GALVIN v R [2016] NZCA 370

GALVIN v R [2016] NZCA 370 [2 August 2016]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA727/2014[2016] NZCA 370BETWEEN KOWHAI LANCE GALVINAppellantAND THE QUEENRespondentHearing: 21 July 2016Court: Randerson, Fogarty and Collins JJCounsel: P T Eastwood for AppellantS K Barr for RespondentJudgment: 2 August 2016 at 10:00 amJUDGMENT OF THE COURTA The proposal to allow this appeal and remit this matter to the District Court for a disputed facts hearing is dismissed.B The appeal against sentence is to be heard on 29 August 2016 in Auckland.____________________________________________________________________REASONS OF THE COURT(Given by Fogarty J)Introduction[1] The appellant's appeal against sentence on a charge of sexual violation byrape comes before us to consider whether we should accept a proposal by the Crown to allow the appeal and remit it to the District Court for a disputed facts hearing. This proposal arises from a concern that the appellant may not have understood and agreed to the summary of facts upon which he entered a plea of guilty to the charge.Background[2] On 15 May 2013 the appellant Mr Galvin pleaded guilty to sexually violating a 14 year old girl by raping her on 16 November 2012. On 12 December 2014 Mr Galvin gave notice that he wished to appeal to the Court of Appeal against his conviction and sentence. He had been sentenced on 2 August 2013 by Judge Macdonald in the Rotorua District Court to eight years and ten months' imprisonment. The Judge had taken a starting point of eleven years' imprisonmentbut allowed a deduction of 20 per cent for the guilty plea.[3] The plea of guilty was the result of an agreement reached between Mr Galvin's lawyer Mr Te Kani and the Crown.[4] Prior to the agreement, Mr Galvin was facing three charges. In addition to the sexual violation by rape he was facing one charge of kidnapping and a second of indecent assault.[5] The agreement reached was that the Crown would agree to drop the two lesser charges in return for a guilty plea on rape, provided that the summary of facts remained. The consequence of the summary of facts remaining was that the narrative of the kidnapping and indecent assault would become aggravating factors to the rape.Factual background[6] The Judge summarised the circumstances emerging from the agreed sentencing facts in these terms:[2] The summary of facts tells me that on the night of 16 November last year at about 10.00 pm, the 14 year old victim proceeded to walk from afriend's place to her home. Somewhere near Linton Park on Edmond Road,she had what proved to be the terrible misfortune of meeting up with you. You engaged her in conversation. It became apparent that you may have been related in some loose way and there was clearly some discussion. At some point you asked her to go back to your house and she refused. The summary indicates that you then requested that you go to her home and again she refused. She asked you to leave or she would scream, which clearly reflected her concerns at that time. You continued to follow her and at some point she accepted your offer of a cigarette. Then it seems that everything changed on Sunset Road when crossing a small bridge because you grabbed her by her wrist, forced her hands between your legs and lifted her onto your shoulders. You totally ignored her requests that you let her go. You carried her to a nearby reserve and began walking and dragging her towards your home in Pullar Place. You told her to be quiet. Along the way I am told that you forced your hands between her legs and under her underpants, touching her vagina. This was at a point where you still had her over your shoulders facing backwards and you continued to ignore her request to let her go. You eventually got her to your house. You pulled her up the stairs and threw her onto the bed. She was screaming at you to let her go. You again ignored her. You told her to shut up. You even said that her screaming was turning you on. You forcibly held her down and despite her desperate struggle, and that is how I view the summary, you raped her.[3] The matter ended when there was a knock on the front door. The whole ordeal lasted about 30 minutes and I have just been advised by Ms Tahana for the Crown that the distance from the small bridge where you first grabbed her and put her over your shoulders to your home was about a kilometre.The affidavits[7] Mr Galvin and Mr Te Kani have both filed affidavits and were cross- examined before us.[8] Mr Galvin denies the complainant's account of being forcibly abducted andviolated. He maintains she willingly went back to his house where they twice had consensual sex. He says it was during the second act that the complainant told him to stop but he did not do so until a couple of minutes later. He says he is shocked that he pleaded guilty to the Crown summary of facts which includes a narration of abduction and indecent assault. He says he does not recall discussing the summary of facts with his then lawyer.[9] Mr Galvin also stated in his affidavit that Mr Te Kani told him he couldexpect a sentence of six to eight years' imprisonment if he pleaded guilty.[10] Mr Galvin was cross-examined on his affidavit. He was asked what he remembered about the discussions before entering his guilty plea. He said:A. I remember him saying that of the three charges I was facing, two of them would be dropped. I knew that I was facing one charge which I thought I would have got off lightly on.[11] It was put to Mr Galvin in cross-examination that Mr Te Kani had also informed him that part of the agreement was that the allegations of what happened before he got to the house would be part of the summary of facts. Mr Galvin said he could not remember that, but upon questioning he agreed it was possible Mr Te Kani did discuss that with him and he just could not remember. He also agreed he probably signed a document agreeing to the arrangement but he could not remember that having occurred.