HENRY v R [2018] NZCA 263

HENRY v R [2018] NZCA 263 [20 July 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA644/2017[2018] NZCA 263BETWEEN TAIRONE RAWIRI HENRYAppellantAND THE QUEENRespondentHearing: 21 May 2018Court: French, Ellis and Woolford JJCounsel: G A Walsh and M J James for AppellantS K Barr for RespondentJudgment: 20 July 2018 at 2 pmJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed to the extent that the sentence of11 years and nine months' imprisonment imposed in respect of the offence ofabduction for the purpose of sexual connection and the two offences of sexualviolation by unlawful sexual connection are quashed and substituted with asentence of 10 years and nine months' imprisonment. All other sentences areconfirmed.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Mr Henry was convicted following a retrial before a jury andJudge KBF Saunders in the District Court of five offences against an 18 year oldwoman:(a) abduction for the purposes of sexual connection;(b) two charges of sexual violation by unlawful sexual connection;(c) indecent assault;(d) assault with intent to injure.[2] Judge Saunders sentenced Mr Henry to a term of imprisonment of 11 years andnine months.1[3] Mr Henry now appeals his convictions and his sentence.The Crown case[4] The complainant was an American visitor to this country. She had been for anight out in Hamilton with some New Zealanders she had met during the course of theevening. While she and another woman were waiting in the street for a taxi, Mr Henryapproached them and struck up a conversation. They agreed to go back to his houseto continue the evening.[5] At approximately 4.30 am the complainant decided to call it a night. Mr Henryoffered to drive her and the friend she arrived with back to their respective residences.The Crown alleged that shortly after Mr Henry had dropped off the other woman, hetold the complainant that if she wanted him to take her home, she would have to suckhis penis first. She refused and attempted several times to get out of the car butMr Henry prevented her from escaping. At some stage during the ensuing struggle,1 R v Henry [2017] NZDC 24384 [sentencing notes].she tried to phone the police but, not knowing the emergency number in New Zealand,she rang 000.[6] Eventually, thinking that if she complied with his demands, he would let hergo, she told Mr Henry to pull over and she would do it. Mr Henry then allegedlytouched her clitoris with his hand or finger and also forced her to put her mouth on hispenis. That alleged conduct was the basis of the two charges of sexual violation byunlawful sexual connection. The complainant said she found it so "gross" she wasunable to continue and so Mr Henry told her to use her hands which she did. Thatalleged conduct was the basis of the charge of indecent assault.[7] According to the complainant, Mr Henry then accused her of hurting him andhe became more aggressive. He hit her several times in the head and strangled her tothe point she thought she was going to pass out. Another vehicle suddenly pulled upbehind them, prompting Mr Henry to drive off at speed. She was screaming and triedto escape again but he allegedly grabbed her by the back of her head holding tightlyonto her hair and jamming her head between the two front seats. Every time she triedto break his hold, he hit her and then resumed his hold on her hair, verbally abusingher. He gripped her hair so tightly it felt as though he was pulling it out. Clumps ofher hair were later found in the car.[8] The complainant was only able to escape when she managed to grab thesteering wheel and the brake, causing the car to crash. Mr Henry released his grip andshe opened the door, rolling out of the car onto the ground and fleeing to a nearbyhouse.[9] When the police arrived at the scene, they found Mr Henry still in the car.Breath testing procedures were undertaken and a level of 750 micrograms of alcoholper litre recorded. When asked about the complainant's allegations of sexual assault,Mr Henry told the police there had been sexual activity but it was consensual.[10] At trial, Mr Henry gave evidence to similar effect. He told the jury thecomplainant had been the instigator of the consensual sexual activity in his car butthen had turned on him when she became regretful for cheating on her boyfriend.His motivation thereafter was to ensure her safety and not let her out of a moving caruntil it was safe to stop.[11] We now turn to the appeal against conviction which relied on two grounds.Appeal against convictionFailure to control the complainant who derailed the trial[12] The complainant was what can fairly be described as a feisty witness. At times,she became argumentative and exasperated with defence counsel and made unsolicitedcomments about Mr Henry suggesting he was capable of committing similar offencesagainst others. She also made comments about the screen behind which she was givingher evidence, telling the jury that at the first trial there were not any screens, and thatshe had felt intimidated and stared down by Mr Henry.[13] At the conclusion of the complainant's evidence, defence counsel Mr Walshrelied on these comments in support of an application for a mistrial. The applicationwas declined by Judge Saunders.2[14] On appeal, Mr Walsh submitted the Judge should have declared a mistrial. Inhis submission, the Judge had failed to exercise adequate control over the complainantand as a result the trial had miscarried.[15] Having read the notes of evidence, we disagree. In our view, the Judge'shandling of the complainant was appropriate and fair. The Judge intervened wherenecessary and never stopped the defence from asking questions. Mr Walsh was unableto identify a single example of the complainant declining to answer a question and theJudge failing to direct her to answer it. All questions were answered, even althoughsome of the questioning was repetitive. The defence was able to put its case clearlyand strongly to the jury.[16] As for the complainant's comments about Mr Henry, it would have beenobvious to the jury that they were just expressions of opinion. As Mr Barr for the2 R v Henry [2017] NZDC 21439.Crown pointed out, the prejudicial effect of the comments was dependent wholly onwhether the jury accepted her version of the events at issue. If they did, then theywould be likely to understand the comments. If however they doubted her credibilitythen they would have been equally sceptical of the opinions she expressed aboutMr Henry.[17] We note too that the Judge specifically raised the issue in her summing up,instructing the jury in the following terms:[6] You will remember also I am sure that [the complainant] was clearlyfrustrated by some of the questions that were being asked of her by Mr Walsh.She was at times feisty. She talked back and she was also I suggest veryemotional. In that context you may recall her concern that Mr Henry had donethis before or would do it again but I need to make it very clear to you there isabsolutely no evidence before you to support [the complainant's] view at alland indeed it is not part of the Crown case and of course you know Mr Henrywas asked if he has ever been charged with or convicted of a sexual assaultand he said no. So while [the complainant] may genuinely feel that way it isnot relevant to your task and I suggest you simply put it to one side because itdoes not help you in determining whether Mr Henry acted as [the complainant]says he did in that car in the early hours of the morning or not. Because thatis your focus and there were only two of them in the car. How you assess[the complainant] is for you of course and there was a lot she did notremember. She readily accepted that she had been drinking that night and shehad smoked cannabis but when it came to what happened in the car the realfocus, your real focus, when they were in the car together she had I suspectyou will have concluded a much clearer memory of what occurred and youwill recall her explanation why that was. She sobered up very quickly, heradrenalin was rushing.[18] Having regard to that direction, we agree with the Crown that any risk of unfairprejudice was negated.[19] The further complaint made by Mr Walsh about the complainant's testimonywas her evidence regarding the use of screens in Court. However, the comments weremade in response to questions regarding inconsistencies between the evidence she wasgiving and the evidence she had given at the first trial. The complainant was entitledto give the explanation that she was able to be more forthcoming this time due to thescreen.[20] We conclude that none of the concerns raised about the complainant'stestimony warrants appellate intervention.Comment by prosecutor[21] During cross-examination the complainant was questioned (we considerimpermissibly) about alleged sexual touching by her of another female at Mr Henry'shouse. The complainant responded by asking defence counsel to focus on why shehad travelled all the way to New Zealand for the trial. She was given an opportunityto answer her own question in re-examination when she explained that she hadreturned to make sure Mr Henry did not do it again.[22] In closing, the prosecutor referred to this evidence and submitted it would defybelief that the complainant would have travelled to New Zealand to "stitch up" arandom stranger.[23] On appeal, Mr Walsh submits the comment was improper because it evokedsympathy and prejudice and also suggested by implication that people who travel fromoverseas to give evidence are more credible than locals, a suggestion for which therewas no foundation. Mr Walsh further submitted that the comment also improperlyinvited the jury to rely on the absence of any evidence of motive to lie.[24] In our view, these criticisms are not well founded. After making the impugnedcomments, the prosecutor went on to emphasise there was no onus on Mr Henry topoint to any reason why the complainant was lying.[25] The Judge made the same point in her summing up and also told the jury thatit was their task and not the lawyers' task to decide whom to believe. Contrary toanother submission made by Mr Walsh, we do not consider the Judge was required togo further and give a general lies direction.[26] We are satisfied this ground of appeal also lacks merit. The appeal againstconviction is accordingly dismissed.Appeal against sentenceSentencing in the District Court[27] In setting a starting point for the two charges of sexual violation by unlawfulsexual connection, the Judge identified the aggravating factors of the whole incidentas being an element of premeditation, the detention, the physical violence whichexceeded that inherent in the offending, the vulnerability of the complainant and thephysical and emotional harm done to her. The Judge said the complainant was an18 year old girl in a country she did not know and Mr Henry had taken advantage ofthat. The complainant had thought she was going to die.3[28] Having regard to those aggravating factors and the fact this was a prolongedcourse of conduct involving three distinct sexual acts, Judge Saunders found theoffending fell on the cusp between band 2 and band 3 of the guideline decision ofR v AM (CA27/2009).4 She then adopted a starting point of 12 years' imprisonmentfor the offending which she uplifted by three months on account of Mr Henry'sprevious convictions.5[29] As regards mitigating factors, the Judge considered the only factor warrantinga discount was the fact Mr Henry had spent significant time on bail. She allowed areduction of three months for that and then a further three months for totality.6[30] That resulted in an end sentence of 11 years and nine months. That wasimposed in respect of the sexual violation by unlawful sexual connection andabduction offences,7 along with concurrent sentences of 18 months for the indecentassault and nine months for the assault with intent to injure. A sentence of one month'simprisonment was also imposed concurrently in respect of the charge of driving withexcess breath alcohol, Mr Henry having pleaded guilty to that offence.83 Sentencing notes, above n 1, at [20]–[23].4 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.5 At [24].6 At [26].7 Although the starting point was set with respect to the two charges of sexual violation by unlawfulsexual connection, the Judge imposed the same sentence for the abduction as she did for those:at [24] and [27].8 At [27]–[30]. The driving with excess breath alcohol sentence was not appealed.Arguments on appeal[31] On appeal, Mr Walsh argued the sentence was manifestly excessive becausethe starting point was too high, the three month uplift for previous convictions was notwarranted, and an additional discount should have been allowed to reflect the fact thatMr Henry agreed to the briefs of 12 witnesses being read. No issue was taken withthe discount for the time spent on standard bail.AnalysisThe starting point of 12 years[32] Mr Walsh submitted that correctly analysed each of the aggravating factorsrelied on by the Judge increased culpability to only a moderate degree. The entiretyof the offending occurred over approximately 30 minutes and the sexual offendingitself was very brief. In his submission, having regard to the authorities cited in AMsuch as Anderson v R, Hannagan v R and R v Morris,9 the offending was at the lowerend of band 2 in AM and therefore the appropriate starting point on the lead chargeswas eight years' imprisonment. He submitted there should then have been an uplift ofa further two years for the balance of the offending, making the appropriate endstarting point one of 10 years' imprisonment.[33] Our own review of comparator cases confirms that 12 years' imprisonment wason the high side.10 We would not however have interfered with it were we not alsosatisfied that three months was an insufficient adjustment for totality having regard tothe fact that this was one continuous course of conduct. We consider a 12 monthreduction for totality was justified and that accordingly the appropriate starting pointwas 11 years' imprisonment.[34] We also agree with Mr Walsh that an uplift for Mr Henry's criminal historywas not warranted. Mr Henry did not have any previous convictions for sexual9 Anderson v R CA199/05, 2 November 2005; Hannagan v R CA396/04, 9 June 2005; andR v Morris [1991] 3 NZLR 641 (CA).10 Sa Leavai v R [2017] NZCA 368; Matthews v R [2017] NZCA 493; R v Ecclestone [2015]NZHC 2054; Robb v R [2014] NZCA 338; Dempsey v R [2013] NZCA 297; Pakau v R [2012]NZCA 522; Tahitahi v R [2008] NZCA 549; R v Martin HC Auckland CRI-2006-004-17743,18 May 2007; and R v Afamasaga CA271/02, 21 November 2002.offending. He did have convictions for violent offending but none of those hadresulted in a custodial sentence.11[35] We do not however agree that the Judge can be criticised for declining to givea discount for Mr Henry agreeing to the evidence of 12 witnesses being read. We arenot persuaded this was such a significant contribution to the saving of trial time as towarrant any discount let alone one of six months as suggested.[36] We conclude that an inadequate allowance for totality combined with anunwarranted uplift for previous convictions has resulted in a manifestly excessive endsentence which should be reduced by one year.Outcome[37] The appeal against conviction is dismissed.[38] The appeal against sentence is allowed to the extent that the sentence of11 years and nine months' imprisonment imposed in respect of the offence ofabduction for the purpose of sexual connection and the two offences of sexualviolation by unlawful sexual connection are quashed and substituted with a sentenceof 10 years and nine months' imprisonment. All other sentences are confirmed.Solicitors:Crown Law Office, Wellington for Respondent11 Namely three convictions for common assault, one conviction for assault with intent to injure andone conviction for male assaults female, all dated from 2011–2013.