extent that it may seriously affect the defendant's ability tocomprehend the charges, consider the available options and consequences or plead or mount a defence.11 Mr Mansfield submits, however, that the term should be construed broadly, to embrace a person whose decisional competence about the defence to be run at trial is impaired.Personal history[25] Mr Titford has no history of mental illness or disability. Also, as Ms Johnston emphasises, he has over the years successfully operated a number of businesses and involved himself extensively in litigation, often representing himself.[26] In November 2010, shortly after his arrest, and in November 2013, shortly after his trial, Mr Titford was assessed by staff employed by the mental health facilities at Northland Region Correctional Facility. On the first occasion Mr Titford was described as eccentric but not delusional or psychotic. On the second occasion a doctor expressed the view that he likely suffered from a delusional disorder of a paranoid nature.6 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 4.7 McKay v R [2009] NZCA 378, [2010] 1 NZLR 441 at [34] and [39]–[40].8 Criminal Procedure (Mentally Impaired Persons) Act, ss 14(1), 13(4) and 9.9 Section 14(1).10 Section 14(2).11 R v RTPH [2014] NZHC 1423 at [9].Experts' reports[27] Three psychiatrists have recently reported on Mr Titford's current state of mental health. Their reports are comprehensive, but it is unnecessary for us to review them in detail. They recite in similar terms Mr Titford's life history andpresentation of symptoms. Two of the psychiatrists, Dr Jeremy Skipworth and Dr Ian Goodwin, agree that Mr Titford is suffering from a condition known as querulous paranoia. The condition is not included in the Diagnostic and Statistical Manual of Mental Disorders (the standard classification used by mental health professionals, known as DSM-5) but is well recognised in forensic circles. In lay terms it refers to a persecutory type of delusional disorder, characterised by paranoia and a pervasive, long standing suspiciousness and generalised mistrust of others.[28] In Dr Skipworth's opinion: much of Mr Titford's presentation can be understood in terms of hispersonality rather than mental illness, and the stress of his trial. He has a fundamental Christian world view, and lives his life by a set of relatively inflexible rules. He may be seen as arrogant and close-minded and obstinate. In my assessment he has a tendency to interpret the actions of others as malevolent. This was exemplified by various inappropriate responses to me in the course of my assessment. He can also come across as opinionated and arrogant. It is apparent that he is also deeply racist againstMāori, referring to them disdainfully as "niggers" throughout myassessments with him, even after I pointed out the offensive nature of this term. It was clear that he intended to be offensive, while telling me of his own Jewish heritage, and the significantly worse plight of his Jewishforefathers. He was deeply resentful of what he thought was the privileged treatment of Māori in New Zealand, and had no reservations expressing this view.In my opinion his persecutory presentation is not accompanied by other psychopathology indicative of a major mental illness. The relative stability of this presentation also suggests personality style rather than mental illness. The stress of trial and his multiple losses (of land, money, family and liberty) may have exacerbated dysfunctional personality traits, and for this reason I would hesitate to diagnose personality disorder at this time.[29] Both Dr Skipworth and Dr Goodwin are of the opinion that Mr Titford'scondition is not psychotic. In Dr Goodwin's qualified opinion Mr Titford could have been seen as suffering from a mental impairment, given his view of the world with a generally paranoid perspective and capacity to conflate issues and see conspiracies inmany places. He considered that this condition had a significant impact upon Mr Titford's understanding and interaction with others including the District Court atthe relevant time. But ultimately Dr Goodwin concluded: it is likely that the Court would have seen Mr Titford as fit to stand trial,(at the time of his trial) but essentially only because the bar around fitness is set very low. Clearly, Mr Titford was unable to advance a defence in his best interests, largely due to his abnormal beliefs and conflation of a number of his paranoid ideas.[30] The third psychiatrist, Dr James Cavney, adopted a more extreme position. In his opinion Mr Titford suffers a diagnostically unclear mental illness and is probably delusional. If it was found that Mr Titford's defence of being a victim of anorganised conspiracy was delusional in nature, then Dr Cavney advised in qualified terms that: his ability to plead to his charge and decide what defence to rely upon could have been significantly impaired by virtue of not recognising his the symptoms of his illness and, potentially, to consider a mental health based defence.[31] Dr Cavney concluded, however, that Mr Titford: was very familiar with the Court process and the roles of the major participants in a trial. He was aware of the seriousness of his convictions and the evidence against him.In Dr Cavney's opinion Mr Titford would have been able to follow the proceedings and make his version of events known to counsel.Analysis[32] The question for us is whether a miscarriage of justice occurred because theCourt failed either of its own initiative or at counsel's request to refer Mr Titford for assessment before trial. In order to determine that question in Mr Titford's favour, we must be satisfied that (a) there was an evidential basis for referring Mr Titford; (b) the Court was likely to have found Mr Titford unfit; and (c) as a result his conviction following trial was unsafe. In our judgment the evidence falls well short of meeting that threshold, for a number of reasons.[33] First, the expert evidence does not independently satisfy us that Mr Titford was likely suffering from mental impairment at the time of trial. The psychiatrists were not required for cross-examination before us. We are free to decide for ourselves what opinion evidence should be accepted or rejected. All three psychiatrists confirm that Mr Titford is suffering from a degree of delusional paranoia and that he was likely to have been suffering the same during the trial in September 2013.[34] However, delusional paranoia does not of itself equate with a diagnosed mental impairment and we accept Dr Skipworth's opinion that Mr Titford's paranoiais consistent with personality traits rather than a mental illness. Dr Goodwin agrees with Dr Skipworth that Mr Titford's condition does not constitute a mental disorder.[35] The basis for Dr Goodwin's observation that a court would likely have foundMr Titford fit because the "bar around fitness is set very low" is unclear to us. Determination of a defendant's fitness to stand trial is a particularly fact-specific exercise in judicial evaluation. Its foundation is the existence of an impairment (which does not exist here) to be measured against the complexity, nature and number of the charges and all the elements of the defendant's relationship withcounsel and the trial court.12 There is no threshold "bar". Each case depends verymuch on its own circumstances, of course taking appropriate account of expert medical opinion.[36] Second, as Ms Johnston observes, a retrospective consideration of fitness in a case like this is inherently problematic. It is now nearly four years since trial. We therefore attach particular weight to the contemporaneous evidence with the benefit of Judge Harvey's report and affidavits from Mr Moroney and Ms Thode.13[37] Judge Harvey reports that he had no concerns about Mr Titford's mentalcondition. He was familiar with the case before trial, having conducted earlier callovers. He then presided, as we have observed, over a month-long trial. The Judge reports that he "did not at any stage during either the pre-trial process or12 Solicitor-General v Dougherty, above n 4, at [56].13 Britz v R [2012] NZCA 606.the trial itself detect anything which even hinted at the possibility that Mr Titfordwas unfit to stand trial". He noted Mr Titford's active engagement with his counselduring the course of trial and their constant communication. He did not see anything which suggested Mr Titford was unable to give his counsel clear instructions relating to the various allegations. Nor did he observe anything of concern when Mr Titford gave evidence. While some of that evidence was improbable, the Judge was of the opinion that it merely mirrored Mr Titford's attitude throughout.[38] The evidential transcript bears out Judge Harvey's report. It disclosesMr Titford's ability to follow very clearly the nature and detail of the Crown case against him. When giving evidence he was decisive in recounting his memory of certain key events. He was emphatic in his denial of the core allegations founding each charge. It is true that he became digressive in later parts of his evidence-in-chief, and propounded a theme of a multi-party conspiracy in cross-examination. The structure and content of some of Mr Titford's answers mayappear to reflect delusional views. But equally they could be said to be the rationally crafted account of a mentally fit person who sought to avoid criminal liability by exploiting perceived prejudices through his self-portrayal as the victim of injustices at the hands of the police and local iwi.[39] Mr Moroney and Ms Thode's affidavits are detailed and unchallenged. Ms Thode is and was familiar with the Criminal Procedure (Mentally Impaired Persons) Act and its screening processes and the availability of reports. She had no concerns of any nature about Mr Titford's fitness to plead or ability to give instructions; if she had, she would have raised them with Mr Moroney or the Court. She had no difficulty in briefing his evidence or obtaining instructions on a daily basis during trial. While Mr Titford was often digressive about the land dispute issues, she was also able to take his full instructions on the essential elements of the Crown case.[40] Mr Moroney's affidavit was particularly comprehensive on this and otherissues. While Mr Titford was not an easy client — he was often dilatory and uncooperative in answering questions and providing instructions — he always presented as fully able to understand the charges. During the course of the trialMr Moroney and Ms Thode met daily with Mr Titford. He was in custody but the Judge ensured that counsel had full and open access to him in a designated room. Counsel were able to brief Mr Titford's evidence progressively and fully for thepurpose of calling him as a witness in his own defence.[41] Of particular relevance is Mr Moroney's advice that:46. I considered Mr Titford to be fixated on his ongoing dispute with the Crown over his property that he believed had been stolen from him.47. I was of the firm impression however that Mr Titford was well aware of the nature of the charges he faced and understood exactly what those charges meant. He seemed to understand the value in putting a contrary picture to witnesses. At trial we were able to cross-examine witnesses on a number of inconsistencies. For example three witnesses gave three different versions of an incident involving shooting of a person picking watercress. While Mr Titford was convicted on that charge, he was acquitted of approximately 14 charges.48. I did not ask for a report under the Criminal Procedure (Mentally Impaired Persons) Act as I did not have those concerns. He had been previously represented by experienced counsel, including Arthur Fairley, and an amicus. I am not aware of anyone raising mental health or fitness issues with the Court. Had those concerns been held they would have been raised.[42] In corroborating defence counsels' advice, we repeat Dr Cavney's affirmativeopinion that Mr Titford understood the seriousness of the charges and the evidence against him and would have been able to follow the trial process and communicate his version of events to counsel.[43] This brings us back to Mr Mansfield's reliance on what he describes asMr Titford's delusionary and thus irrational defence. It is of itself, he submits,compelling evidence of a mental impairment and unfitness to stand trial. He says a finding of unfitness before trial would have prevented Mr Titford from deciding to run an irrational defence contrary to his own best interests. He invites us to departfrom this Court's decision in Dougherty, which affirmed a defendant's freedom tomake his or her decisions even if they are not in his or her best interests.1414 Solicitor-General v Dougherty, above n 4, at [40].[44] The circumstances of this case do not require us to revisit Dougherty. It is not for us to say that Mr Titford's defence was irrational or not in his own best interests. Mr Mansfield acknowledges that Mr Titford's acquittal on 14 charges,some of them among the most serious he faced, necessarily gives rise to an inferenceof the jury's acceptance of elements of Mr Titford's defence. We cannot speculate onwhether this result is attributable to the defence emphasis upon inconsistencies between and by witnesses or aspects of Mr Titford's preferred defence of conspiracy. The jury's verdicts do not imply that Mr Titford's conspiracy defence operated to hisprejudice at trial; they simply confirm its rejection of that defence to the majority of the charges.[45] We adopt, however, as apposite to this case, the observation in Doughertythat:[53] Although the extremes of his beliefs, as they touch on the motives of the Commissioner, are obviously irrational, Mr Dougherty would not be the first or the last defendant to run a defence sourced in the belief that he is being picked on. He is a man who understands what is happening, knows and understands the charges, and is able to tell his counsel what defence he wants to run. It may not be an effective defence in terms of testing the prosecution case, but here his other choices (perhaps) are simply to put the Crown to the proof or to plead guilty. And because he will not (it seems) choose those options because he considers the charges to be the product of a desire on the part of the Commissioner to persecute him, it is contended he should not have his day in Court because he is not thereby fit to stand trial. That this should be the law is not at all apparent to us, especially when one considers the jeopardy to which a person is exposed once they are held to be unfit to stand trial.[46] We simply add that Mr Titford's primary defence — a blanket denial of all offending — was a standard approach: it is usually the foundation for defences to criminal prosecutions. And it is not uncommon for a person confronted with accusations of offending against multiple victims, corroborated by mutually consistent accounts, to advance an affirmative theory of the collective falsity of hisaccusers' accounts. Often, as in this case, a defendant is left with no other line ofdefence to what may seem to be the overwhelming weight of Crown evidence. The complaint here is one of degree. It comes down to an assertion that advancement of this element of Mr Titford's defence was not in his best interestsbecause it crossed an undefined line of rationality. However, we do not accept that proposition; even if aspects of this defence were not, with the benefit of knowledgeof the jury's verdicts, necessarily grounded in reality, they were Mr Titford's versionof events which he had freely given to the police in November 2010. His conspiracy defence appeared to be the only defence available to him other than a blanket denial and we are not satisfied that it was such an absurd response that no rational defendant would advance it. And we were not referred to any other defence which might have been available but which, contrary to Mr Titford's best interests, was not run.[47] We are not satisfied that a miscarriage of justice arose because Mr Titford was not assessed for his fitness to stand trial in September 2013.Right to present defence[48] Mr Mansfield submits that Mr Titford was deprived of the opportunity or the right to present an adequate defence. He relies on the fact that Mr Titford did not instruct Mr Moroney and Ms Thode until six weeks before a complex trial. In Mr Mansfield's submission the preparation of Mr Titford's defence wasinadequate; not only were the instructions late, but counsel had restricted access to Mr Titford because he was in custody and were unable to obtain his full instructions on the witnesses to be called in his defence and the strategy which he wished to pursue at trial.[49] Mr Mansfield says that throughout Mr Titford always wanted to be represented by counsel who would advance his defence competently and in accordance with his instructions. The first part of that submission is not entirely consistent with the factual narrative. Mr Moroney had previously represented Mr Titford successfully on a charge of threatening a District Court Judge. As a result of this instruction he was familiar with Mr Titford's personality and views.Mr Moroney was aware also that Mr Titford wanted either to defend himself or engage counsel who would conduct his defence according to his views; and that in December 2012 the District Court had recorded that the trial would proceed in September 2013 whether Mr Titford represented himself or wanted legal representation. The available inference is that by December 2012 Mr Titford wanted to represent himself. In anticipation of that event Judge Harvey appointed what hedescribed as a silent amicus to be available at the trial, to conduct cross-examination of the complainants. The record suggests that Mr Titford well knew his options when instructing Mr Moroney.[50] Mr Moroney confirmed that Mr Titford was dilatory in responding to requests for instructions following his engagement. He failed to respond to telephone messages. However, by late August 2013 Mr Moroney was in regular contact with Mr Titford who was providing instructions.[51] It is perhaps self-evident that an inadequacy of preparation time is not of itself a ground of appeal.15 Mr Moroney's unchallenged evidence answers Mr Mansfield's submission that because of time constraints counsel were unable tofully investigate or brief evidence. Mr Titford must show that his defence was inadequately conducted as a result and led justice to miscarry. Mr Moroney'sevidence, to which we have already referred, was that he was fully briefed by the commencement of and during the trial. The transcript confirms that both counsel were well equipped to advance the essence of Mr Titford's defence throughcross-examination. They had daily access to Mr Titford during the trial. The Judge arranged for Mr Titford to be brought into court early each day so instructions could be given and taken. The Judge also allowed breaks during the trial. While Mr Mansfield criticises the adequacy of some cross-examination of prosecution witnesses, he does not advance an argument of trial counsel error or incompetence.[52] Mr Moroney and Ms Thode were able to conduct exchanges with Mr Titford in the courtroom while evidence was being given. Judge Harvey allowed Mr Titford to sit at a table directly behind counsel. He had access to writing paper and made frequent notes, often specifically directed to a particular witness during cross-examination. Other than the point we are about to address, Mr Mansfield didnot identify any aspect of trial counsel's performance which might suggest that theshort timeframe for preparation impaired the proper conduct of Mr Titford's defenceat trial. We have no doubt that Mr Titford was able to and did exercise his right to present his defence adequately at trial.15 Aitchison v R [2016] NZCA 529 at [21].Failure to call evidence[53] As an element of his complaint about the insufficiency of time to instruct trial counsel, Mr Titford complains that counsel did not follow his instructions about calling evidence. However, Mr Moroney's denial is unchallenged that Mr Titford never gave the names of witnesses who might be available to be called. Only two people came to court in support of Mr Titford, one being his second wife, Marcian Thomas. We are not satisfied that counsel failed in any respect to comply with Mr Titford's instructions on calling evidence.[54] Mr Titford now asserts that five witnesses should have been called. They are Gavin Evans, Ross Baker, Martin Doutre, Sheryll Titford and Noel Hilliam. All have sworn affidavits on the appeal. Mr Mansfield submits that we should admit this evidence on the ground that it is fresh, credible and cogent.16[55] By reference to the affidavits of each witness we observe:(a) Gavin Evans. He first met the Titfords in 2005 or 2006. He and his wife saw the family socially about once every two months. He did not observe anything untoward in the relationship between Mr Titford and Ms Cochrane or between Mr Titford and the children. He was"blown away" when he heard of Mr Titford's convictions.This evidence is of peripheral if any assistance, especially as it relates only to the later part of Mr Titford's offending.(b) Ross Baker. He had known the Titford family for about 25 years and describes Mr Titford as a non-violent person. The family appeared happy, well-behaved and never fearful. However, Mr Baker did not refer to his inconsistent written statements to Ms Cochrane in 2010,reciting his observation of "very aggressive and threatening verbal abuse of the worst kind by Mr Titford with all members of hisfamily". He also referred to Mr Titford using his belt on James whenhis son was about six years old. He referred also to the frightening16 R v Bain [2004] 1 NZLR 638 (CA) at [22].effect on him of Mr Titford's "verbal abuse, aggression andfrustration".(c) Martin Doutre. He has known the Titford family for many years and stayed at the Titford family house many times. Again, he deposes to a normal, if hectic, family environment. He gives favourable evidence about the group dynamic, with supporting examples. But much of his affidavit is of an opinion nature about the trial itself and the result. While his evidence would be generally favourable to Mr Titford'sdefence, it does not assist in answering the specific charges.(d) Sheryll Titford. She is married to Mr Titford's younger brother andhas known Mr Titford since 1988. She frequently visited the family at their farm, often staying for the day. She never witnessed anything untoward in Mr Titford's behaviour to his wife. She says that Ms Cochrane told her that her father, Graham Cochrane, had confessed to burning down the family home at Maunganui Bluff. However, as Ms Johnston points out, Mr Titford was acquitted of this charge; and Mr Titford's defence advanced at trial was that Mr Cochrane had admitted to the arson. Moreover, Constable Evans refers to a telephone discussion with Sheryll Titford on 14 November 2013 when she described Mr Titford's volatility and the fact that he "has had a go at me a couple of times"; and to her advice to Ms Cochrane that she should have left Mr Titford years ago, and"protected those kids but she failed". Again Ms Titford's credibility isin issue.(e) Noel Hilliam. He knew the Titfords between 1987 and 1995. Apart from expressing his observation that it was a normal farming family, Mr Hilliam adds nothing.[56] We are not satisfied that this evidence is fresh, cogent or (for at least two of the witnesses) credible. It was all available at the time but Mr Titford, despite hislawyer's requests, failed to identify these witnesses. Even if they had beenidentified, we are not satisfied that their evidence would have materially advanced Mr Titford's defence. They add little if anything of cogency. Furthermore, theevidence of Mr Baker and Sheryll Titford, when exposed to cross-examination, would have damaged Mr Titford's defence. There is no risk of a miscarriage ofjustice. Accordingly we decline Mr Titford's application for leave to adduce theaffidavits as evidence in the present appeal.17Severance[57] Mr Mansfield submits that Mr Titford's trial should not have proceeded on all53 charges. The charges were not sufficiently connected to each other such as would justify them being heard together. Instead, an order for severance should have been made for the charges to be heard in these separate categories: (1) rape and violence against Ms Cochrane and violence against the children; (2) threatening to kill, perjury and perverting the course of justice; (3) attempted arson and arson; and (4) reckless discharge of a firearm.[58] Mr Mansfield submits that the jury would have been unable to discharge its function properly given the number and diversity of the charges. There was a serious prejudice to Mr Titford which the Judge's directions were not sufficient to nullify. There was a miscarriage of justice as a result.[59] An application for severance was apparently made before Mr Moroney and Ms Thode were instructed but was later abandoned. In the absence of a formal determination, our inquiry post-trial is limited to whether justice miscarried because all the charges were heard together. However, we are assisted in that respect by the factors relevant to the standard pre-trial inquiry into whether severance is in the interests of justice: the practicalities of the criminal process, the degree of connection between the charges, the impact of successive trials on the defendant and the witnesses if charges are severed, and the likely effect of publicity of the first and subsequent trials.18 Also particularly relevant is the cross-admissibility of propensity evidence.17 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].18 M (CA85/2013) v R [2013] NZCA 239 at [15]–[17].[60] We are satisfied that an application for severance would have failed. We accept the complexity inherent in a trial which proceeded on 51 charges, some of them alternatives, spanning 22 years of offending. The evidential transcript of the trial ran to 734 pages. However, 40 of the charges were of rape and violence against Mr Titford's wife and children. The connection between this offending could nothave been more compelling. The evidence of all familial sex and violence was cross-admissible. Mr Mansfield accepted that a court would not have severed thetrial of these charges. The charge of threatening to kill Ms Cochrane's brotherRichard, while he was working on the farm, falls into the same category.[61] That leaves joinder of the discrete charges of perjury and perverting the course of justice, attempted arson and arson, and reckless discharge of a firearm. We are satisfied that not only was it appropriate that these first three groups of charges be heard together but also that they be heard with the family-violence charges. The charges of perjury and perverting the course of justice were intertwined and closely aligned to the family-violence offending. The evidence of Ms Cochrane and her two eldest children, Alyssa and James, was central to the proof of all charges in Mr Mansfield's first three categories and explicable by their fear of andsubjugation to Mr Titford's will. When considered together, all evidence relevant tothese charges provided a full picture, as Ms Johnston submits, of the family context and dynamics.[62] Similarly, the arson charges, along with the charge of using a document for a pecuniary gain — the fraudulent insurance claim on a damaged bulldozer — were interrelated. While these charges were less connected to the family violence charges, threatening to kill and perjury, Ms Cochrane and her brother Richard Cochrane were critical witnesses and their evidence was relatively confined. The charges of discharging a firearm recklessly or with intent to cause grievous bodily harm were more problematic. But their presence does not satisfy us that a miscarriage occurred.[63] Moreover, Judge Harvey's careful directions eliminate any concerns about amiscarriage. He directed the jury correctly, according to orthodox practice, to consider each charge separately and ignore feelings of sympathy or prejudice, and not to reason from an improper basis. He directed the jury correctly also on theproper use of propensity evidence, limiting its application to the physical violence charges and excluding others. He prepared a thorough and practical question trail and, significantly, a detailed cross-referenced memorandum to the evidence given by witnesses on each specific charge. We accept that the jury's task of evaluating51 charges would have been demanding. But the legal elements of many offenceswere identical. The Judge's directions, his question trail and evidentialmemorandum — together with copies of the evidential transcript — would have minimised any real risk of prejudice from a joined trial.[64] Finally, and decisively, we refer to the jury's verdicts. As noted, Mr Titford was acquitted of more than a quarter of the charges. Among them were the serious charges of raping Ms Cochrane, arson, recklessly discharging firearms and numerous counts of assaulting his children. The pattern and nature of these verdicts demonstrates the care with which the jury approached its task. There can be no suggestion of a miscarriage arising from Mr Titford's trial on all charges.Sentence[65] Mr Mansfield submits that Mr Titford's sentence of 24 years' imprisonmentwas manifestly excessive. His challenge is not to the individual starting points adopted by Judge Harvey for each of the major categories of offending but to (a) the cumulative method adopted, meaning that the total sentence would be manifestly excessive regardless of how reasonable the sentences were for each grouping; (b) failure to make proper allowance for Mr Titford's mental impairment; and (c) failure to give credit for Mr Titford's previous good behaviour.[66] Judge Harvey sentenced Mr Titford with the benefit of a full familiarity of the evidence given at the trial. He opened by referring to Mr Titford's first rape of hiswife as marking the beginning of a "reign of terror". He observed:19[3] After listening to all of the evidence I have absolutely no doubt that you single handily destroyed parts of the childhood of Alyssa, Ulanda, [S]and James and you blighted [J]'s earlier years. The children lived in trepidation and fear of you, knowing that even the slightest perceived transgression would result in your thrashing them. During the period19 Sentencing notes, above n 1.covered by the indictment I am satisfied that you beat those children and your wife with anything that came to hand. [4] It is no exaggeration to say that you embarked on a course ofsystematic abuse of your wife and family. [67] Later the Judge observed that Mr Titford had "destroyed any chance of happiness" that the family might have had.20 He was satisfied that Mr Titford"robbed them of their childhood by [his] senseless anger and vicious and physical assaults on them".21 He described Mr Titford's temper as explosive and his physical actions as "cruel, vindictive and vicious".22[68] [Redacted][69] The Judge placed particular emphasis upon the damage caused by the publicity which Mr Titford engendered by burning down his home and destroying his property in an attempt to put pressure on the Government to settle his claim.23His purpose was to ensure that blame fell on local iwi members. The Judge was satisfied that Mr Titford was a racist, and that he had caused widespread harm by hisinnuendo directed to innocent Māori.24[70] Against this background the Judge treated Mr Titford's rapes of Ms Cochrane as the lead or index offences, adopting a starting point of 16 years' imprisonment.25After carefully reviewing all the evidence and the relevant sentencing principles and authorities, he grouped the rest of the offending into these categories with these discrete starting points:26(a) Family violence other than raping Ms Cochrane — four and a half years.(b) Attempted arson, arson and fraudulent use of a document — four years and three months.20 At [21].21 At [21].22 At [22].23 At [94].24 At [95].25 At [115].26 At [116]–[120].(c) Perjury and attempting to pervert the course of justice — four years.(d) Threatening to kill Richard Cochrane — three years.(e) Reckless discharge of a firearm — two and a half years.There were no mitigating factors.27 Accordingly the appropriate sentences for each group of offences were the starting points adopted.[71] However, Judge Harvey recognised that a cumulative total for all charges of 34 years and three months would offend the totality principle.28 He was satisfiedthat the appropriate end sentence was 24 years' imprisonment.29 He adjusted the individual sentences accordingly. 30 He decided against imposing a minimum period of imprisonment.31 He concluded by expressing his "real fears for the safety of others" if Mr Titford was released into the community unless his anger was controlled, describing Mr Titford as a very dangerous man. 32[72] We are not satisfied that the Judge erred in imposing cumulative sentences for the discrete groups of Mr Titford's offending. The groups were different in kind.33While the family violence charges were interconnected, the Judge was justified in separating the rape offending against Ms Cochrane from the prolonged assaults on the children. To treat them concurrently, so that Mr Titford's prolonged violencetowards his children was simply subsumed by the rape sentence, would ignore the overall nature of the offending and its profound effect on two separate groups of victims.34[73] Mr Mansfield accepts that the base or index sentence of 16 years'imprisonment for raping Ms Cochrane cannot be challenged. The only question is whether, as Ms Johnston submits, the eight additional years is appropriate to reflect27 At [29].28 At [121]. See Sentencing Act 2002, s 85.29 At [122].30 At [123]–[132].31 At [133].32 At [134].33 Sentencing Act, s 84(1).34 Section 84(3).the balance of Mr Titford's criminality. Mr Mansfield criticises as entirely arbitrarywhat he describes as the Judge's purely mathematical basis for fixing cumulativesentences. However, all the other groups of offences were each in themselves particularly serious. The starting points fixed by the Judge were appropriate. We are not persuaded that the Judge erred in treating as separate from and additional to Mr Titford's culpability each of the relevant categories of offending.[74] Having presided at a lengthy trial, the Judge was best placed to evaluate the totality of Mr Titford's criminality. We are not satisfied that the end sentence of24 years was disproportionate to the gravity of his offending. It was no exaggeration for Judge Harvey to describe Mr Titford as conducting a reign of terror. He brutalised his family for 22 years. He was violent, volatile and authoritarian in imposing his will and value systems on his family. His sadistic behaviour destroyed the lives of those who deserved his protection and he cynically used his power over his wife and daughter to secure their perjured evidence in support of his attempt to defeat the course of justice. His cruelty deprived his children of their childhoods and has left them permanently scarred. His offending aimed at generating publiccondemnation of local Māori was equally cynical. His crimes justified the elementsof denunciation, deterrence and protection which are reflected in the end sentence.35[75] We are not satisfied that the Judge erred in not allowing for Mr Titford'smental state. Mr Mansfield did not identify any tangible nexus between Mr Titford'sdelusional views about those whom he regarded as his enemies and the violence and dishonesty which he chose to inflict on others; indeed, Dr Cavney said that any linkbetween the two could only be described as "speculative".[76] Nor is Mr Titford entitled to any allowance for a lack of previous criminal history or what is often called good character. The truth is that for much of his adult life, at least the 22 years before he was apprehended, Mr Titford's character wasanything but good.36 His public persona masked his prolonged serial offending against many victims. He is not entitled to any credit in this area.35 Section 7(1)(e)–(g).36 Compare King v R [2015] NZCA 475 at [29]–[32] where persistent sexual offending over an 11-year period disqualified the appellant from a discount for previous good character.Result[77] The application for leave to adduce fresh evidence is declined.[78] The appeal against conviction is dismissed.[79] The appeal against sentence is dismissed.[80] It is appropriate to acknowledge the focus and quality of the argument advanced on appeal by Mr Mansfield and Ms Johnston, and the fairness, skill and care with which Judge Harvey conducted a difficult and demanding trial.[81] To protect certain details about the victims of Mr Titford's offending, wesuppress the information in [68] of this judgment. Publication of that information in news media or on the internet or other publicly available database is therefore prohibited. Publication in law report or law digest is permitted. We note also that the identities of two child witnesses (S and J) remain subject to statutory suppression under s 139A of the Criminal Justice Act 1985.Solicitors:Crown Law Office, Wellington for Respondent