Men v The Queen

[2021] NZHC 1860

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-67

[2021] NZHC 1860

BETWEEN

GUANFA MEN

Appellant

AND

THE QUEEN

Respondent

Hearing:

19 July 2021

Appearances:

J N Olsen for the appellant

BCL Charmley for the respondent

Judgment:

22 July 2021

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 22 July 2021 at 3.30pm.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

J N Olsen, Barrister, Auckland J D Munro, Barrister, Auckland Crown Law, Wellington

MEN v R [2021] NZHC 1860 [22 July 2021]

[1]    Guanfa Men appeals his conviction and sentence by Judge E M Aitken in the District Court at Auckland. After a week’s trial from 10 August 2020, by reserved decision(s) of 29 October 2020,1 the Judge found Mr Men guilty of 10 charges of indecent assault of a child under 12.2 In sentencing him on 5 February 2021, the Judge committed Mr Men to three years and two months’ imprisonment on those convictions.3

Background

[2]    From April 2013 to April 2018, the  victim’s parents employed Mr Men  as   a chef in their restaurant. During that time, Mr Men and his wife lived with the victim’s family in their home at Albany. There were occasions, during school holidays between May 2015 and May 2017, when the victim was said to be alone at the home with   Mr Men — after the victim’s mother to take a younger child to daycare at about

10.00 am, and before Mr Men left for work at about 11.00 am.

[3]    The Crown alleged, on one occasion, Mr Men invited the victim into her brother’s room. There, he pushed her onto the bed. He lifted her up and pulled off her pants. Mr Men touched the victim’s genitals, bottom and breasts. He grabbed her hand and put it into his underpants, touching his penis. He ceased on hearing the victim’s grandfather enter the house. In her evidential video interview, the victim referred to Mr Men wearing black underpants at the time of this incident. However, in her evidence to the District Court, she could not recall the colour of his underpants. On other occasions, Mr Men is alleged to have touched the victim’s genitals, breasts and bottom underneath her clothing. On two or three of those occasions, he is said to have grabbed the victim’s hand and made her touch his penis.

[4]    The Crown’s evidence was Mr Men warned the victim not to tell anybody what had happened. The offending is said to have ceased when the victim told Mr Men she would tell her mother what he had done. The victim then was seven years old. Mr Men and his wife moved out of the victim’s family home in April 2018 for unrelated

1      R v Men [2020] NZDC 16542 [Conviction decision]. The Judge also gave a summary oral decision: R v Men [2020] NZDC 22222 [Oral decision].

2      Crimes Act 1961, s 132(3) (maximum penalty: 10 years’ imprisonment). Two were amended from initial charges of rape: s 128(1)(a).

3      R v Men [2021] NZDC 1925 [Sentencing decision].

reasons. In October 2018, when the victim was nine years old, Mr Men’s wife unexpectedly came to visit the victim’s family. The victim became upset. The episode prompted her to tell her mother about what had happened, which led to the charges.

Judgments under appeal

—conviction decision

[5]    Judge Aitken canvassed the Crown’s evidence from each the victim, the victim’s mother, the victim’s father, the officer in charge and the victim’s grandparents. The Judge considered the victim gave “consistent” and “relatively detailed” evidence Mr Men initiated intimate contact of or by her on a number of occasions when they were alone at home.4

[6]    The Judge acknowledged the victim’s evidence was not specific, incident-by- incident, but considered the victim “clearly referred to at least three specific events — in her brother’s bedroom, in the kitchen/dining area and the last occasion when she threatened to tell her mother”.5 It generally disclosed incidents occurring in three areas of the home, after the victim’s mother left to attend to childcare and other duties and before Mr Men left for work:6

While there was some confusion as to the [victim’s] memory of exactly what happened and where, in general terms the [victim’s] evidence was consistent with a nine-year-old girl trying to recall events when she was six and seven years old, having only more recently come to understand their significance.

The Judge’s perspective was reinforced by “telling details” of the victim’s comprehension of their interactions.7 While aspects were “somewhat confused”, the Judge concluded the victim’s evidence “was largely consistent as to the types of indecencies she said the defendant performed on her, and where they happened”.8 It also was “consistent with the credible evidence of her parents that she was, on occasion, left alone with the defendant”.9

4      Conviction decision, above n 1, at [41] and [44].

5 At [45].

6 At [47].

7 At [48].

8 At [49].

9 At [56].

[7]    On the other hand, the defence evidence — essentially seeking to establish Mr Men had no opportunity to be alone with the victim, accounting for the few minutes between his waking and leaving for work without ever seeing the victim — was unrealistic and implausible, discrediting Mr Men’s credibility. The Judge “reject[ed] as untrue the defendant[’]s account in its entirety”.10

[8]    Exclusively then on the victim’s evidence of “a detailed and plausible account of indecent acts by [Mr Men]” each in the brother’s bedroom and while watching television (the “last occasion”):11

… and of other occasions when he committed these same acts without being able to provide more specific details other than the nature of the acts, the area in the house where the[y] occurred, and the time of day

the Judge was “satisfied beyond reasonable doubt that, on each and every charge, the defendant did the indecent act particularised in the Crown Charge Notice (as amended)”.12

[9]    For Mr Men, James Olsen argues the Judge’s conclusory approach failed to establish both the essential elements of each charge, and on a charge-by-charge basis, rendering Mr Men’s convictions a miscarriage of justice. Mr Olsen also contended the Judge failed to establish the “confluence of … facts” necessary to be satisfied beyond reasonable doubt Mr Men had opportunity to offend “during the school holidays in 2015 around the hours of 9–11 am” — again, a miscarriage of justice.

—sentencing decision

[10]   Later sentencing Mr Men on those 10 convictions of an indecent act on a child under 12, the Judge considered sentencing’s purposes of accountability, responsibility, denunciation, deterrence and community protection, while also imposing the least

10 At [83]–[95].

11 At [99].

12 At [100]. In her Honour’s Oral decision, above n 1 at [3], the Judge described herself satisfied “on each and every charge [Mr Men] did commit these offences”. By reference to “acts” in the sentencing decision, I apprehend the Judge was referring to the ‘indecent acts’ charged, rather than to omit reference to intention.

restrictive outcome available.13 Considering relevant authorities,14 in the context of Mr Men’s offending, the Judge fixed a starting point of four years’ imprisonment,15 and allowed credits of 10 per cent each for his lack of prior convictions and the hardship he would face in custody.16 That brought the Judge to an end sentence of three years and two months’ imprisonment in respect of each of the charges on which Mr Men had been convicted.17

[11]   For the sentencing appeal only, Mr Olsen argued Mr Men’s conduct was significantly less serious than comparator cases, justifying a reduced starting point of three years’ imprisonment, reducing to at least two years and three months’ imprisonment after a larger discount of 15–20 per cent for “good character”.

Approach on appeal

—appeal against conviction

[12]   Mr Men has a first appeal right against his conviction to this Court.18 I must allow an appeal against conviction if satisfied the Judge “erred in … her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or if I am satisfied “a miscarriage of justice has occurred for any reason”. Otherwise, I must dismiss the appeal.19

[13]   By ‘miscarriage of justice’ is meant something has occurred in relation to trial to create a real risk against a more favourable outcome for Mr Men, or has resulted in an unfair trial or a nullity.20 The appeal proceeds by way of rehearing, in which I am to form my own view of the facts and determine the appeal accordingly,21 while taking into account any advantages the trial judge may have had.22 Mr Men must show error

13 At [13].

14     At [14]–[17], citing Britow v R [2017] NZCA 229; R v De Kwant [2017] NZHC 2291; R v Nichol

[2018] NZHC 2739; and R v Lynch [2014] NZHC 1788.

15 At [20].

16     At [21]–[26].

17 At [26].

18     Criminal Procedure Act 2011, ss 229(1) and 230(1)(b).

19     Section 232.

20 Section 232(4); Misa v R [2019] NZSC 134 at [38]–[48], citing R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110], Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30], and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.

21     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].

22     At [38]–[40].

has been made. The threshold is high; not every error will amount to a miscarriage of justice.23

—appeal against sentence

[14]   I must allow an appeal against sentence only if satisfied both there is error in the sentence, and a different sentence should be imposed.24 In any other case, I must dismiss the appeal.25 The approach previously taken by courts on sentencing appeals continues to apply;26 the measure of error is the sentence be “manifestly excessive”. This principle is “well-engrained” in this Court’s approach to sentencing  appeals.27   I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.28

Discussion

—appeal against conviction

[15]In general, a judge’s reasons following judge-alone trial require:29

… a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge’s essential reasons for finding as [s/]he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt.

…

They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice.

23     Otis v Police [2019] NZCA 231 at [4], citing McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].

24     Criminal Procedure Act, s 250(2).

25     Section 250(3).

26     Tutakangahau v R [2014] NZCA 279 at [26]–[27].

27     At [33] and [35].

28     Ripia v R [2011] NZCA 101.

29     Sena v Police, above n 21, at [17]–[18] and [36], approving R v Connell [1985] 2 NZLR 233 (CA) at 237–238 and R v Eide [2005] 2 NZLR 504 (CA).

[16]   Section 232(2)(b) requires “a focus on the judge’s assessment of the evidence, a focus which presupposes the existence of reasons from which the substance of that assessment can be discerned”.30 Recognising “imperfection of expression is practically unavoidable” (although this was a reserved decision), I am to:31

… assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party.

[17]Mr Olsen categorises the 10 charges into three groups:

(a)three charges relating to a single occasion in her brother’s room — of Mr Men touching each the victim’s breasts and genital area, and placing her hand on his penis — interrupted by her grandfather’s arrival;

(b)five representative charges — of Mr Men placing his penis against the victim’s genital area, touching her breasts, genital area and bottom, and placing her hand on his penis — in unspecified locations and at unspecified times;32 and

(c)two charges relating to the “last occasion” — of Mr Men placing the victim’s hand on his penis, and placing his penis against her genital area

— after which she said she would tell her mother.

As charges each of indecent acts on a child, the Judge needed to be satisfied the proved acts were indecent as such, and Mr Men appreciated they were so.33

[18]   The Judge was satisfied on a credibility basis the first and third groups of charges were made out. Her satisfaction spread to the representative charges, the

30 At [28].

31 At [37].

32 In the Conviction decision, above n 1, at [1], the Judge describes the charges as “five specific charges and five representative charges”; in the sentencing decision, above n 3, at [9], the Judge refers to Mr Men has having been found guilty of “seven representative charges and three specific charges”. I do not have the Crown charge sheet, which in any event was amended (R v Men [2020] NZDC 16228 at [10]). In referring to the representative charges in this judgment, I refer to those at [17(b)]. My references to the specific charges are to the balance.

33 R v Dunn [1973] 2 NZLR 481 (CA) at 483. See also Rowe v R [2018] NZSC 55 at [39]–[46],

affirming R v S CA273/91, 20 December 1991 at [5]–[6].

second group, despite their evidential generality. Given their repetition of Mr Men’s conduct the subject of the first and third groups of charges, and the victim’s evident if explicable confusion, better reasons were required for determining Mr Men’s guilt of the representative charges. The Judge identified the generality of the evidence in support of the representative charges.34

[19]   ‘Consistency’ of that conduct, as found by the Judge,35 with the subject of the specific charges is inadequate; some reason for differentiating Mr Men’s conduct proven under the representative charges from that under the specific charges was required. The Judge’s “conclusory credibility preference” for the victim’s evidence does not suffice here. The Judge needed to be able to explain why she was satisfied the conduct included that alleged of the representative charges, separately from the specific charges. Absent reason for differentiation, there is a real risk the victim’s accounts conflated Mr Men’s conduct founding the specific charges with that relied on for the representative charges; a real risk against a more favourable outcome for Mr Men.

[20]   I will allow Mr Men’s appeal against conviction on the representative charges. I must set aside those convictions.36 However, I am not satisfied the evidence could not sustain those convictions,37 and will not direct Mr Men be acquitted of the charges.

I therefore will direct a new trial of the representative charges be held.38

[21]   As to the specific charges, the regrettable absence of the Judge’s express reasoning as to Mr Men’s intention is not fatal. The nature of the indecent acts, and Mr Men’s subjective response to each the grandfather’s arrival and the prospect the victim’s mother may be told of his conduct, together provide a sufficient basis on which to infer he appreciated the intrinsic indecency of his actions.

34 Conviction decision, above n 1, at [7]–[9].

35 At [47] and [49].
36 Criminal Procedure Act, s 233(2).

37  Compare R v Maxwell (1988) 3 CRNZ 644 (CA) at 647 and Wilmshurst-Reti v R [2019] NZCA  233 at [14]–[15] with M (CA663/08) v R [2010] NZCA 302 at [47]. See also Collie v R [1997] 3 NZLR 653 (CA) at 662. New Zealand courts, in generally declining to order a new trial where a conviction has been set aside because it is unsustainable having regard to the evidence, have followed the Privy Council’s approach in Reid v R [1980] AC 343 (PC) at 349–350.

38 Criminal Procedure Act, s 233(3)(b).

[22]   It was no part of the defence Mr Men’s appreciation may have been otherwise; only the alleged conduct never occurred. But the victim’s evidence was Mr Men instructed her not to tell anyone what had happened. In her evidential video interview, the victim said of the bedroom incident “I knew he was scared … he didn’t want anyone to know”. Similarly, “he said in Chinese don’t, don’t tell, don’t tell, don’t tell

… yeah … because I knew he was scared that someone knew”.

[23]   The reasons given by the Judge reflect her assessment of the evidence in those respects.39 They meet the requirements of s 232(2)(b) and (c),40 if only just. Given the indecent acts’ grouping in two separate incidents, with distinguishable conduct in each, no criticism can be maintained against the Judge’s omission of a charge-by-charge analysis.

[24]   For completeness, I find nothing in the circumstances to render Mr Men’s opportunity to offend doubtful. To the contrary — in a busy household made more complex by school holidays, in which six adults individually come and go in at least implicit reliance on another’s presence for the victim’s security — opportunity existed precisely when Mr Men’s presence was relied on. It was not denied Mr Men’s presence was relied on, and the  victim’s mother’s evidence she did so (whether  or not to    Mr Men’s comprehension) is sufficient.

—appeal against sentence

[25]   Even on the reduced number of convictions, I do not see the Judge’s sentence erred.41 If the Judge relied on facts beyond those found by her on convicting Mr Men, as Mr Olsen contends of the number of occasions Mr Men touched the victim,42 she was entitled to “accept as proved any fact that was disclosed by evidence at the trial”.43 The number of offences, by reference to discrete touching, is not in itself a material distinguishing factor; of greater relevance is repetition of offending conduct, aggravated by the inherent abuse of trust by any offending adult residing in a child victim’s home.

39     Conviction decision, above n 1, at [7], [11], [13(5)], [91]–[95] and [99].

40     Sena v Police, above n 21, at [36].

41     Criminal Procedure Act, s 236; and Flavell v R [2015] NZCA 336 at [38].

42     Sentencing decision, above n 3, at [6].

43     Sentencing Act 2002, s 24(1)(a).

[26]   From that perspective, the cases relied on by the Judge for her four-year starting point are not distinguishable.44 There is a clear range available from “about three years” for “a conscious course of conduct”,45 aggravated by the victim’s age well below 12 years and its disparity with Mr Men’s age,46 and the inherent breach of trust in the presumed safety of her home,47 for concurrent sentences and adjustment for totality.48 And the Judge’s discounts were generous.49 The Judge’s end sentence is not manifestly excessive, even on the reduced totality of the surviving convictions.

Result

[27]   I uphold the appeal against conviction, and direct a new trial be held, on the representative charges only. Otherwise the appeals against conviction and sentence are dismissed.

—Jagose J

44 Britow v R, above n 14 (starting point: three years and three months’ imprisonment); R v Lynch, above n 14 (starting point: three years and six months’ imprisonment); R v De Kwant, above n 14 (starting point: four years’ imprisonment).

45 Walker v R [2010] NZCA 288 at [8] and [24]; and O (CA643/2009) v R [2010] NZCA 609 at [4]–

[11] and [52].

46     R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [42]–[43].

47     Hinga v R [2020] NZCA 70 at [4]; and Morgan v R [2019] NZCA 565 at [32].

48     Sentencing Act, ss 84–85.

49 Compare Rana v R [2014] NZCA 468 at [16]–[17] (7.5 per cent discount for previous good character marked by absence of previous conviction but without making any particular social contribution); de Macedo v R [2020] NZCA 132 at [26] (8 per cent discount for custodial hardship of offender with limited English skills and isolated from family support); and Li v R [2019] NZCA 474 at [23] (no custodial hardship discount for foreign national living in New Zealand for a considerable period and with a resident partner resident).