Mussa v R

[2010] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND

CA281/2009
[2010] NZCA 123

BETWEENABDIRAZAK YUSSUF MUSSA

Appellant

ANDTHE QUEEN

Respondent

Hearing:11 February 2010

Court:O'Regan, Arnold and Randerson JJ

Counsel:D L Stevens QC and M J Lillico for Appellant

K P McDonald QC and J Murdoch for Respondent

Judgment:1 April 2010 at 11.30 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan J)

Table of Contents

Para No

Grounds of appeal  [2]

Background  [6]

Evidence about condoms and HIV positive status  [12]

Inadequate directions: HIV positive status  [22]

Inadequate directions: internet inquiries  [27]

Order permitting complainant to give evidence behind a screen  [43]

Sentence  [52]

Result  [67]

[1]        The appellant was convicted on two counts of rape and one count of abduction in October 2007.  Following a successful appeal against conviction, a retrial was ordered.[1]  At the retrial, the appellant was convicted again of two counts of rape, but acquitted of abduction.  The trial Judge, Judge Davidson, sentenced him to nine years imprisonment.  He appeals against conviction and sentence.

Grounds of appeal

[1]      R v Mussa [2008] NZCA 290.

[2]        The appellant is HIV positive.  On each occasion of intercourse with the complainant that founded the rape charges, he wore two condoms.  Evidence relating to both the fact he was HIV positive and the fact that he used two condoms was admitted at the retrial, over the objection of the appellant, after a pretrial ruling under s 344A of the Crimes Act 1961.[2]  On appeal against conviction the appellant argues:

(a)the pretrial ruling that this evidence was admissible was wrong and the evidence should not have been admitted;

(b)directions given by the trial Judge to the jury relating to the use of the HIV evidence were inadequate.

[2]      R v Mussa [2009] DCR 447.

[3]        The other grounds of appeal against conviction were:

(a)directions given by the trial Judge prohibiting the jury from undertaking their own inquiries or internet searches were inadequate;

(b)the trial Judge erred in making an order allowing the complainant to give evidence from behind a screen.

[4]        The appellant’s grounds of appeal against sentence were:

(a)the sentence of nine years imprisonment was manifestly excessive and wrong in principle;

(b)the trial Judge erred in finding the appellant’s HIV status was an aggravating feature of the offending;

(c)the trial Judge erred in giving too much weight to aggravating features and too little weight to mitigating features.

[5]        We will deal with the issues in the order set out above.  Before doing so we will summarise the factual background.

Background

[6]        The appellant came to New Zealand as a refugee from Somalia and was 54 years old at the time of the offending.  He owned a taxi company in Wellington.

[7]        The complainant, an 18 year old female, got into his taxi on Courtenay Place at about 5 am on the day of the offending and asked to be driven home.  She had attended a birthday party the preceding evening and had then gone into town with her cousin and partner to go clubbing.  She had been drinking during the course of the evening and morning, but described herself as “tipsy”, not drunk, when she took the taxi.  At that time, the appellant was not on duty, but was collecting tariffs from taxi drivers who worked for him.  However, he proceeded to drive the complainant towards her home.

[8]        The Crown case was that the appellant badgered the complainant, asking her to accompany him home for a drink.  She declined.  He asked if she minded if he stopped at the supermarket as it was his last run for the night and she agreed.  He stopped at a supermarket near to her house and she stayed in the taxi while he went in to the supermarket.  She said she expected that he would take her home afterwards.  He purchased beer and condoms in the supermarket.  On his return to the taxi, after more badgering, she agreed to accompany him home for a drink.  She said she did so to placate him.

[9]        On entering his house, the appellant closed the door, which activated a dead-lock, meaning that a key was needed to open it from the inside.  They had a drink each.  The complainant said that she repeatedly asked the appellant to take her home, but he refused, saying he was too drunk.  The appellant then held the complainant down and raped her, twice, over the course of a few hours.  On each occasion he wore two condoms.  The complainant was elbowed in the eye and suffered some bruising.

[10]       When he was initially questioned by the police, the appellant denied any involvement with the complainant and gave a fabricated account of his movements on the morning in question.  He took the same position in his first video interview with the police.  He subsequently accepted that intercourse had occurred but said it was consensual.

[11]       The defence case was that the complainant willingly agreed to accompany the appellant home and consented to sexual intercourse.  The defence pointed to alleged inconsistencies in the complainant’s evidence.  In particular, importance was placed on the complainant’s allegation that the appellant had used one hand to hold the complainant’s wrists above her head, while using the other to open and take down her trousers and underpants, and his, as well as putting two condoms on.  It was suggested that this account was implausible as it would be difficult to achieve all this with only one hand.  The defence also raised issues about timing, in particular, at what point the complainant agreed to accompany the appellant to his house, at what time she arrived home the next day and the timing of certain text messages sent, as she stated her cell-phone battery had died.  The defence also highlighted the fact that the appellant had the complainant’s mobile phone number and suggested that was consistent with the appellant’s version of events.

Evidence about condoms and HIV positive status

[12]       At the first trial, the Crown and defence agreed not to lead evidence of the HIV positive status of the appellant.  This agreement led to an issue about how to deal with the fact that the appellant had used two condoms.  The Crown foresaw that the defence might suggest the fact that two condoms were used each time was proof that the sex was consensual.  Therefore in his closing address, the prosecutor suggested that the reason for the two condoms was that the accused was “a man who is very forensically aware.  He doesn’t want to leave anything inside her”.[3]  This statement was one of the factors that led this Court to order a retrial.[4]

[3]      R v Mussa [2008] NZCA 290 at [10].

[4] Ibid, at [8] – [17].

[13]       At the second trial, the Crown wished to lead evidence of the appellant’s HIV positive status so as to avoid the jury speculating about why the appellant used two condoms each time.  It sought a pretrial ruling that such evidence would be admissible.  Judge Kelly heard the pretrial application.  She found that any risk of unfair prejudicial effect on the proceedings that might arise from admitting in the evidence of the appellant’s HIV positive status was outweighed by the probative value of the evidence regarding the use of two condoms and the HIV status of the appellant.  She declined to order that the evidence be excluded, on the basis that this would involve “sanitising” the narrative.

[14]       Counsel for the appellant, Dr Stevens QC, provided the Court with extensive research about the stigma attached to HIV/AIDS, which he said established the prejudicial nature of evidence of an accused person’s HIV positive status.  He relied in particular on an unpublished 2009 thesis presented in New Zealand where the author, Jane Bruning, asserted that “HIV and AIDS have managed to elevate stigma to new heights as it is ingrained in deep-rooted social fears and anxieties.”[5]  Ms Bruning referred to literature that suggests there is a deep-seated social attitude that HIV affects only those “who are of loose or deviant moral values and/or behaviour”.[6]  Dr Stevens did not provide recent research in the specific context of juries.  He did, however, cite a number of cases dealing with the prejudicial effect of evidence relating to HIV/AIDS.  Many of these were decided 20 or 30 years ago, when the fear of AIDS and the stigma attaching to it may have been greater than they are now.

[5]Jane Bruning “Stigma and Women Living with HIV”, (Master of Social Practice, Unitec New Zealand, 2009) at 13.

[6]      At 26.

[15]       The Crown did not contest the prejudicial nature of the HIV positive evidence.  However, it argued that any prejudicial effect was outweighed by the highly probative value of the evidence, both for the prosecution and the defence.  For the prosecution, the evidence of the HIV status and the two condoms guarded against any inference on the part of the jury or the defence that the use of condoms suggested that the sex was normal and consensual, when the real reason for the use of two condoms was that the appellant was concerned about infecting the complainant.  For the defence, the evidence provided a basis for challenge to the plausibility of the complainant’s account of the rape where two condoms were put on with one hand while the appellant held the complainant down with the other.  In addition, the evidence was used by the defence to suggest that it was not rape, because it was unlikely that a rapist would pause to put on condoms.

[16]       Dr Stevens accepted that there was some benefit for the defence from the evidence being before the jury.  But he said the defence was prepared to forego that benefit to avoid the prejudicial effect of the evidence, so the value of the evidence to the defence should not be brought into the assessment of probative value against prejudicial effect.  We do not accept that.  The benefit of the evidence to the defence is properly brought into the assessment of the overall probative value and prejudicial effect.

[17]       Dr Stevens argued that the evidence on HIV positive status only should be excluded, not the fact that the defendant used two condoms.  Given the difficulty this caused in the first trial, that was an unattractive proposition.  Perhaps mindful of that, Dr Stevens suggested to Judge Kelly that the jury could be told that “condoms” were used without stating the number. However the Crown argued that this would normalise the story in a way that might be prejudicial to its case. While one condom may be consistent with normal, consensual sex, two condoms makes it clear that the purpose for the condoms was to guard against spreading HIV.

[18]       For the Crown, Ms McDonald QC also argued that the prejudicial nature of the HIV positive status was neutralised by the direction given to the jury by the trial Judge in summing up.  The Judge said:

When you are considering your verdicts, you are acting as judges. Judges can never allow their decisions to be influenced by feelings of prejudice or sympathy, in respect of anyone connected with the case.

In this case there is, undoubtedly, potential for considerable prejudice against the accused and sympathy for the complainant. You will conscientiously need to identify the areas of sympathy and prejudice and guard against them.

The accused is a Somalian refugee, a Muslim and, as you know, was HIV positive. That rather unusual combination of facts could easily lead to prejudicial feelings against him. Considerations such as “Why don’t the government just send him home”; “When they come here they should live by our rules”; “People who are HIV positive should not have sex at all and risk contaminating someone else”... are the kinds of comments of a radio talk back kind which are wholly irrelevant and prejudicial. (Emphasis in original).

[19]       Ms McDonald pointed out that, throughout the trial, both the defence and the Crown dealt with the appellant’s HIV positive status only in the context of the fact that the appellant used two condoms.  In his opening remarks, Dr Stevens for the appellant expressly told the jury that the only relevance of the HIV positive status was that it afforded an explanation for the use of two condoms.

[20]       We are satisfied that any prejudicial effect of the evidence, after making allowance for the clear directions given by the Judge, was outweighed by the probative value of the evidence, given the limited use to which it was put at the trial.   

[21]       This ground of appeal fails.

Inadequate directions: HIV positive status

[22]       Dr Stevens contended that the Judge’s directions relating to the HIV positive status were inadequate as they did not clearly state that the only relevance of the evidence that the appellant was HIV positive was that it explained why the appellant had used two condoms.

[23]       Dr Stevens relied on R v Milligan where this Court said that “where information emerges that is potentially prejudicial, strong judicial directions are required to ensure the jury does not improperly use the information.”[7]  However this statement responded to the particular facts of the case, where an inadmissible reference to the accused’s Mongrel Mob connections was accidentally made in the presence of the jury.  We see the present case as being quite different from Milligan.  The direction required in this case needed to ensure that the jury did not allow themselves to be improperly affected in their judgment by the fact that the appellant was HIV positive.  In contrast, the direction in Milligan was to ignore prejudicial material altogether.

[7]      R v Milligan [2009] NZCA 344 at [41].

[24]       The Judge’s directions are set out above.[8]  In addition, the Judge reminded the jury again of the need to avoid prejudice and sympathy when he summarised the defence case.

[8] At [18].

[25]       While the Judge did not expressly state that the evidence was relevant only to explain the use of the two condoms, this would have been clear to the jury from the context of the trial. The HIV evidence was referred to only as context for the use of the two condoms. For example, in closing, the Crown reminded the jury that the appellant had explained that he had used two condoms because he was HIV positive.  We are satisfied that what the Judge said was adequate in the circumstances: it would have been clear to the jury to what end the HIV positive evidence could be used in their deliberations and there was an unequivocal warning against prejudice.

[26]       This ground of appeal fails.

Inadequate directions: internet inquiries

[27]       Dr Stevens argued that the Judge’s direction to the jury that they must not undertake independent inquiries (particularly internet searches) was inadequate as it did not provide reasons nor inform the jury what the proper process was if any of them was concerned about juror impropriety.

[28]       Before the second trial started, counsel for the appellant gave the Judge two articles from the internet reporting the previous trial.  These contained material that emphasised the significant trauma experienced by the complainant not only from the rapes but also from the fear that she may have been infected with HIV/AIDs.  They were expressed in sensational terms.

[29]       Counsel for the appellant expressed his concern about the possible impact of this material on the jury and requested that a firm direction be given to the jury that they must not engage in inquiries of their own.  The Judge agreed.  The Judge gave the following direction to the jury at the commencement of the trial:

It is vitally important that you keep an open mind right through that process of hearing all the witnesses, the addresses of counsel and my summing up.

It is vitally important that you decide this case solely on the evidence that you hear in this Court, given by the witnesses who come along to Court and give their evidence. This is a retrial. There has been an earlier trial, but you must ignore that altogether. You concentrate solely on the evidence that you have heard in this Court, as it develops through the course of this week.

Undoubtedly friends, family, work mates, associates, will all want to know, what are you doing, are you on the jury, what’s the case all about? Simply say, yes, I am on the jury, the Judge has said I cannot discuss it and the reason for that is that you decide the case solely on the evidence you hear in this Court. You do not decide the case on the evidence you hear in this Court, coupled with what others have told you, and of course, there is a very good reason for that. They haven’t been here, they haven’t heard the evidence, they haven’t seen the witnesses.

Do not make any inquiries of your own. Don’t go and look at the house concerned. Don’t check out the neighbourhood and under no circumstances, make any internet searches about this case whatsoever. If it were to come to my attention that such a thing had happened, the case would simply have to finish then and there and another trial would have to be ordered. It is absolutely imperative that you do not make any enquiries of your own and that you resist any temptation to sit in front of a computer and bang a few letters into a keyboard. You must not, under any circumstances, do that.

[30]       The Judge repeated the direction not to make internet searches on the Friday evening before the jury retired for the weekend, and again during his summing up.

[31]       Counsel for the appellant maintained that the direction was insufficient because the Judge did not make the link between the internet searches and the importance of deciding the case on the basis of evidence in the court room clear, and did not explain the reasons for the direction. 

[32]       Two preliminary points need to be noted.  The first is that there is no evidence indicating that any member of the jury undertook any internet search, contrary to the Judge’s directions.  The second is that counsel did not indicate any concern about the nature of the direction given by the Judge at the time of the trial.  He raised the matter with the Judge, asked that the Judge give a direction, listened while the Judge gave the direction, and gave no indication of any concern about its inadequacy.  The complaint on appeal about the inadequacy of the direction has to be seen in that context: essentially the Judge did what counsel asked him to do, and yet, on appeal, the direction is now challenged.

[33]       In essence, the appellant’s argument is that, even though there is no evidence that any juror undertook an internet search, there is such a high risk that a juror did so that we should evaluate the appeal on the basis that that occurred.  The argument is that more effective directions could have been given which would have reduced this risk to a level which would provide greater comfort that no internet searches had occurred and no miscarriage had resulted. 

[34]       Dr Stevens said that the direction needed to have the following four characteristics:

(a)a direction that internet inquires are not to be made;

(b)a description of the reasons why such inquiries should not be made;

(c)a direction that any juror who became concerned about juror impropriety (including internet inquiries) was under a duty to make his or her concerns known to the trial Judge;

(d)a guide as to the procedure that should be followed in making concerns known to the trial Judge.

[35]       In the present case, there was no dispute that the first of those requirements had been met.

[36]       Dr Stevens said that the second had not been met because the Judge had not given a reason for the direction.  He said that jurors should be told that the reason they should not make independent inquiries (including internet inquiries) is that, if they did so, that would change their role from the impartial jurors to investigators and lead them to take into account material that was not properly placed before them as evidence.  Those representing the Crown and the accused would be unaware of the information and therefore unable to test it.  A direction of this kind is included as a model direction in the Criminal Trial Court Benchbook published by the Judicial Commission of New South Wales.[9]  Dr Stevens also relied on the observation made by this Court in R v Smail[10] to the effect that an explanation as to the reason for the direction to ignore any extraneous information is easily grasped by jurors and makes it more likely that the direction will be complied with. 

[9]Judicial Commission of New South Wales “Criminal Trial Courts Bench Book: Trial Procedure” (2009) at [1-520]      R v Smail [2009] NZCA 549 at [34].

[37]       While the Judge did not expressly refer to the reasons for the direction, he did make it clear to the jury how serious the matter was, by indicating that a retrial might be required if the direction was defied.  That direction closely followed the Judge’s direction that the case must be determined solely on the evidence before the Court.  We share the view expressed in Smail that a short explanation of the reason for the direction can be of assistance and make the direction more persuasive.  Dr Stevens referred us to a number of studies which support that proposition.[11]  However, we do not see any utility in requiring that a particular form of words be used for every trial.

[11]Victorian Law Reform Commission “Consultation Paper 4: Jury Directions” (2008) at [5.9]. Ellen Brickman, Julie Blackman, Roy Futterman and Jed Dinnerstein “How Juror Internet Use Has Changed the American Jury Trial” 1 Journal of Court Innovation 287 at 297; Virginia Bell, Judge of the NSW Supreme Court “How to Preserve the Integrity of Jury Trials in a Mass Media Age” (September 2005) 7 Judicial Review 311.

[38]       Nor do we see the absence of a specific reference to the reasons for the prohibition of internet searches as providing a basis for an assumption that jurors would not have followed the direction the Judge clearly gave them, in circumstances where he emphasised the seriousness of the implications if they did not do so.

[39]       In relation to the third requirement Dr Stevens again referred us to the model directions in the New South Wales Criminal Trial Courts Benchbook.  Those directions now provide that the jury be told that, if a juror has made an impermissible internet or similar inquiry, that should be immediately brought to the attention of the presiding Judge.  He suggested that this should be further augmented by a description of the manner in which a juror could raise the matter with a judge if such a concern arose (the fourth requirement).

[40]       We do not see any need to mandate such a direction in every case.  We agree it is appropriate in a summing up to inform the jury on a general basis that they can raise matters of concern with the Judge through the jury attendant, but we do not see it as necessary to mandate that a specific direction in relation to internet searches be included in every summing up.  In any event, we are not persuaded that the absence of a direction of this kind should lead us to conclude that internet inquiries were made in this case despite the Judge’s direction that that should not occur under any circumstances. 

[41]       In the absence of any evidence of any failure by jurors to heed the Judge’s direction in this case, we have no basis for concluding that anything untoward happened, much less that there was a miscarriage of justice.  New Zealand research into juries provides a basis for confidence about juries’ compliance with judicial directions in the great majority of cases.[12]  We note that a similar approach was taken by this Court in the recent case of R v Palmer.[13]  

[12]Warren Young, Neil Cameron and Yvette Tinsley Juries in Criminal Trials: Part Two: A Summary of Research Findings (NZLC, PP379, vol 2, 1999) at [7.57].

[13]      R v Palmer [2009] NZCA 616.

[42]       This ground of appeal fails.

Order permitting complainant to give evidence behind a screen

[43]       The final ground of appeal was that the trial Judge erred in making an order under section 103 of the Evidence Act 2006 permitting the complainant to give evidence in an alternative way, that is, whilst screened from the appellant.  

[44]       At the second trial, the Judge made this order on the basis that the events occurred when the complainant was only 18, and that while the complainant may have matured since the incident, there was nothing to suggest that she had overcome the obvious trauma surrounding the events.  He relied on the evidence that he had read of the effect of the offending on the complainant, which included the victim impact statement.  The Judge said he considered that a direction could appropriately cure any prejudice that the screen might arise.  He considered the right of the accused to face his or her accuser, but considered that this right was outweighed by the rights of the complainant in this case. 

[45]       The Judge gave a direction at the start of the trial and repeated this in summing up:

The complainant gave evidence, as you know, behind a screen. This is a technique which is used in order to make witnesses comfortable in Court. It is not something that you should read anything into at all. It is nothing to do with the accused and you should not hold it against him in any way at all or think it says something about him.

[46]       

On appeal, Mr Lillico for the appellant argued that the right to a fair trial should have outweighed any concerns about the difficulties the complainant would

face when giving evidence. In particular, he argued that Mr Mussa was already facing prejudice as a black African of Muslim faith with an HIV positive status.  The use of the screen reinforced for the jury that the complainant needed additional protection from the appellant, even within the confines of the courtroom.  

[47]       Mr Lillico also argued that there was an insufficient evidential basis for the Judge to find that the screen was necessary.  He pointed to cases decided before the Evidence Act 2006, such as R v C,[14] R v Daniels[15] and R v Accused,[16]  where the evidence relied on ranged from a report by a social worker to extensive psychological reports.  In this context, he argued that more was required than merely a report of the impressions of the officer-in-charge.  Fundamentally, he argued that the stress and anguish suffered by the complainant was common to all rape cases, yet it was clear from the Evidence Act that not all rape cases involving mature complainants would require screens.

[14]      R v C (1990) 6 CRNZ 315 at 316.

[15]      R v Daniels (1993) 10 CRNZ 165 at 167 – 168.

[16]      R v Accused (1998) 16 CRNZ 149 at 155.

[48]       We do not accept that allowing a complainant in a rape case to give evidence from behind a screen deprives the accused person of the right to a fair trial.  The assertion that the jury would consider the complainant needed protection from the appellant assumes they ignored the Judge’s clear direction that they should not do so.  There is nothing to indicate that that is what happened.

[49]       Nor do we accept that expert evidence from a social worker or a psychologist was required in the circumstances of this case.  The evidence before the Judge provided a sufficient basis for the order.  The complainant was young and vulnerable.  She was undergoing the ordeal of giving evidence for a second time and she had given evidence from behind a screen at the first trial.  We are loath to require Judges to undertake an extensive process involving expert evidence in every case of this kind.  The Judge made a considered decision and took steps to neutralise any possible prejudice.  We are not persuaded that we should interfere with what he did.

[50]       This ground of appeal also fails.

[51]       It follows that the appeal against conviction is dismissed.

Sentence

[52]       After the first trial, the appellant was sentenced to imprisonment for 11 years.  After the second trial, he was sentenced to imprisonment for nine years, the difference presumably reflecting the fact that he was not convicted of abduction at the second trial, but he had been at the first. 

[53]       Judge Davidson took a starting point of 11 years: he rejected a defence submission that the starting point should be eight years because in the present case there had been two acts of rape, a degree of persistence, and a significant breach of trust.  He gave a credit of two years for personal circumstances, and imposed an end sentence of nine years for each offence, to be served concurrently.  He did not impose a minimum period of imprisonment.

[54]       Dr Stevens argued that the sentence was manifestly excessive because:

(a)the Judge took into account as aggravating factors features of the case that did not qualify as such;

(b)the Judge gave too much weight to aggravating factors;

(c)the Judge gave an insufficient allowance for mitigating factors.

Matters wrongly classified as aggravating

[55]       Dr Stevens said that the Judge was wrong to classify as aggravating factors the impact of the offending on the complainant, the degree of persistence and the appellant’s HIV status.  We consider each in turn.

[56]       We can see no error in the Judge’s approach to the impact of the offending on the complainant.  The evidence was that the complainant was extremely concerned about possible infection with HIV, notwithstanding that the statistical chances of infection were extremely low.  The fact was that the complainant was required to undertake tests and face the stress of waiting for the results of them.  We do not think that it is unfair to bring that additional impact of the rapes into the calculation of sentence.

[57]       Nor do we consider the Judge was in error in bringing into account the degree of persistence shown by the appellant and his willingness to resort to force and violence.  Dr Stevens argued that these factors were inherent in the offence of rape, but we agree with the Judge that what occurred in this case went beyond what can be described as inherent in the offence.  We accept that sentencing judges need to be careful not to count as aggravating factors matters which are inherent in the offence itself, but we do not accept that the Judge did so in this case.  The violence to the complainant over and above that inherent in the offence was not significant in this case, but there is no reason to believe that the Judge overstated it or gave it too much weight. 

[58]       Dr Stevens argued that the HIV status of the appellant could not be an aggravating factor because he had used two condoms which meant that the risk of infection was extremely small.  While that is so, the effect on the victim in this case was severe, because she was required to undergo tests and face the uncertainty that she may have been infected.  Thus, to the extent the HIV status of the appellant added to the trauma for the victim, it was appropriate to treat it as an aggravating factor.  Again, there is a need for caution to ensure that there is no doubling up (given that the impact on the victim had already been brought to account), but we do not see any reason for concern that the Judge fell into error in the way he treated this factor.

Aggravating factors given too much weight

[59]       Dr Stevens accepted that the other matters which the Judge classified as aggravating factors – premeditation, breach of trust and the fact that there were two acts of rape – were rightly classified as aggravating.  But he argued that too much weight was given to them. 

[60]       There is no doubt that the fact that there were two acts of rape was an aggravating factor, but Dr Stevens argued that the two rapes were so close together in terms of time that this should not be seen as a matter of significant aggravation.  We accept that is so, but there is nothing to indicate that the Judge did not accept it either.  The breach of trust was significant because of the vulnerability of the complainant, who was drunk in the early hours of the morning and reliant on the taxi service to get her home safely.  There is a clear need to ensure that those who catch taxis at any time of the day or night are safe from harassment and assault, let alone sexual assault.  Dr Stevens said that the Judge was wrong to describe this breach of trust as “significant”, but we disagree: there is a significant public interest in ensuring that those using taxis can rely on them as a safe method of transport and are not faced with the risk of an experience like that undergone by the victim in this case. 

[61]       The Judge commented that the degree of premeditation was hard to assess with any certainty but added that, by the time the appellant left the supermarket and drove to his home (instead of to that of the victim) he must have had in mind that something would occur with the complainant.  Dr Stevens said on that view, the premeditation was not significant.  We accept that is the case, but we consider that the Judge took a very favourable view from the appellant’s point of view.  The fact that the appellant picked up the complainant when he was not on duty as a taxi driver and began badgering her almost immediately may well have supported a finding that the premeditation occurred from the beginning of the taxi ride, rather than from the time of the visit to the supermarket.  Nevertheless, we will proceed on the same basis as the Judge did.

[62]       Standing back and looking at matters in the round, we are not persuaded that the Judge gave too much weight to the aggravating factors.  We see the breach of trust as a significant factor, and we do not think there is any proper basis for us to interfere with the three year uplift for aggravating factors.

Mitigating factors

[63]       The Judge allowed two years for mitigating factors, particularly the appellant’s personal circumstances which she described as “quite unusual”.  The Judge described the appellant as “hard working and well regarded”.  He noted that he had fared very well since he had come to New Zealand as a refugee in 1998.  There were a number of references which testified to the hard-working nature of the appellant and to the fact that he was highly regarded both within the Somali community, in which he was something of a leader, and more generally.  We agree with the Judge that this is a significant positive factor. 

[64]       The appellant’s daughter has Down Syndrome, and the Judge described her as “highly dependent” on the appellant.  She has been distressed by the appellant’s absence through his imprisonment.  That is obviously also distressing to him.  Imprisonment of an offender with parental responsibilities inevitably adversely affects their children.  We accept that in this case the position is made more difficult than normal because of the daughter’s special needs.

[65]       The third personal factor was that the appellant is HIV positive, which will make it difficult for him in prison.  Dr Stevens said that the anticipated difficulties have, in fact, arisen for the appellant and he has been essentially isolated.  We accept that this was a significant mitigating factor. 

Overall assessment

[66]       There is no dispute that an uplift from an eight year starting point was required, nor was there any dispute that a significant discount was required for mitigating factors.  The issue for us is whether, taking in the round, the sentence which resulted from the Judge’s decision to allow a three year uplift for aggravating matters and a two year discount for personal mitigating circumstances led to a sentence which was manifestly excessive.  Ultimately, we are not persuaded that it did.  We see no error in the Judge’s classification of aggravating factors and no cause to interfere with the way in which he assessed them.  Similarly, we see no error in the Judge’s approach to personal mitigating factors.  Overall, we are satisfied that the sentence of nine years is within the available range.  We therefore dismiss the appeal against sentence.

Result

[67]       The appeal against conviction and sentence is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent