B (CA589/2022) v R [2023] NZCA 499

B (CA589/2022) v R [2023] NZCA 499 [16 October 2023]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 BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA589/2022[2023] NZCA 499BETWEEN B (CA589/2022)AppellantAND THE KINGRespondentHearing: 21 June 2023Court: Brown, Peters and Mander JJCounsel: J B Wickliffe for AppellantZ A Fuhr for RespondentJudgment: 16 October 2023 at 10.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.C Order prohibiting publication of the name, address, occupation oridentifying particulars of the appellant pursuant to s 200 of the CriminalProcedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, B, was convicted of five charges of sexual offending, followinga jury trial before Judge D J Orchard in the District Court at Whangārei inSeptember 2022.[2] B now appeals against conviction, and against his sentence of 10 years andthree months' imprisonment, which he contends is manifestly excessive.Background[3] B faced six charges at trial, all alleged to have been committed against H overa three-year period. H stayed with B on occasions during this period.[4] The first two charges against B were of sexual violation by rape. B was foundguilty of the first of these charges, but acquitted of the second, representative, charge.[5] B was found guilty of the remaining charges, being one of sexual violation byunlawful sexual connection, the connection being occasioned by digital penetration,and three of sexual conduct with a child under 12, two of the latter charges beingrepresentative. The sexual conduct alleged was kissing H, touching her buttocks, andrubbing his genitalia against hers.Appeal against conviction[6] The Court must allow an appeal against conviction if satisfied a miscarriage ofjustice has occurred, that is if any error, irregularity, or occurrence in or in relation toor affecting the trial has created a real risk that the outcome of the trial was affectedor has resulted in an unfair trial.1 A "real risk" arises if "there is a reasonablepossibility another verdict would have been reached" if nothing had gone wrong.21 Criminal Procedure Act 2011, s 232(2) and (4).2 Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [48].Grounds of appeal[7] Counsel for B, Ms Wickliffe, submits that the Judge made two errors which,individually or together, have given rise to a miscarriage of justice in the sense theycreated the real risk referred to above. Ms Wickliffe submits first that the Judge failedto put the defence case properly in summing up. Secondly, Ms Wickliffe submits thatthe Judge made impermissible use of counter-intuitive evidence presented at trial.Failure to put the defence case properly in summing up[8] Although B denied all of the offending, he did acknowledge that there had beenan occasion when he had masturbated and ejaculated in front of H when H was abouteight years old. Although these acts were not the subject of any charge, the incidentis relevant to this ground of appeal.[9] B's account of this incident was that he had woken up one morning to find thathe was masturbating himself. H woke up at about the same time and wanted a cuddle.B lifted H up so that she was sitting on his stomach, facing him, and with her legseither side of his torso. B's account was that he then lifted or rolled H off him butcontinued to masturbate until he ejaculated. B denied that anything more than this hadoccurred on that occasion, and also denied that there had been any other occasion inwhich anything of a sexual nature had occurred.[10] The Crown disputed this account. It alleged that B had committed theoffending covered by charges three and six in the course of this particular incident,and that he had offended against H on other occasions. Charge three was the sexualviolation by unlawful sexual connection to which we have referred, and charge sixwas the non-representative charge of sexual conduct with a child under 12, theparticulars of which were that B had rubbed his genitalia against H.Submissions[11] Ms Wickliffe's submission on this ground of appeal is that, in parts of hersumming up, the Judge suggested to the jury that B had acknowledged or admittedmore than he had, and in this way the Judge had failed to properly put the defence case.[12] Ms Wickliffe referred us to the following passages in the Judge's summing up,and particularly to the words we have italicised:[7] In addition to that, you have heard that the defendant acknowledgesthat there was at least one episode where he behaved in a sexual manner atleast in the presence of [H] to put it at its lowest, and again, that might haveexcited feelings in you, but what you have got to realise is that you need toput the feelings aside and focus on the evidence and the issues in this trial.And in a nutshell, what the issues here are did [B] do the things that [H]has alleged that he did or was his misconduct, and I think I can fairly call itthat, restricted to one episode only, and that is [it] in a nutshell....[22] So, let's perhaps get down to the nitty-gritty, if you like, thefundamental issues that you are going to be dealing with in this case. Now, Iwould start by saying that this is not a case where the defence is that [H] hasmade a totally false allegation against [B] because, of course, he has admitteddoing some of the acts she says he did, albeit he gives them a different context(Emphasis added.)[13] Ms Wickliffe submits that when the Judge referred to "at least one episode" in[7] and said, in [22], that B admitted "doing some of the acts", the Judge went beyondthat which B had in fact acknowledged. Ms Wickliffe also submits that the Judge'sremarks would have created the impression that B admitted the conduct which was thesubject of charges three and six, which he did not.[14] Ms Wickliffe submits this was an error on the Judge's part, and that itcreated a real risk the jury did not fully appreciate the very confined nature of B'sacknowledgment.[15] Crown counsel, Ms Fuhr, submits that, viewed as a whole, it would have beenclear to the jury that B admitted a single episode, comprising only what is describedin [8] and [9] above, and that he denied all other offending.[16] Ms Fuhr acknowledges that, in isolation, the Judge's reference to "at least oneepisode" in [7] of the summing up may have been imprecise. However, Ms Fuhrsubmits that it would have been clear to the jury from the closing words of [7] (B'smisconduct was "restricted to one episode only"), and also from [23] of the summingup, that B acknowledged only the events/incident described in [8] and [9] above.[17] Paragraph [23] of the summing up is as follows:[23] So, the issues are, first of all, was his misconduct limited to that oneoccasion as he says that it was? Second, what did he actually do on thatoccasion? Third, if you reject that there was only one episode, what other actsare you sure that he performed on [H], and specifically, of course, are yousure, as is alleged against him in the charges, first, that on one specificoccasion, some part of his penis actually penetrated part of [H's] vagina?That is count 1. You will remember [H] said that there was one occasion whenhis boxershorts were off and his penis actually penetrated her vagina.(Emphasis added.)[18] Quite aside from this, Ms Fuhr also referred us to [38] to [43] of thesumming up. Amongst other things, the Judge made it clear to the jury in thesepassages that B denied all of the offending alleged against him:[38] you could perhaps begin by starting with what is actually concededin this case because, as I said at the beginning, this is not the case where thedefence is that there was no basis for suggesting there was any sexualmisconduct. Some sexual contact is accepted. It has been conceded that onone occasion, that he says on one occasion only there was sexual conduct orcontact consistent with some of the contact that [H] talked about in herinterview. Specifically, [B] concedes that he was masturbating his peniswhich was erect and he says that that happened, he awoke to find thathappening and that [H] was in bed with him at that time.[39] Second, he acknowledges that he put [H] on his stomach with herlegs on either side of him shortly after that, after she had woken and they hadsaid good morning.[40] Third, in his interview at least, he conceded that his penis at that stagewas erect, and I think in his evidence he conceded at least partially erect, andin his interview, I think at least inferentially, it would have been pointing inthe direction of her bottom given the position that he said that she was in.[41] Fourthly, in his evidence, he conceded that his penis may have comeinto contact with the complainant's inner thigh, although he maintains, ofcourse, that there was never any contact with her genital area generally.[42] Fifthly, his evidence was that after [H] rolled off him or he rolled heroff him, whichever it was, he did, in fact, masturbate to ejaculation in front ofher, and you will remember that [H's] allegation is that there was an occasionwhen he ejaculated in front of her [43] What is denied, of course, is that his penis ever, and I have alreadysaid that, rubbed or touched her general genital area. What is denied is that heever rubbed or smacked her bottom in that context or in the context of rubbingher against him or indeed, I suppose, in any other context. He hasemphatically denied that any part of his penis ever penetrated her genitalia andhe has also denied that he put his finger in her vagina on that or any otheroccasion.