ANAND V R [2017] NZCA 566

ANAND V R [2017] NZCA 566 [5 December 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA283/2016[2017] NZCA 566BETWEEN EDWARD ANANDAppellantAND THE QUEENRespondentHearing: 8 November 2017Court: Gilbert, Lang and Ellis JJCounsel: Appellant in person (conviction appeal)J J McCall for Appellant (sentence appeal)I R Murray for RespondentJudgment: 5 December 2017 at 4.30 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr Anand stood trial in the District Court at Dunedin on 18 charges of historicsexual offending against 10 girls aged between 10 and 15 years. The trial Judge,Judge Phillips, discharged Mr Anand on one charge during the trial. The jury foundhim guilty on five charges of raping and seven charges of indecently assaulting eightof the 10 complainants. He was acquitted on the remaining charges.[2] On 4 May 2016 Judge Phillips sentenced Mr Anand to 13 years imprisonment.1[3] Mr Anand appeals against both conviction and sentence. His notice of appealwas filed a few weeks out of time. He has explained the reasons for this. We aresatisfied that it is appropriate to grant an extension of time to appeal.Background[4] Mr Anand worked as a social worker at the Dunedin Girls Home (the home)between December 1980 and September 1984. He then went on extended leave forapproximately 15 months, before working there again for approximately six weeksbetween 13 January and 27 February 1986.[5] The alleged offending relates to 10 separate complainants, all of whom wereresidents of the home and aged between 10 and 15 years at the time of the offending.The complainants were living in the home after being placed in the care of the Statebecause of difficulties they had experienced in their lives.[6] The Crown alleged Mr Anand had taken advantage of opportunities when hewas alone with the complainants to sexually offend against them. The allegedoffending took the form of raping six complainants, and indecently assaulting fourothers. The indecent assaults took the form of digital penetration of the complainants'genitalia and touching their breasts. He also persuaded one of the complainants tosuck his penis and he got another to touch his penis. Some of the charges were laidon a representative basis because the offending occurred on numerous occasions.[7] The activities giving rise to the charges took place in different areas of thehome, including a secure unit in which some of the complainants were confined afterthey had misbehaved. The Crown also alleged Mr Anand had sexually offended1 R v Anand [2016] NZDC 7897 [Sentencing Notes].against several complainants during outings in a van belonging to the home. Inaddition, the Crown contended he had taken one of the complainants to his home andsexually offended against her there.[8] Mr Anand denied the allegations when he was interviewed by the police beforehis arrest. He then defended the charges on the basis that none of the complainantswere telling the truth. His trial counsel, Mr Young, challenged the credibility of thecomplainants in cross-examination. Mr Anand also gave evidence at trial in which hemaintained his innocence in respect of all charges.The appeal against conviction[9] Mr Anand presented this aspect of the appeal in person. His overall submissionwas that a combination of circumstances had led to an unfair trial. These included theabsence of contemporaneous records that may have helped him to establish thecomplainants were lying. In addition, two members of the staff who were working atthe home at the time of the alleged offending had died and were therefore unavailableto give evidence at trial. Mr Anand also said his trial counsel had failed to call otherstaff members who worked at the home at the time of the alleged offending. Hesuggested these persons may have been able to give evidence to establish thecomplainants were not telling the truth. Mr Anand also questions the ethnic makeupof the jury, and submits that this may have contributed unfairly to their verdicts.Finally, Mr Anand says that his ability to assist his trial counsel to conduct an effectivedefence was severely compromised by his poor health at the time of the trial.Absence of contemporaneous records[10] Four staff members who were working at the home at the time of the allegedoffending gave evidence for the Crown at trial. They confirmed that staff maintaineda diary at the home to record the names of staff on duty each day and daily events ofsignificance. Staff also maintained a logbook recording details of residents who wereconfined in the secure unit as a result of behavioural issues. In addition, persons whoused the van to transport residents when they needed to attend appointments awayfrom the home were required to record those outings in a vehicle running sheet. Thediary, secure unit logbook and vehicle running sheets in respect of the periods whenMr Anand was working at the home cannot now be found. Mr Anand says these mayhave established that he was not working on the days when the offending is alleged tohave occurred, or that he could not have had contact with the complainants on theoccasions when offending was alleged to have occurred.[11] This issue assumed some importance prior to the trial when Judge Phillipsheard an application by Mr Anand for a stay of the proceedings on the basis that thepassage of time had rendered a fair trial impossible. The Judge declined theapplication in a judgment delivered on 22 July 2015.2[12] By the time the Judge heard the application the Crown had been able to locatethe daily diary for the period between 15 November 1985 and 1 March 1986 but theother records remained missing. The Judge upheld the Crown's submission that thediary did not support Mr Anand's assertion that he had no opportunity to offend againstthe complainants.3[13] This argument must also fail on appeal because the complainants did not saythat offending occurred on particular dates. Not surprisingly, they were only able togive a general description of when it occurred. As a result, the records would not haveassisted Mr Anand to establish he was absent from the home on specific dates whenthe complainants alleged he had offended against them.[14] Furthermore, the records would not have been of assistance in relation to thecharges where offending was said to have occurred at Mr Anand's house because theydid not cover events occurring away from the home. In addition, Mr Anand confirmedwhen giving evidence that he was sometimes in situations where he was alone withresidents of the home, even when they were confined in the secure unit. He alsoacknowledged occasionally taking a single girl to an appointment away from the homein the van with no other staff member present.[15] For these reasons we are satisfied the absence of the records did not preventMr Anand from receiving a fair trial. This ground of appeal fails as a result.2 R v Anand [2015] NZDC 13699.3 At [20].Death of key witnesses and failure to call witnesses[16] We deal with these grounds of appeal together because our reasoning inrelation to both is the same.[17] By the time of the trial two staff members who had worked at the home whilstMr Anand was there had died. Mr Anand says they may have been able to assist hisdefence by giving evidence regarding the tightly-controlled nature of movementswithin the home by both staff and residents. He also says that his trial counsel oughtto have called other staff members who worked at the home at the time of the offendingbecause they may have been able to assist in establishing that the complainants werenot telling the truth.[18] Mr Anand relied on the argument relating to the deceased witnesses inadvancing his application for a stay of the proceedings but Judge Phillips did notaccept his argument. One of the witnesses was still alive at the time of the applicationand, if counsel for Mr Anand had considered her evidence to be important to thedefence, it could have been taken before the trial. Mr Anand's trial counsel clearly didnot consider that to be the case. Furthermore, Mr Anand's counsel advised two monthslater at an interlocutory hearing that the evidence of this witness was peripheral to theissues the jury would be required to decide.[19] We do not consider either ground of appeal can succeed for three reasons. First,Mr Anand has not articulated in any detail how the witnesses could have assisted hiscause. Secondly, our conclusion in relation to the first ground of appeal applies withequal force to these grounds. Other staff members could not have assisted Mr Anandto establish a defence based on absence of opportunity when his own evidence did notgo that far. Thirdly, both grounds implicitly call into question the manner in which MrYoung conducted Mr Anand's defence. Mr Anand did not advance that groundexpressly and, had he done so, we would have had the benefit of Mr Young'sexplanation for the decisions he made. During the hearing before us Mr Anand alsoemphasised that he was not calling into question Mr Young's competence. He saidthat Mr Young was "a good man and that he did his best". He said that the principaldifficulty in preparing for the trial was that he lived in Auckland and Mr Young livedin Invercargill. As a result, he had limited opportunities to discuss trial tactics withMr Young before the trial began.[20] Mr Anand's assessment of Mr Young's performance reflects our ownimpression of the manner in which Mr Young conducted the defence case. His cross-examination resulted in several of the complainants making significant concessions,and his closing address effectively highlighted problematic areas of the Crown case.Mr Young obviously had a difficult task given the historic nature of the charges andthe fact that the defence had to counter allegations made by 10 different complainants.The Crown was also able to ask the jury to apply propensity reasoning in reaching itsverdicts. The fact that Mr Young was able to persuade the jury to acquit Mr Anand onseveral charges clearly suggests that Mr Anand was well-served by Mr Young'sperformance at trial.[21] These grounds of appeal fail as a result.Composition of the jury[22] Mr Anand points out that the jury comprised 12 persons of European descent,of whom nine were men. He submitted the jury ought to have included more women,and that the jury might also have been prejudiced against him because he is a FijianIndian by birth.[23] We reject these submissions. The gender makeup of the jury depended entirelyon the order in which the Registrar selected jurors at random using a ballot box. Thereis no requirement in any event that there should be an equal number of men and womenon a jury. The fact that the jury was able to find Mr Anand not guilty on several chargesalso suggests that the jury worked conscientiously through the charges and deliveredverdicts in accordance with their collective view of the evidence. There is no reasonto believe the jury may have been prejudiced against Mr Anand by some form of racialbias.Mr Anand's health during the trial[24] Mr Anand's argument that he was hampered by health problems at the time ofthe trial is not supported by any independent contemporaneous evidence. In addition,he was represented by competent counsel who was able to put the Crown to proof onthe charges. Mr Anand was also able to give evidence and respond steadfastly to cross-examination over an extended period without appearing to suffer any ill effects. Weare therefore unable to accept that the state of Mr Anand's health during the trialaffected the outcome of the trial in any way.Conclusion[25] Regardless of whether they are viewed individually or collectively, the groundsadvanced by Mr Anand do not establish that the trial was unfair or that it resulted in amiscarriage of justice. For that reason the appeal against conviction cannot succeed.The appeal against sentence[26] The fact that the offending occurred between 1980 and 1986 meant the Judgewas required to sentence Mr Anand in accordance with the sentencing principlesapplicable at the time of the offending. During that period the maximum sentence ona charge of rape was 14 years imprisonment rather than 20 years as is now the case.The sentence[27] Judge Phillips considered that Mr Anand's offending had numerousaggravating factors.4 The first was that it occurred over a considerable period of timeand extended to different forms of sexual offending against eight separatecomplainants. The complainants were particularly vulnerable because they wereeffectively confined at the home at the time the offending occurred. The offendingalso involved a very considerable breach of trust because the complainants were all inMr Anand's care when he offended against them. In addition, Mr Anand's conductwas premeditated. It involved a significant element of grooming because heunderstood the complainants' backgrounds and used that knowledge to gain their trust.4 Sentencing Notes, above n 1, at [11] and [23].Some of the offending also involved Mr Anand providing the complainants with gifts,such as cigarettes, before offending against them. The offending has also resulted inwhat the Judge described as incalculable harm to the victims.5[28] The Judge observed that in 1980 the starting point for the rape of a young girlwas between four and seven years imprisonment.6 The starting point on a charge ofindecent assault was between one and five years imprisonment. As the lead charge theJudge selected a representative charge alleging the rape of a 13-year-old complainanton at least six occasions between December 1980 and June 1983.7 Some of theoffending had taken place whilst the complainant was confined in the secure unit. TheJudge adopted a starting point of seven years imprisonment on that charge. He thenincreased that to 10 years to reflect the aggravating features of the offending. Headded a further increase of four years to reflect the other charges involving allegationsof rape, and two years to reflect the charges of indecent assault. The Judge thenreduced the resulting sentence of 16 years imprisonment by one year to give effect tototality principles. This resulted in a sentence of 15 years imprisonment before takinginto account mitigating factors.[29] The Judge allowed a discount of two years to reflect the fact that Mr Anandwas 67 years of age, had no previous convictions and was dealing with health issues.This resulted in an end sentence of 13 years imprisonment. The Judge imposed thatsentence on the lead charge and imposed concurrent sentences on the remainingcharges.8Decision[30] At the relevant time a starting point of around five years imprisonment washeld to be appropriate on a contested charge of rape where no aggravating featureswere present.9 That would be increased to reflect aggravating factors that renderedthe offending more serious. As the Judge observed, the authorities also confirmed that5 At [18].6 At [11].7 At [22].8 At [29]–[30].9 R v Clark [1987] 1 NZLR 380 (CA) at 383.a single charge of raping a young complainant would justify a starting point of betweenfour and seven years imprisonment.10[31] We consider the Judge correctly identified the aggravating features ofMr Anand's offending. In the case of the lead charge they were such that the initialstarting point of seven years imprisonment was plainly available, particularly giventhe repetitive nature of the offending. We consider, however, that this would betowards the upper end of the available range for offending of this type in the 1980s.We do not consider an increase of three years to reflect aggravating factors could bejustified on the authorities. At the most, the starting point in respect of the lead chargeshould not have been more than eight years imprisonment.[32] That sentence needed to be increased significantly to reflect Mr Anand'sculpability on the remaining charges because the jury had found Mr Anand guilty onfour charges of raping three other complainants. One of these was a representativecharge covering multiple incidents of rape and the other three related to singleincidents of rape, but in all other respects they had the same aggravating factors as thelead charge. The sentence also needed to reflect the fact that the jury had foundMr Anand guilty on seven charges of indecent assault, two of which were laid on arepresentative basis because they involved repetitive conduct. All of these shared theaggravating features that the Judge identified. The real issue is whether, as Mr McCallcontends on Mr Anand's behalf, an effective uplift of seven years to reflect theremainder of the offending produced a final starting point that was too high.[33] Perhaps the strongest support for Mr McCall's argument is to be found in theapproach taken in R v J.11 In that case the offender had been found guilty on 45 chargesof raping and indecently assaulting eight complainants over a 13-year period between1975 and 1988. The complainants were aged between five and 16 years, and includedthe offender's daughter and other family members. It involved gross breaches of trustand had devastating consequences for the victims. Fogarty J adopted a starting pointof 13 years imprisonment to reflect the overall gravity of the offending before takinginto account mitigating factors.10 R v T (1998) 15 CRNZ 602 (CA) at 609.11 R v J [2015] NZHC 398.[34] We consider the overall culpability of the offending in R v J was broadlycomparable with that in the present case, although it did not have the added feature ofoffending against young girls in a custodial environment. We note also that startingpoints of eight to 12 years imprisonment were adopted or approved in other cases thatinvolve offending against multiple young victims during the period between 1969 and1990.12[35] Although the nature and extent of the offending in R v J may be broadlycomparable with that in the present case, it does not necessarily follow that the finalstarting point adopted in the present case was outside the available range. That isparticularly so given our view that a higher starting point could well have beenjustified in R v J.[36] To put the present offending in perspective, each of the five rape charges wouldordinarily have warranted a starting point of between five and eight yearsimprisonment. Each of the seven charges of indecent assault justified a sentence ofbetween two and four years imprisonment. But for the need to have regard to totalityprinciples, the final starting point could easily have been greater than 20 yearsimprisonment.[37] Totality principles are designed to ensure an offender does not receive asentence that is out of all proportion with the overall gravity of the offending. Therewill always be a range of appropriate sentences for historical sexual offending againstmultiple victims. That is an inevitable consequence of the need to select a sentencereflecting so many variable factors. In the present case the gravity of Mr Anand'soffending was such that some judges may have adopted a starting point greater than15 years. Others may have selected a sentence in line with that imposed in R v J.Importantly, however, neither approach would produce a sentence that was out of allproportion to the overall gravity of the offending. We have therefore concluded thatthe overall nature and extent of Mr Anand's offending, taken in the context in whichit occurred, was sufficiently serious to render the final starting point of 15 yearsimprisonment within the available range.12 R v B (CA41/07) [2007] NZCA 292 at [50]; R v T, above n 10, at 609.[38] Mr McCall did not take exception to the level of discount the Judge providedfor the mitigating factors he identified. It follows that the appeal against sentencecannot succeed.Result[39] The application for an extension of time to appeal is granted.[40] The appeals against conviction and sentence are dismissed.Solicitors:Papprills, Christchurch for Appellant (sentence appeal)Crown Law Office, Wellington for Respondent