BEES v POLICE [2017] NZHC 272

BEES v POLICE [2017] NZHC 272 [27 February 2017]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2016-425-000031[2017] NZHC 272JAMES GORDON BEESvNEW ZEALAND POLICEHearing: 2 February 2017Appearances: L S Collins for the AppellantS N McKenzie for the RespondentJudgment: 27 February 2017JUDGMENT OF NATION J[1] In the early hours of the morning, a young shop assistant was putting some items on the shelf of a shop in which she was working. Mr Bees approached her from behind and put his right hand on her left buttock. He was convicted in the District Court of indecent assault.1 He appeals against the conviction and, in the alternative, his fine of $1,000. He argues he should have been discharged without conviction.Appeal against guilty decisionJurisdiction[2] Section 232 Criminal Procedure Act 2011 provides that the High Court mayonly allow an appeal if satisfied that the trial judge "erred in his or her assessment of1 Police v Bees [2016] NZDC 20444, [2016] NZDC 19619.the evidence to such an extent that a miscarriage of justice has occurred", or that "amiscarriage of justice has occurred for any other reason."[3] A miscarriage of justice means any error, irregularity or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.2[4] Section 232 makes clear that not every error or irregularity causes a miscarriage of justice. Instead there must be a "real risk" that the outcome wasaffected. R v Sungsuwan defines a "real risk" as "a reasonable possibility that a notguilty (or more favourable) verdict might have been delivered if nothing had gonewrong."3[5] The appeal proceeds by way of rehearing, and the court on appeal mustexamine the Judge's reasoning carefully and come to its own decision on the facts.4The evidence[6] There was no dispute over the relevant evidence which both the District Court Judge and I have to consider. The Judge heard evidence from the complainant and the arresting constable. He saw the DVD interview of Mr Bees and had atranscript of the arresting officer's interview with Mr Bees. He also had two clips from the CCTV camera in the Night 'n Day Store in Wanaka where the incident occurred.[7] On the night of 17/18 January 2015, Mr Bees was out drinking with friends inWanaka. The complainant was working in a Night 'n Day shop as a sales assistant.She was the only worker there between 3.00 am and 6.00 am. She was 19 years old at the time of this offending. Mr Bees was then aged 28.[8] While the complainant was on her own, Mr Bees and two associates came into the shop. They were all unknown to her. The two associates then left. Mr Bees2 Section 232(4).3 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.4 R v Slavich [2009] NZCA 188.remained and talked to the complainant. He asked her if she was single, whether shewanted to go on a "date" with him. He asked her for her phone number. Thecomplainant said she had a boyfriend and was not interested in Mr Bees, and would not give him her phone number.[9] Mr Bees left and returned to the shop on several occasions following their first encounter. At one point he told the complainant that he had a partner and a son. He continued to ask her if he could take her out on a date and said that he was interested in her. The complainant was clear in her evidence that she had told him she was not interested.[10] During one of Mr Bees' visits to the shop, he asked her if he could give her ahug and asked if he could come around to her side of the counter. She said he could not come around to her side of the counter but he could give her a hug over the counter. She said she thought that if she let him do this, he would leave. She did not want him to get aggressive.[11] At some point during the conversations with the complainant, Mr Bees said he wanted to kiss her all over. The complainant said that this and his persistence made her feel uncomfortable.[12] The CCTV footage showed that the exchange leading to the consensual hug occurred at 3.30 am. Around 4.30 am, Mr Bees was back in the shop again. He collected some sweets, put them on the counter and said to the complainant he would buy these for her. The complainant told him not to do that, picked the items up and walked around the counter to put them back on the shelf. The CCTV footage showed her facing the shelf while doing this. Mr Bees came up behind her and put his hand on her left buttock. The complainant moved away and said to Mr Bees that he needed to leave and repeated it when he indicated he did not want to. Mr Bees did leave, she locked the door, called her father and arranged for him to come and collect her.[13] About a week later, Mr Bees came back to the shop to apologise. That led tothe complainant's manager contacting the Police.[14] A constable spoke to Mr Bees on 11 February 2015. Mr Bees' initial response was to say "I take full responsibility for it. I had a bit too much to drink. I want to apologise."[15] In his interview, Mr Bees said he could recall chatting to the girl. He said hehad "quite a lot to drink". He said he was a bit hazy about whether or not he had "groped her". He recalled chatting with the girl and her being friendly and beingquite happy to talk to him. In his interview, Mr Bees was generally vague about any details of what had happened or been said and emphasised how intoxicated he hadbeen. He nevertheless said he thought he did recall touching the complainant's backside and "pinching her bum". He said it was a stupid thing he had done but shewas friendly and he had "over stepped the mark". He said that he thought, after this, she had told him to get out of the shop.The District Court decision[16] R v Aylwin sets out the relevant factors that need to be proved by the Crown on a charge of indecent assault:5In summary, in a case of indecent assault involving adults, the Crown is required to prove that:(a) The accused assaulted the complainant by the deliberate (intentional) application of force to the person of the complainant; and(b) The assault occurred in circumstances of indecency in the sense that it would be so regarded by right-thinking members of the community generally.