[19] Lastly, Ms Fuhr referred us to the Judge's "tripartite" direction, in which shemade it clear to the jury that, if they accepted B's evidence as to the confined natureof any sexually related conduct, they would need to find him not guilty.Discussion[20] We agree with Ms Fuhr that in summing up the Judge made it clear to the jurywhat B did and did not acknowledge.[21] The critical issue throughout was whether the acts addressed by the chargeshad occurred in fact. We do not consider the Judge could have made B's denial clearer.[22] We refer in particular to the Judge's reference in [41] and [43] of hersumming up to B's (emphatic) denial of penetration and of any sexual connection orany contact with H's genital area generally. The other matters to which the Judgereferred in her [43] — rubbing and smacking H's bottom — were particulars of twoof the three charges of sexual conduct with a child under 12. In [67] of thesumming up, when discussing the question trail, the Judge said that B denied chargefour. This was the third charge of sexual conduct with a child under 12, the particularsof which were that B had kissed H. Lastly, when summarising the defence case,the Judge repeated Ms Wickliffe's submission to the jury that, although B hadadmitted his conduct on that single occasion was wrong, he had not admitted theoffending with which he was charged.[23] Given these matters, we do not consider there is any substance in this groundof appeal.Use of counter-intuitive evidence[24] As we have said, B's offending was alleged to have occurred over a three-yearperiod. H continued to associate with B throughout and subsequently. In addition, Hdid not report the offending until two years after it had ended, and even then in thefirst instance disclosed it to one of her friends, rather than a parent or caregiver.[25] At trial, the Crown called "counter-intuitive" evidence from Dr Yvette Ahmadto the effect that, amongst other things, a continued association with an offender, anda delay in reporting sexual offending, with the first disclosure being to someone otherthan a parent or caregiver, is not unusual. Dr Ahmad's evidence was that suchcircumstances do not make an allegation of sexual offending more or less likely tobe true.Submissions[26] Ms Wickliffe submits that, in [18] of her summing up, the Judge drew a directlink between Dr Ahmad's evidence and the circumstances of this case, such a linkbeing impermissible.3[27] Paragraph [18] of the summing up is as follows:[18] Now, the issues that [Dr Ahmad] addressed were as follows. You willremember that [H] did not say anything about the sexual abuse she said sheexperienced at the hands of [B] until after the talk that [the] Constable gaveto her class in, I think, 2018, but I stand to be corrected on the year, and thiswas even though the abuse she said had continued for three years when shewas regularly visiting [B] and when she continued to visit him after theabuse began. Now, Dr Ahmad's evidence was to the effect that research hasshown that it is not uncommon for victims of sexual abuse to delay reportingabuse for some time or, in fact, sometimes not to report it at all, even if theyhave opportunities to tell people about the abuse, even members of theirfamily, even members of their family as close as their parent It is also, shesaid, not uncommon for victims of abuse to continue to have contact with theabuser, and that again particularly is the case where it is a family member, andfinally, she said it was not uncommon for a peer or friend to be the first personto whom a complainant confided rather than a parent or family member.[28] Ms Wickliffe submits that this passage in the summing up would have leftthe jury with the impression that H's delayed reporting was justified, and that hercontinued contact with B and her first report being to a non-family member, wereunderstandable. Ms Wickliffe also submits the Judge's remarks had the effect ofbolstering H's credibility.3 DH (SC9/2014) v R [2015] NZSC 35, [2015] 1 NZLR 625 at [30(b)].Discussion[29] Ms Fuhr rejects this submission, as do we in light of all the directions the Judgegave to the jury regarding Dr Ahmad's evidence, which we set out below. Before wedo so, we note that in DH (SC9/2014) v R, the Supreme Court said a trial judge shouldgive the following instructions to a jury in a case in which counter-intuitive evidenceis led at trial:4[30] The Court of Appeal has held in a number of cases that counter-intuitive evidence may be admissible under the Evidence Act. We summarisethe relevant factors that emerge from two of those cases, M (CA23/2009) v Rand OY v Complaints Hearing Committee. Those points are:(e) Where counter-intuitive evidence is admitted in a jury trial, the judgemust instruct the jury of the purpose of the evidence and that it saysnothing about the credibility of the particular complainant. The judgemust caution the jury against improper use of the evidence, such asreasoning that the fact that the complainant behaved in one of the waysdescribed by the expert witness (for example, delayed in complaining)is itself indicative of the complainant's credibility or that sexual abuseoccurred.[30] The Judge directed the jury accordingly, as appears below. In [19] and [20] ofthe summing up the Judge said Dr Ahmad's evidence said nothing about H's credibilityand cautioned the jury against the improper use of the evidence, for instance byreasoning it supported H's credibility or that the offending had occurred in fact.This latter point negates the submission Ms Wickliffe made as set out in [28] above.The Judge's directions were these:[17] The relevance of Dr Ahmad's evidence basically is to address anypossible misapprehensions you may have about matters involving sexualabuse of children because there are some myths in this area. Now, Dr Ahmad,I think, made a point of saying some people might have the beliefs that she isaddressing or the misapprehensions that she is addressing and others mightnot. So, nobody is suggesting you necessarily have them; it is just herevidence is just to make sure that you do have an understanding of somematters.[18] Now, the issues that [Dr Ahmad] addressed were as follows. You willremember that [H] did not say anything about the sexual abuse she said sheexperienced at the hands of [B] until after the talk that [the] Constable gaveto her class in, I think, 2018, but I stand to be corrected on the year, and thiswas even though the abuse she said had continued for three years when she4 DH (SC9/2014) v R, above n 3 (footnotes omitted).was regularly visiting [B] and when she continued to visit him after theabuse began. Now, Dr Ahmad's evidence was to the effect that research hasshown that it is not uncommon for victims of sexual abuse to delay reportingabuse for some time or, in fact, sometimes not to report it at all, even if theyhave opportunities to tell people about the abuse, even members of theirfamily, even members of their family as close as their parent It is also, shesaid, not uncommon for victims of abuse to continue to have contact with theabuser and finally, she said it was not uncommon for a peer or friend to bethe first person to whom a complainant confided rather than a parent or familymember.[19] Now, as I have already said, the purpose of this evidence is to counterany thoughts you might have that delay in complaining, complaining not to aparent but to a peer or continuing to associate with the alleged abuser arematters which make the truthfulness of the person alleging the abuse more orless likely, make it more or less likely the abuse happened, and what she isbasically saying is that it is neutral, it does not make it more likely that theabuse happened or less likely that the abuse happened when you look at theresearch in this area.[20] Now, it is important for you to remember at all times that the purposeof Dr Ahmad's evidence is, as I guess I have laboured, educative. She is notsaying anything at all about this case or expressing any view at all on whetheror not the abuse alleged happened in this case. She is simply here to explainto you what the research shows to help you avoid perhaps falling into anypitfalls along the lines of reasoning that if X happened or didn't happen thenit is less likely or more likely that the abuse happened, so that is what herevidence is all about.[31] It follows that we do not consider the Judge erred in the respects advanced andwe shall dismiss the appeal against conviction.Appeal against sentence[32] The Judge's starting point for all of the offending was 13 years' imprisonment.From this, the Judge made a five per cent reduction for B's previous good characterand 15 per cent for matters pertaining to his personal and cultural background.5[33] The issue on the appeal against sentence is whether that 15 per cent wassufficient. Ms Wickliffe contends that the reduction should not have been less than25 per cent and she seeks that on appeal. If Ms Wickliffe succeeds on this point, B'ssentence would reduce to nine years and one month's imprisonment.5 As noted above, this brought the end sentence to 10 years and three months' imprisonment.[34] The documents before the Judge at sentencing that are relevant to this issueconsist of an affidavit sworn by B addressing matters covered by s 27 of the SentencingAct 2002, and a letter from one of B's sisters to the Court. This letter expressedsupport for B and confirmed much of what he had said in his affidavit regarding hisupbringing. The effect of the affidavit and letter, and this is not disputed, is that B'supbringing was marked by physical violence, parental abandonment, exposure tosexual activity at a very young age, and sexual abuse.[35] In addition, B submitted to the Judge a report by Mr Jim van Rensburg, aregistered clinical psychologist. This repeated much of B's account of his upbringing.However, Mr van Rensburg also discussed B's performance on two risk assessmentinstruments, the Static-99R and the STABLE 2007 test, these being intended to predicta sexual offender's risk of re-offending. Mr van Rensburg's opinion was that:52. [B] has been predestined for aberrant sexual attitudes and practices,given his exposure [to] and participation in sexual activities as apre-pubescent child and subsequent reinforcement through regular,ongoing extraordinary sexual activities throughout his life. The extentto which aberrant sex was normalised for him from a very young age,would have been so powerful that it struck me as counter-intuitive thathe would only be charged with his first sexual offence at the age of 44.The fact that he was able to mainly focus his sexual desires onconsenting adult women, albeit in a promiscuous manner, has givenhim the opportunity to express his strong sexual drive within theconfines of the law, until the offending against [H].[36] At sentencing, Ms Wickliffe argued for a reduction of 15 per cent on thegrounds of B's affidavit and the letter from his sister, and for another 15 per cent forMr van Rensburg's report.[37] The Judge took the view the documents covered largely the same ground andgranted 15 per cent for both combined.Submissions[38] Ms Wickliffe does not object to the Judge's approach in awarding an overalldiscount, but submits at least 25 per cent was warranted given the persuasive evidenceof trauma and deprivation before the Court. In support of this submission,Ms Wickliffe referred us to Keil v R and to Solicitor-General v Heta in which therewas a discussion of the circumstances in which a discount of as much as 30 per centmight be allowed.6[39] Ms Fuhr submits that the Judge's 15 per cent discount was within range.She does not dispute that matters in B's background have contributed to his offendingand that a discount was warranted. The issue is the extent of the discount, given theseriousness of the offending. Ms Fuhr referred us to the Supreme Court's decision inBerkland v R, in which the Court said the causative contribution of background maybe displaced, in whole or in part, if the offending is serious, as in this case.7 Ms Fuhralso referred us to King v R and Postlethwaite v R.8Discussion[40] In Keil v R, Mr Paul appealed against his conviction and sentence on a chargeof wounding with intent to cause grievous bodily harm. At sentencing, theDistrict Court Judge had allowed a combined discount of 30 per cent for mitigatingpersonal circumstances, being 20 per cent for Mr Paul's personal and culturalbackground and the balance for an unrelated matter.[41] On appeal, this Court declined to give a greater discount, taking the view that,in the circumstances of the case, including the seriousness of the offending, thediscount that had been allowed was "generous".9[42] Postlethwaite v R was a case of sexual offending against an 18-year-oldwoman, all committed in one episode by Mr Postlethwaite and his co-offenders,Mr Biddle and Mr Thacker. Each was found guilty of multiple charges of sexualviolation by rape, and each was sentenced to a substantial term of imprisonment, withthe only discounts granted being for rehabilitative prospects.6 Keil v R [2017] NZCA 563; and Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR241.7 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [111].8 King v R [2020] NZCA 446; and Postlethwaite v R [2023] NZCA 49.9 Keil v R, above n 6, at [58]–[59].[43] On appeal, this Court allowed Mr Postlethwaite and Mr Thacker an additionalsix per cent, or nine-month, discount for cultural matters — plainly modest incomparison to the 15 per cent the Judge allowed B.10[44] King v R preceded Berkland. Mr King, aged 32, had offended against a16-year-old girl on a single occasion, leading to convictions for two charges ofindecent assault, two of unlawful sexual connection, and one of rape. At sentencing,the District Court had allowed a discount of a little less than 13 per cent for matterspertaining to Mr King's background and his remorse. This Court did not increase that13 per cent, even though it accepted a reduction of 15 per cent for Mr King'sbackground might have been justified.11[45] Having regard to these authorities, 15 per cent was within the available rangeand we are not persuaded to increase it, particularly given the serious and repeatednature of B's offending. Moreover, as the Judge observed, B, who is educated andintelligent, committed the offending when in his late 30s. His age and intelligenceenable him to control his conduct, at least to some extent, and that attenuates thecausative contribution required to warrant any reduction in sentence.Name suppression[46] This brings us to the issue of whether we should make an order suppressingpublication of B's name. At our request, counsel made submissions on this matterwhich does not appear to have been addressed at a prior stage of the proceeding.[47] As is well known, such an order may be made if, first, one of the "threshold"grounds in s 200(2) of the Criminal Procedure Act 2011 (CPA) is established and,secondly, if it is desirable to make such an order, having regard to all competinginterests, including the public interest in open justice.1210 Postlethwaite v R, above n 8, at [20]; and Biddle v R [2021] NZCA 57 at [96].11 King v R, above n 8, at [37].12 Robertson v Police [2015] NZCA 7 at [39]–[41].[48] Ms Wickliffe submits that we should make an order, on the grounds publicationwould cause extreme hardship to B, that being one of the threshold grounds to whichwe have referred.13[49] We are not persuaded as to this submission but it is clear that the thresholdground in s 200(2)(f) is satisfied. Publication of B's name would be likely to lead tothe identification of H, whose name is suppressed by operation of law, and in particularby ss 203 and 204 of the CPA.[50] Despite that, Ms Fuhr submits we should not make an order for permanentsuppression of B's name. Ms Fuhr has supplied us with information to the effect thatH and her mother oppose the making of such an order, as they do not believe B shouldbe "hidden" from his offending. We note that s 200(6) of the CPA requires us to takeinto account any views of a victim of the offence conveyed in accordance with s 16Bof the Victims' Rights Act 2002 and, given H's present age, that includes her mother.14[51] Also, as Ms Fuhr submits, B's offending is serious. B has been employed inthe education setting, has been in contact with young people, and the risk of futureoffending cannot be excluded.[52] Despite these matters, for the following reasons we propose to make an orderfor permanent suppression of B's name pending further order of the Court.[53] First, we are not persuaded that there could be publication of B's name withoutjeopardising the statutory suppression of H's name. Although Ms Fuhr submits thatthis risk might be ameliorated by omitting or redacting from the judgment anyreference to the nature of H and B's relationship (as we have done), a considerable riskremains as B and H have the same surname.[54] Secondly, B's offending against H appears to have been opportunistic.The offending did not occur in the course of B's employment and he does not have ahistory of criminal offending, let alone of sexual offending. We note also that there is13 Criminal Procedure Act, s 200(2)(a).14 Victims' Rights Act 2002, s 4 definition of "victim", para (a)(iii).no prospect of B being released from custody for several years, and no prospect of hisbeing employed in the education field again, as his name has been entered on, and willremain on, the Child Sex Offender Register established under the Child Protection(Child Sex Offender Government Agency Registration) Act 2016.[55] Taking these matters into account, we make an order suppressing publicationof B's name, address and occupation pending further order of the Court. We have said"pending further order of the Court" given the possibility that H, when of an age to doso, may consent to publication of her own name. If she were to do so, that would belikely to affect the view the Court took of continued suppression of B's name.Result[56] The appeal against conviction is dismissed.[57] The appeal against sentence is dismissed.[58] In order to protect the identity of H, we make an order prohibiting publicationof the name, address, occupation or identifying particulars of B pursuant to s 200 ofthe Criminal Procedure Act 2011.Solicitors:Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent