F (CA691/2021) v R [2022] NZCA 217

F (CA691/2021) v R [2022] NZCA 217 [31 May 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF APPELLANT PROHIBITED BY S 201 OFTHE 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 AOTEAROACA691/2021[2022] NZCA 217BETWEEN F (CA691/2021)AppellantAND THE QUEENRespondentHearing: 24 March 2022Court: Goddard, Simon France and Hinton JJCounsel: E J Forster for AppellantM R L Davie for RespondentJudgment: 31 May 2022 at 11.00 amJUDGMENT OF THE COURTA Leave to adduce further evidence is declined.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Hinton J)[1] F faced nine charges of sexual offending before the Napier District Court.[2] On 22 July 2021, he was found guilty by a jury of the following: charge 2,sexual violation by unlawful sexual connection;1 charge 3, sexual conduct with ayoung person under 16 (representative)2 and charges 4 and 5, sexual conduct with adependent family member under 18 (both representative).3[3] He was found not guilty of charge 1, sexual conduct with a young person under16;4 charge 6, sexual violation by rape;5 charge 7, sexual conduct with a young personunder 16 (representative);6 and charges 8 and 9, sexual conduct with a dependentfamily member under 18 (both representative).7[4] F was sentenced to five years and six months' imprisonment.Appeals[5] F appeals against conviction on the basis the jury verdicts are factuallyinconsistent.[6] He also appeals against sentence on the basis the starting point was too high,leading to a manifestly excessive sentence.Conviction appeal — inconsistent verdictsApplication to adduce fresh evidence[7] F sought leave to admit fresh evidence in support of his appeal againstconviction, being an affidavit from his junior counsel that contained information about1 Crimes Act 1961, ss 128(1)(b) and 128B; maximum penalty 20 years' imprisonment.2 Section 134(1); maximum penalty 10 years' imprisonment.3 Section 131(1); maximum penalty seven years' imprisonment.4 Section 134(3); maximum penalty seven years' imprisonment.5 Sections 128(1)(a) and 128B; maximum penalty 20 years' imprisonment.6 Section 134(1); maximum penalty 10 years' imprisonment7 Section 131(1); maximum penalty seven years' imprisonment.the timing of a jury question and of the jury advice that it had a verdict. The affidavitalso contained material concerning what had been heard by junior counsel from withinthe jury room. The application to admit the latter material was, correctly, not pursuedat the hearing before us.8 The timing information is material that forms part of theCourt record so is potentially admissible. However in our view it is not relevant toany matter properly in issue, so we decline leave to admit it.Background[8] F was 69 years old at the time of sentencing. The offending took place againstone complainant, his stepdaughter, between 2012 and 2019 when the complainant was12 to 18 years old.[9] F was aware the complainant has a mild to moderate intellectual disability anda physical disability.Guilty verdicts[10] The charges on which F was found guilty (charges 2–5 inclusive) all relate toincidents where he inserted his finger into the complainant's vagina. The charge 2offending occurred around September 2012. Charge 3 spanned the period thecomplainant was under 16; charges 4 and 5 covered the time when the complainantwas over 16 but under 18.[11] The offences were usually carried out while F and the complainant were in bedtogether watching a movie. The representative charges relate to incidents whichoccurred on a weekly or fortnightly basis.Not guilty verdicts[12] Charge 1 relates to the first alleged incident of sexual connection in 2012.The Crown alleged F touched the complainant's genitalia. On this occasion F, thecomplainant, and the complainant's mother were lying in bed watching a movie.8 See s 76(1) of the Evidence Act 2006.[13] Charge 6 relates to an incident between about November 2013 and November2015 where the complainant alleged that F inserted his penis into her from behind andwas "thrusting" her.[14] Charges 7, 8 and 9 are representative charges where it was alleged F had sexualintercourse with the complainant.Evidence at trial[15] The jury watched two interviews of the complainant, conducted on5 November 2012 and 16 April 2019, and she gave evidence at trial. The jury alsoheard from a psychologist as to the extent of the complainant's intellectual disability.The psychologist told them the complainant was suggestible and prone to acquiesceto people in roles of authority, but to assess her credibility like any other person.They heard evidence that the complainant's intellectual disability causes her to have ahigh libido.[16] The complainant's mother gave evidence that when she confronted F, headmitted to touching the complainant's genitals but denied having sex with her.[17] F in his interview stated that the complainant would sometimes grab his handand try to get him to touch her genitals and sometimes he did not pull his hand awayquickly enough. He said in respect of charge 1 that he may have touched thecomplainant's genitalia accidentally while he was asleep and he must have thought itwas her mother. He denied all the other allegations.Trial directions[18] In summing up Judge Mackintosh emphasised that proof beyond reasonabledoubt is a very high standard of proof and that it was not enough for the jury to thinkF probably or likely was guilty. The Judge stated that the jury needed to consider eachcharge separately and come to a separate decision about each, isolating the evidenceand issues relating to the particular charge. She noted that charge 1 had been putbefore them by the defence on a "different platform" from the remaining charges. TheJudge also said that the jury needed to be unanimous.[19] The Judge further stated:[69] So to be clear, in relation to the sexual acts alleged in charges 2 to 9,they allege digital penetration of her genitals and sexual intercourseessentially. The grabbing by [the complainant] of F's hand and putting it onher vagina does not amount to either of those things. So on his version, if youaccepted it or found it reasonably possible, you find him not guilty. So we arenot talking about those actions as described by him of her as being the subjectmatter of these charges.[70] So basically the effect of the statements that he made to the police arethese, that if you accept his version on the key issues, then you would acquithim. If you considered there was a reasonable possibility on F's version ofevents that he was telling the truth or that they might be true, they might betrue, you would acquit him because you would have a reasonable doubt.[71] If you did not believe his version of events on the key issues, youshould not automatically conclude he is guilty. What you would then do isyou examine all the evidence that you do accept and then you decide whetherit establishes his guilt beyond reasonable doubt.[20] During deliberations the jury asked:Can you give us clarification on what it means when you say 'if you find thatit is reasonably possible they did not happen you will find the defendant notguilty', is this possibly related to a lack of evidence, if we cannot find theevidence to prove a charge does that lead to it being reasonably possible thatthey did not happen?[21] In response the Judge gave the jury fresh directions on the burden and standardof proof. She then reiterated her direction on F's statements to the police set out at[19] above. In specific answer to the jury's question the Judge said:To phrase that another way, you could ask the question or pose it like this, ifyou are not sure as to whether they happened you would find the defendantnot guilty. The next bit was 'is this possibly related to a lack of evidence?'and the answer to that is yes. And then you ask, 'if we cannot find evidenceto prove a charge does that lead to it being reasonably possible they did nothappen?' and the answer to that is yes.Submissions[22] The thrust of the appellant's case is that the jury had to accept either all of F'sevidence or all the complainant's evidence. Mr Forster for F submits that the narrativein F's statement, that the complainant had instigated the contact, was inconsistent withthe complainant's and could not logically support her narrative. He contends that ifthe jury accepted F's version of events it would not be possible for them to convicthim on charges 2–5 because the intentional bases of the charges would not be madeout. Particularly on charge 2, he says it is inconsistent with F's statement for the juryto find that there was no consent or no reasonable belief in consent.[23] Additionally, Mr Forster submits that the nature of the jury deliberations castsdoubt on the rationality of the inconsistent verdicts. The jury questions suggest thatthe jury was assessing whether or not the complainant's evidence was credible andreliable as a whole. Mr Forster says there is no suggestion the jury were dealing withcharges differently, but they then returned with different verdicts between charges,which he says was not rational. Mr Forster says there was a quick change from thejury being deadlocked to unanimously returning the verdicts. This is consistent withthe jury members making a compromise decision at the close of the day, which is notconsistent with rational decision-making.[24] Mr Davie for the Crown says that the jury returned a mixed verdict reflectingdifferent evidence on each charge. Inconsistency does not arise simply because thejury accepted some of the complainant's evidence but not all of it.9 The jury couldhave accepted that the conduct relating to charge 1 was accidental as it was the firstcharged incident, and the complainant's mother was in the bed. Charges 6 to 9 relatedto sexual intercourse, and the jury may have found the complainant's evidence unclearas to whether intercourse occurred, casting a reasonable doubt. In contrast, the jurymay have convicted F on the charges relating to digital touching or penetration becausethe evidence was more detailed.[25] Further, Mr Davie submits, although F's evidence (that the complainant wouldsometimes grab his hand and put it on her genitals and he left it there) was not thesubject of a charge, the jury was entitled to consider this shows an interest in touchingthe complainant's genital area or that F was willing to touch it. The comments madeby F are therefore more probative of charges 2–5 than charges 6–9.9 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [83].Analysis[26] The general principle is well established: a conviction is unsafe if noreasonable jury, properly instructed, could have arrived at the conclusion which wasin fact reached.10 Where the allegation is of inconsistent verdicts, an appellant mustdemonstrate that the only possible explanation for the inconsistency was that the jurywas confused or adopted the wrong approach, and as a result the verdict was unsafe.11An appellate court will not usurp the jury's function by substituting its view of thefacts for that of the jury if there is some evidence that, properly used, could supportthe jury's verdict.12[27] It is legitimate for a jury to accept some of a witness' evidence but not all of it.As noted by the Supreme Court, this point is important in "she said, he said" caseswhere the Crown's case rests on the complainant's evidence.13 This Court'sexplanation of the point in R v Shipton is as follows:14Time after time in appeals to this Court it is argued, as counsel argued here,that because the jury must have "disbelieved" a witness to acquit on one count,it was inconsistent to rely on her to convict on another count. The argumentis utterly fallacious; there may be all sorts of valid reasons why the jury maybe convinced by a witness on one count but not on another. To put this anotherway, there is no reason why credibility must be static It is not necessarilyillogical for a jury to be convinced as to the credibility of some aspects of oneperson's story, but not as to others, a fortiori where it is convinced, but notbeyond reasonable doubt.[28] In this case it was open to the jury to accept the complainant's evidence that Fintentionally touched and digitally penetrated her (and to reject F's evidence in thisregard) but be left with a reasonable doubt regarding the allegations of sexualintercourse. This does not amount to the jury accepting evidence in relation to onecharge but rejecting that same evidence in relation to another charge,15 because theevidence was different.10 R v Shipton [2007] 2 NZLR 218 (CA) at [75].11 At [75].12 B v R, above n 9, at [68(d)].13 At [80].14 R v Shipton, above n 10, at [77], affirmed in B v R, above n 9, at [80].15 See Senior v R [2016] NZCA 389 at [60].[29] The jury may have considered there to be some ambiguity in the complainant'sevidence over whether vaginal penetration occurred, or only contact. For example,one passage of her evidence reads:A. he slowly like started to put it in my, I won't say butt hole but you knowlike where my vagina area was like that area, he started to like go in slowly,slowly and it hurted but then started to feel good I guess and I just let thathappen.Q. I'm a little bit confused about what part of your body his penis is goinginto.A. and you have intercourse with someone and they do it from behind, it'slike not the butt hole but its like the vagina area[30] Additionally, the complainant's evidence as to digital penetration was moredetailed than her evidence as to sexual intercourse. For example, she could recallwhich movie they were watching and the series of actions that led up to an incident ofthe digital penetration offending. In contrast, her evidence relating to thecircumstances surrounding the sexual intercourse was that it was dark and a moviewas on. There is no description of the events leading up to the alleged sexualintercourse.[31] It follows that there is no basis for Mr Forster's submission that if the juryacquitted F on charges 6–9, they must have rejected all of the complainant's evidenceand illegitimately used his evidence of her grabbing his hand and moving it towardsher crotch to convict him on the digital penetration charges. It was available to thejury to accept all of the complainant's evidence but consider the burden of proof forthe sexual intercourse charges was not met, or alternatively to accept the complainant'sevidence only in relation to the digital penetration and find her evidence in relation tothe sexual intercourse not reliable. Further, the mixed verdict was consistent with thecomplainant's mother's evidence that F admitted to touching the complainant'sgenitals but denied having sex with her. It was also in line with the directions givenby the Judge in the summing up that "it is important that you do consider each chargeseparately and come to a separate decision about each" and to "isolate the evidenceand the issues that relate to each charge and then make a decision about it".[32] The different outcome in relation to the digital penetration allegation incharge 1 could have reasonably resulted from the different evidence in relation to thatcharge. It was the first alleged offending, and F's evidence was that he was asleep andmust have thought he was touching the complainant's mother. The trial Judge notedthat F's defence of charge 1 was different from the other charges. F accepted thetouching may have occurred but denied criminal intent. As it was the first allegedoffence and the mother was in the bed, the jury may have given this some credenceand accepted that the conduct was accidental (or at least that a reasonable doubt wascast).[33] We see no reason why the mixed verdicts are factually inconsistent.The decision to return mixed verdicts was reasonable. The conviction appeal isdismissed.Sentence appeal — starting pointSentencing decision[34] The Judge referred to the tariff decision of R v AM and placed the offending inunlawful sexual connection (USC) band two (four to 10 years' imprisonment).16She assessed the aggravating factors as the complainant's vulnerability due both to ageand her condition, the ongoing nature of the offending, and the breach of trust(both because F was her stepfather and because he knew she had an intellectualdisability). The Judge considered that the case of T v R was broadly similar but saidthat in the present case the complainant was very vulnerable.17 The Judge set a startingpoint of six years' imprisonment.18 She allowed a discount of six months, or 8.33per cent, due to F's age and health, bringing the total sentence to five and a half years'imprisonment.1916 R v [F] [2021] NZDC 23287 [Sentencing notes] at [12], citing R v AM (CA27/2009) [2010] NZCA114, [2010] 2 NZLR 750.17 At [14], citing T (CA131/2018) v R [2018] NZCA 481.18 At [14].19 At [15]–[16].Submissions[35] The submissions advanced for F on the sentence appeal were brief.[36] Mr Forster accepts the offending fell within band two of R v AM.20[37] He accepts that T v R, where this Court considered a starting point of six to sixand a half years' imprisonment was appropriate,21 was a broadly comparable case, butsays it was more serious because the offender had taken the extra step of exposing hisgenitals. Mr Forster says that a five and a half year starting point is all that wasreasonably available in this case. If this starting point were adopted, and the samediscount were applied, then the difference in sentence would be five and a half months'imprisonment — more than mere tinkering.[38] Mr Davie submits that the starting point was appropriate taking into accountthe characteristics of USC band two offending set out in R v AM. He says this casehas similarities to R v Harris and T v R.22 R v Harris was said in R v AM to fall intothe "higher end" of USC band two.23 It involved sexual offending over 18 months ofa 47 year old man against a 12 year old boy. The aggravating factors warranting ahigher placement in the band were the large age disparity and the duration of theoffending,24 both of which are present here. In T v R, the offender was found guilty ofthree charges of sexual violation by unlawful sexual connection (digital penetration)and one charge of committing an indecent act on a young person. The complainantwas the offender's stepdaughter, and the offending occurred when she was around 10–14. As noted above, this Court held in T v R that a starting point of six years to six anda half years' imprisonment was appropriate.25[39] Mr Davie says that although the charges were more serious in R v Harris andT v R, involving several charges of sexual violence, the offending in those cases was20 R v AM, above n 16.21 T (CA131/2018) v R, above n 17, at [19].22 Referring to T (CA131/2018) v R, above n 17; and R v Harris CA320/93, 15 November 1993.23 R v AM, above n 16, at [118].24 At [119].25 T (CA131/2018) v R, above n 17, at [19].not as repetitive and was similar overall to the present case. On that basis the startingpoint of six years' imprisonment was appropriate.Analysis[40] The sentencing Judge adopted the correct band based on the aggravatingfactors.[41] We also agree with the Judge, and counsel, that this case has similarities toT v R. The aggravating factors are broadly similar. Although T v R involvedpremeditation which was not identified by the sentencing Judge here, the repeatedoffending captured by the representative charges may suggest some level ofpremeditation was in fact present. Otherwise, the aggravating factors were similar: acomplainant vulnerable due to age, repeated offending, and breach of trust due tooffending against a stepdaughter. The fact that in T v R the offender exposed hisgenitals was not referred to by this Court when considering the starting point.Additionally, the complainant's intellectual disability in the present case contributedto her vulnerability and doubled the breach of trust. While the charges in T v R weremore serious, the offending was not as repetitive, and was similar overall to the presentcase.[42] Additionally, the presence in this case of the two aggravating factors noted inR v AM that place R v Harris at the "higher end" of band two reinforces the conclusionthat a lower starting point would not have been appropriate.[43] The starting point fixed by the Judge of six years' imprisonment wasappropriate.[44] It was not contended, nor do we consider, that there was any error in thededuction of 8.33 per cent for personal mitigating circumstances.[45] The sentence imposed was within range and not manifestly excessive.Result[46] Leave to adduce further evidence is declined.[47] The appeal against conviction is dismissed.[48] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent