CYRUS CHRISTIAN (AKA WILLIAM JOHN TASSELL) v R [2017] NZSC 165

CYRUS CHRISTIAN (AKA WILLIAM JOHN TASSELL) v R [2017] NZSC 165 [6 November 2017]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATIONIN LAW REPORT OR LAW DIGEST PERMITTED.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE SUPREME COURT OF NEW ZEALANDSC 124/2016[2017] NZSC 165BETWEEN CYRUS CHRISTIAN (AKA WILLIAMJOHN TASSELL)AppellantAND THE QUEENRespondentCourt: Elias CJ, William Young, Glazebrook, OʼRegan andEllen France JJCounsel: N Levy for AppellantA Markham for RespondentJudgment: 6 November 2017JUDGMENT OF THE COURT (SENTENCE)A The sentence of imprisonment for a term of ten years forcount 2 is quashed and a sentence of imprisonment for aterm of eight years and eight months is substituted.B An order is made prohibiting publication of the judgmentand any part of the proceedings (including the result) inany news media or on the internet or on any other publiclyavailable database until final disposition of the retrial.Publication in a law report or law digest is permitted.____________________________________________________________________REASONS(Given by O'Regan J)Background[1] On 26 September 2017, this Court allowed Mr Christian's appeal againstconviction on two of the three counts on which he had been convicted at trial.However, the Court (by majority) dismissed his appeal in relation to one count, aspecific count of rape, which was count 2 in the indictment.[2] In relation to sentence, the judgment of the majority said:1Sentence[74] Judge Bidois sentenced the appellant to a term of imprisonment of13 and a half years on each of the two representative charges of rape (counts4 and 5) and 10 years' imprisonment on the specific rape charge (count 2),such sentences to be served concurrently. The representative counts were thelead charges for sentencing purposes. The imposition of the concurrentsentence of 10 years' imprisonment for count 2 is not the subject of separatereasoning. The sentences for counts 4 and 5 are now quashed, which, in theabsence of any further consideration, would leave the 10 year sentence forcount 2.[75] Section 386(1) of the Crimes Act [1961] provided:386 Powers of appellate courts in special cases(1) If on any appeal under section 383 it appears to theCourt of Appeal or the Supreme Court that anappellant, though not properly convicted on somecount or part of the indictment, has been properlyconvicted on some other count or part of theindictment, the court may either affirm the sentencepassed on the appellant or pass such sentence insubstitution therefor as it thinks proper and as may bewarranted in law by the verdict on the count or part ofthe indictment on which the court considers that theappellant has been properly convicted.[76] Unlike its successor provisions ss 236 and 241 of the CriminalProcedure Act [2011], it did not provide for the case to be remitted to the trialcourt for re-sentencing.[77] We have not heard from counsel on sentence. Given the outcome ofthe appeal, we will provide an opportunity for counsel to make submissions1 Christian v R [2017] NZSC 145. The majority comprised William Young, Glazebrook, O'Reganand Ellen France JJ.as to the sentence that should be imposed in relation to count 2, in particular,whether the 10 year sentence imposed by the Judge should stand. Once wehave received and considered those submissions we will determine thesentence that should apply in relation to count 2.[3] We have now received submissions from counsel for Mr Christian and counselfor the respondent.[4] The Chief Justice dissented and would have allowed Mr Christian's appeal infull. On her view of the case, therefore, the need to determine the appropriate sentencefor count 2 would not have arisen. However, as her view did not prevail and it isnecessary for the Court to determine the sentence to be imposed for count 2, she hasparticipated in the preparation of this judgment.The offending[5] The circumstances of the offending were described in the majority judgmentas follows:[7] At the time of the events leading to the charges against the appellant,he ran a church, founded by him, in a small provincial town. Thecomplainant's mother became a member of the church. When the complainantwas aged 13 or 14, she moved to live on the appellant's property in an oldhouse. The appellant slept in a different building on the same property.[8] Three to four weeks after the complainant moved to live in theappellant's property, the first rape occurred. The complainant said she thinksshe was about 13.[2] The appellant came into the house in which she wasliving. She said he first lifted her upper clothing and sucked her breast (thiswas the basis of count 1, an indecent assault charge on which the appellantwas acquitted). The complainant also said the appellant removed her pantsand raped her. This was the basis of count 2, a charge of rape. She said shedid not say anything to the appellant because she was too scared and did notknow what to say. However, she said she did not consent and did not knowwhat the word consent meant.R v AM[6] Counsel for Mr Christian and for the respondent accepted that the sentence tobe imposed should be determined applying the approach taken by the Court of Appealin R v AM (CA27/2009).3 For Mr Christian, Ms Levy submitted that the offending was2 In cross-examination the complainant accepted that the incident could have happened in 1998, bywhich time she would have been 14.3 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.within rape band one of R v AM; for the respondent, Ms Markham submitted that itwas offending of moderate seriousness within rape band two.[7] In R v AM, the Court of Appeal said, in relation to rape band one:[93] This band will be appropriate for offending at the lower end of thespectrum; that is, offending where the aggravating features are either notpresent or present to a limited extent. Rape band one is not an appropriateband for offending where the level of violence is serious, the case involves anextended abduction, a victim who by reason of factors such as age (childrenor elderly persons) or mental or physical impairment is vulnerable or anoffender acts in concert with others.[8] It set a sentence starting point range of 6–8 years for that band.4[9] The Court set a sentence starting point range of 7–13 years in relation to rapeband two.5 It described that band as follows:[98] By comparison with rape band one, this band is appropriate for a scaleof offending and levels of violence and premeditation which are, in relativeterms, moderate. This band covers offending involving a vulnerable victim,or an offender acting in concert with others or some additional violence. It isappropriate for cases which involve two or three of the factors increasingculpability to a moderate degree.Submissions[10] Ms Markham submitted that the aggravating factors were the complainant'sage (13 or 14),6 the significant age disparity (Mr Christian being over 20 years olderthan the complainant) and the complainant's vulnerability arising from her isolation,naivety and poor relationship with her abusive mother. Mr Christian's actions werean abuse of trust, arising from his status as the complainant's de facto guardian andhis position as a church "Minister".[11] Ms Levy argued the case was similar to R v Wirangi,7 which is given as anexample in R v AM of a case where a starting point at the higher end of rape band onehad applied. In R v AM, 8 the Court said this about R v Wirangi:4 At [90](a).5 At [90](b).6 See above at n 2.7 R v Wirangi [2007] NZCA 25. The end sentence in that case was eight years' imprisonment.8 R v AM, above n 3, at [94] (footnote omitted).R v Wirangi: O, 38, was a friend of 16 year-old V's family and was asked tolook after the home of a relative in which V was staying. One night afterwatching videos with her, he exposed himself. V asked him to leave. Shewent to bed and was awoken by O removing her clothes. He raped her andthen masturbated in front of her before leaving.[12] Ms Levy said another similar case was R v S,9 which was also summarised inR v AM. R v S was cited as an example of a case with a starting point at the lower endof rape band two:10R v S: O was the father of V's sibling. V, female, 17, moved in with him notlong before the rape but appears to have viewed him as a father figure, callinghim Dad. V was drinking heavily at the time. O invited V to accompany himwhile he was away on a business trip, buying her alcohol on the way. Theywent to a motel room with a queen and a single bed. O purchased morealcohol, which V drank. He invited her to lie on the queen bed, which she didin the apparent expectation he would sleep on the single. She fell asleep andwoke to find O touching her breasts and fondling her. He then penetrated herwith his fingers and went on to rape her from behind.[13] In that case the end sentence was nine years' imprisonment, reflecting an upliftof one year from the starting point of eight years.11[14] Ms Markham argued that the present case was more serious than bothR v Wirangi and R v S, and that a starting point of ten years' imprisonment wasappropriate. She argued that Mr Christian's cynical abuse of his position as a religiousleader warranted specific recognition.[15] On the other hand, Ms Levy argued that a starting point of 7–8 years wasindicated, and that a six month discount should be allowed for the lengthy period ofsome 22 years in which no similar offending has occurred.Our assessment[16] We see the present offending as being at the lower end of rape band two ofR v AM. We do not think it is substantially different from the offending described inR v S, (which also involved a vulnerable complainant and an abuse of trust by theoffender) but the complainant in the present case was younger at the time of the9 R v S [2009] NZCA 210.10 R v AM, above n 3, at [98] (footnote omitted).11 R v S, above n 9, at [42].offending. We consider the sentence of ten years' imprisonment imposed by the trialJudge is too high when count 2 is considered in isolation from the other counts, inrespect of which the convictions have been quashed. We consider a starting point ofnine years is appropriate.[17] In the original sentence, Judge Bidois gave Mr Christian a small credit of sixmonths (from a starting point of 14 years for the representative counts) "to reflect thefact that you have not been in any trouble over the last 15 odd years".12 We areprepared to give a proportionate credit in this case of four months, which provides anend sentence of eight years and eight months.Result[18] The sentence of ten years' imprisonment imposed by Judge Bidois in relationto count 2 is quashed. Mr Christian is sentenced to a term of imprisonment of eightyears and eight months on that count. For fair trial reasons, we make an orderprohibiting publication of the judgment and any part of the proceedings (including theresult) in any news media or on the internet or on any other publicly available databaseuntil final disposition of the retrial. Publication in a law report or law digest ispermitted.Solicitors:Crown Law Office, Wellington for Respondent12 R v Tassell [Christian] DC Tauranga CRI-2012-087-1863, 25 July 2014 at [10].