IKINEPULE v R [2017] NZCA 125

IKINEPULE v R [2017] NZCA 125 [12 April 2017]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 ZEALANDCA595/2015[2017] NZCA 125BETWEEN BRENT BRIAN IKINEPULEAppellantAND THE QUEENRespondentHearing: 7 March 2017Court: Winkelmann, Woodhouse and Collins JJCounsel: J A Kincade for AppellantJEL Carruthers for RespondentJudgment: 12 April 2017 at 2 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against conviction is dismissed.C The appeal against sentence is allowed in part.D The minimum period of imprisonment is quashed.E The sentence imposed in the District Court is otherwise confirmed.____________________________________________________________________REASONS OF THE COURT(Given by Woodhouse J)[1] The appellant, Brent Ikinepule, was tried in the District Court at Auckland before Judge Field and a jury on three charges of sexual offending: one charge of rape and two charges of indecent assault against a girl under the age of 12 years, all in relation to the same complainant. Mr Ikinepule was found guilty of rape and one charge of indecent assault and not guilty of the other charge of indecent assault. He was sentenced by Judge Field to imprisonment for nine years and six months with a minimum period of imprisonment of four years.1[2] Mr Ikinepule appeals against his conviction on the grounds that there was amiscarriage of justice; first, because an unedited transcript of the complainant'sevidential video interview may have been given to the jury and, second, because ofalleged errors made by Mr Ikinepule's trial counsel. Mr Ikinepule appeals againsthis sentence on the grounds that the sentence was manifestly excessive and that a minimum period of imprisonment was not warranted.Appeal out of time[3] The notice of appeal was filed well out of time but the reasons for this delay have been adequately explained. The Crown does not oppose leave being granted. We are satisfied there should be an extension of time. There is an order accordingly.Background[4] The charges were founded on an evidential video interview of the complainant conducted in April 2013. The complainant said that on one occasion ather home, when Mr Ikinepule's partner and the complainant's mother were visiting aneighbour, Mr Ikinepule forced himself on her in the sitting room and raped her. This led to one of the charges of indecent assault as well as the rape charge, with Mr Ikinepule being found guilty of those two charges. As regards the other indecent assault charge, the complainant alleged that Mr Ikinepule came into her room at night and indecently assaulted her. She said that she could not see the person but said she knew it was Mr Ikinepule.1 R v Ikinepule DC Auckland CRI-2013-092-7531, 14 October 2014 at [9].[5] The essence of the defence case was that neither of the incidents described by the complainant occurred. There were no witnesses to either of the incidents described by the complainant. Her version of events was challenged in various ways . Mr Ikinepule gave evidence. He did not call any other witnesses. His partner had been called as a witness for the Crown. In cross-examination his partner gave evidence which, in broad measure, was inconsistent with the evidence of thecomplainant and consistent with Mr Ikinepule's evidence on matters bearing on thereliability of evidence from the complainant and the complainant's mother.[6] One of the issues at trial was whether visits to the complainant's home byMr Ikinepule and his partner had occurred in 2009–2010, as had been suggested directly or indirectly by the complainant and her mother, or whether the visits had occurred in 2007. In her evidential video interview, the complainant said she was 10 years old when the offending occurred and she provided some other information which she said supported her recollection of age. Other information the complainant provided indicated that the incidents she was referring to occurred several years earlier. The charges alleged that the three offences occurred between 1 January 2006 and 31 December 2010. It was established at trial that the period the complainant was referring to was in early 2007 when the complainant was eight years old. This related to a period of about a week during which the power supply to Mr Ikinepule'shouse was cut off. Mr Ikinepule and his partner acknowledged that they had visitedthe complainant's home over this period but disputed evidence from the complainantand her mother that they had stayed overnight.Appeal against conviction: the interview transcript[7] The evidential video interview contained two statements by the complainantwhich the Crown agreed should be deleted from the video and the transcript whichhad been prepared from the original video. These statements were highly prejudicialand clearly inadmissible.[8] Ms Kincade submitted on behalf of Mr Ikinepule that there was a risk that a copy of the transcript provided to the jury included the offending passages withhandwritten lines through them but with the words easily able to be read. We willrefer to this as "the unedited version".[9] For the reasons that follow we are satisfied that a copy of the unedited version was not given to the jury.[10] The basis for Ms Kincade's submission is that the case on appeal, asoriginally compiled, contained a copy of the unedited version. That fact, however, is not evidence that this version went to the jury. Cases on appeal are compiled with copies of documents from various sources. Errors should not occur, but they canoccur.[11] If there was no evidence that a properly edited version of the transcript had been prepared, the point for Mr Ikinepule would have substance. But that is not the case. Enquiries were made following a direction from this Court. It was not possible to determine how the unedited version got into the case on appeal. But we were provided with a fully edited version from which the offending passages had been deleted and with no hint of editorial interference. The edited transcript had been produced in evidence at the trial as an exhibit. The edited transcript we received, and which was added to the case on appeal, is not the original exhibit and does not have a copy of an exhibit number. But it does have the standard police cover-sheet which indicates that this is a copy of the version prepared for use in the trial and which was produced as an exhibit. The unedited copy, originally included in the case on appeal, does not include the standard police cover-sheet.[12] The proper inference to be drawn is that the fully edited version is a copy of the formal exhibit and a copy of the document that went to the jury.[13] This conclusion finds some support from the recollection of Mr Ikinepule'strial counsel, Mr McNicol, who provided an affidavit for this appeal following waiver of privilege. Mr McNicol said that he had no actual recollection of reviewing the copies of the transcript at trial before they were handed to the jury, but it is his normal practice to do so. He recognised the edits marked in the original version as being those he had agreed with counsel for the Crown should be deleted.[14] Ms Kincade referred us to two cases which she submitted supported the argument for Mr Ikinepule.2 The facts of those cases are materially different and do not support the argument.Appeal against conviction: counsel error[15] Ms Kincade submitted that Mr McNicol made errors in respect of four matters, which may be summarised as follows:(a) Mr McNicol failed to produce documentary evidence through aCrown witness, Mr Ikinepule's partner, which supportedMr Ikinepule's case that, contrary to the complainant's evidence,Mr Ikinepule and his partner did not stay at her home overnight.(b) Mr McNicol failed to cross-examine the complainant effectively, or sufficiently, as to her credibility and reliability.(c) In cross-examination of the complainant's mother, Mr McNicol failedadequately to put the defence case and there was an error in a questionMr McNicol put to the complainant's mother in relation to a date.(d) Mr McNicol's closing address was deficient.[16] We deal with these matters under one heading because Ms Kincade madeclear, in her oral submissions, that the primary focus was on Mr McNicol's closingaddress, with the other points reinforcing the primary submission that the inadequacies in the closing address resulted in a miscarriage of justice.2 Guy v R [2014] NZSC 165, [2015] 1 NZLR 315; and R v Osborne [2009] NZCA 53.[17] Ms Kincade made two substantive points in relation to Mr McNicol's closingaddress. The first was that Mr McNicol failed to put squarely before the jury the defence contention that the complainant was not a credible witness, a contention which could have and should have been demonstrated by reference to numerous examples from her evidence. The second submission was that Mr McNicol effectively suggested to the jury that the ultimate question for it was whether they believed the complainant or Mr Ikinepule, but that was not the ultimate question, because the Crown bore the burden of proof.[18] The relevant principles applying to appeals raising issues about the conductof trial counsel are set out by the Supreme Court in R v Sungsuwan.3 The effect ofSungsuwan was summarised by this Court in R v Scurrah.4 Arnold J said:[17] The approach appears to be, then, to ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to bothquestions is "yes", this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.[19] The contentions that are made are ones which can readily be assessed byreading the transcript of Mr McNicol's closing address and assessing it in light of thesubmissions made for Mr Ikinepule on appeal. Having done so we are satisfied thatthe contentions of error are not made out. Regarding Ms Kincade's first point,Mr McNicol was restrained in the way in which he put the challenge to thecomplainant's evidence. But he did make clear, in as many words, that a central partof the defence case was that the complainant's evidence contained so many errorsthat she could not be believed.[20] As to Ms Kincade's second point, we do not accept Mr McNicol framed theissue for the jury as a choice between the evidence of Mr Ikinepule and the complainant, thereby undermining the burden and standard of proof. Indeed, at the beginning of the closing address Mr McNicol cautioned the jury against such an approach when he said:3 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.4 R v Scurrah CA159/06, 12 September 2006 at [17]–[20].Now, my learned friend has said, "Really it's just about you believe her or you believe him". If it was simply about that evidence you'd only hear from two people in a criminal trial but you haven't so you must consider allof that evidence that you've heard in this Court.This was then followed by clear submissions from Mr McNicol on the Crown'sburden of proof as well as the standard of proof.[21] Mr McNicol then turned to the evidence of the complainant which he first tied in to the burden and standard of proof as follows:If you feel that the allegations are unreliable and I suggest to you that thereare some curious aspects to it, taken in the round, then it's only a reasonabledoubt that needs to be raised.[22] The focus of Mr McNicol's closing address was on the complainant'scredibility. The jury was invited, in effect, to use their common knowledge and experience of the way in which a person, who has made allegations against another person, will often stick to their version of events even though they have been shown to be wrong. This was then related directly to the complainant. Mr McNicol said to the jury:You saw with [the complainant] when I cross-examined her she stuck to thestory. People aren't suddenly going to admit they've made things up. It very rarely happens and it rarely happens in your experience, I suggest to you, butthere are things around it that don't ring true and that should give you somecause for concern and there are suspicions that should give you cause for concern around the evidence.So let's look at the evidence. I've been saying that the complainant, what she says doesn't add up. Why is that?Mr McNicol then provided reasons why the jury might consider her evidence implausible.[23] Mr McNicol's closing address was not lengthy, or particularly detailed, but it did not have to be. His remarks were made at the conclusion of a very short trial —no more than three days. Through the course of the cross-examination of the complainant, Mr McNicol tested her on the various inconsistencies and implausibilities he contended for and he put the defence case squarely to thecomplainant for her response. All of this would have been fresh in the minds of the jurors.[24] There were no errors in the closing address as contended. This conclusion is sufficient to dismiss the further grounds of appeal in relation to Mr McNicol's conduct, given Ms Kincade's acknowledgement that the submissions directed tocross-examination were advanced in support of the primary contentions relating to the closing address. It is nevertheless appropriate to make some further observations, together with brief conclusions on the other main points.[25] The submissions on Mr McNicol's other alleged errors are all directed totactical decisions that he had to make in the course of the trial, not only in the course of cross-examination, and decisions as to the content and manner of presentation of his closing address. This trial, given the subject matter and the age of the complainant, required the exercise of judgement on the best way to seek to persuade the jury that the complainant, who was only 14 years old when she gave her evidence and had been about eight years old at the time of the offending, was not to be believed. In summarising another aspect of Sungsuwan, when giving the decision of this Court in Scurrah, Arnold J said relevantly:5On the other hand, where counsel has made a tactical or other decision which was reasonable in the context of the trial, an appeal will not ordinarily be allowed even though there is a possibility that the decision affected the outcome of the trial. This reflects the reality that trial counsel must make decisions before and during trial, exercising their best judgment in the circumstances as they exist at the time. Simply because, with hindsight, such a decision is seen to have reduced the chance of the accused achieving a favourable outcome does not mean that there has been a miscarriage of justice. Nor will there have been a miscarriage of justice simply because some other decision is thought, with hindsight, to have offered a better prospect of an outcome favourable to the accused than the decision made.[26] The substance of the argument advanced for Mr Ikinepule, when read in light of the closing address by Mr McNicol and his approach to cross-examination, is that the closing address and the cross-examination should have been substantially more forceful, if not aggressive, and as part of this that the jury should in effect have been bluntly told that the complainant was a liar. Ms Kincade did not put matters in those5 R v Scurrah, above n 4, at [18].terms but that is the thrust of what was being submitted. It is doubtful, even with the benefit of hindsight, that what may be described as a more forceful approach would have resulted in a different outcome. And in that regard it is not to be forgotten that Mr Ikinepule was found not guilty on one charge.[27] The appropriate way for submissions for Mr Ikinepule to be made in closing required the exercise of judgement by Mr McNicol of the sort referred to in Scurrah. There was no error by Mr McNicol.[28] We have come to the same conclusion in relation to Mr McNicol's approachto cross-examination of the complainant and of the complainant's mother.[29] It was submitted that there were two errors of a different kind in cross-examination, summarised above at [15(a)] and [15(c)]. There was no error in Mr McNicol's failing to have documentary evidence produced throughMr Ikinepule's partner. The direct evidence elicited from Mr Ikinepule's partnerestablished the facts which the documents would otherwise have established. It iscorrect that Mr McNicol made an error in stating a date in a question to thecomplainant's mother, but this was an inadvertent error which would have been quiteobvious to the jury. Nothing turns on this.[30] For these reasons we are satisfied that the contentions that there were errors by counsel resulting in a miscarriage of justice are not made out.Appeal against sentence[31] There was a notice of appeal against sentence but no written submissions were filed. Without objection from the Crown, we invited Ms Kincade to make oral submissions to which the Crown responded orally.The District Court sentencing[32] Judge Field was satisfied that the aggravating features of the offending put the two offences in band 2 of R v AM (CA27/2009), which has a range ofimprisonment from seven to 13 years.6 The Judge identified three aggravating features:7(a) The vulnerability of the victim who was eight years old at the time —Mr Ikinepule was over 30 years older than she.(b) The extent of the harm to the victim, which the Judge explained in some detail and in particular by reference to a victim impact statementfrom the complainant's mother.(c) A breach of trust. The Judge recognised that this was not of the level found in some cases, but it did arise from circumstances where the victim was left in the care of Mr Ikinepule.[33] Judge Field concluded that a starting point of nine years and six months was appropriate to reflect the totality of the offending.8[34] The Judge referred to previous convictions of Mr Ikinepule but decided they should not be taken into account. He said there were no personal mitigating factors. The end sentence therefore was the starting point of imprisonment for nine years and six months.9[35] The Judge then considered whether a minimum period of imprisonment should be imposed pursuant to s 86 of the Sentencing Act 2002. Section 86(2) provides that the Court may impose a minimum period of imprisonment if it is satisfied that the default period of mandatory imprisonment is insufficient for any or all of four purposes stipulated in subs (2). The Judge placed emphasis on protection of the community from the offender.10 He said:11 I do note with some concern the opinion of the probation officer in thepre-sentence report. It is said that you do have a propensity to resort to6 R v Ikinepule, above n 1, at [6] citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.7 At [5].8 At [6].9 At [7].10 Sentencing Act 2002, s 86(2)(d).11 R v Ikinepule, above n 1, at [8].violence to get your own way. I do note that your offences in this regard go back a number of years but, among other things, the nature of this offence causes the probation officer to assess you as posing a high risk of harm to others. For these reasons, I consider that a minimum sentence of imprisonment is justified and indeed is essential having regard to the factors I am required to consider in s 86.[36] The minimum period of imprisonment, imposed for the rape offence, was four years.12Grounds of appeal against sentence[37] Ms Kincade submitted that there were three errors by the Judge, as follows:(a) The starting point was too high. It was accepted that the offending came within band 2 of R v AM (CA27/2009). The submission was that the starting point should have been at the bottom of band 2, at aroundseven years' imprisonment.(b) No allowance was made for the fact that Mr Ikinepule had no previous convictions for sexual offending.(c) The minimum period of imprisonment was not justified.[38] There was no error by the Judge in the starting point he adopted. It was well within range. There also was no error by the Judge in refusing to give credit to Mr Ikinepule for the fact that he had no previous convictions for sexual offending. He may have been entitled to a credit if he had no previous offences altogether. That was not the case although (as recorded above) the Judge did not increase the sentence because of previous offending.[39] However, we are satisfied that the Judge was in error in imposing a minimum period of imprisonment for the reasons he recorded, and that a minimum period of imprisonment was not justified on other grounds.12 At [9].[40] Mr Ikinepule's previous criminal history does not indicate that, at the time ofsentencing, there was a need to protect the community because of a propensity to resort to violence. Prior to the offences being dealt with on this appeal, which occurred in February 2007, the most recent offence committed by Mr Ikinepule was in 1998. This was a common assault for which he was fined $500. There was another common assault in 1993 with a sentence that Mr Ikinepule come up for sentence if called upon within six months. There was a domestic assault in 1991 resulting in a fine of $200. There were 15 other offences between 1984 (when Mr Ikinepule was 17) and 1992 (when he was 25). None of those were relevant.[41] The probation officer suggested that it was "clear from his criminal historythat Mr Ikinepule has the propensity to resort to violence to get his own way". Allthat can be gleaned from the criminal history is that there were the three offences of assault which we have described. No more information is given other than penalties, and the penalties indicate that the offending was at a low level of criminality. Offences of that nature, and especially ones committed between nine and 16 years before the sexual offences in 2007, could not reasonably be taken to indicate a current propensity to resort to violence, let alone a propensity justifying imposition of a minimum period of imprisonment. Rape, in particular, involves violence, but there was no relevant relationship between the nature of the violence involved in the rape in 2007 and the quite different incidents between 1991 and 1998.[42] In addition to those conclusions, as regards Judge Field's reasons forimposing the minimum period of imprisonment, we note that the probation officerwent on to say that "a propensity to resort to violence" appeared to be linked to amisuse of alcohol. The probation officer recorded later in the report thatMr Ikinepule said that he had given up alcohol in 2013 because he had beendiagnosed with type 2 diabetes, and this had been confirmed by his father and hispartner.[43] On appeal Mr Carruthers, for the Crown, told us that he was not able tosupport the Judge's reliance on Mr Ikinepule's criminal history as a reason to imposea minimum period of imprisonment. Mr Carruthers did tentatively indicate that he thought there may be some relevant statements from this Court in R v AM(CA27/2009) on minimum periods of imprisonment, but he did not have the case in front of him and, as we have already indicated, was seeking to respond to submissions from Mr Ikinepule of which he had no prior notice.[44] R v AM (CA27/2009) included an appeal by the Solicitor-General against a decision not to impose a minimum period of imprisonment.13 The Court concluded, in the circumstances of the case before it, that a minimum period of imprisonment was required.14[45] The Court in R v AM (CA27/2009) did note that authorities "suggest that theimposition of [a minimum period] of at least half of the nominal sentence is veryroutine in cases" of the type being considered in that case.15 The offending in that case, and in the cases cited therein, was far more serious than the offending in this case.[46] Weighing the relevant circumstances we are satisfied that a minimum period of imprisonment was not required for the reason given by the Judge. There are no other circumstances which justify a minimum period of imprisonment having regard to all of the provisions of s 86 of the Sentencing Act and the principles developed inthe cases on the application of s 86.Result[47] The application for an extension of time to appeal is granted.[48] The appeal against conviction is dismissed.[49] The appeal against sentence is allowed in part. The minimum period of imprisonment is quashed. The balance of the sentence is otherwise confirmed.Solicitors:Crown Law Office, Wellington for Respondent13 R v AM (CA27/2009), above n 6, at [130].14 At [157].15 At [156].