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A (SC 106/2015) v R

A (SC 106/2015) v R

Case [2016] NZSC 31 23 March 2016

Appeal

Recusal

Custody and Sentencing

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

EXTANT ORDER PROHIBITING PUBLICATION OF THE NAME OF THE APPLICANT TO AVOID IDENTIFICATION OF THE COMPLAINANTS

IN THE SUPREME COURT OF NEW ZEALAND

SC 106/2015
[2016] NZSC 31

BETWEEN	A (SC 106/2015) Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ
Counsel:	R M Lithgow QC for Applicant M J Lillico for Respondent
Judgment:	23 March 2016

JUDGMENT OF THE COURT

The application for recall is dismissed.

____________________________________________________________________

REASONS

(Given by Glazebrook J)

On 17 December 2015 this Court (William Young, Glazebrook and O’Regan JJ) dismissed Mr A’s application for leave to appeal to this Court against his conviction and sentence on a series of sexual offences against members of his family.[1]
[1]A (SC 106/2015) v R [2015] NZSC 191.
Mr A applies for a recall of the judgment on the basis that two of the
three-member panel who dismissed the leave decision also sat on the Court of Appeal’s decision in R v AM.[2] Mr A says that his application challenged the sentencing guidelines in that judgment insofar as they relate to the treatment of
[2]R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 (William Young P, Chambers, O’Regan, Robertson and Ellen France JJ) [R v AM].
intra-familial sexual abuse. Mr A also says that he wishes this Court to consider issues relating to the underlying process behind R v AM, including reliance on the work for the proposed Sentencing Council.
Before dealing with the issue of whether the judges should have recused themselves, we will set out the nature and extent of Mr A’s offending and summarise the main features of R v AM. Then we deal with some process issues.

The offending

Mr A’s most serious offending was against his daughter, including a representative count of indecent assault, a representative rape count and various other counts of sexual violation. This offending started when she was five years old, with the first rape occurring when she was eight years old. There were convictions on further charges when she was 19, including one count of rape.
Mr A was also convicted on a count of penetrative anal sex against his younger brother, who was 14 at the time of the offending. The third victim was his 17 year old niece. In that case, there were convictions on two separate counts of indecent assault and one of attempted sexual connection.
Mr A was sentenced to 18 years imprisonment. The sentencing judge identified,[3] among the aggravating features of the offending, violence and threat of violence, vulnerability of the victims and breach of trust, particularly in relation to his daughter “who was entitled to look to [Mr A] for love and support and safety rather than being a victim of [Mr A’s] sexual violence”.[4] He also outlined the profound effect the offending had on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A (SC 106/2015) v R

Details

AGLC: A (SC 106/2015) v R [2016] NZSC 31
Case: [2016] NZSC 31
Decision Date: 23 March 2016

CaseChat Overview and Summary

In the Supreme Court of New Zealand, A applied for leave to appeal against his conviction and sentence on a series of sexual offences against members of his family. The appeal was dismissed by a three-member panel. A then applied for a recall of the judgment, arguing that two of the judges who sat on the appeal had also sat on an earlier case, R v AM, which set out sentencing guidelines for sexual violation. A argued that this meant the two judges should have recused themselves from his appeal. The Supreme Court considered whether the test for apparent bias was met and whether the guidelines in R v AM were correctly applied.

The Court found that the test for apparent bias was not met. The Court held that a judge should only recuse themselves if there is a reasonable apprehension of prejudgment, which would mean the judge would be unable to decide the case impartially. The Court held that there was no reasonable apprehension of prejudgment in this case because the judges were simply applying the doctrine of precedent and considering similar issues in a different case involving different parties. The Court noted that judges are expected to be influenced by earlier decisions, including their own, and that this does not necessarily indicate prejudgment.

The Court also considered whether the sentencing guidelines in R v AM were correctly applied. The Court held that A's sentence of 18 years was within the range that could be imposed under the guidelines. The Court noted that the guidelines allow for flexibility in considering the personal circumstances of the offender. The Court found that there was no basis to reconsider the approach in R v AM.

The Court dismissed A's application for recall and denied leave to appeal. The Court held that there was no reasonable apprehension of bias and that the sentencing guidelines were correctly applied.

Orders