Houpapa v The Queen - [2016] NZCA 273

IN THE COURT OF APPEAL OF NEW ZEALAND

CA99/2016
[2016] NZCA 273

BETWEEN	DYLAN MANU HOUPAPA Appellant
AND	THE QUEEN Respondent

Hearing:	1 June 2016
Court:	Randerson, Woodhouse and Wylie JJ
Counsel:	G N E Bradford for Appellant K S Grau for Respondent
Judgment:	20 June 2016 at 12.30 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are both dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

The appellant, Mr Houpapa, was tried on 9 to 11 November 2015 before Judge McGuire and a jury in the Rotorua District Court. He was convicted of one charge of burglary, one charge of indecent assault and two charges of sexual violation by unlawful sexual connection. On 11 February 2016, Judge McGuire sentenced Mr Houpapa to 12 years and six months’ imprisonment, with a minimum term of imprisonment of six years and three months.[1]
[1]R v Houpapa [2016] NZDC 2206.
Mr Houpapa appeals against conviction and sentence. The issues raised on the appeal are as follows:
(a)Did disclosure, in evidence adduced by the Crown through a police officer, of the fact that Mr Houpapa had been in prison previously cause prejudice and result in a miscarriage of justice?
(b)Did an acknowledgement by Mr Houpapa, when he was cross-examined, that he had been sentenced to imprisonment for previous offending undermine a direction which Judge McGuire had already given in relation to the earlier disclosure by the police officer?
(c)Should Mr Houpapa have been given a discount for youth when he was sentenced?

Background

In July 2014 the victim was sleeping in a sleepout at the rear of her parents’ property. She awoke to find Mr Houpapa standing over her. He got on top of her and put his hand over her mouth. He then sexually assaulted her by rubbing her genital area, then licking her genitalia, and finally by forcing her to perform oral sex on him. The sexual assault ended when he ejaculated into her mouth. She spat out the ejaculate. She persuaded Mr Houpapa to leave, and she called the police shortly thereafter.
Mr Houpapa was apprehended by the police a short time later while he was walking back to his home address. The police found items of clothing nearby that Mr Houpapa had discarded. The clothing contained personal papers with Mr Houpapa’s name on them. The clothing was consistent with the description that the victim had given of the clothing that the offender was wearing at the time of the offending.
The victim was unable to identify her attacker when a formal identification procedure was undertaken.
Mr Houpapa initially told the police that he had never been to the victim’s address. However a mixture of semen and saliva taken from the mattress protector on the victim’s bed was analysed by Environmental Science and Research (ESR). The analysis of the semen and the saliva corresponded to Mr Houpapa and the victim’s DNA. As a result of this evidence, Mr Houpapa changed his stance. He accepted…

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 Houpapa v The Queen

Details

AGLC: Houpapa v The Queen [2016] NZCA 273
Case: [2016] NZCA 273
Decision Date: 20 June 2016 at 12.30 pm

CaseChat Overview and Summary

The appeal in the case of Houpapa v The Queen was heard by Randerson, Woodhouse, and Wylie JJ in the Court of Appeal of New Zealand. The appellant, Mr. Houpapa, was convicted of burglary, indecent assault, and sexual violation by unlawful sexual connection, and subsequently sentenced to 12 years and six months in prison. Mr. Houpapa appealed both his conviction and sentence. The legal issues addressed were whether the disclosure of the appellant's previous imprisonment caused prejudice and resulted in a miscarriage of justice, whether an acknowledgment of previous imprisonment undermined a direction given by the trial judge, and whether the appellant should have been given a discount for youth when sentenced.

The Court found that the disclosure of the appellant's previous imprisonment did not cause undue prejudice, as his credibility was already compromised. The trial judge had given an appropriate direction to the jury to disregard the comment. The Court also found that the prosecutor's question about the appellant's imprisonment for earlier offending did not undermine the trial judge's earlier direction. Furthermore, the Court held that Mr. Houpapa was not entitled to a discount for youth when sentenced, as he was not a first-time offender, his offending was not impulsive, and there were justifiable concerns about future public safety.

As a result of this appeal, both the appeal against conviction and the appeal against sentence were dismissed. The Court upheld the trial judge's decisions and affirmed the 12 years and six months' imprisonment sentence with a minimum term of six years and three months.

Orders