R v Baird CA278/04

[2004] NZCA 411

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA278/04

THE QUEEN

v

MICHAEL LAWRENCE BAIRD

Hearing:         21 October 2004

Court:             Glazebrook, Panckhurst and Gendall JJ Counsel:        D S G Deacon for Appellant

B M Stanaway for Crown Judgment:    25 November 2004

JUDGMENT OF THE COURT

The appeal is dismissed as it relates to -

(a)The sentence of nine years imprisonment imposed on two counts of sexual violation by unlawful sexual connection.

(b)The imposition of a minimum non-parole period of four years and six months.

R V BAIRD CA CA278/04 [25 November 2004]

The appeal is allowed to the extent that –

(a)The sentence on the count of injuring with intent is quashed and replaced by a concurrent term of four years imprisonment.

REASONS

(Given by Gendall J)

Introduction

[1]    This is an appeal against a sentence of nine years imprisonment, with a minimum non-parole period of four years six months imprisonment imposed in the District Court at Wellington on 22 June 2004 after conviction by a jury on counts of injuring with intent and two counts of sexual violation by unlawful sexual connection.

Background facts

[2]    The evidence relating to the offending concerned events on 18 January 2003 when the appellant was in a relationship with the complainant. The relationship had been off and on but the couple had been together for about a year and went to a bach in the Akatarawa region. The events of a pleasant evening of a meal turned very nasty. The appellant began to question and badger the complainant concerning her relationship (if such existed) with a previous boyfriend. The appellant then set upon the complainant in a jealous, controlling rage. The Judge in her sentencing remarks described some of the relevant facts as follows:

You went into a jealous rage, and on your own evidence, you lost it. She described you as being in an uncontrollable rage, and then you hit her numerous times.

The complainant had 18 bruises to her body, and her finger needed splinting. She received two cigarette burns. You told her the next day that you hit her 10 times….You finally stopped when she called out to God to make you

stop. She described being hit in the back of the head, and on her body whilst defending herself from you hitting her. She had two bruises to the back of her head, and multiple bruises to her arms and back.

While you were hitting her, you had a cigarette in your hand at the time, and she ended up with the two cigarette burns…to her neck area….

I take the view that this was a repeated attack on the complainant, motivated by anger and jealousy. Now she says that you then threatened that you were going to kill her, and that you put a necktie around her like a noose, and that you wanted her to crawl around and bark like a dog.

You were acquitted by the jury of threatening to kill her at that time. You maintained however, that you did make the request to bark like a dog, but that was the next day. She also said that you threatened to bury her in the garden outside, and that you wanted to take her outside into the river and sodomise her. You accepted in evidence that you did say to her that you did wanted [sic] to take her out into the river and sodomise her, with her head under the water, but said it did not happen that evening.

In any event, she was clearly terrified of you and what you were doing. Having assaulted her as I have just described, you then ended up removing her pants and tied her to the bed, agreeing in evidence that she had already been degraded. You then inserted a candle into her vagina, which you lit,  and then left her in the room while it was burning, and knowing on your own admission that it would make her nervous. You accepted that you were laughing at the time, and you admitted in evidence that you thought it was very funny. You said that she offered no opposition, and that because you were in a relationship with her, you could try anything you liked. You made her masturbate with the candle, and after you removed the candle and untied her, you indicated to her that you wished to urinate on her in her mouth. She asked you not to do that. You did not do that, however, you then had anal sex with her, you saying that you told her that you wanted to have vaginal sex, but she said, “No”, and you could have anal sex instead.

[3]    The position adopted by the appellant in his defence was that apart from the assault, the penetration and other actions performed by him were with the complainant’s consent or in his genuine belief that she did so consent. The Judge referred to one of the matters presented by the appellant in his defence, which related to the charge of vaginal rape upon which he was acquitted, namely that if there had been penetration by him of the complainant’s vagina then it was accidental. It is obvious that the jury did not accept the defence of consent, not surprisingly, given that the sexual violation acts followed upon a prolonged beating.

[4]    Counsel for the appellant contended that the sentence of nine years imprisonment, and the minimum non-parole period of four and a half years, were

both manifestly excessive because the Judge ignored the fact that acquittals had been entered on other counts and:

•     The Judge wrongly emphasised the degradation, humiliation and intimidation of the complainant which, by reason of the not guilty verdicts, could not be supported and led to a distortion of the sentencing process;

•     The use by the Judge of a number of aggravating features related to the other counts led to error;

•     The Judge gave undue and improper weight to the appellant’s previous convictions involving breach of a protection order in 2001 and assaulting females in 1998 and 1999. The outcome of a protection order contravention charge indicated that it was not viewed seriously and the assault charges occurred over 13 years ago. None of those matters concerned the present complainant as a victim.

Counsel further submitted that the circumstances of this offending placed the sexual violation crimes into a “different category to that of a eight year tariff rate”.

[5]    Counsel submitted that the imposition of the minimum non-parole period was not justified to satisfy requirements of punishment, deterrence and denunciation and the safety of the community was not an issue. He relied upon mitigating matters concerning the appellant’s character, background and personal circumstances which are contained in a psychological report that was before the sentencing Judge.

[6]    Subsequently, as a result of communication by the appellant leave was granted to his counsel to make further submissions which has now occurred in writing. They generally restate those matters already argued but in addition,  criticism is directed at the Judge referring to a witness who was not heard at trial; at the reference that the not guilty verdicts simply meant that those were not proved; the emphasis placed by the Judge on the victim impact statement which contained matters, it is said, not accepted by the appellant, and failure by the Judge to

sufficiently take into account personal features of the appellant arising out of psychological, physical and personality difficulties.

[7]    The Crown’s position was that there were serious aggravating features in respect of two grave sexual violations, which included restraint of the complainant, elements of degradation, humiliation with actual and prolonged violence as a forerunner to the sexual violation.

Discussion

[8]    An immediate problem arises with the sentencing process in that the Judge imposed a global sentence of nine years imprisonment but it does not appear from the sentencing notes that she differentiated so as to impose separate sentences. This is of little moment in relation to the sexual violation convictions but leads to a difficulty in respect of the count of injuring with intent. In terms  of  s  189(2) Crimes Act 1961 the maximum penalty for such crime is a sentence of five years imprisonment. Consequently the term imposed in respect of that conviction is rectified later in this judgment.

[9]    The unlawful sexual connection charges were by anal penetration (that is anal rape) and by penetration of the complainant’s vagina with the candle. As the Judge pointed out, sexual violation by unlawful sexual connection can encompass a wide variety of circumstances and the generally accepted  starting  point  for  rape  of  eight years imprisonment could appropriately apply to anal rape. We do not think there can be very much (if any) differentiation in terms of seriousness between anal rape and vaginal rape. The Judge did not specifically define a starting point other than to disagree with the submission by the appellant’s counsel that it should be in the vicinity of six years. Obviously she took a much higher starting point based on the totality of the three separate offences and a combination of aggravating features which include physical violence, later tying up of the complainant, the insertion of a candle and the light of it, and the anal penetration. The Judge referred to the aggravating features as including previous convictions of the appellant noting that the only real mitigating factor was a late expression of remorse. It would seem that that was given limited weight in view of the probation officer’s report which

suggested that the appellant maintained the stance that the behaviour he engaged in was consensual and he presented with ideations of victimisation. The probation officer observed that as long as the appellant held onto those views his risk of reoffending would remain high.

[10]   Although the Judge was not able to regard other crimes in respect of which the appellant was acquitted as aggravating, nevertheless she was entitled to view the two sexual violation and injuring crimes in the context of the factual circumstances and events that occurred on that night. There was serious violence inflicted upon the complainant as found by the jury’s verdict on the count of injuring with intent. Following upon that there was anal rape and the jury’s verdict makes it clear they accepted that there was no consent or reasonable grounds for belief in consent.  There was penile penetration of the vagina and the appellant accepted that the complainant had not consented, but his defence was that any penetration was he accidental. The jury must have been left at least with a reasonable doubt in respect  of that. Although the appellant was not convicted of detaining or rendering the complainant incapable of resistance, the accepted facts were that the tying up of the complainant followed upon her being severely beaten. The jury found that thereafter the anal penetration could not be categorised as occurring with informed consent. The prolonged serious violence which resulted in the conviction of injuring with intent could not properly be separated out from matters which later followed, given that the jury obviously accepted that such violence occurred out of a jealous, frenzied rage. We do not think that the Judge erred in identifying those features  of the activity as aggravating, even though there may not have been established a specific crime charged in respect of separate elements of intent. Not guilty verdicts are quite common where multiple counts are laid (often arising from “over charging” by the Crown) in relation to one series of events.

[11]   There would have been nothing exceptional in the Judge taking a starting point of eight years imprisonment for the anal rape in these circumstances.  Likewise, as a stand alone offence a starting point being very close to that, if not the same, could have been expected where there was violation of the vagina by an object. Circumstances of sexual violation by unlawful sexual connection can range

across a wide area of behaviour but as this Court observed in R v Castles (CA105/02, 23 May 2002):

Instances of vaginal or anal penetration by an object unaccompanied by other offending are relatively rare. Such occurrences are usually accompanied by other separately charged sexual violations or indecencies. Use of an object, particularly a weapon, is, however, a sufficiently gross act that it is to be expected that the appropriate starting point will be at least close to the starting point for rape.

In that case the introduction of a broomstick into a victim’s anus was said to have justified an appropriate starting point of not less than seven years.

[12]   In the present case penetration of the female vagina with a candle, in circumstances where the victim was tied up, and then the candle was set alight, in addition to separate anal rape, would justify a starting point of ten years, if not more. Although as we have said the Judge did not specifically state her starting point it could not possibly be said that the final sentence of nine years imprisonment was outside the permissible range. There were grave aggravating features including degradation and humiliation of the victim, the serious additional violence inflicted on her prior to the later crimes, and the lighting of the candle was in all the circumstances particularly repugnant.

[13]   We do not think the Judge erred in referring in her sentencing remarks to a person who was not called as a witness. The context of that referral arose out of counsel’s submission that the appellant’s relationship with that person, a former partner and mother of his son, had improved and it was in that context that the Judge observed that that former partner was prepared to come and give evidence at the trial against him if the need arose. There had been a ruling that her evidence, based upon similar fact allegations, was not admissible. That did not mean that the sentencing Judge erred in her remarks.

[14]   We now turn to counsel’s submission that the Judge minimised the not guilty verdicts by stating that the acquittals simply meant those charges were not proved to the required standard. This statement was made in the context of her earlier  comment that the jury’s verdict was not difficult to rationalise and in her non-acceptance of the submission made by counsel that the jury’s verdict must have

meant that “it accepted what the accused said and rejected the complainant’s evidence”. The Judge was quite entitled to make the observations she did.

[15]   In relation to the victim impact reports, the Judge is required to take into account contents of a victim impact statement but we have not been referred to any statutory or other authority which would permit challenge to the contents of such a statement. Matters contained in those statements relate to the victim, parent or guardian, or member of an immediate family. They do not relate to the offender. They are concerned with the impact that the crimes had upon the victim. The policy of the Victims Rights Act 2002 makes it clear that challenge, in any formal sense, to matters contained in the victim’s statement is not available and, for example, under   s 25 a Judge may whether or not there was application made, order that an offender and his or her lawyer not be given or shown any part of a victim impact statement if the Judge considers that withholding that part is necessary to protect the victim. This did not of course occur in this case but there is no substance to the appellant’s claim that the Judge ought not have placed the emphasis she did on the victim impact statement.

[16]   Whilst there were matters contained in the psychological and probation officer’s report providing mitigating circumstances, and including the personal and health difficulties of the appellant, these were matters squarely before the Judge and referred to by her. Mitigating personal circumstances, including the late expression of remorse, was referred to but the comment balanced against the appellant’s continued insistence that the acts were consensual. The mitigating factors such as they were, were largely balanced by the aggravating features and the fact that a medium to high risk of reoffending existed. A starting point of 10 years imprisonment would have been fully justified based on the totality of the crimes upon which the appellant was convicted and a sentence of nine years imprisonment was fully justified.

[17]   To correct the position regarding the count of injuring with intent to injure, that sentence is quashed and a sentence of four years imprisonment is imposed. It is to be served concurrently with the sentence of nine years imprisonment on each of the sexual violation charges which are also concurrent.

Minimum non-parole period

[18]   The Judge imposed a minimum non-parole period of one-half of the term of nine years. Counsel submitted that the Judge erred because the safety of the community was not an issue and such a non-parole period was not required to satisfy the requirements of punishment, deterrence and denunciation. Counsel submitted  that the matters contained in the psychological report relating to the personal circumstances of the appellant were required to be taken into account in the exercise of the Court’s discretion under s86 Sentencing Act 2002.

[19]   Applying the approach required in R v Brown [2002] 3 NZLR 670 (CA) the initial focus is on the circumstances of the offence and whether they are “sufficiently serious” to justify the imposition of a minimum period. The question is whether the Court was satisfied that the circumstances of the offence took it outside the ordinary range of offending of the particular kind and it is a matter of judicial judgment whether the sufficiently serious threshold is crossed. We have no doubt that that threshold was crossed in this case. The sexual offending followed upon serious prolonged violence with intent to injure and two acts of penetration of a helpless woman’s body, one by an object which was then lit, and the other involving penile penetration in the form of anal rape. The first threshold test for the application of s 86 was well satisfied.

[20]   The second step again as a matter of sentencing discretion is to determine what length of minimum non-parole period should be imposed. That requires a review of the circumstances of the offender as well as the offence. In the present  case statutory eligibility period would have been three years. An increase of that to four and a half years but still well below the maximum available of six years (two-thirds) was within the range available to the sentencing Judge. Personal circumstances of the appellant were contained in the psychological and probation officer’s reports balanced against which were matters relating to his risk of reoffending, attitude or difficulties towards women, previous convictions for assaulting females which although distant indicated a troublesome attitude towards women. The Judge took into account the late expression of remorse but as we have

said this is tempered by the continued failure to acknowledge or face up to the actual wrongdoing.

[21]   The imposition of a minimum non-parole period was open to the sentencing Judge. In fixing it at 18 months more than that which would otherwise have been the case was not outside the range available to Her Honour and could not be said to be manifestly excessive.

[22]   It follows that the appeal is dismissed except to the extent that we have indicated in relation to the sentence for the conviction of the count of injuring with intent for which a concurrent term of four years imprisonment is substituted.

Solicitors:

D S G Deacon, Wellington for Appellant Crown Law Office, Wellington