B (CA455/2015) V R [2016] NZCA 322

B (CA455/2015) V R [2016] NZCA 322 [8 July 2016]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA455/2015[2016] NZCA 322BETWEEN B (CA455/2015)AppellantAND THE QUEENRespondentHearing: 21 June 2016Court: Cooper, Lang and Peters JJCounsel: S D Withers for AppellantZ R Johnston for RespondentJudgment: 8 July 2016 at 2.30 pmJUDGMENT OF THE COURTA The application to adduce fresh evidence is declined.B The appeal against conviction and sentence is dismissed.C Order prohibiting publication of name, address, occupation or identifying particulars of appellant pursuant to s 200 of the Criminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant appeals against his conviction and sentence on six counts of sexual offending against C.[2] The appellant was convicted following a jury trial before Judge Burnett in the District Court at Hamilton in July 2015. The Judge sentenced the appellant to 14 years' imprisonment, with a minimum period of imprisonment of seven years.1[3] The appeal is brought pursuant to s 385 of the Crimes Act 1961.Grounds of appeal[4] The appellant appeals against conviction on the ground that there has been a miscarriage of justice as further relevant evidence has become available since trial.2That evidence is from Ms W and is contained in an affidavit sworn in March 2016.[5] The appeal against sentence is only advanced if the appeal against convictionis unsuccessful. Counsel for the appellant submits that 14 years' imprisonment andthe minimum period of imprisonment were manifestly excessive and that a sentence of, say, 12 years ought to have been imposed, with no minimum period.Background[6] The Crown alleged that the appellant's offending against C started when shewas 13 and he was 27. It continued for three years.[7] The gist of C's evidence was that, in the course of this three year period andwithout her consent, the appellant digitally penetrated her vagina; put his penis in hermouth on numerous occasions; had sexual intercourse with her "10, 20 times"; gaveher cannabis and money in return for her performing oral sex on him; and committed other indecent assaults and/or acts on her.1 R v B [2015] NZDC 14466.2 Other grounds of appeal against conviction, listed in the Notice of Appeal dated 26 February 2016, were abandoned at the hearing of the appeal.[8] The appellant was charged with and convicted of one representative count of sexual violation by rape; one representative count of sexual violation by unlawful sexual connection (connection between his penis and her mouth/tongue); one count of assault with intent to commit sexual violation; and three counts of doing an indecent act on a young person — that is, a person under the age of 16 years.Defence at trial[9] The appellant gave evidence at trial denying all of the acts alleged and denying that he had engaged in any sexual activity whatsoever with C.[10] Mr Kaye, the appellant's (then) counsel, closed to the jury on this basis, as appears from the following two passages:Please don't go off on a tangent with issues of consent. You understand thatdon't you? We're not saying she consented. It's just not an issue in thiscase. We say these things did not happen. The defence doesn't care, ladies and gentlemen. We say it neverhappened. Not once did he have any sort of sexual contact with her.[11] Likewise, in her summing-up, the Judge described the defence as one of absolute denial, with the allegations being a fabrication by C.[12] Ms W was referred to in the course of the trial, during C's evidence. C said that she was walking to a friend's house when the appellant, together with his friendMr H, drove past and she asked them for a lift. However, the appellant did not takeC to her friend's house but to Ms W's. C had not met Ms W before.[13] C's evidence was that the appellant touched her repeatedly on the vagina andbreasts whilst sitting at a table at Ms W's house; that she asked him to stop but thathe did not do so; that she left the house; that he followed her; that by means of a ruse he got her to get into his vehicle; and that further offending (covered by charges four and five) took place shortly thereafter.[14] In his closing address to the jury, Mr Kaye referred to the absence of evidence from Ms W (and Mr H for that matter), saying:Yes she went to [Ms W's] but sitting around the table with other people,feeling her vagina, pulling her breasts up, never occurred members of the jury, it never occurred. So again how do you decide that? There's no supporting evidence. Nothing from [Ms W], nothing from [Mr H]. Doesn't have to be, it's not my case it's the prosecution's case. Nothing though tosupport what happened that day around the table.Proposed evidence[15] We turn now to the evidence from Ms W (much of which is in the nature of opinion) that the appellant now seeks to introduce on appeal. The application to adduce this evidence faces several hurdles.[16] The gist of Ms W's evidence is that the appellant was touching C on her breasts and between her legs whilst they were sitting with her at the table in thekitchen/dining area at her home; that at one point the appellant said to C "Lets go I want a fuck"; and that, although C kept telling the appellant to stop and kept pushinghis hands away, she (on Ms W's view of it) "did not do this in an upset way".[17] Ms W proffers her opinion that it was "obvious that [C and the appellant] were together in a relationship", and that she asked whether they were "an item", towhich C is said to have replied "well not exactly, its difficult, but yes we are, we're cousins but we're not officially with each other it's kind of like that".[18] Ms W also says that, about a year later, she was telephoned by a police officer who was investigating C's allegations. It is common ground that the officer was Detective Russell Crawford. Ms W recalls that she told him that "it was clear to[her] that [the appellant and C] were seeing each other in a relationship and that they were having sex consensually".[19] We also have an affidavit from Detective Crawford, adduced by the Crown, together with the job sheet in which the detective recorded his attendances on Ms W. The job sheet was not disclosed to the defence in advance of trial as it should have been, although there is no suggestion that this was anything other than an oversight.[20] The Detective says that he spoke to Ms W in December 2011 and March 2012 and that she told him she did not see "anything happen between[the appellant] and [C] when they were at her house", and that she did not wish to beinvolved in the matter or provide a statement. There is no record of any of the other matters that Ms W now says she observed and/or said.[21] Accordingly, there are differences between what Ms W appears to have told, or rather not told, the police at the outset and the evidence she has now provided.New evidence[22] An appellant who wishes to adduce new evidence on appeal must demonstrate that the evidence is credible; fresh in the sense that it could not with reasonable diligence have been called at trial; and cogent in the sense that it might reasonably have led to a verdict of not guilty.3[23] We have reservations as to Ms W's credibility given the differences to whichwe have referred. But putting that to one side for the moment, Ms W's evidence isnot fresh in the sense to which we have referred. There is no evidence before us as to why Ms W was not called at trial. Counsel told us, from the bar, that the appellant did not know how to contact Ms W, or Mr H for that matter. We cannot accept that explanation, however, in the absence of an affidavit from the appellant or Mr Kaye.Indeed, as we have said, at trial the defence made something of the Crown's failureto call either Ms W or Mr H.[24] The most significant issue however is that Ms W's evidence is not cogent.[25] The evidence is inconsistent with the appellant's evidence and defence attrial, that is that he had no sexual contact with C whatsoever. The appellant has not sworn an affidavit resiling from this defence and, given that, we are unable to see how Ms W's evidence would assist him. If Ms W's evidence had been called at thetrial it would have been completely contrary to the defence that was run. There hasbeen no suggestion that the defence did not accord with counsel's instructions.3 R v Bain [2004] 1 NZLR 638 (CA) at [22]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].[26] Nor would Ms W's evidence assist the appellant if he intended to raise adefence of consent if a retrial were ordered. A statement by C that the couple were"an item" (if the statement were made) would not establish that any sexual activitybetween them was consensual. We note that the only events Ms W claimed to have witnessed at the table were not the subject of any of the charges.[27] For these reasons we decline to admit Ms W's evidence and we dismiss the appellant's appeal against conviction.Appeal against sentence[28] The Judge took the representative count of sexual violation by rape as the lead offence and sentenced the appellant on the basis of the rape guidelines given inR v AM (CA27/2009).4[29] The Judge identified several factors as aggravating the appellant's offending.First, the offending was planned and premeditated. The Judge considered that the appellant had engineered situations in which he would be alone with C, and that there was an element of grooming inherent in his plying C with alcohol and cannabis.5 Secondly, C's young age made her vulnerable.6 Thirdly, the offending was repeated and occurred over a prolonged period.7 The Judge accepted C's evidence that the appellant had sexual intercourse with her against her will (that is, had raped her) 10 to 20 times.8 The Judge also accepted that the appellant had violated C by unlawful sexual connection on about 20 occasions.9[30] Fourthly, the offending was extensive and it had caused considerable harm to C.10 The Judge said that C was so affected by the offending that:114 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750. We note that the representative count of sexual violation involving penile penetration of the mouth would also fall to be assessed on those guidelines. See R v AM (CA27/2009) at [65].5 R v B, above n 1, at [13].6 At [14].7 At [14].8 At [4].9 At [5].10 At [16].11 At [12]. [C] has engaged in self-harm and suffered from behavioural difficulties that have affected her schooling and her relationship with [family members]. The offending inevitably caused a rift within the family [31] The Judge also referred to the pre-sentence report that had been prepared, which was to the effect that the appellant refused to accept his guilt and that his failure to do so meant that he was a risk to young women with whom he came into contact.[32] Given those matters, the Judge considered the offending was within the upper end of band three and, arguably, within band four of the guidelines. The range of starting points for such offending is 12 to 18 years and 16 to 20 years respectively.12[33] In reaching this conclusion, the Judge had regard to R v N (CA88/05), R v Aitchison and C (CA77/2013) v R.13[34] On appeal, counsel for the appellant submitted that the offending in each ofR v N (CA88/05) and Aitchison was worse than in the present case and that theJudge's starting point should have, but did not, reflect this.[35] In R v N (CA88/05), N offended against his stepdaughter over a two and a half year period, from when she was seven until she was nine. The offending included rape, sodomy, digital penetration and unlawful sexual connection. The Judge adopted a starting point of 15 years, but in doing so he took account of asignificant mitigating factor in N's favour.14 But for that, a higher starting point would have been adopted. Indeed, on appeal in that case, this Court intimated that the starting point might otherwise have been up to 17 years' imprisonment.15 For that reason, R v N (CA88/05) does not assist the appellant.[36] In Aitchison the defendant was for sentence on several representative charges of sexual violation by rape and one of unlawful sexual connection, committed12 R v AM (CA27/2009), above n 4, at [90].13 R v N (CA88/05) CA88/05, 23 November 2005; R v Aitchison [2015] NZHC 835; andC (CA77/2013) v R [2013] NZCA 170. The reference to C (CA77/2013) v R in the Judge'ssentencing notes is irrelevant and we do not propose to refer to it.14 See R v N (CA88/05), above n 13, at [5] and [10]–[12].15 At [13].against two young victims. The Judge adopted a starting point of 13 years in respect of the offending against one child16 and 14 years in respect of the other, who was particularly vulnerable.17 Adjusting for totality, the Judge took a starting point of 16 years.18[37] Although the offending in Aitchison may appear worse than that in the present case, the starting point was materially higher. Regardless, the issue on an appeal against sentence is whether the sentence was outside the available range. The Judge was correct to view this as a band three case, given the aggravating factors identified, and a starting point of 14 years to reflect all of the offending was within the available range.[38] Nor did the Judge err in imposing a minimum period of imprisonment. As this Court said in R v AM (CA27/2009), the imposition of a minimum period of at least half the nominal sentence is routine in cases of this type.19 That is because the factors which aggravate the offending will often also require the imposition of a minimum period.20[39] In this case, the appellant's steadfast refusal to acknowledge his offending,the need to hold him to account, and to deter him and protect others meant that a minimum period of half the sentence was open to the Judge.[40] For the reasons given above, we dismiss the appeal against sentence.[41] In order to protect the identity of the complainant, an order is made prohibiting the publication of the name, address, occupation or identifying particulars of the appellant pursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Respondent16 Aitchison, above n 13, at [49].17 At [55].18 At [58].19 R v AM (CA27/2009), above n 4, at [156].20 R v Taueki [2005] 3 NZLR 372 (CA) at [56]. We note that minimum periods of imprisonment were also imposed in R v N (CA88/05), above n 13; and Aitchison, above n 13.