[12] As to the sentence reduction, it was Mr Galvin's recollection that Mr Te Kani said to him he thought the final sentence would be six to eight years after a reduction for his guilty plea.[13] Turning to the cross-examination of Mr Galvin on the proposition that he was shocked to read the summary of facts that the sentencing Judge had relied upon, it was put to him:Q. Is it possible that, is it possible that you had read or hadunderstood that that summary was going to be put in front of the Judge before you entered your guilty plea, you understood that, butthat you didn't really care too much back then, back when you wereentering your guilty plea?A. Yeah, maybe, yeah maybe.[14] We have examined two psychiatric opinions submitted to this Court after the appeal was filed, one by Dr Rui Mendel of 28 August 2015 and the other by Professor Mellsop of 20 October 2015.[15] Dr Mendel's opinion is that Mr Galvin suffers from a chronic psychotic disorder, probably schizophrenia. His disorder is complicated by chronic misuse of illicit drugs and alcohol. He expressed the opinion that at the time Mr Galvin was instructing his counsel: I do not believe that he was able to fully understand the implications of the charges against him, therefore his ability to instruct his counsel was compromised.[16] Professor Mellsop prepared an opinion largely from the medical history. He was of the view that at least from 2009 to 2010 Mr Galvin suffered from a psychotic disorder of uncertain cause, possibly drug-induced or a form of schizophrenia. There was, however, no available evidence to confirm or even strongly suggest this was present in the months leading up to his guilty plea in May 2013.[17] We regard Mr Galvin's state of mind at the time of the acceptance of thearrangement as unclear but, for reasons we now discuss, we do not consider there was any misunderstanding of the arrangement on Mr Galvin's part.[18] Mr Te Kani states in his affidavit that he informed Mr Galvin that if he pleaded guilty, the summary of facts would remain as it stood and would include reference to the events the complainant said had occurred prior to the time theyarrived at Mr Galvin's house. It was Mr Te Kani's belief that he would have obtained Mr Galvin's signature to the agreement. He was unable to be sure aboutthat as his file notes have not been preserved.[19] Mr Te Kani gave evidence as to his usual practice. He said he is always careful to obtain written instructions before a client pleads guilty, particularly in more serious cases. He is sure he would have explained to Mr Galvin that it was a term of the arrangement that the summary of facts would remain the same. He confirms he did express the opinion that it was in Mr Galvin's interests to agree to the proposal and that his, Mr Te Kani's, estimate of a sentence would be six to eightyears. However, he did explain to Mr Galvin that he could not be sure of that, and that the final decision would be that of the Judge. Mr Te Kani reinforced that hewould have obtained the signature of Mr Galvin given the particularly "higher tariff".[20] Mr Te Kani's evidence was firm.A. I've stated in my affidavit I cannot find a copy of thoseinstructions but I am clear in my mind that I had given him a pieceof paper that I had handwritten for him to sign to accept both the deal and that the summary of facts were to remain the same.[21] In the course of the sentencing the Judge noted that Mr Galvin was seeking to talk to Mr Te Kani. The Judge drew this to Mr Te Kani's attention. Mr Te Kanicould not recall that but he said he would have asked the Judge to defer thesentencing if Mr Galvin had any serious issues. The Court drew Mr Te Kani'sattention to the transcript of the sentencing hearing in the District Court which recorded that Mr Te Kani had told the Judge that at times his client had some difficulties in understanding or in his comprehension. Mr Te Kani agreed:A. Um yes it is but I was deliberate in that when I went through everything with him that I made sure that he understood what I was saying and I was quite slow and I was quite deliberate with him. Um and there was never an occasion where I thought that I had left him with any um issues that he might have wondered about or he was unclear.[22] Mr Te Kani is a counsel of 18 years experience. He impressed us with his straightforward answers during his cross-examination. We accept his evidence and find on the facts that Mr Galvin understood and accepted the agreement to plead guilty on the terms we have set out.[23] Mr Barr for the Crown informed the Court after hearing the evidence that theCrown no longer had concerns about Mr Galvin's understanding of the arrangement. We accept his submission for the Crown that Mr Galvin's primary motivation in pleading guilty was to secure a lighter sentence. Despite his denial of thecomplainant's account of the events prior to the time she reached the house, we are satisfied Mr Galvin knew the summary of facts was based on the complainant'scontrary account. As matters turned out, the final sentence was only ten months longer than the top end of the range Mr Te Kani told him was likely.[24] We also record that Mr Galvin had earlier abandoned his appeal against conviction and has not applied to set aside his guilty plea.Result[25] The proposal to allow this appeal and remit this matter to the District Court for a disputed facts hearing is dismissed.[26] The appeal against sentence is to be heard on 29 August 2016 in Auckland.Solicitors:Crown Law Office, Wellington for Respondent