JOB v R [2021] NZCA 322

JOB v R [2021] NZCA 322 [19 July 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMES,ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF THEWITNESSES/VICTIMS/CONNECTED PERSONS REMAINS IN FORCE.SEE [2020] NZHC 2033.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA1/2021[2021] NZCA 322BETWEEN GUSTAVIS WILLIAM JOBApplicantAND THE QUEENRespondentCourt: Brown, Brewer and Davison JJCounsel: G A Walsh for ApplicantZ R Hamill for RespondentJudgment:(On the papers)19 July 2021 at 10.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Davison J)Introduction[1] Following a judge-alone trial before Judge Menzies in the District Court atHamilton extending over two and a half days in September 2019, Gustavis Job (theapplicant) was convicted1 of one charge of burglary;2 four charges of sexual conductwith a young person under 16;3 and one charge of sexual violation by unlawful sexualconnection.4 The Judge sentenced him to six years' imprisonment.5[2] The applicant appealed the convictions and sentence. His appeal wasdismissed by Wylie J on 12 August 2020.6 He now applies for leave to bring a secondappeal pursuant to ss 237 and 253 of the Criminal Procedure Act 2011 (the CPA). Theapplication does not specify whether he is seeking leave to appeal against both hisconvictions and sentence. We accordingly proceed on the basis that he seeks leave toappeal both.Background[3] While on parole for aggravated robbery in late 2012 the applicant was residingin a pool house adjacent to the family home of M. The applicant was treated andtrusted as if he was one of M's family. M's family comprised M, his wife F, and theirfive children. Two of the children (A and B) were girls aged 12 and 10, respectively.They shared a bedroom.[4] On a night during March 2013, the applicant entered the girls' bedroom andtouched A's chest and her breasts over and under her clothing. He then touched herover her clothing in the groin area, before placing his hand under her clothing to strokeher genitalia, and then proceeded to digitally penetrate her vagina. The applicant'soffending caused A significant and enduring psychological harm.1 R v Job [2019] NZDC 19514.2 Crimes Act 1961, s 231, maximum penalty of 10 years' imprisonment.3 Section 134(3), maximum penalty of seven years' imprisonment.4 Sections 128 and 128B, maximum penalty of 20 years' imprisonment.5 R v Job [2020] NZDC 11945 [Sentencing judgment].6 Job v R [2020] NZHC 2033 [High Court judgment].[5] The applicant initially elected to be tried by a jury.7 Prior to the trial theDepartment of Corrections, holding serious concerns about the applicant's security,proposed that four security officers accompany him during the trial. The applicantopposed the Department's proposal on the basis that that number of security officerswould send an adverse signal to the jury. The Judge however agreed that the increasedsecurity measures were appropriate and approved four security officers being presentwhen the applicant was in court. Following this ruling the applicant applied and wasgranted leave to withdraw his election for trial by jury.8[6] At his judge-alone trial, the applicant denied all the charges. In his decisionthe Judge accepted A's evidence which was corroborated by the materially consistentevidence of other family members.9 The Judge described the applicant's conductduring the trial as being argumentative and aggressive when giving evidence, anddeflecting questions with potentially incriminating answers.10 The Judge found all sixcharges to have been proved beyond reasonable doubt.The High Court decisionAppeal against conviction[7] The applicant appealed his conviction on the grounds that:(a) the Judge's decision to grant him leave to withdraw his election for jurytrial rendered his trial unfair;(b) the Judge intervened excessively when he was giving evidence, and putpressure on him to rush through his evidence, thereby rendering his trialunfair; and(c) the Judge erred in his assessment of the evidence and failed to giveproper weight and consideration to all of the available evidence.7 Criminal Procedure Act 2011, s 50.8 Section 53.9 R v Job, above n 1, at [90].10 At [87].[8] Justice Wylie dismissed the appeal against conviction.11[9] In relation to the first ground of appeal, Wylie J found that the trial did notbecome unfair simply because it had proceeded as a judge-alone trial.12 Jury trials arenot inherently fairer than judge-alone trials,13 and Wylie J found nothing to suggestthat the fact that the trial proceeded before a Judge sitting alone had any impact on theoutcome.14 Nor did the trial become unfair because of the presence of the four securityofficers; and counsel for the applicant in the High Court did not challenge the Judge'sdecision to allow their presence.[10] In relation to the second ground of appeal, Wylie J found no issue with theinterventions by the Judge, which were appropriately focused on regulating theproceedings.15 The Judge made only limited interventions during the course of theapplicant's evidence in chief, all of which were appropriate and measured.16 Therewas nothing to suggest that the Judge was pressuring the applicant to hasten throughhis evidence.17 The comparatively more frequent judicial interventions during theapplicant's cross-examination were found to be attempts by the trial judge to assisthim by confining him to addressing relevant issues after he had embarked on long anddiscursive answers to relatively straightforward questions.18 Justice Wylieaccordingly found that there had been no miscarriage of justice.19[11] As to the third ground of appeal, Wylie J found that the Judge had appropriateand proper regard to the substance of the case advanced by the applicant,20 and he hadsound reasons for finding the prosecution evidence more convincing than thatadvanced by the defence. Justice Wylie therefore found that the Judge was entitled toaccept A's evidence as to what she said had happened and to reject the applicant'sevidence and denials.11 High Court judgment, above n 6.12 At [19].13 S v R [2018] NZSC 124, [2019] 1 NZLR 408 at [53].14 Criminal Procedure Act, s 232(2) and (4)(a).15 High Court judgment, above n 6, at [29].16 At [26].17 At [27] and [31].18 At [28].19 Criminal Procedure Act, ss 232(2)(c) and (4)(b).20 High Court judgment, above n 6, at [59].Appeal against sentence[12] The applicant appealed against his sentence on the grounds that it wasmanifestly excessive. He contended that:(a) the starting point of five years' imprisonment was too high; and(b) the uplifts for the fact that he was on parole from a sentence ofpreventive detention at the time of the offending (10 months' uplift) andto recognise his previous convictions (two months' uplift) wereunwarranted.[13] Justice Wylie considered that the starting point adopted by the Judge, whilestern, was within the available range having regard to the aggravating features of theoffending, namely: A's vulnerability, the harm done to her, and the breach of trustinvolved.21 Justice Wylie also noted that the Judge could have given more weight tothe further aggravating elements of planning and home invasion involved.22[14] Justice Wylie distinguished the applicant's offending from that in Heke v R,23which was the comparator relied upon by the applicant's counsel. The offending inHeke was different in that it involved oral sex and a single additional charge ofindecent assault, whereas the applicant had digitally penetrated A and there were fourcharges relating to indecent acts. The applicant's offending against A had involved asignificant breach of trust and caused her enduring harm. Justice Wylie noted thatsimilar offending involving digital penetration has attracted starting points of fiveyears' imprisonment or longer.2421 At [69].22 At [71].23 Heke v R [2012] NZHC 1003.24 See for example B (CA182/2018) v R [2019] NZCA 18 (starting point of five years' imprisonmentnot challenged on appeal); T (CA131/2018) v R [2018] NZCA 481 at [19], [24] and [25] (startingpoint of seven years' imprisonment reduced on appeal to six years' imprisonment for three chargesof digital penetration); Bond v R [2010] NZCA 381 at [42] (starting point of five years and sixmonths' imprisonment upheld on appeal for two charges of digital penetration) and R v Luce[2007] NZCA 476 at [15] (starting point of five years' imprisonment for digital penetration upheldon appeal).[15] In relation to the uplifts, Wylie J noted that the applicant's previous convictionsand the fact that he offended while subject to sentence were aggravating factors whichthe Judge was required to take into account.25 Thus, uplifting the sentence to takeaccount of these factors was not "double counting" but rather an orthodox applicationof sentencing principles reflecting the fact that the applicant's offending "displays adisregard for Court processes."26 Further, both uplifts were less than uplifts imposedfor defendants who had previous convictions and who had offended while on parolein similar cases.27[16] Justice Wylie accordingly found that the applicant's sentence was notmanifestly excessive, as there was no error in the sentence imposed. He thereforedismissed the appeal against sentence.28Approach on application for leave for second appeal[17] Sections 237(2) and 253(3) of the CPA provide that this Court must not grantleave unless it is satisfied that the appeal involves a matter of general or publicimportance or that a miscarriage of justice may have occurred or may occur unless theappeal is heard. The statutory test establishes a high threshold, and an appeal isunlikely to give rise to an issue of general or public importance unless it raises an issueof general principle or of general importance in the administration of the criminal law,including one that has broad application beyond the circumstances of the particularcase.29[18] The Court will be slow to grant leave where success for an appellant wouldrequire the Court to reverse concurrent findings of fact below,30 and can be expectedto decline leave where the appeal concerns issues that have been thoroughly traversedby the lower courts.3125 Sentencing Act 2002, s 9(1)(c) (j).26 High Court judgment, above n 6, at [79]; citing Clunie v R [2013] NZCA 110 at [22].27 At [82]; referring to Lavea v R [2014] NZCA 192 at [24] (uplift of 20 per cent); Vernon v R [2010]NZCA 308 (uplift of 22 per cent) and Waterworth v R [2012] NZCA 58 (uplift of 23 per cent).28 At [83].29 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].30 R (CA176/2016) v Police [2016] NZCA 403 at [26] and Butler v Police [2016] NZCA 27 at [3].31 Wells v R [2015] NZCA 528 at [12].Submissions[19] Mr Walsh for the applicant filed succinct written submissions in support of theapplication for leave, in which he says that the applicant contends that the combinationof inadequate reasons by the trial Judge, interventions by the trial Judge duringevidence, and the circumstances giving rise to him withdrawing his election of trial byjury were such that a miscarriage of justice occurred. Counsel further submits that theHigh Court erred in its assessment of the appeal, although no particulars are provided.In relation to the sentence imposed on the applicant, counsel submits that a miscarriageof justice has occurred in that the sentence is manifestly excessive and Wylie J erredin his assessment of the sentence. No submissions in support of those propositions aremade.[20] Ms Hamill for the Crown submits that Wylie J had "careful regard" to thegrounds advanced on appeal and was correct to dismiss the applicant's appeal againsthis convictions and sentence. The Crown says that the grounds of appeal were fact-specific and do not on their face engage any issue of broader principle that mightjustify the grant of leave to bring a second appeal. She submits that Wylie J did noterr in any respect in his decision dismissing the applicant's appeal, let alone to theextent that a miscarriage of justice has occurred.Analysis[21] The applicant's grounds for leave to bring a second appeal are clearly factuallyspecific. As regards his convictions the applicant submits that it was unfair that hisin-court conduct had resulted in a large security presence being permitted which heconsidered effectively forced him to apply to change his election from a jury trial to ajudge-alone trial. He also submits that the District Court Judge was overlyinterventionist during his giving of evidence, and that the Judge's reasons for findinghim guilty were inadequate and failed to fully consider all of the evidence. As regardshis proposed sentence appeal, the applicant submits the key issues are that his startingpoint was too high, and that the uplifts to take account of his previous convictions andthe fact he was subject to preventive detention were unwarranted.[22] As this summary shows, the issues that the applicant wishes to raise in thecontext of a second appeal are clearly not matters of general or public importance.Moreover, we are satisfied that there is nothing arising from our review of the case toshow that a miscarriage of justice has occurred, or may occur unless the appeal isheard.Result[23] We accordingly decline the application for leave to bring a second appeal.Solicitors:Crown Law Office, Wellington for Respondent