(c) The accused intended or appreciated those aspects of the assault, and the surrounding circumstances, which render it indecent.And, where the issue of consent is raised on the evidence:(d) The complainant did not consent to the assault; and(e) The accused did not honestly believe she was consenting.[17] The Judge went through each factor and assessed the evidence for each.65 R v Aylwin [2007] NZCA 458 at [35].6 Police v Bees [2016] NZDC 20444 at [17] – [21].[18] The Judge distinguished the facts from the situation in Peters v Police.7[19] The Judge found that in the present case there had been a sustained period of propositioning, that nothing the complainant had done could have led the defendant to believe his advances were welcome and that touching her on her bottom was of a more intimate nature than a thigh. He also noted that, while the parties had hugged, this was an hour earlier and it was nothing more than an act to humour Mr Bees. He said this was emphasised by the fact she would only hug Mr Bees over the counter and would not let him come behind the counter to where she was.[20] The Judge determined that the appellant could not have held an honest belief that the complainant consented. During his prolonged propositioning he had been continually rebuffed. The complainant declined to give Mr Bees her number or to go on a date with him and had emphasised the fact she had a boyfriend.[21] Based on these considerations, the Judge found that the appellant knew at the time that the complainant would not consent to being touched in this way and that he knew this assault was indecent in its nature.The grounds of appeal[22] In the appellant's notice of appeal, the ground of appeal was that the Judge"erred in finding intention of defendant proved beyond reasonable doubt".[23] In his written submissions, Mr Collins submitted the Judge had erred "infinding the appellant intended for the acknowledged intentional application of forceto be considered indecent". He said the issues "were whether Mr Bees formed theintention for his assault to be considered as indecent or had a reasonable belief the complainant might have consented to such contact".[24] Mr Collins referred to the judgment of Priestley J in Peters, specifically HisHonour's comments:87 Peters v Police HC Whangarei CRI-2006-088-4622, 18 June 2007.8 Peters v Police, above n 7, at [32]-[33].[32] In social encounters, handholding, kisses, and stroking may often be exploratory preludes to an anticipated or desired sexual encounter. Whether matters proceed beyond first base will usually depend on whether the initial"assault" is rebuffed. At that stage the issue of consent as a defence to s 135offending usually becomes operative.[33] In initial social encounters between strangers, and indeed between acquaintances, the ancient rituals of the human mating dance frequently come into play. How will he/she react to this form of physical contact? How will he/she react to this flirtatious comment? Should I let him do this? Will she let me do that? The patterns of the dance are numerous. The steps of the couple around the dance floor are well known. Whether or not the dance is completed or where it may cease, remain to be seen.Discussion[25] Mr Collins suggests the Judge should have found it reasonably possible that Mr Bees did not intend for his application of force to be considered by right-thinking persons as indecent in the circumstances. I consider that Mr Collins has misconstrued what was required to prove indecent assault.[26] To prove there had been an indecent assault, the Police had to prove Mr Bees deliberately applied force to the person of the complainant, and that he intended or appreciated those aspects of the assault and the surrounding circumstances which rendered it indecent. In the circumstances of this case, the Police had to prove that Mr Bees intended to put his hand on her left buttock, intended to do so when she had rebuffed his advances and made it clear that she was not interested in doing anything of a sexual nature with him, he knew that she was significantly younger than him and she was alone in the shop in which she was working.[27] The Police also had to prove that the assault occurred in circumstances of indecency in the sense that it would be so regarded by right-thinking members of the community generally. The test as to whether the assault in all the circumstances that occurred was indecent, was thus an objective one. The Police thus did not have to prove that Mr Bees intended that his actions would be regarded as indecent by right- thinking members of the community generally.[28] In Peters, Priestley J overturned a conviction of indecent assault where a taxi driver, at 3.00 am touched a passenger's thigh while making compliments about hersuch that she looked "lovely" and that they "would look good together". There wasno suggestion the passenger had invited either the taxi driver's touches or his unsolicited and inappropriate comments. However, on appeal, Priestley J considered that, while inappropriate, the actions had not amounted to an indecent assault. He observed that, had the appellant touched different parts of the complainant, persisted in touching or had made overtly sexual comments, the relevant mens rea may have been inferred.9[29] His Honour did make comments as to how there might be physical touchingas a first tentative move in the "mating dance" but I do not consider there was anystatement of principle from that case which meant the Judge, in the present case, could not find that what Mr Bees did amounted to an indecent assault.[30] I do not consider there was any error in the way the Judge summarised the relevant circumstances in which the assault had occurred.[31] I do not consider there was any error in the Judge's decision that the way Mr Bees touched the complainant's buttock, in all the relevant circumstances, was anindecent assault. Perhaps Mr Collins appreciated that an appeal against the decision on this ground faced little prospect of success. It was not a ground he relied on in his oral submissions to me.[32] Instead, Mr Collins argued that, on all the evidence, the Judge should have found that it was reasonably possible Mr Bees honestly believed the complainant was consenting to the way he touched her.[33] I am satisfied the evidence was sufficient for the Judge to conclude that Mr Bees did not honestly believe the complainant was consenting to what he was doing. The CCTV footage showed that, when he returned to the shop approximately an hour after the hug over the counter occurred, the complainant had made it clear she did not want to have the sweets that he said he was buying for her. She moved from where she was behind the counter to put the items back on the shelf. Mr Bees approached her from behind when she was not physically or verbally interacting with him in any way. He came up from behind her and put his hand on her buttock.9 Peters v Police, above n 7, at [42].He did not say at any point in his interview that, at the time, he thought she was consenting to him doing this. His actions in leaving the shop when she demanded that he do this and his later apologies were all consistent with his knowing that, with his actions, he had unilaterally decided to do something which was wrong and which she had neither invited nor agreed to.[34] The evidence was thus sufficient for the Judge to conclude that Mr Bees did not honestly believe the complainant was consenting to the actions which amounted to an indecent assault.[35] I have thus not been persuaded the Judge "erred in his assessment of theevidence to such an extent that a miscarriage of justice has occurred".The appeal against the refusal of a discharge without conviction[36] After finding Mr Bees guilty of indecent assault, the Judge refused MrCollins' request to adjourn the sentencing so he could make an application for a discharge without conviction with updated information. After hearing submissions, the Judge refused a discharge. He rejected the submission for the Police that Mr Bees should be sentenced to community work. Consistent with what must have beenMr Collins' fallback submission, he imposed a fine of $1,000 and ordered Mr Bees to make an emotional harm payment to the complainant of $500.[37] An appeal against the refusal of a discharge is characterised as an appeal against both conviction and sentence.10 As with the appeal against the guilty finding, I must allow an appeal only if satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred in the sense I referred to above.11[38] Insofar as it was an appeal against sentence, I can allow the appeal only if I am persuaded that the sentence imposed was manifestly excessive. As has been stated:1210 Jackson v R [2016] NZCA 627 at [7]-[8].11 Paras [2]-[5] above.12 Larkin v Ministry of Social Development [2015] NZHC 680, at [26] per Toogood J.The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.[39] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.13 I must dismiss the appeal in any other case.14 To allow the appeal, I must be satisfied that the sentence imposedwas "manifestly excessive".15[40] The notice of appeal stated that, in this regard, the grounds of appeal were that the Judge "erred in refusing to adjourn sentencing to allow discharge withoutconviction application to be properly prepared and filed in the usual manner" and"prejudicial material relied on by prosecution in opposing oral section 106 notdisclosed or matter stood down to take instructions following decision finding chargeproved".[41] The hearing and the sentencing took place in the Queenstown District Court. The Judge was a visiting Judge, not scheduled to return to Queenstown following the Judge Alone trial. Mr Collins said the Judge refused a request to adjourn the sentencing so there was no opportunity to take further instructions and to obtain updated information which might have assisted in obtaining a discharge. He was also critical of the Judge for considering Mr Bees' United Kingdom (UK) criminal history, information which the prosecution had not provided to Mr Collins before the hearing and in respect of which Mr Collins said he did not take instructions from Mr Bees when the sentencing took place.[42] Mr Collins had filed submissions on 22 September 2015 when he had sought a sentence indication and specifically a discharge without conviction. Those submissions focused mainly on the circumstances of the offending. They also referred to a positive contribution Mr Bees had made to the community in various ways, his voluntary enrolment with Wanaka Alcoholics Anonymous and his13 Criminal Procedure Act 2011, s 250(2).14 Criminal Procedure Act 2011, s 250(3).15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.appreciation that he needed to have a significant change in attitude towards his alcohol consumption. That submission also referred to the uncertainty Mr Bees faced as to his remaining in New Zealand and the fact he had reapplied for a New Zealand working visa and residency based on the relationship he was then in. The submission referred to the potential consequences a conviction might have for Mr Bees and his family in New Zealand.[43] I do not consider the Judge's refusal to delay sentencing to allow freshinformation to be put before the Court has resulted in a miscarriage of justice, or a sentence that was manifestly excessive. Mr Collins could have obtained information from Mr Bees as to the circumstances surrounding the convictions referred to there. If he did not do so, it was probably because at the time he appreciated the record was likely to have little impact on whether or not there would be a discharge. I note also, from the Judge's sentencing notes, he referred to a submission from Mr Collins that none of the previous assault convictions (which were from the UK rather than in New Zealand), were of a sexual nature. It would thus appear that Mr Collins had sufficient knowledge of the list of UK convictions to comment on it.[44] The most recent offending referred to in that UK record was from 1998. Mr Bees had received a custodial sentence for certain dishonesty offending in 1993 and for an assault in 1996 but the sentences had been to a "young offenders institution".[45] Consistent with the now conventional Taueki approach to sentencing, the Judge considered first the seriousness of the offending. He then considered potentially aggravating features relating to Mr Bees personally. It was in that context that he referred to his previous convictions in both the UK and New Zealand, but only to conclude that they showed Mr Bees was no stranger to the court system. The Judge could have reached the same conclusion without any reference to the record of criminal offending in the UK. The Judge did not say that Mr Bees' previous convictions were an aggravating feature which required a more severe sentence. He then referred to mitigating features relating to Mr Bees personally. He expressly gave him a credit for the remorse he had demonstrated.[46] Reading the Judge's sentencing notes, as a whole, I do not consider the disclosure of Mr Bees' UK criminal record was material to the Judge's decision todecline a discharge without conviction.[47] Nor do I consider the Judge's refusal to adjourn the sentencing to allow Mr Collins to put more up-to-date information before the Court was an error or that it has resulted in a miscarriage of justice. No application had been made for leave to present further evidence in support of the appeal as to this ground. At the hearing of the appeal, Mr Collins was not able to tell me what further information he would have wanted to put before the Court, had he been able to through a delay in sentencing. He said this was because of the difficulties he had in obtaining information and instructions from Mr Bees in the period between his sentencing and the hearing of the appeal. He was thus not able to give me information as to MrBees' current status with the immigration service or information as to how the conviction might have impacted on his current ability to either remain in New Zealand or to return here.[48] As was submitted by Ms McKenzie for the Crown, the Judge was under no obligation to adjourn for an amended s 106 application to be filed. Section 114 of the Criminal Procedure Act 2011 provides:114 Procedure after defendant pleads or is found guilty(1) If a defendant pleads guilty or is found guilty, the court may convict or deal with the defendant in any other manner authorised by law and—(a) adjourn the proceeding; or(b) sentence or otherwise deal with the defendant immediately....[49] The Judge considered the application for discharge in accordance with the approach mandated by the Court of Appeal in Z v R.16[50] Apart from the refusal to delay the sentencing and the reference to the UK convictions, Mr Collins had no criticism of the way the Judge considered the matters16 Z v R [2012] NZCA 599, [2013] NZAR 142.he had to. In his written submissions, Mr Collins referred to "the very realconsequences for the appellant" and "real indirect consequences for his family" said to follow a conviction. He acknowledged, however, that "it may have beenultimately that these consequences were not out of all proportion to the gravity of theoffence found proven".[51] The Judge assessed the seriousness of the offending, both with regard to the actual charge of which Mr Bees had been found guilty and the particular circumstances in which the offending had occurred. He noted the mitigating features relating to Mr Bees personally, his expressions of remorse and positive aspects of his life and involvement with the community. He accepted that conviction might have some impact on an application for New Zealand permanent residency but considered the potential impact of a conviction as to this should be a matter for the Immigration Service and, if necessary, the Immigration Tribunal rather than the District Court. He concluded that, although the gravity of this offending was towards the lower end of the scale for offences of that type, it could not be regarded as minor or trivial. Ultimately, it was his judgment that the direct and indirect consequences of a conviction would not be out of all proportion to the gravity of the offence.[52] I have not been persuaded that there was any error in the process which the Judge adopted with the sentencing or in the judgment he ultimately came to in that regard. I have thus not been persuaded that a miscarriage of justice resulted from the way Mr Bees was sentenced. I have not been persuaded that a different sentence ought to have been imposed.[53] Accordingly, Mr Bees' appeal is dismissed.Solicitors:L S Collins, Barrister, QueenstownPreston Russell Law, Invercargill.