JOHNSON v R [2016] NZCA 144

JOHNSON v R [2016] NZCA 144 [20 April 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 ZEALANDCA601/2015[2016] NZCA 144BETWEEN TONY JOHNSONAppellantAND THE QUEENRespondentHearing: 3 February 2016Court: Harrison, Miller and Cooper JJCounsel: J A Westgate for AppellantM J Lillico for RespondentJudgment: 20 April 2016 at 3 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The appellant, Tony Johnson, pleaded guilty to a charge of indecent assault under s 135 of the Crimes Act 1961. Judge Turner sentenced him in the DunedinDistrict Court to two years and five months' imprisonment.1 He now appeals against that sentence.[2] Before dealing with the merits of the sentence appeal it is necessary to refer to a jurisdictional issue raised by Mr Westgate, counsel for Mr Johnson, as to whether the appeal is appropriately dealt with in the High Court rather than this Court. An appeal was in fact initially filed in the High Court, but that Court declined jurisdiction. While an appeal was subsequently filed in this Court, Mr Westgate maintains that the High Court is in fact the appropriate court to determine the appeal.[3] By the time the High Court declined jurisdiction, the appeal to this Court was out of time. There is no opposition to extending the time for appealing if this Court is indeed the appropriate appellate forum.Jurisdiction[4] Whether this Court has jurisdiction to hear Mr Johnson's appeal againstsentence on the amended charge turns on provisions of the Criminal Procedure Act 2011 (the Act). The question is whether this Court is the first appeal court in terms of s 247 of the Act, which provides:247 First appeal courtsThe first appeal court for an appeal under this subpart is—(a) a District Court presided over by a District Court Judge, if the appeal is against a sentence imposed by a District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or(b) the High Court, if the appeal is against a sentence imposed by a District Court presided over by a District Court Judge and if—(i) the sentence was for a category 1 or 2 offence; or(ii) the sentence was for a category 3 offence and the convicted person did not elect a jury trial; or(c) the High Court, if the appeal is against a sentence imposed by a District Court presided over by a District Court Judge for a category 3 offence and if—1 R v Johnson [2015] NZDC 14929.(i) the convicted person elected a jury trial; and(ii) the convicted person pleaded guilty to the offence before the trial; and(iii) the sentence appealed against is not a sentence of imprisonment exceeding 5 years; or(d) either the Court of Appeal or the Supreme Court, in any other case.[5] Mr Johnson was initially charged with sexual violation by way of digital andoral penetration of the victim's vagina2 and elected trial by jury. On the first day of the trial the jury was selected and retired to select a foreperson. The jurors were sworn, the charge of sexual violation was put and Mr Johnson pleaded not guilty. He was then formally given in charge to the jury. After an adjournment, the Crown applied to amend the charge of sexual violation to one of indecent assault. On that charge being put, Mr Johnson pleaded guilty.[6] The offence to which Mr Johnson pleaded guilty was a category 3 offence.3He elected a jury trial and the sentence imposed did not exceed five years'imprisonment. Consequently, under s 247(c), the High Court was the first appeal court if Mr Johnson pleaded guilty to the offence "before the trial".4 Otherwise, the first appeal court was this Court.5[7] The Act defines "before the trial" as meaning:6(a) in the case of a Judge-alone trial, before the proceedings under section 105 begin; and(b) in the case of a jury trial, before the defendant is given in charge to the jury[8] The procedure for commencing a trial is set out in r 5.9 of the Criminal Procedure Rules 2012. That rule provides, amongst other things, that:(6) The defendant must be given in charge to the jury after the jurors have each received a charge list.2 Crimes Act 1961, ss 128 and 128B.3 Criminal Procedure Act 2011, s 6.4 Section 247(c)(ii).5 Section 247(d).6 Section 5.(7) After the defendant has been given in charge to the jury and an address by the Judge (if any), the trial must proceed in accordance with the requirements of section 107 of the Act.[9] Mr Westgate submitted it is clear from the record that Mr Johnson was given in charge to the jury on the charge of sexual violation and that it was only subsequently (following an adjournment) that the prosecution successfully applied to amend the charge. It is unclear from the record what power was exercised in amending the charge.[10] Mr Westgate noted that under s 136 of the Act, there is power to amend a charge so as to substitute one offence for another offence, but in limited circumstances. Section 136 provides as follows:136 Procedure if charge amended during trial(1) Despite sections 21 and 133, during the trial a charge may be amended to substitute one offence for another offence only if—(a) there appears to be a variance between the proof and the charge; and(b) the amendment will make the charge fit with the proof.(2) A charge must be amended under subsection (1) if in the court'sopinion the defendant will not be or has not been misled or prejudiced in his or her defence by the amendment.(3) Subsection (4) applies if, in the court's opinion, the defendant has been misled or prejudiced in his or her defence by any amendment of a charge made during the trial under section 133.(4) If, in the court's opinion, the effect of the defendant having beenmisled or prejudiced might be removed by adjourning or postponing the trial, the court may make the amendment and—(a) adjourn the trial; or(b) postpone the trial and discharge the jury.Mr Westgate submitted the section does not appear to authorise an amendment in the circumstances of this case where the amendment occurred prior to any evidence being called. He argued the drafting of s 136(1) limits the power to amend to situations where evidence has been called which indicates that a charge different to that on which the trial commenced would be more appropriate.[11] There is a general power of amendment in s 133 of the Act which provides that a charge may be amended by the court at any stage in the proceeding before the delivery of the verdict or decision of the court. However, that power is subject to s 136 in cases where the amendment is to occur "during the trial", and involvessubstituting one offence for another.7[12] Mr Westgate submitted that the charge in the present case was effectively amended before the trial, because Mr Johnson was not put in charge of the jury in relation to the substituted charge but only in relation to the charge originally laid. Consequently, Mr Johnson's conviction was the result of a guilty plea made "before the trial". Mr Westgate argued that the amendment of the charge after Mr Johnson had been given in charge to the jury meant that the charge had effectively been taken away from the jury: the amendment had the effect of nullifying the prior processes. That being the case, the guilty plea had taken place "before the trial" and theHigh Court was the first appeal court under s 247(c) of the Act.[13] For the Crown, Mr Lillico submitted it was clear from the record that Mr Johnson was given in charge to the jury in relation to the charge of sexual violation. It was of no moment that the charge was subsequently amended: Mr Johnson remained in charge of the jury. He pointed out that where a charge is substituted under s 136(1) the Act does not require the repetition of any procedural steps to that point, including the process of putting the defendant in charge of the jury.[14] We think it is clear in the present case that the charge was amended during the trial. In simple terms, there was no doubt that Mr Johnson had been given in charge to the jury, so that the amendment did not occur "before the trial" as that termis defined in s 5 of the Act. Then, we think it is significant that unlike the position that applies under s 134 where the amendment occurs before trial, s 136 does not require the repetition of procedures that have taken place up to the point when the amendment occurs. In the case of an amendment before the trial, the court may order under s 134(4) that all or any of the requirements of ss 54 to 57 apply if the7 Section 136(1).defendant had previously entered a plea to the charge before it was amended.8The whole flavour of s 136, by contrast, is that the trial simply continues.[15] There was some discussion during the hearing of limitations flowing from thewords "only if" in s 136(1), which might be thought to imply that the power to amend is limited to the circumstances set out in paragraphs (a) and (b) of the subsection. Here, it is evident that the charge was amended with Mr Johnson'sconsent and there was no suggestion of any prejudice to him.9 In these circumstances, it is not necessary for us to determine the extent to which s 136(1) infact limits (if at all) the court's inherent powers to control its own procedures toensure that trial processes are fair in accordance with the minimum standards guaranteed by s 25 of the New Zealand Bill of Rights Act 1990. We doubt, however, having regard to the breadth of the power to amend charges conferred by s 133(1) of the Act, that s 136 was intended to limit the power of the court to amend a charge by consent during the course of the trial.[16] In any event, in a case such as the present where there is a guilty plea following the amendment, the plea will be based on an agreed summary of facts on which the amended charge is based. We consider that summary can appropriately betreated as the "proof" of the charge for the purposes of s 136(1). If the facts contained in the summary would not sustain the more serious charge initially laid,that would be a relevant "variance between the proof and the charge" for thepurposes of s 136(1).[17] We note also that in R v Bovey North P observed, in relation to a similar power to amend an indictment in s 335(1) of the Crimes Act 1961 where thereappeared "to be a variance between the proof and the charge in any count", that thesewords should receive a wide interpretation, and the word "proof" should be taken asreferring to the evidence as it stands at the point in time when the application to amend is made.10 We consider a similar approach is appropriate under s 136(1).8 Thus there may be an adjournment for case review under s 54, case management discussions and completion of a case management memorandum under s 55 and a case review hearing under s 57.9 See s 136(2)–(4) which protects the defendant from being misled or prejudiced in his or her defence.10 R v Bovey [1964] NZLR 865 (CA) at 872.Here, the proof was in the agreed summary supporting the amended charge; there was no other proof.[18] For these reasons, we are satisfied this Court has jurisdiction to deal with the appeal as the first appeal court under s 247(d).The sentence appeal[19] Mr Johnson and the victim met in January 2013 and became friends. For a period the victim resided with Mr Johnson as a flatmate. However, in June 2013 she moved out after Mr Johnson began interfering with her relationship with her boyfriend and made suggestive comments which made her feel uneasy. On a Sunday evening in December 2013 the victim went to Mr Johnson's residence. She was inan intoxicated state and angry with Mr Johnson because of comments he had purportedly made about her. Subsequently, she calmed down and began watching a DVD with Mr Johnson and his flatmate. When the latter went to bed, she was left alone with Mr Johnson and fell asleep on a couch in the living room.[20] While she was asleep, Mr Johnson removed her clothing so that she was completely naked. He knelt in front of her and indecently assaulted her by touching and kissing her vagina and breasts. When she awoke in the morning she was naked, with Mr Johnson's jacket and a sleeping bag placed on top of her. She experienceddiscomfort in the area of her genitalia. Mr Johnson drove her home and when she asked him what had happened, he said he did not remember. The victim was examined by a doctor who is a specialist in the field of sexual abuse. The doctor concluded she had sustained significant swelling and bruising on the exterior and interior of her vagina as well as a laceration to the soft tissue at the rear.[21] The Judge adopted a starting point for the offending of three years' imprisonment. In doing so, he was influenced by this Court's decision in Teriini v Rin which an extremely intoxicated female victim had been accosted in a public place by the defendant in the early hours of the morning where he undressed her and sucked on her breast.11 The defendant left the scene leaving the victim naked on the11 Teriini v R [2013] NZCA 614 at [3]–[6].ground in a distressed state. A starting point of three years' imprisonment wasadopted there.12 Judge Turner thought that case had a number of similarities with thepresent, including the victim's vulnerability and the fact that the victim had beenstripped naked prior to the assault.13 He noted that in the present case the victim had been a friend and there was an element of breach of trust.14 Also, while in Teriini the victim suffered no apparent injuries, there were significant injuries in the present case.15 In all the circumstances, he considered that Mr Johnson's offending was atleast as serious as that in Teriini and adopted a starting point of three years'imprisonment.16[22] The Judge allowed three months for personal mitigating features17 and a further 10 per cent reduction for the late guilty plea noting that it had spared the victim from the need to relive the events in front of the jury.18 The result was a sentence of imprisonment for two years and five months.[23] Mr Westgate submitted that the starting point adopted by the Judge was too high, and that the discount allowed was inadequate. He claimed:(a) The offending was to a degree opportunistic, lacking any predatory elements.(b) Mr Johnson believed at least initially that the victim may have been interested in a sexual relationship with him.(c) On the night in question she had been asked a number of times to leave but had refused to do so.(d) Both Mr Johnson and the victim had been drinking to excess and alcohol consumption had played a part in his poor decision making on the night.12 R v Teriini DC Napier CRI-2012-020-2055, 1 March 2013 at [8].13 Johnson, above n 1, at [30].14 At [31].15 At [31].16 At [32].17 At [34]–[36].18 At [37].[24] Mr Westgate also claimed that a discount of up to 30 per cent would have been appropriate on the basis that the guilty plea was made at the earliest opportunityfollowing immediately on the prosecution's offer to reduce the initial charge on the morning of the trial. Further, Mr Johnson had expressed a willingness to attend a restorative justice conference, he had no previous relevant convictions and had previously been of good character. Overall, an end sentence should have beenimposed of no more than one year nine months' imprisonment.[25] We do not agree that the starting point of three years' imprisonment adoptedby the Judge was too high. It is evident that Mr Johnson waited until the victim had passed out on the sofa before removing her clothing and indecently assaulting her and there was clearly an element of premeditation. The painful injuries that she sustained suggest that the offending might have sustained a more serious charge. The Judge was right to regard the circumstances as probably more serious than those of Teriini.19 It involved contact, some of it evidently forceful, to the victim's genital area and she was vulnerable because she had "passed out" in an intoxicated state.[26] We are also satisfied that the discount of 10 per cent was sufficient for the guilty plea. While it was entered on the morning of the trial in response to a lesser charge, the victim would already have suffered the anxiety attendant on expecting to give evidence, the jury had already been empanelled and the Court had already allocated significant resources to dealing with the matter.[27] We are also of the view that the Judge cannot be criticised for failing to give any discount for restorative justice. The Judge recorded he had been left with a clear sense that Mr Johnson was not truly remorseful for his offending and had not accepted his guilt. In this the Judge was influenced by Mr Johnson's observations tothe probation officer recording disagreement with the summary of facts and claiming that the victim was willing.20[28] In the circumstances, we are not satisfied that the Judge erred in imposing thesentence of two years and five months' imprisonment.19 Teriini, above n 11.20 Johnson, above n 1, at [35].Result[29] The application for an extension of time to appeal is granted.[30] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent