TAITAPANUI v R [2018] NZCA 300

TAITAPANUI v R [2018] NZCA 300 [24 August 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA81/2018[2018] NZCA 300BETWEEN TOMMY AWAU TANE TAITAPANUIAppellantAND THE QUEENRespondentHearing: 19 June 2018Court: Brown, Duffy and Katz JJCounsel: B J Hesketh for the AppellantI R Murray for the RespondentJudgment: 24 August 2018 at 12 noonJUDGMENT OF THE COURTA Leave is granted to file the appeal out of time.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)[1] Mr Taitapanui seeks leave to appeal his conviction and sentence for indecentlyassaulting a 15-year-old girl. Mr Taitapanui was sentenced by Judge Ingram to threemonths' imprisonment.1 A mandatory consequence of being sentenced toimprisonment for the offence was that Mr Taitapanui was registered on theChild Sex Offender Register (the Register) established by the Child Protection (ChildSex Offender Government Agency Registration) Act 2016 (the Child Protection Act).2If Mr Taitapanui had been sentenced to a non-custodial sentence, however, registrationwould have been discretionary.3[2] Mr Taitapanui pleaded guilty following an informal sentence indication givenby Judge Ingram. It is common ground that Mr Taitapanui was not advised by his thencounsel, Mr Franklin, that a consequence of a sentence of imprisonment would beregistration on the Register. If he had known that, Mr Taitapanui says, he would nothave pleaded guilty. As a result, he says, a miscarriage of justice has occurred.[3] Leave is required to extend the time for filing an appeal. Mr Taitapanui hasexplained that it was some weeks until the adverse consequences of being on theRegister became apparent to him. Further, he then erroneously filed his notice ofappeal in the Whakatane District Court, and then in the Hamilton High Court, beforecorrectly filing it in this Court. An extension of time to appeal is not opposed and weare satisfied that it is in the interests of justice to grant such an extension. Leave isgranted accordingly.The Crown case[4] The Crown case against Mr Taitapanui, based on the Crown summary of factsand the evidence that the Crown proposed to call at trial, is summarised below.[5] On 1 August 2016, between 4.00 am and 5.00 am, Mr Taitapanui entered ahome occupied by members of his extended family through an unlocked front door.Mr Taitapanui went to the lounge, where a 15-year-old girl was asleep on the couch.Mr Taitapanui put his hand under the blanket which covered the girl, and stroked her1 R v Taitapanui [2017] NZDC 20246. The sentence was imposed in relation to both the indecentassault charge and also three other minor drug charges that Mr Taitapanui had earlier pleadedguilty to, namely possession of cannabis for the purpose of sale, offering to sell cannabis and saleof cannabis. The appellant does not seek to appeal those convictions.2 Child Protection (Child Sex Offender Government Agency Registration) Act 2016[Child Protection Act], s 7(1).3 Section 9.arm. He moved away, but then returned, and slid his hand under the blanket, forcinghis hand into her pyjama pants. He stroked the complainant's bottom until shemanoeuvred herself so he could no longer do so. Mr Taitapanui then left the address.After he had gone, the complainant woke up an adult in the household, who calledthe police at 5.02 am.[6] The complainant told police that she knew it was Mr Taitapanui because,although she only saw his back as he walked away, she recognised the way that hewalked, and also the way that his shoulders hung. Further, the person who had touchedher had been wearing a blue bandana patterned hoodie, and a beanie hat.Mr Taitapanui would previously always wear those, but the complainant told policethat "now he never wears them anymore". Witnesses at trial would have givenevidence that Mr Taitapanui was wearing similar, if not identical, clothing to thatdescribed by the complainant on the night in question.[7] Mr Taitapanui's former partner told police that he had asked her to drop himoff in the vicinity of a party he had attended earlier that evening. She dropped him offjust after 4.00 am, not far from the house where the indecent assault took place.At 4.48 am he texted her, asking to be picked up.[8] Over the next few days, Mr Taitapanui spoke to the complainant's mother ontwo occasions. Although he did not expressly admit responsibility, he repeatedlyapologised and did not deny being the offender when she confronted him, nor whenshe physically attacked him.[9] During a police search of Mr Taitapanui's home they found two Black Powerhoodies (described as bandana style) and a beanie hat. Mr Taitapanui is a member ofthe Black Power gang. A family member told police that local Black Power membersother than Mr Taitapanui had stopped wearing bandana style hoodies.[10] If Mr Taitapanui had gone to trial, his proposed defence was that the offenderwas not him, and he had been wrongly identified.Procedural history[11] On 3 June 2015, Mr Taitapanui had been released on parole, with numerousrelease conditions, in respect of offending that had taken place in 2003. The finalsentence end date for the 2003 offending was 31 October 2017.[12] Mr Taitapanui was arrested and appeared in Court on the indecentassault charge (and also minor drug charges) on 14 September 2016. He was promptlyrecalled to prison to continue serving his sentence for the 2003 offending.[13] On 28 August 2017, the morning that Mr Taitapanui's indecent assault trial wasdue to start, he changed his plea to guilty. This followed the informal sentenceindication from Judge Ingram that Mr Taitapanui's sentence, if he pleaded guilty,would be effectively "time served" on recall. In other words, the effective end date ofany sentence imposed in respect of the indecent assault charge would not be later thanthe final sentence end date for the 2003 offending (namely 31 October 2017).Based on Judge Ingram's indication, and after speaking to his then lawyer,Mr Franklin, Mr Taitapanui changed his plea to guilty.[14] On 8 September 2017, Mr Taitapanui was sentenced to three months'imprisonment. Taking into account his parole eligibility, in practical terms hiseffective sentence end date was fairly close to (but slightly earlier than) his sentenceend date for the 2003 offending.[15] Under the Child Protection Act an offender who is sentenced to imprisonmentfollowing a conviction for indecent assault must be placed on the Register.4 If anoffender is sentenced to a non-custodial sentence, however, registration isdiscretionary. It is common ground that at the time he changed his plea, Mr Franklindid not inform Mr Taitapanui that a consequence of his being sentenced to a term ofimprisonment would be registration as a child sex offender. At the time, theChild Protection Act had only recently been enacted and Mr Franklin was unfamiliarwith its provisions.4 Section 7(1). See also Crimes Act 1961, s 134(3); and Child Protection Act, sch 2(2)(e).[16] Mr Taitapanui deposed in his affidavit in support of his appeal that, after hewas released from prison:I had a meeting with Oranga Tamariki regarding whether or not I would needto have supervised access to my grandchildren. Being placed on the Registerwas causing me problems with seeing my grandchildren.[17] Mr Taitapanui then went back to see Mr Franklin and complained that theregistration was causing him problems. Mr Franklin advised him to file an appeal,and recommended new counsel (Mr Hesketh) to act for him in the appeal.The conviction appealApproach to conviction appeal following guilty plea[18] A conviction appeal must be allowed if a miscarriage of justice has occurredfor any reason.5 A miscarriage of justice means any error, irregularity, or occurrencein, or in relation to, or affecting the trial that has created a real risk that the outcomeof the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.6A trial, for the purposes of the definition of a "miscarriage of justice", includes aproceeding in which the appellant pleaded guilty.7 In R v Le Page this Court describedthe circumstances in which a conviction might be set aside following a guilty plea asfollows:8it is only in exceptional circumstances that an appeal against conviction willbe entertained following entry of a plea of guilty. An appellant must show thata miscarriage of justice will result if his conviction is not overturned.Where the appellant fully appreciated the merits of his position, and made aninformed decision to plead guilty, the conviction cannot be impugned.[19] There are four broad categories of exceptional circumstances in which anappeal against conviction may succeed following a guilty plea. The first three weresummarised by this Court in R v Le Page as follows:95 Criminal Procedure Act 2011, s 232(2)(c).6 Section 232(4).7 Section 232(5).8 R v Le Page [2005] 2 NZLR 845 (CA) at [16].9 At [17]–[19].(a) where the appellant did not appreciate the nature of, or did not intendto plead guilty to, a particular charge;(b) where on the admitted facts the appellant could not in law have beenconvicted of the offence charged; and(c) where the plea was induced by a ruling which embodied a wrongdecision on a question of law.[20] This Court, in R v Merrilees, added a fourth category, which is:10(d) where trial counsel errs in the advice given as to the non-availability ofcertain defences or potential outcomes.[21] The Court made it clear in Merrilees that it would only be in very rarecircumstances that conviction appeals would be allowed following a guilty plea:11It is often the case that an offender pleads guilty reluctantly, but neverthelessdoes so, for various reasons. They may include the securing of advantagesthrough withdrawal of other counts in an indictment, discounts on sentencing,or because a defence is seen to be futile. Later regret over the entering of aguilty plea is not the test as to whether that plea can by impugned. If a pleaof guilty is made freely, after careful and proper advice from experiencedcounsel, where an offender knows what he or she is doing and of the likelyconsequences, and of the legal significance of the facts alleged by the Crown,later retraction will only be permitted in very rare circumstances.[22] The Court in Merrilees did not explicitly refer to advice relating to sentence asbeing the type of counsel error that might give rise to a successful conviction appeal.However, in Su'a v R, this Court considered that it is implicit in the reference to"outcomes" in the fourth category from Merrilees that a miscarriage of justice in aconviction appeal following a guilty plea could include "erroneous advice regardingsentencing outcomes".1210 R v Merrilees [2009] NZCA 59 at [34].11 At [35].12 Su'a v R [2017] NZCA 439 at [11].[23] The issue was also recently considered by this Court in Tuira v R.13 In thatcase the Court referred to its earlier decision of T (CA662/2012) v R, which stated that,while a disappointing sentencing outcome will not by and of itself give rise to amiscarriage of justice, incorrect advice about the consequences or outcomes of aguilty plea may, in combination with other circumstances, give rise to one.14The "other circumstances" relied on in this case are primarily that, as a result of hisregistration on the Register, Mr Taitapanui is having difficulty gaining access to hisgrandchildren.Should the conviction appeal be allowed?[24] As Mr Franklin accepted, he erred in not advising Mr Taitapanui that aconsequence of being sentenced to imprisonment would be that he would be placedon the Register. Mr Taitapanui only found that out at the sentencing hearing.Mr Taitapanui did not, however, raise any issue with Mr Franklin about his registrationat sentencing or immediately afterwards. That is because, he says, at that stage he"did not understand the consequences of this". It was only some weeks later, afterOranga Tamariki had apparently objected to Mr Taitapanui having access to hisgrandchildren, that he raised concerns regarding his registration with Mr Franklin.[25] It is difficult to know whether, if Mr Taitapanui had been informed that hewould be placed on the Register at the time of his informal sentence indication hearing,he would have maintained his not guilty plea (as he now asserts). It appears fromMr Taitapanui's affidavit that his key concern is not registration per se, but the factthat registration (in his view) has caused difficulties in seeing his grandchildren. Evenif Mr Franklin had been familiar with the Child Protection Act, however, it is unlikelythat he would have advised Mr Taitapanui that a consequence of registration (asopposed to conviction) would be subsequent issues with Oranga Tamariki. Nothingin the Child Protection Act directly precludes Mr Taitapanui from having contact withhis grandchildren. Rather, the focus of the Act is on monitoring child sex offenders inthe community, by imposing various reporting obligations on them.13 Tuira v R [2018] NZCA 43.14 At [80]; citing T (CA662/2012) v R [2013] NZCA 550 at [35]–[36].[26] The fact that Mr Taitapanui is on the Register may well have alertedOranga Tamariki to his indecent assault conviction. Even if Mr Taitapanui was not onthe Register, however, such information may well have reached Oranga Tamarikithrough other means, including through information sharing protocols with the police.Indeed, it may well be Mr Taitapanui's conviction itself, rather than his registration,that has given rise to concerns on the part of Oranga Tamariki.[27] Although the failure of counsel to advise Mr Taitapanui regarding theprovisions of the Child Protection Act is unfortunate, this is not, in our view, one ofthose rare and exceptional cases where a conviction appeal should be allowed despitea defendant having pleaded guilty to a charge. In particular, we are not satisfied thata miscarriage of justice will occur unless Mr Taitapanui's conviction is overturned.In reaching this conclusion we have had particular regard to the following matters:(a) There is no suggestion that when Mr Taitapanui entered his guilty pleahe did so under some misapprehension about the nature of the chargeor the availability of any defences, such that his plea cannot be seen asa genuine acknowledgment of guilt.(b) The Crown case was a strong one, as Mr Taitapanui would presumablyhave been advised at the time he entered his guilty plea.(c) A number of fairly weighty factors likely influenced Mr Taitapanui'schange in plea, including the strength of the Crown case, his wish topromote reconciliation within the extended family, and the knowledgethat any term of imprisonment would be limited, in effect, to timeserved.