KAWITI v R [2021] NZCA 257

KAWITI v R [2021] NZCA 257 [21 June 2021]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA723/2020[2021] NZCA 257BETWEEN THOMAS KEVIN KAWITIAppellantAND THE QUEENRespondentHearing: 13 May 2021Court: Clifford, Simon France and Edwards JJCounsel: T D A Harré for AppellantJ A Eng and R E King for RespondentJudgment: 21 June 2021 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] Mr Kawiti was charged with:(a) sexual violation by rape of complainant A;11 Crimes Act 1961, ss 128(1)(a) and 128B.(b) sexual violation by unlawful sexual connection (digital penetration) ofcomplainant A;2 and(c) rape of complainant B.3[2] In the District Court in Wellington, a jury found Mr Kawiti guilty of the rapeof A, but not guilty of the other charges. On 24 November 2020, Judge Mill sentencedhim to six years and eight months' imprisonment.4[3] Mr Kawiti appeals as of right against that sentence on the basis that the Judgeshould have inferred he had a mistaken but unreasonable belief that the complainantwas consenting.5 That inference is said to arise from the different verdicts on the rapeand unlawful sexual connection charges in relation to A, and the acquittal on the chargeof rape in relation to B. On that basis, Mr Kawiti says he was less culpable than theJudge assessed, and his end sentence was accordingly manifestly excessive.The offending[4] The charges in relation to both complainants arose out of two separate eventsabout a week apart. The complainants were unknown to each other. The Crown reliedon each incident as propensity evidence in support of the other.[5] The incident involving B occurred first. Mr Kawiti picked B up from hermother's house and drove her to a riverbank. Sexual intercourse occurred in the car.B said that it was non-consensual and that she was passed out from consuming drugsat the time. Mr Kawiti admitted that sexual intercourse had taken place but said it wasconsensual. He was acquitted of the alleged rape at trial.[6] About one week later, Mr Kawiti was at A's address. A had taken GBL, a drugknown as "rinse", earlier in the day. As Mr Kawiti had a car, A asked him to drive herto an abandoned house to collect a set of drawers.2 Sections 128(1)(b) and 128B.3 Sections 128(1)(a) and 128B.4 R v Kawiti [2020] NZDC 24670 [Judgment under appeal].5 Criminal Procedure Act 2011, s 244(1).[7] A said she began to feel the effects of the GBL at the abandoned house. Whileon the couch at the house, A said Mr Kawiti digitally penetrated her and then rapedher moments later. A's evidence at trial was that she was unable to move, wassemi-conscious as a result of the GBL, and was unable to give her consent.[8] In his police interview, Mr Kawiti denied having sexual intercourse with A.He initially told police that A was "out of it" and looked like she was going to fall over,so he picked her up and carried her to the couch. However, at trial, he admitted theyhad sex but defended the charges on the basis of consent and reasonable grounds forbelief in consent. He gave evidence at trial that A was "into it", had begun thrustingher pelvis into him and gave him the impression she wanted to have sex.District Court sentencing[9] Mr Kawiti was sentenced in the District Court at Wellington by Judge Mill.6The Judge considered the case fell at the bottom of band two in R v AM (CA27/2009),7and adopted a starting point of eight years' imprisonment.8 The aggravating featuresof the offending were identified as the vulnerability of the victim and the severe impactthe offending had on her.9 No uplift was imposed for Mr Kawiti's previouscriminal history.10[10] A 10 per cent reduction was applied for Mr Kawiti's personal circumstances asoutlined in a cultural report prepared pursuant to s 27 of the Sentencing Act 2002.A further reduction of six months was applied to recognise time spent on electronicallymonitored bail. This resulted in an end sentence of six years and eight months'imprisonment.11 The Judge noted Mr Kawiti is required to serve the sentence withoutparole as his offending was a stage-two offence.12[11] Counsel for Mr Kawiti, Mr Harré, invited the Judge to infer from the differentverdicts given in relation to the offending against A that there was a "mistaken but6 Judgment under appeal, above n 4.7 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [98]–[104].8 Judgment under appeal, above n 4, at [29].9 At [10], [11] and [29].10 At [12].11 At [30].12 Sentencing Act 2002, s 86C(4).unreasonable belief that she was consenting".13 The Judge addressed this submissionas follows:[19] Well I have had to think about this quite a bit since I sawthe submissions and the evidence that you gave and the submission made onyour behalf that she was flirtatious and completely into you and wanting sexin my view was clearly rejected by the jury and they were satisfied beyondreasonable doubt that she did not consent and there was no reasonable beliefin consent as far as the rape charge is concerned and in my view, given theclose proximity of what happened as far as all sexual contact between you thatnight, in my view they were satisfied that what she said happened in factdid happen.[20] Now why the jury did not find you guilty on the other chargeis unexplained but in my view it is speculative as to why. It could have beenthat they were not sure whether you did penetrate her with your fingers, giventhe lack of evidence that was given on that but of course you did admit tohaving intercourse with her which may account for the different verdicts.[21] I cannot infer in my view from the evidence and the view that I havethat the jury must have been sure, that is convinced beyond reasonable doubt,there was no consent and no reasonable belief in consent. I cannot infer thatthis was somehow split by seconds between one event and the other.Therefore, I do not infer that this is a case where the jury came to their decisionin relation to the other charge because they believed your evidence in respectof that, for that small part of the incident and then believed her for the rest.[22] So if we look at what you said about that in the evidence, and youhave repeated to the probation officer and also we have heard today further,is that you suggested that she was somehow inviting or flirtatious and she waslooking at you in some way and seated in some way with her legs apart,something that she later explained in evidence is how she sits in any eventand indeed was sitting during her evidential video. You suggested that shewanted you to come across and pick her up and you did so, that she wasbreathing heavily, holding you in a way which suggested that she wantedintimacy and while you were still holding her she was thrusting her pelvis intoyou and sighing and that interpreted that she wanted sex in your view.[23] Well that was your version of events but when the victim herself wascross-examined Mr Tuck quite rightly, properly put your case to her and sherejected all of that. He suggested to her that she was moaning sexually andthrusting and she said "Definitely not", she could not move at all, her wholebody was limp. It was put to her that she was doing this, thrusting andmoaning, she said it simply was not possible given the state of mind she wasin, given the drugs she had taken and if she was making any noise it certainlywas not a noise of sexual pleasure. And so it went on and she just simplydenied it and told the jury how she felt at the time and what was happening.In my view the jury must have rejected your version of events and acceptedhers and found you guilty of the rape and that she was semiconscious at thetime and not behaving in the flirtatious manner that you would havethe jury believe. The fact that they found you not guilty on the other charge,as I said, remains unexplained but given the state of the evidence, it does not13 Judgment under appeal, above n 4, at [13].mean that I can infer anything other than they were not satisfied that you didin fact penetrate her with your fingers.Did the Judge err by not inferring a mistaken but unreasonable belief in consent?[12] The factors relevant to assessing culpability in cases of sexual offending wereset out in R v AM.14 Those factors include a mistaken belief in consent whichthis Court described as follows:[53] There is authority for the proposition that to commit rape undera mistaken but unreasonable belief that there was consent is not a mitigatingfactor: R v Hill. Obviously, one of the purposes of the rape law reforms wasto make violation where there is a mistaken and unreasonable belief in consenta crime. But it does not follow or undermine that objective to say thatthe offender's culpability may be different in such a case. The contrast is withthe position where the offender knows there is no consent. As in other areasof the criminal law, negligent acts are seen as less serious than deliberate acts.If the belief is grossly unreasonable that will not avail the offender. There may,however, be cases where it is plain that the belief, while unreasonable,was genuine and this factor may reduce culpability.(Footnote omitted.)[13] As acknowledged in that paragraph, and in other decisions of this Court,a mistaken but unreasonable belief in consent is not necessarily mitigating.15Mr Harré submits that the cases where such a belief has not reduced culpability havegenerally involved an intoxicated defendant. That is not the position here andMr Harré distinguishes those cases on that basis. In any event, the assessment ofculpability is a fact specific exercise that must be conducted on a case-by-case basis.[14] In assessing culpability for the purposes of sentencing, a Judge may accept asproved any fact that was disclosed by evidence at the trial, and "must accept as provedall facts, express or implied, that are essential to a plea of guilty or a finding of guilt".16If more than one conclusion is available on the facts then the Judge may reach their14 R v AM, above n 7.15 See R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [31]; R v Hill CA94/02, 21 October 2002at [25]; and Hollander v R CA440/97, 25 February 1998 at 7–8.16 Sentencing Act, s 24(1)(a) and (b).own view, provided it is not inconsistent with the verdict of the jury.17 There isno obligation on the Judge to adopt the position most favourable to the defendant.18[15] We will address the appeal as presented but observe first that the only availableappeal issue is whether the findings of fact were open to the sentencing Judge.The Judge's task is not to discern the reasoning of the jury (which cannot be known)but rather, as trial Judge, to determine a basis for sentencing available on the evidenceand not inconsistent with the verdicts.[16] Mr Harré submits that the foundation for a mistaken but unreasonable beliefin consent can be found in a close analysis of three inferences drawn by the Judgeat sentencing, namely:(a) the conclusion that the jury must have been satisfied that what A saidhappened, in fact, did happen, and that the jury had accepted her versionof events;19(b) the finding that consent and reasonable belief in consent could notbe split by seconds between the digital penetration and the rape;20 and(c) the conclusion that the jury was not satisfied that Mr Kawiti, in fact,penetrated A with his fingers.21[17] Mr Harré says the first two inferences are inconsistent with the third.He submits a more reasonable inference from the jury's verdicts is that the juryconsidered there was either consent, or reasonable grounds for consent, in respect ofthe digital penetration. Extrapolating from that inference, Mr Harré says it isreasonable to conclude either:17 R v Lunjevich [2012] NZCA 454 at [9].18 R v Connelly [2008] NZCA 550 at [14], cited with approval in B (CA58/2016) v R [2016] NZCA432 at [75]–[76]; Edwardson v R [2017] NZCA 618 at [106]; and Howard v R [2018] NZCA 633at [11].19 Judgment under appeal, above n 4, at [19].20 At [21].21 At [23].(a) consent had initially been given to the sexual intercourse, but it wasimplicitly withdrawn at the point the complainant lost consciousness;or(b) Mr Kawiti had sex with the complainant without reasonable beliefin consent.[18] These alternatives are said to colour the inference regarding an unreasonablebelief in consent and operate to reduce Mr Kawiti's culpability.[19] We do not accept that the Judge's findings for the purposes of sentencing wereeither inconsistent or in error. The issues at trial were consent and reasonable groundsfor belief in consent. The complainant's evidence was that as soon as Mr Kawitirealised that she was "completely unresponsive" as a result of the GBL, he started totake her pants off, and then touched her vagina. If the jury accepted the complainant'sevidence regarding the effects of the GBL, then there was no basis for reasonabledoubt regarding the complainant's consent or the reasonableness of any beliefin consent. The Judge was entitled, if not obliged, to infer from the jury's verdicton the rape charge that they had accepted the complainant's evidence on this point.[20] The complainant's evidence regarding the sequence of events also provideda foundation for the inference that the jury did not reach different conclusionsregarding consent and reasonable grounds for consent on the unlawful sexualconnection and rape charges. The complainant's evidence was that the digitalpenetration occurred moments before the sexual intercourse. If the jury accepted thisevidence, there was no basis to infer she was in any position to consent to the digitalpenetration, or that there were reasonable grounds for belief in consent to that act, butnot the rape.[21] Mr Harré submits that this aspect of the Judge's reasoning was contrary to theprinciple that each charge needs to be considered on a stand-alone basis. He says itwas open to the jury to reach one verdict on one charge, but not on the other. We donot agree. The Judge's reasoning does not challenge that principle. As we readthe sentencing notes, the Judge was simply considering a possible explanation for thedifferent verdicts in order to address Mr Kawiti's submission that he should besentenced on the basis of a mistaken but unreasonable belief in consent. That isconsistent with the obligation in s 24 of the Sentencing Act, which allows a Judge toreach their own view so long as it is not inconsistent with the verdict of the jury.[22] Having reached those conclusions, which were open on the evidence, the onlyreasonably available explanation to reconcile the two verdicts was that reached by theJudge. That is, the jury must not have been satisfied beyond reasonable doubt that thedigital penetration occurred. It is notable that Mr Kawiti did not give evidence aboutthe digital penetration and, in the absence of such evidence, the jury may haveconcluded that they could not be sure that this had taken place.[23] It follows that we consider there was an evidential foundation for the inferencesdrawn by the Judge; indeed, they were the only inferences available given the jury'sverdicts. Importantly, none of those inferences support the suggestion that Mr Kawitiwas acting under a mistaken but unreasonable belief in consent. The evidence did notsupport a withdrawal of consent narrative. The complainant's evidence regarding theeffects of the GBL countered any suggestion that Mr Kawiti could have been mistakenas to consent.[24] Mr Harré also submits that the acquittal in relation to B provides importantcontext in which to consider the charge of rape against A. We do not agree. The jurywas directed to consider each charge separately and with respect to the evidencerelevant to that charge. The not guilty verdict on the rape charge for B adds nothingto the analysis about whether Mr Kawiti was operating under a mistaken butunreasonable belief in consent in relation to A.[25] In sum, we consider there was a basis for the Judge rejecting Mr Kawiti's claimthat he was acting on a mistaken but unreasonable belief in consent. The Judge wasnot obliged to sentence on the most favourable view of the facts to Mr Kawiti, and wesee no error in the conclusions the Judge reached.Result[26] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent