V (CA3/2021) v R [2023] NZCA 248

V (CA3/2021) v R [2023] NZCA 248 [19 June 2023]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMEOF APPLICANT REMAINS IN FORCE.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT/ PERSON UNDERTHE AGE OF 18 YEARS WHO APPEARED AS A WITNESS OR NAMEDWITNESS UNDER 18 YEARS OF AGE PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA3/2021[2023] NZCA 248BETWEEN V (CA3/2021)ApplicantAND THE KINGRespondentHearing: 20 March 2023Court: Clifford, Dunningham and Cull JJCounsel: N P Chisnall KC for AppellantR K Thomson for RespondentJudgment: 19 June 2023 at 11.00 amJUDGMENT OF THE COURTLeave to appeal out of time is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The applicant V was sentenced by Lang J in the High Court at Auckland on19 May 2015 to a term of imprisonment of 14 years and six months, with a minimumperiod of imprisonment (MPI) of seven years and three months, for sexual offendingagainst A, his daughter.1[2] V now applies for leave to appeal that sentence out of time.[3] The summary of facts to which V pleaded guilty comprised a detailedcatalogue of serious sexual offending by V against A whilst she was between the agesof eight and 12 years. During that period, he subjected her to prolonged sexual abusetaking numerous different forms. He also had her watch pornographic images andmovies on his computer, on some occasions while offending against her. The chargesof making objectionable publications include images which record this offendingagainst his daughter.[4] If granted leave, V will argue fresh evidence supports the proposition that atsentencing, Lang J, in the absence of expert advice, failed to recognise the causativesignificance of aspects of V's upbringing and overestimated the risk of hisre-offending. Thus, while there is no challenge to the 17 year starting point and MPIthe Judge identified, V submits that he did not receive discounts for personal factorshe should have. Those errors resulted in V's sentence being manifestly excessive.A revised sentence should now be determined.LeaveThe general approach[5] The last day on which V could have filed an appeal against his sentence withintime was 17 June 2015. V filed this application on 5 January 2021, some five and ahalf years late. He therefore requires leave to bring this appeal. The principles by1 R v V [2015] NZHC 1065.which an application for an extension of time to appeal is assessed are well settled.The touchstone is the interests of justice. As this Court explained in R v Knight:2 The applicant must demonstrate some special feature or features particularto the case that lead to the conclusion that in all the circumstances justicerequires that leave be given. Amongst the considerations which will also berelevant in that overall assessment are the strength of the proposed appeal andthe practical utility of the remedy sought, the length of the delay and thereasons for delay, the extent of the impact on others similarly affected and onthe administration of justice, that is floodgates considerations, and the absenceof prejudice to the Crown.[6] As more recent authorities have explained, the issue inevitably reduces toconsideration of the reasons for the delay and the merits of the proposed appeal.3[7] Where the appeal would be based on new evidence, the analogous issues raisedare those of the freshness of that evidence on the one hand and its cogency on theother.[8] V says that his delay in appealing can be explained, and the evidence he wouldadduce is properly to be considered as fresh, by reference to the various circumstancesin which he came to plead guilty and was sentenced, without being represented bycounsel. That combination of circumstances played a causative role in expertevidence, as to the matters V would now raise, not being before Lang J at the time ofsentencing. Similarly, V says that in the absence of being represented by his ownlawyer at the time he was unaware of his right to appeal, explaining the delays thathave occurred.The context here[9] Section 30 of the Sentencing Act 2002 precludes a Court from imposing asentence of imprisonment on an offender who has "not been legally represented at thestage of the proceedings at which the offender was at risk of conviction". Thatprohibition is subject to an exception based on the offender having been informed ofand understanding his legal rights, having had the opportunity to exercise those rights,2 R v Knight [1998] 1 NZLR 583 (CA) at 589.3 See R v Slavich [2008] NZCA 116 at [12]–[14]; R v Latifi [2007] NZCA 372 at [4]; and R v Lee[2006] 3 NZLR 42 (CA) at [106]–[108].but, in effect, not having done so or not continuing to do so. In argument before us,Mr Chisnall KC explained that V did not wish to exercise the right to challenge hisconvictions he may have in these circumstances. Rather, he saw those circumstancesas going to the merit of his application and appeal. In effect, to the extent he may havegrounds to invoke s 30, he likewise has grounds for leave to appeal out of time.