(d) It is unclear whether Oranga Tamariki's concerns are linked to thesimple fact of registration (as Mr Taitapanui believes), or are insteadlinked to Mr Taitapanui's underlying conviction. Further evidence onthis issue (including evidence from Oranga Tamariki) would have beenhelpful. Mr Taitapanui's evidence on the issue is sparse and lacks thelevel of detail that would normally be expected, given that the appellantcarries the burden of establishing that a miscarriage of justice hasoccurred.(e) Information regarding Mr Taitapanui's conviction might well havereached Oranga Tamariki through other means, independently of hisregistration as a sex offender.(f) We treat with some caution Mr Taitapanui's claim that if he was awareof the mandatory registration requirement he would not have pleadedguilty. In particular, Mr Taitapanui's affidavit does not take issue withhis registration per se. Rather, his concern is with his lack of access tohis grandchildren, which could not necessarily have been foreseen as aconsequence of registration at the time he changed his plea or wassentenced.The sentence appealApproach to sentence appeal[28] The sentence appeal must be allowed if this Court is satisfied that there is, forany reason, an error in the sentence imposed on conviction, and a different sentenceshould be imposed. The appeal must be dismissed in every other case.15 A materialerror will be established if the sentence is manifestly excessive or wrong in principle,or if there are exceptional circumstances.16 An appellate court will not interfere withthe sentence if it is within the range that can properly be justified by acceptedsentencing principles.17The District Court sentencing process[29] The background to Mr Taitapanui's guilty plea was summarised inJudge Ingram's sentencing notes as follows:1815 Criminal Procedure Act, s 250.16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[31].17 Lau v R [2018] NZCA 151 at [17].18 R v Taitapanui, above n 1.[2] You pleaded guilty immediately before trial and it is proper that Irecord and mention for the benefit of your family members who are here inCourt that you and I had a pretty substantial discussion about the reality of thesituation that you are in. The most significant charge by far is the charge ofindecent assault. I had a discussion with you about whether or not you wishedto enter a plea of guilty and be sentenced in line with some legal guidelinesthat we discussed at the time. You accepted that and thereby avoided atrial.[3] I wish to let everybody know it is important that the family,particularly, understand the significance of the discussion that you and Ihad, because I pointed out to you that a major part of the damage that isdone in cases of this kind is the fact that the family is driven apart by peoplebeing literally forced to take sides between different family members.A plea of guilty does not solve all the damage that is done and it does notprovide a complete answer to everything, but at the very least it allowseverybody to move on, and there is no need for the family to be as dividedas it might otherwise have been had a trial proceeded and the complainantbeing forced to give evidence.[4] The circumstances of your offending are well known to you and littleneeds to be said. The quantities of cannabis involved were small and had theystood on their own I may well not have imposed a sentence of imprisonmentupon you.[5] Likewise, in relation to the indecent assault, unpleasant anddistressing as it would have been for the complainant, the reality is that it is alow level offence of its kind, and had it stood alone, and had you come beforethe Court with no prior convictions it is unlikely that I would have beensending you to prison. But you do have convictions and you have been inprison now for a year having been re-called on a former sentence. You areabout to face the Parole Board and you are expecting to be released at the endof October.[6] For legal reasons which I need not go into everybody needs tounderstand that I am required as a matter of law to take into account the wholecircumstances, including the time that you have spent in custody. There are anumber of prior cases in the High Court and the Court of Appeal which makeit clear that your time spent on re-call is necessarily to be considered in fixingthe penalty.[30] The Judge then went on to say that, in view of Mr Taitapanui's prior history,and taking all matters together (including the drug offending) he considered that asentence of imprisonment was necessary. He assessed the appropriate sentence asbeing something in the order of 15 months for the indecent assault and an uplift ofnine months to cover the other offending. The Judge then considered the time servedon recall, and the fact that Mr Taitapanui would not be released prior to the end ofOctober 2017. He noted that this was "pretty much equivalent to a two-year sentence".The Judge concluded that:[9] Accordingly, it seems to me that the only suitable sentence that isavailable to me is a sentence of three months' imprisonment because thatwould expire on or about your release date. I have already mentioned tocounsel and I repeat it for the benefit of anybody reading these notes that Ihave received detailed legal submissions from counsel. They concur that theonly appropriate outcome here is a sentence of three months' imprisonment.I have read the authorities and reviewed the statutory provisions and I agreeentirely with the submissions that they have both made to me that a sentenceof three months' imprisonment is appropriate.[31] On the issue of Mr Taitapanui's registration on the Register, the Judge statedthat:[16] This offending is caught within the relevant provisions and as aconsequence of the conviction as I understand it you will be registerableon the sex offenders register. That is not a matter that I need to attend to.I am simply explaining to you that that consequence will follow.Should the sentence appeal be allowed?[32] As we have noted above, due to the sentence of imprisonment, it wasmandatory for Mr Taitapanui to be placed on the Register. If he had been sentencedto a non-custodial sentence, the Court would have had a discretion as to whether tomake a registration order. This does not appear to have been drawn to the attentionof the Judge. Rather, he stated in his sentencing notes that a consequenceof the conviction was registration on the Register. Registration is not, however, anautomatic consequence of conviction. Registration is only mandatory if a sentence ofimprisonment is imposed, in which event an offender is subject to reportingobligations for the remainder of the offender's life or for a period of either 15 or eightyears, depending on the class of the offence as defined by sch 2 of the Child ProtectionAct.19 If a non-custodial sentence is imposed, however, and a discretionaryregistration order is made by the Court, the duration of the reporting obligations isonly eight years.20[33] This Court has previously accepted, in Bell v R, that the Child Protection Acthas a punitive aspect, even if its primary purpose is the protection of further potentialvictims from harm.21 Indeed, as Ellis J observed in Bird v Police, the Child Protection19 Child Protection Act, s 35(1)(a)–(c).20 Section 35(1)(d).21 Bell v R [2017] NZCA 90 at [26]. See also Bird v Police [2017] NZHC 1296 at [37].Act authorises the ongoing intrusion into all aspects of an offender's private life forthe duration of the registration period.22 The report of the Attorney-General under s 7of the New Zealand Bill of Rights Act 1990 (NZBORA) on the Child Protection(Child Sex Offender Register) Bill concluded that the legislation would offend boththe right not to be subjected to disproportionately severe treatment or punishmentunder s 9 of the NZBORA and the right to be free from double jeopardy, protected bys 26(2) of the NZBORA.23[34] In Bird v Police, Ellis J allowed a sentence appeal on the basis that theprovisions of the Child Protection Act, and the consequences of registration under thatAct, were potentially relevant to the issue of whether to commute a sentence ofimprisonment to one of home detention. Her Honour noted that s 8(h) ofthe Sentencing Act 2002 requires a sentencing court to:24 take into account any particular circumstances of the offender that mean asentence or other means of dealing with the offender that would otherwise beappropriate would, in the particular instance, be disproportionately severe[.][35] While Judge Ingram was in error in saying that registration on the Register wasa consequence of Mr Taitapanui's conviction on the indecent assault charge, the issueon which we are required to be satisfied is whether there was an error in the sentenceimposed on that conviction and if a different sentence should be imposed.[36] Following on from the passages quoted above the Judge expanded on thereasons for concluding that a sentence of imprisonment was required:[10] I have taken into account the factors set out in s 7 Sentencing Act 2002and, in my view, such a sentence does serve to hold you accountable forwhat you have done. I accept that you have got a sense of responsibilityfor it because we had a talk about it and I was left with the clear impressionthat you understood the damage that your actions had done. I need toconsider the interests of the victim and I have read her victim impactstatement and it contains no surprises other than her maturity andthoughtfulness. I need to denounce your conduct and deter you andeverybody else from behaving like this and, of course, the community isentitled to be protected from people who behave in this way. It is a22 Bird v Police, above n 21, at [37].23 Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act1990 on the Child Protection (Child Sex Offender Register) Bill (6 May 2015) at [2], as cited inBird v Police, above n 21, at [37]. See also footnote 18 in Bell v R, above n 21.24 Bird v Police, above n 21, at [39].comparatively serious type of offence, but of its kind it falls to the lowerend of the scale and I have to impose an appropriate sentence having regardto all the relevant factors.[11] The harm resulting and the vulnerability of the victim are majorfeatures of the indecent assault offending. The cannabis offending is, inmy view, low level. You have a substantial prior record, but apart fromthe series of matters which have occurred whilst you were on parole youhave otherwise managed to stay out of trouble on parole and I accept thatis not an easy thing for a man with your background to do.[12] You are entitled to proper credit for your guilty plea.[13] Taking all those matters into account it seems to me that two yearswould be the high point of the sentence if you are released at the end ofOctober, as has been indicated to me, then in my judgement that would bea sufficient sentence for the offending that has occurred on this occasion.[14] Accordingly, I am satisfied on the authorities and the statutoryfactors that a sentence of imprisonment is required. No less restrictivesentence is appropriate and as explained a high point of two years wouldbe reached. There is credit for plea. It seems to me you should be releasedas soon as your recall runs out at the end of October. The only practicalsentence opened to me in the circumstances is a sentence of three months'imprisonment. On each of these charges, you will be convicted andsentenced to three months' imprisonment.[37] While the Judge was correct to describe the offence of indecent assault ascomparatively serious, we consider that the Judge understated the gravity of theparticular offending in referring to it as falling to the lower end of the scale.Mr Taitapanui entered a house at night and assaulted the complainant where she hadbeen sleeping. As the Judge noted there was skin on skin contact and on the secondapproach Mr Taitapanui forced his hand into the complainant's pyjama pants andstroked her bottom. The Judge described the victim impact statement as containingno surprises other than the maturity and thoughtfulness of the complainant. The factis that the offending had a demonstrable effect on the complainant which culminatedin her leaving school and engaging in some self-harm.[38] Earlier in his sentencing notes the Judge had commented that hadMr Taitapanui come before the Court with no prior convictions then it was unlikelythat he would have been imprisoned.25 We infer that the Judge would havecontemplated a sentence of home detention in those circumstances. However because25 R v Taitapanui, above n 1, at [5]; set out at [29] above.of Mr Taitapanui's previous convictions and his having been recalled to prison on aformer sentence, the Judge concluded that the only practical sentence open in thecircumstances was imprisonment. That was plainly correct. A sentence of homedetention could not have been imposed but deferred because s 80W(3)(d) of theSentencing Act 2002 provides that no court may defer the start date of a sentence ofhome detention if the offender is detained under any other sentence or order.[39] Judge Ingram intended that the penalty imposed would be limited to "timeserved" on recall. This was essentially a pragmatic sentencing response whichreflected the Judge's view (which is not challenged on appeal by either party) that theadditional year or so of imprisonment that Mr Taitapanui was required to servefollowing his recall to prison adequately reflected his overall culpability. The onlypossible option which might have avoided mandatory registration would have been todefer sentencing until after October 2017 when consideration could have been givento a non-custodial sentence. Mr Taitapanui would then have been able to have input,through counsel, as to the appropriateness of a registration order, with reference to thevarious factors set out in s 9 of the Child Protection Act. However that was not acourse which was suggested to the Judge and, Mr Taitapanui having now served hissentence, it is not an option available to us on appeal.[40] Accordingly as we are not satisfied as to the matters in s 250(2) of the CriminalProcedure Act, we must dismiss the appeal against sentence.Result[41] Leave is granted to file the appeal out of time.[42] The appeal against conviction is dismissed.[43] The appeal against sentence is dismissed.Solicitors:Adams Hesketh, Tauranga for Appellant