James Dillon Stevens v The King

[2022] NZSC 120

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

 NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

 SC 73/2022
 [2022] NZSC 120

BETWEEN	JAMES DILLON STEVENS Applicant
AND	THE KING Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	N M Dutch for Applicant J E L Carruthers for Respondent
Judgment:	18 October 2022

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

1. The applicant applies for leave to appeal against a decision of the Court of Appeal dismissing his appeal against conviction and sentence.[1]

   [1]Stevens v R [2022] NZCA 275 (Kós P, Peters and Palmer JJ) [CA judgment].

2. The applicant was convicted after a High Court jury trial of sexual violation by unlawful sexual connection and attempted unlawful sexual connection with a boy under the age of 12 years.  The applicant was 27 years old at the time of the offending; the complainant was 11.

3. He was initially charged with two counts of sexual violation, both of them allegations that he forced the complainant to perform oral sex on him.  However, during the trial the complainant accepted that oral sex had not taken place in the second incident — the applicant and complainant had been interrupted by a neighbour.  The trial Judge agreed to amend the charge to a charge of attempted sexual connection with a child under 12.[2]

   [2]R v Stevens HC Tauranga CRI-2020-019-7418, 1 December 2020 (Ruling No 1).

4. The defence case was that the incident founding the first charge did not occur: the complainant had made it up.  The defence case in relation to the second charge was that the complainant had asked to perform oral sex on the applicant, the applicant had refused, so the complainant had forced himself upon him.  The applicant gave evidence to that effect at the trial.

5. The applicant wishes to raise three grounds of appeal if leave to appeal is granted: two relating to conviction and one relating to sentence.  He argues in each case that the criteria for the giving of leave to appeal are met because a matter of public importance arises and/or a miscarriage of justice will arise if leave is not given.[3]

   [3]Senior Courts Act 2016, s 74(2)(a) and (b).

6. The first proposed ground of appeal is that the evidence on the first charge was insufficient to sustain the verdict.  This was also argued in the Court of Appeal and emphatically rejected.[4]  This proposed ground is entirely factual and does not raise any matter of public importance.[5]  Nor do we see any risk of a miscarriage of justice in the way this matter was addressed by the Court of Appeal.

   [4]CA judgment, above n 1, at [24].

   [5]The law in relation to the unreasonable verdict ground of appeal is well settled: see Owen v R [2007] NZSC 102, [2008] 2 NZLR 37.

7. The second ground of appeal is that the Judge erred in law in granting the Crown’s application to amend the second charge.

8. Section 136(1) of the Criminal Procedure Act 2011 provides that a charge may be amended if there appears to be a variance between the proof and the charge and the amendment will make the charge fit with the proof.  Section 136(2) makes it clear that no such amendment should be allowed if the defendant would be prejudiced in their defence by the amendment.  In this case the application for amendment was made because the complainant accepted in cross‑examination that, in the second incident, his mouth had not actually touched the penis of the applicant.  The applicant wishes to argue that, contrary to the High Court Judge’s finding (which was upheld by the Court of Appeal), there was, in fact, prejudice to the applicant.  Again, this is a fact‑specific argument relating to a section which is clear on its face and largely mimics its predecessor, s 335 of the Crimes Act 1961.  Again, we do not consider that the criteria for the grant of leave are met in relation to this point.

9. The third ground relates to the sentence imposed on the applicant of preventive detention with a minimum period of imprisonment of seven years.  The applicant wishes to argue on appeal that the imposition of a sentence of preventive detention was manifestly excessive, given the possible alternative of a finite sentence followed by an extended supervision order.  The Court of Appeal considered this possibility but rejected it.[6]  We do not see this ground of appeal as raising any point of general or public importance, given that there is no doubt that the possibility of an extended supervision order is a relevant consideration when considering whether a sentence of preventive detention should be imposed.  Moreover, we do not consider there is any appearance of a miscarriage of justice in the way in which the Court of Appeal addressed this issue.

   [6]CA judgment, above n 1, at [29]–[30].

10. The application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent