R v Clark Ca59/02

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA59/02

THE QUEEN

QUINN HIKURANGI CLARK

Hearing:	27 May 2002
Coram:	Elias CJ Gault P John Hansen J
Appearances:	J H Jordaan for Appellant A E Kiernan for Crown
Judgment:	28 May 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT P

On 7 November 2001 the appellant pleaded guilty on arraignment to one charge of sexual violation by rape between 13 December 1999 and 28 January 2000, and one charge of sexual violation by rape between 25 December 2000 and 13 January 2001. The complainant in respect of both charges is the same girl, a relative of the appellant. At the time of the events giving rise to the first charge she was 11 years old, and at the time of the second 12. The appellant appeals against the convictions and the sentence of eight years imposed for each offence.
The summary of facts records that on the first occasion the complainant was staying with her aunt at an Auckland address. She was sick, in bed and the aunt was not in the house. The appellant was said to have walked into the bedroom, pulled down her pants and raped her. On the second occasion the complainant was staying in the same house as the appellant. She was sleeping on a mattress in his bedroom with a younger female relative. The summary states that the appellant moved the younger female out of the way and began to touch the complainant. He then pulled down her trousers and his own. She protested and tried to resist but he forced her and raped her. The summary further indicates that when the police interviewed the appellant he admitted the second incident but did not recall the first one.
The appellant pleaded guilty on arraignment on 7 November 2001. He was remanded in custody for sentencing on 20 November. However, when the matter was called on that day the appellant indicated, through new counsel, that he wished to apply to vacate the guilty pleas. The matter was adjourned and in due course O'Regan J, heard the application to change the plea. That had been supported by an affidavit sworn by the appellant on 27 November in which he explained that he had accepted his initial counsel’s advice to plead guilty even though he had told his counsel the complainant had consented on the second occasion. He made reference to family pressures. The appellant stated that he denied any sexual relations with the complainant on the first occasion and outlined factors in connection with the second occasion supporting his assertion that the complainant consented.
The appellant waived legal professional privilege and the Crown obtained an affidavit from the appellant’s first counsel. This was filed in opposition to the application to change the pleas. The counsel, Mr Couchman, explained that after the appellant was arrested arrangements were made for him, with counsel, to view the complainant’s video interview at the local police station. They sat through the entire video together and then counsel asked the appellant if the complainant was telling the truth. The appellant was said to have nodded an assent. He then added that he could not recall the first instance but he could not deny it either. Counsel said he then discussed with the appellant the nature of his plea and took him through the essential ingredients constituting the charge of sexual violation by rape.
Discussion then turned to the issue of consent. The appellant told counsel that the complainant had been a willing participant in relation to the second count in the indictment, though this is not consistent with what the complainant herself said in the video interview. Counsel then pointed out that as the complainant was only 11 at the time of the first incident, and 12 at the second, there was an issue as to whether a girl of that age would really appreciate the nature and quality of full sexual intercourse with an adult, particularly a relative. It was then agreed between counsel and the appellant that guilty pleas would be entered.
Mr Couchman said that on 19 November 2001 he became aware that the appellant was entertaining doubts about the correctness of his pleas and therefore specifically discussed with him the issue of changing the pleas. After that he obtained a written statement from the appellant confirming his desire to plead guilty.
In addition to these written materials, evidence was given orally before O’Regan J by both the appellant and Mr Couchman. Ultimately the decision turned on an assessment of the relevant facts. The Judge said:
Initially, the accused admitted guilt to his counsel after watching the video [of the complainant’s interview] at the police station, but subsequently said he believed the complainant was consenting. Mr Couchman properly explained to the accused the ingredients of the offence of rape, and the likely sentencing outcome if he pleaded guilty (a discount of 1-2 years), and of pleading not guilty but being convicted (no such discount). Mr Couchman was correct in explaining to Mr Clark that a defence of consent would require proof of a full, voluntary, free and informed consent, and there would be real difficulties in getting a jury to accept the proposition that an 11 or 12 year old girl would be able to form such a consent. It may be that saying “the jury would take five minutes to reject it” involved somewhat flamboyant language, but it reflected a view of an experienced counsel that there were real difficulties in succeeding with that defence. In my view, it is correct that such difficulties exist.
I therefore find the decision to plead guilty was made by Mr Clark when he understood the nature and the impact of that plea, so no miscarriage of justice occurred.
The application was therefore dismissed.
The appellant was sentenced on 8 February 2002. The sentencing Judge reviewed the offending and the personal circumstances of the appellant. He was 19 years old at the time of the first incident and 20 years old at the time of the second. He has had a difficult upbringing. The Judge then referred to two aspects that are relevant to the present appeal. He said:
Now I turn to the submissions made by your counsel and I record, particularly since this matter may well go further, he asked me to sentence you on the basis the complainant had consented. I am not prepared to do so. The essence of a charge of rape is that you had intercourse with this complainant without her consent and without believing on reasonable grounds that she was consenting. For me to sentence you on the basis that she consented it would appear to me to make a mockery of the plea of guilty to rape on both the grounds for which a defence could have been raised had you so elected to defend the charge. It is of course also contrary to what is said in the police summary although I acknowledge the matter raised by you in your application to change your plea which was heard by this court and then refused.
Your counsel has also asked me to sentence you on the basis that you pleaded guilty at an early stage. You did in fact plead guilty at an early stage. The essence of the “discount” which is given when a plea of guilty is entered is because it is an acknowledgement of guilt and also avoids the trauma which your victim or victim of rape must have by coming to Court. Now in this case I find it hard to see why I should give you any great discount for such plea because in fact you endeavoured to change it.
The Judge took as a starting point a sentence of imprisonment for eight years. He considered the aggravating and mitigating factors balanced out so that the sentence imposed was of eight years imprisonment.
The principal argument for the appellant in this Court was that O’Regan J applied the wrong test when he considered the Court’s inherent jurisdiction to allow a change of plea where that is necessary to avoid a miscarriage of justice. Counsel submitted that the Judge had applied the appellate test rather than the test applicable to an application made before sentencing. In support he relied upon the decision of this Court in R v Ripia [1985]1 NZLR 122
The issue in Ripia was the same as that in the present case, namely whether a change of plea should be allowed on an application made prior to sentencing. As this Court pointed out (at p126), the grounds on which a change of plea may be allowed prior to sentence are less restricted than those which apply at the appellate stage. A change on appeal will be allowed only in exceptional circumstances: see R v Stretch [1982] 1 NZLR 225 (CA).
On appeal against conviction to this Court the issue is whether there has been a miscarriage of justice (s385(1)(c) Crimes Act 1961). It may be that another Judge presented with the application dealt with by O’Regan J would have exercised the discretion differently. But our role is not to revisit the discretion but to consider whether justice has miscarried in all the circumstances. That said, we have reviewed the reasons for the decision of O’Regan J, assisted by the argument we have heard from Mr Jordaan on the same issues. We are satisfied that the Judge’s decision was open to him. He was not convinced there had been undue pressure leading to the guilty pleas. He was satisfied that the appellant made his own decision in light of advice and accepted that the advice was that of experienced counsel and was realistic.
Prior to sentencing leave to vacate a plea of guilty is a matter for the discretion of the Judge in the exercise of the court’s inherent jurisdiction (Adams on Criminal Law, CA356.04). It is a broad discretion. While the most common circumstances which warrant leave are that the accused has not really pleaded guilty, that there has been some critical mistake, or there is a clear defence to the charge, these are no more than examples (see R v Le Comte [1952] NZLR 564, 574; R v Turrall [1968] NZLR 312, 313; R v Ripia; Faulkner v Crown Solicitor at Auckland (Auckland High Court, T116/94, 27 July 1995). The underlying object is to avoid a miscarriage of justice, or, perhaps in the prospective context is better viewed from the opposite end, to consider the interests of justice. Such a test incorporates not only the interests of the accused but also the interests of victims or witnesses as well (R v Ripia at p4).
In reaching the conclusions he did, O’Regan J approached the matter consistently with the principles we have set out.
Standing back and reviewing the matter for ourselves, we are unable to conclude that there has been a miscarriage of justice or that the convictions are unsafe. By pleading guilty the appellant, on advice, gave up the opportunity to run before a jury defences that an 11 and 12 year old girl gave free and informed consent to sexual intercourse in the circumstances described, or that on reasonable grounds he believed that was the case. He did that in the belief that he would receive a reduced sentence and would put the matter behind him. We see no injustice arising out of that assessment.
The appeal against conviction is therefore dismissed.
In support of the appeal against sentence, counsel’s main submission was that the sentencing Judge erred in sentencing the appellant on the basis of an acceptance of the summary of facts when the appellant maintained that he had consensual intercourse with the complainant. We cannot agree. As is well established, an offender pleads only to the charge. If significant aggravating facts are disputed, either the Crown has to prove them, or the Judge must disregard such allegations when sentencing: R v Bryant [1980] 1 NZLR 264. However, lack of consent or a reasonable belief in consent are not aggravating factors but elements of the charge of sexual violation by rape. It would have negated the offence to have sentenced on the basis that the complainant consented.
Mr Jordaan was at pains to draw a distinction between consent in fact and what the law deems absence of consent (consent given by reason of a mistake as to the nature and quality of the act – s128A(2)(b)(ii) Crimes Act 1961. He wished to advance as mitigation that the complainant consented, albeit by reason of mistake as to the true nature and quality of the Act. That still is absence of true consent and goes to an essential element of the offence. For sentencing purposes it is an irrelevant distinction. The Judge was right to reject it.
Secondly counsel submitted that the Judge erred in selecting a starting point of eight years when that is the starting point in a contested rape case (R v A [1994] 2 NZLR 129). However, for an uncontested rape case the sentence is generally calculated from that starting point which is to be reduced in cases calling for adjustment to take account of any guilty plea and other mitigating factors and increased where there are aggravating factors (R v Peachey CA92/01, judgment 17 July 2001). That, effectively, was the approach taken in the present case and cannot be criticised. Further, the submission overlooks the fact that in this case there were two separate instances of rape.
Counsel also submitted that the Judge erred in accepting as an aggravating feature of the offending the appellant’s breach of trust where there was no evidence to that effect. We do not accept that. Such a finding was a matter of drawing inferences from the undisputed evidence of the family relationship between the appellant and the complainant and the difference in their ages, though it might have been more accurately described as abuse of position. It was well open to the Judge on the evidence before him.
In a related submission counsel argued that the Judge erred in finding that an aggravating feature of the case was the “use of force on two occasions” where there was no evidence to support the use of force in respect of the first incident. The summary of facts does not assert a use of force in the first incident, as it did in the second and, in relation to the second, the appellant took issue with this fact. We accept the Judge may have incorrectly introduced an aggravating factor in this respect.
It was also said that the Judge failed to give the appellant any discount for his guilty pleas because he attempted to change them. Although not quantified by the Judge, it is clear from the sentencing notes that some allowance was made for the guilty pleas, albeit a minimal one. After referring to the aggravating features of the case the Judge said:
They [the aggravating features] seem to me to balance out any discount you have for a change of plea of guilty and in all the circumstances in my view the proper sentence to be brought upon you is a sentence of eight years.

However, he said that after he had said that it was hard to see why he should give any great discount for pleas the appellant endeavoured to change.

We think there is some merit in the point made by Mr Jordaan that there is at least the appearance of injustice in an appellant having been held to his guilty pleas then being denied the reasonable discount he was motivated to enter his pleas to obtain.
Because of these last two aspects we consider some reduction is appropriate and will not take the sentence out of line bearing in mind the relative youth and other personal circumstances of the appellant as reviewed by the judge.
Accordingly, the appeal against sentence is allowed. The sentence of eight years for each offence is quashed and there is substituted a sentence in each case of imprisonment for seven years.

Solicitors

Short & Co, Takanini, for Appellant

Crown Solicitor, Auckland

[2002] NZCA 378

28 May 2002