[10] We summarise these circumstances accordingly, based on the record found inthe Judge's callover minutes as supplemented by the affidavits filed by V, and bycounsel involved when — we infer — the decision not to invoke s 30 may not yet havebeen made.[11] V was arrested and charged on 9 May 2014. His prosecution was retainedwithin the High Court. His trial was set down to commence on 13 April 2015. In earlyMarch Lang J recorded it appeared the matter might be resolved. V was ordered to beproduced at a criminal callover on 11 March 2015 accordingly. That day his thencounsel, Mr Cooke, applied for and was granted leave to withdraw. In an affidavitsworn in June 2022 Mr Cooke records by then he had had multiple discussions withV regarding the case against him. Mr Cooke regarded the photographic evidenceagainst V as unanswerable. Mr Cooke explains:My consistent advice was that he had no defence and pleading guilty was theconsequence. Through an intermediary his family had informed him theywere devastated by the offending and did not want the public shame that wouldcome with a High Court trial. However [V's] explanation to me was hehonestly believed that what he had done was not unlawful, and that if he tookit to trial his daughter would give evidence and say that what he did was okayand that she loved him.[12] After much discussion, and an amended indictment, Mr Cooke understood Vhad agreed to accept that negotiated outcome and plead guilty. It was for that reasonMr Cooke arranged to have the case called on 11 March 2015. He said he was"astonished" when V declined that day to enter guilty pleas. Mr Cooke records he wasthen faced with a difficulty as the trial date was fast approaching. He feltprofessionally he could not continue to act for V due to his view of the Crown caseand the advice he had given. Moreover, he could not conduct the trial as he wasintending to be overseas at that time. It was on that basis he sought leave to withdraw,which was granted on 13 March 2015.[13] Lang J arranged for two experienced criminal barristers to meet with V todiscuss the possibility of their acting for him. Mr Simmonds was in a position toaccept the appointment, the other person was not. In a callover minute dated 25 March2015 Lang J recorded that fact, and that V had agreed to instruct Mr Simmonds.Mr Simmonds met with V subsequently on several occasions. On V's instruction,Mr Simmonds attempted to negotiate a better resolution than had previously beenoffered. No agreement was forthcoming from the Crown. Mr Simmonds in his28 April 2022 affidavit records the difficulties he then had obtaining instructions fromV. He describes V summarising the position by saying "I am not pleading guilty toany charge and I have no other instructions for you".[14] The matter was called before Lang J on 2 April 2015. Lang J's minute of thatmorning's hearing, as relevant, records:[1] I arranged for this proceeding to be called today becauseMr Simmonds has found it difficult to obtain instructions from [V]. Duringthe hearing today I asked [V] whether he is prepared to provide Mr Simmondswith instructions or whether he would prefer Mr Simmonds to act as counselappointed to assist the court. I then explained the difference between the tworoles. At that point [V] advised me that he would prefer Mr Simmonds to actas counsel assisting the Court rather than his own counsel.[2] I record that I advised [V] that if he was to plead guilty next week hewould receive a 15% discount to reflect that fact and if he pleaded guilty onMonday 13 April 2015 he would receive a 10% discount. As soon as theCrown opens its case, however, the opportunity for any discount for guiltypleas will be gone.[15] By 13 April 2015, Mr Simmonds still had no firm indication from V as towhether or not he wished to enter guilty pleas. The Judge records: I indicated that if he did not advise me of the fact that he wished to enter aguilty plea, it would be necessary for me to begin the process of empanellingthe jury. This would mean that he would be asked to plead to the charges atthe prescribed point in that process. I explained to [V] that if he wished toenter guilty pleas, then I was prepared to accept his pleas in the Courtroombefore the jury panel was brought in. [V] indicated that he wished to enterguilty pleas, and arrangements were made for the Crown to provide anamended charge list and Crown Charge Notice reflecting earlier discussionswith [V], his former counsel and Mr Simmonds.[16] The Judge also noted that he was advised V had endeavoured to discuss matterswith Mr Simmonds in the days leading up to the trial commencement date.Communication difficulties had prevented that happening. On that basis the Judgerevised his sentence indication to be that V's guilty pleas discount would be in therange of 10–15 per cent.[17] Matters proceeded accordingly.[18] V also swore an affirmation on 15 March 2022. On his account he neverindicated to Mr Cooke he would accept a plea deal. He confirmed his March decisionnot to plead guilty at callover. All he could recall was the Judge giving Mr Cookeleave to withdraw. He had no idea that Mr Cooke would be overseas, on holiday, atthe time of his trial. Subsequently he did not engage Mr Simmonds. He had limitedcontact with Mr Simmonds before his decision, on the day his trial was due to start, toenter a plea. His recollection was that Lang J had made it clear to him that his trialdate was not going to be moved. He did not ask for an adjournment; he did not knowhe was entitled to do so, particularly in order to get his own lawyer and bring them upto speed. So he decided to represent himself.[19] V explains his reluctance to plead guilty. In his own words:The reason I waited such a long time to plead guilty is that there were issueswith the charges. In my mind, there were different forms of rape – was itstatutory rape or was it coerced rape. While her statements say that I forcedthese acts, my view was that she had initiated the contact and to me thatchanged markedly how I should be sentenced and treated. I had toldMr Cooke that I wanted to argue this finer point of her statement. He did notwant to do this.[20] V also explains that consideration was significant for a proper assessment ofhis psychological profile. He knew back then, as he knows now, that he did not havea predilection towards children generally. That was what he had meant by describinghis offending in his letter of remorse to the Court as being "one off".[21] In his written submissions Mr Chisnall characterised Mr Cooke's action asresulting in V "through no fault of his own, [being] abandoned virtually on the cuspof trial by his lawyer, who chose to instead go on holiday". As we observed at thehearing of this appeal, we do not consider that to be a fair assessment of the relevantaspects of the circumstances at the time. We need say no more about that now.[22] That said, and on the face of things, those circumstances would not appear toprovide a strong basis for a challenge by V to his convictions under s 30 of theSentencing Act. We are, moreover, more than a little sceptical that V, albeit withoutformal legal representation at the time of his sentencing and immediately thereafter,would have remained unaware of his right of appeal for any material length of time.But we can accept that V's lack of representation may have impacted on hisopportunity to obtain expert advice of potential relevance at sentencing. Accordingly,and as is so often the case, it is the cogency of the evidence V would adduce that mostinforms our assessment of where the interests of justice lie here.The proposed new evidence[23] At the time of his sentencing V provided a number of memoranda to the Court.In those documents he attributed causal significance for his offending against hisdaughter to his dysfunctional relationship with his mother. He also described thatoffending as being a "one off" thing. He went on to explain that in so saying he meanthe had offended against only one person. In his sentencing notes Lang J commented:4[18] You have written me a long letter in which you endeavour to explainyour actions and express your remorse for what has occurred. I accept that atone level you are remorseful, and indeed you have demonstrated that today.But true remorse is accompanied by insight. Insight means the ability tounderstand one's actions and the effect that it has on victims. Reading yourletter I do not consider that you have true insight. Your description to me ofthe way in which these incidents began, and the nature of the relationshipas you saw it, persuade me that you do not yet have true insight into yourbehaviour. Your insistence that this was "one off" offending also flies inthe face of the plain fact that the offending took many forms and occurredover a period of nearly five years. This cannot be described as "one off"offending by any stretch of the imagination.[19] In essence, Mr V, you ask me to impose a short sentence on you sothat you can be released into the community to continue with your life.You say you have learned your lesson and this will not happen again. Ivery much doubt that that is the case. The letter that you have written meindicates that you had a severely dysfunctional relationship with yourmother. That may ultimately be found to be at the root cause of youroffending. Whatever the cause, I have no doubt that it is going to take anawful lot of work and treatment before you and others are able tounderstand what drives you to offend in this way, and to ensure thatwhatever steps can be taken are taken to guard against future offending4 R v V, above n 1.before your release. I am therefore only prepared to give you limited creditfor your remorse.[24] If granted leave, V will argue both of those conclusions are wrong. The Judgeunderestimated the causal significance of his relationship with his mother. When thatcausal significance is properly assessed V's "one off" remark can be understood, andhis risk of reoffending understood as low. Hence a lesser sentence should have beenimposed.[25] The evidence V proposes comprises two reports from Dr Karl Jansen, aconsultant psychiatrist with considerable expertise and experience, both here and inthe United Kingdom, and in civil and legal proceedings. Dr Janssen does not explicitlysummarise the instructions he received before interviewing V, which he did bytelephone due to the Level 4 COVID-19 lockdown.[26] Those instructions can, however, be inferred from the overall conclusionsDr Jansen reached in his second report:116. Overall, in my opinion, the current probability of sexual offendingwithin five years of release from a custodial setting is very low.117. From a risk perspective, and a psychiatric perspective, I am not of theview that it is essential that [V] cease blaming his mother, the child and hiswife before he is released from prison, as this does not have prognosticsignificance in his case and may never happen – although he may eventuallymodify his language to meet professional expectations in this regard. What isrequired from a criminal justice perspective is beyond my area of expertise.[27] V would look to Dr Jansen's reports to support his criticisms of his sentence.[28] In his first report Dr Jansen summarises V's account to him of the events thatoccurred and of his personal background.[29] V's narrative self-reported to Dr Jansen placed considerable emphasis on V'srelationship with his mother, and the impact that had had on him. Dr Jansen writes:12. [V] continues to try to understand his behaviour in terms of hismother's inappropriate behaviour towards himself, when he was a child andlater as an adult. [V] explained that the marriage between his own parents hadalways been troubled, and they had finally divorced when he was in his lateteens. His mother had turned to him to fulfil what he now perceives as herdesire for a surrogate husband. She could change in front of him, bathe withhim and they would sometimes sleep in the same bed. This did not entirelycease until he was 33 years old, when he had moved out of the family home.If he wished to go to the toilet she would tell him to urinate in the bath. Hisfather, an engineer, would be away for lengthy periods in places such as Fiji.13. [V] said that his mother had not engaged in any more overt sexualbehaviour with him. She had not touched his genitals or encouraged him totouch hers.14. [V] said that his mother had brought unspoken pressures to bear toprevent him from marrying a number of suitable women, with whom, in hisestimation, things would probably have gone better than they did with theperson he had ultimately married.[30] As to V's perspective on his offending, the Doctor observes:19. [V] said that there had never been any coercion whatsoever involvedin his sexual activity with [A]. She had asked him to engage in a sexualactivity with her when she was nine and a half years old. They were sharinga blanket. There were others present. [V] said that his daughter had 'reachedout' to him. She had "whispered" to him to do something sexual to her. Shehad, he said, sought him out for sexual activity. He said that because theboundary between his mother and himself had been broken down, he had said'yes' to this when he should have said 'no.' [V] perceived the failure of hisown marriage and his wife's behaviour as having further enabled him.[31] The Doctor explains further:22. I pointed out to him, as the Judge has previously, that five years is notconsistent with "a unique one-off thing". He explained that the offending is"one off" in his view because it arose from a special, unique set and settingwhich will never recur, he is not a paedophile, he has never offended with anyother person, and he has "all of the normal boundaries". He had involvedhimself in several [marital] affairs which were all age appropriate.23. [V] said that it was when he had left home, at the age of 33 years old,that he had realised that his relationship with his mother was not healthy. Healso realised this as a result of his sister having strongly expressed this opinion.The departure from home was traumatic for him and his mother.[32] Later in his first report, having covered other aspects of V's personality andupbringing without identifying any unusual matters, Dr Jansen returns to the questionsof causality, of understanding and of future risk.(a) Of V's offending he writes:76. Sexual offences against children are broadly of two types interms of causation. They are broadly due to either paedophilia – aspecific sexual attraction to children – or they are opportunistic innature. The latter type of offences are carried out by persons who takean opportunity for gratification, and may not be specifically sexuallyattracted to children.77. It has long been recognised that the physical and or emotionalabsence of one parent increases the risk of an inappropriaterelationship developing between the other parent and a child, whichmay result in opportunistic sexual activity.78. [V] clearly falls into the latter category. He was anopportunistic offender. (b) Of V's understanding of his behaviours:79. [V] has adultified the child concerned in his mind, and thatcontinues today. He continues to display limited apparentunderstanding of the mind of this child. He also displays limitedunderstanding of how others are likely to view his statements on hisrelationship with the child, and his placing of so much responsibilityfor what occurred on the child, his mother and wife. He sometimesappears not to recognise how ill advised some of his statements on thematter have been.(c) Of the risk of further offending:81. I am concerned that there appears to be subtext in thepre-sentence report that [V] should be in prison for a long timebecause he lacks insight.82. Many persons never acquire much insight into certain actionswhich they have taken. That lack of insight, however, does notprevent them from making changes. 84. The way [V] thinks about his offending, the degree ofresponsibility that he places on his daughter, his wife and his motherfor his own actions, is understandably concerning. However, it isentirely possible that he may never see things very differently, nomatter how many courses he goes to and no matter how many yearshe spends in prison.85. A key issue then becomes how important this type of insightis to the prognosis. In my opinion, it is not crucial in this particularcase. The evidence does support what [V] actually meant by a "oneoff", i.e. that he had an involvement with his daughter [A] specifically,and that this does not generalise into any likelihood of offendingagain. [33] Dr Jansen then goes on to assess the risk of further offending by V on the basisof the Stable-2007, Acute-2007 and Static-99 methodologies. His overall conclusionwas that each of these methodologies indicated the risk of future offending by V waslow.[34] Dr Jansen interviewed V again early this year. In his second report he recordsV's description of therapeutic progress. By our assessment complex issues remain,particularly in terms of V's continuing belief that his relationship with his daughterwas voluntary, mutual and of no particular wider significance.[35] The Doctor concludes in his second report:118. [V] is likely to continue projecting to others a sense that he isintellectually superior, and to continue to hold the beliefs that he has expressedabout this matter. While some of those beliefs may be abhorrent to others, inmy opinion they do not have profound prognostic significance for futuresexual offending in his particular case.119. I am of the view that the impaired boundaries in V's own childhood,the adultification he himself experienced as a child, and the related childhoodabuse that he suffered, did contribute to the offending.120. It remains my opinion that the current probability of sexualoffending within five years of release from a custodial setting is very low.Analysis[36] V committed serious sexual offences against his daughter. At the time of hissentencing Lang J was aware of the possible causal significance of V's relationshipwith his mother. Nothing in the Doctor's two reports suggests Lang J misunderstoodmatters.[37] Dr Jansen acknowledged as troubling V's continuing characterisation of thenature of his abusive relationship with his daughter as voluntary and indeed almostbenign. Whilst Dr Jansen does not consider that particularly material in terms of riskof further offending, that is one opinion. In a separate report in reply Dr Barry-Walshcomments, amongst other things, on the significance in terms of the risk of futureoffending of the lack of insight as demonstrated by V and of Dr Jansen's apparentfailure to recognise that significance. We can only agree.[38] We are satisfied the proposed new evidence does not cogently challenge thecorrectness of the sentence imposed by Lang J.[39] Furthermore, the issue of the risk of further offending is now for theParole Board. V's MPI expired on 19 August 2022. The issues raised by his originaloffending, his ongoing presentation and therapy, and his risk of further offending areall to be assessed now that period has expired.[40] That is a further reason not to grant leave.[41] Overall, we are satisfied it would not be in the interests of justice to grant theextension of time applied for.Result[42] Leave to appeal out of time is declined.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent