R v Dawson
[2012] NZCA 225
•1 June 2012
| PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985. |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA164/2011 [2012] NZCA 225 |
| BETWEEN THE QUEEN |
| AND KANE GRAHAM DAWSON |
| CA772/2011 |
| AND BETWEEN KANE GRAHAM DAWSON |
| AND THE QUEEN |
| Hearing: 16 May 2012 |
| Court: O'Regan P, White and Miller JJ |
| Counsel: S B Edwards for the Crown |
| Judgment: 1 June 2012 at 10.30 am |
JUDGMENT OF THE COURT
AWe grant leave to the Solicitor-General to appeal against sentence (CA164/2011) but dismiss the appeal.
BWe grant an extension of time to Mr Dawson to appeal against conviction (CA772/2011) but dismiss the appeal.
_______________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
Introduction
Mr Dawson was convicted after a High Court jury trial of seven charges. (We will refer to Mr Dawson as “the appellant”). He was sentenced by the trial Judge, Andrews J, to an overall sentence of 14 years imprisonment, with a minimum period of imprisonment of seven years.[1]
[1] R v Dawson HC Rotorua CRI-2009-087-2532, 25 February 2011.
The Solicitor-General seeks leave to appeal against the sentence. After counsel for the Solicitor-General filed and served her submissions in support of that leave, the appellant filed an application for an extension of time to appeal against his convictions on all seven charges.
The Solicitor-General’s application for leave and the appellant’s application for an extension of time were heard together, and in relation to both the Court heard argument on both the applications and the merits of the proposed appeals. The Crown opposed an extension of time being granted for the appellant’s appeal against conviction, given that the notice of appeal was not filed for more than eight months after the statutory deadline.
We will set out the factual background, then deal with the appellant’s application for extension of time (which will involve an assessment of the merits of the proposed appeal) and then the Solicitor-General’s application.
The charges
Five of the seven charges relate to the first complainant, whom we will call “A”. She was 16 at the time of the offending. The appellant was 27. The remaining two charges relate to the second complainant, whom we will call “B”. She was also 16 at the time of the offending. The offending against A occurred on consecutive days, Monday 3 August 2009 and Tuesday 4 August 2009. The principal offence against B occurred on Thursday 6 August 2009. The last count arose from an incident which occurred when the appellant appeared in a District Court about a month after the offending against B.
Factual background
The factual background is dealt with in some detail in the sentencing notes of Andrews J. The summary that follows largely reproduces that summary.
The first complainant A, had been in a relationship with the appellant for a few months before the offending. A told the appellant that she wanted the relationship to end. She had in fact had a brief relationship with another man, whom we will call “X”. The appellant had previously been violent towards A and was on bail and curfew terms that prevented any contact with her.
On Monday 3 August 2009, the appellant went to A’s house. The appellant started asking her about X. He asked if A had slept with X, and she said no. The appellant got very angry and started strangling her, choking her throat with his wrist, and restricting her breathing. The appellant also pressed his hand hard on her face, causing her teeth to cut into her lip. The appellant stayed at the house until mid-afternoon. A said she was scared for her life. When the appellant left he took A’s cellphone.
The appellant went to A’s home again the next morning (Tuesday 4 August). A was scared when she saw him. When she went to the door she said she did not want to be with the appellant. The appellant got angry and pushed the door open. The appellant forced A into the bedroom and forced her down onto the bed. He put his wrist against her throat, as he had done the previous day, and started pushing down heavily. The appellant said he could kill her instantly like that. As a result of the appellant’s choking action, A passed out. The appellant then took his folding knife out and put it against A’s arm, and said “shall I slit your throat”, and the appellant said that if he did that A would die quietly and bleed out. The appellant used the knife to cut off some of A’s hair.
The appellant then pulled A’s tights and underwear down, saying that he would slice her genital area so that when anyone else had sex with her they would not enjoy it, and neither would she. He was holding the knife at that time. A was petrified but did not say anything fearing that it would provoke the appellant to assault her again. The appellant then said “Nah, I won’t do that” and stabbed the knife into the top of A’s set of drawers. A then started to put her clothes on but the appellant then said “I’ll show you what it’s like to be raped”. The appellant pulled A’s pants down, and had forced sexual intercourse. A had not wanted that to occur. The appellant then said he was sorry, but later he started choking A again by pushing down on her throat with his wrist.
The second complainant (B) did not know the appellant. She did know a friend of A, whose telephone number was in A’s cellphone. B responded to a text sent to the friend. The appellant texted back, on Wednesday 5 August, in which he identified himself as A’s boyfriend.
The appellant sent B a series of text messages saying how angry he was at A for cheating on him. There were exchanges about talking together face to face, not by text. There was also text discussion about “hooking up”. At about this time the appellant had sent a text to one of B’s friends saying he wanted a “root with a random to get even with A”. He sent a similar text to B, to which she answered “I don’t know you eh so I can’t help”. B did agree to meet the appellant. B picked him up in her car on 6 August and drove to a beach. He took over the driving when the appellant turned off onto a track in the sandhills and parked in a remote spot.
The appellant said how angry he was with A and X. He then leaned over towards B, who was in the passenger seat. He pulled a knife from his pocket and placed it on the dashboard. He pulled his pants down and started to pull B’s pants down. B said “no, I don’t want to” and the appellant said “yes you do”. He picked up the knife to show her it was still there. He had sexual intercourse with B. She did not want it, but thought that the appellant would hurt her if she did not. She kept telling him to stop, that she didn’t want it. B made her complaint to the police later that day. As a result the appellant was arrested and charged.
On 16 September 2009 the appellant appeared in a District Court on an unrelated matter. B was in the courtroom in the public gallery. When the appellant entered the dock he saw her. The appellant immediately started yelling. He was heard to yell things like, “That’s the bitch that stitched me up” and “Get her out of here”. He was also gesturing, including drawing his thumb across his throat in a slitting movement, and punching at his ribs and stomach in a stabbing movement. Later in the court cells he was heard to say to another prisoner that he had no problem with “putting a woman in line”. The jury accepted the Crown case that his words and actions were a performance designed to threaten and intimidate B into not giving evidence against him. (We will refer to these events as the “District Court incident”).
Trial process
The allegations made against the appellant by A and B were the subject of separate District Court committal proceedings. This was because A’s complaint to the police was made some time after B’s. B had made her complaint on the day after the rape of B took place. After the committal proceedings relating to both complainants had taken place, the Crown filed an indictment in the High Court containing all five counts relating to the offending against A, and count six, being the count alleging the rape of B. For reasons which are of no importance in the present context, a separate indictment was later filed which contained the count relating to the District Court incident. The Crown then applied under ss 340(3) and 345D of the Crimes Act to file an amended indictment in the High Court joining the count relating to the District Court incident with the other six counts. Those applications were opposed but were allowed by Potter J.[2]
[2] R v Dawson HC Rotorua CRI-2009-087-1605, 1 June 2010.
Initially the appellant was represented by Mr G Tomlinson. After the count relating to the District Court incident was added to the indictment, the Crown objected to Mr Tomlinson continuing to act, because Mr Tomlinson had been a witness to the District Court incident. The file was then taken over by Mr Tomlinson’s colleague, Mr Gowing, and he represented the appellant at the trial.
Application to extend time for conviction appeal
The appellant was sentenced on 25 February 2011. The Solicitor-General’s application for leave to appeal against sentence was filed on 24 March 2011. The appellant’s notice of appeal was filed on 21 November 2011, so it was about eight months out of time. The notice of appeal was signed in early September 2011, and the delay after that appears to have resulted from an error by counsel. But even if the notice of appeal had been filed in September, it still would have been out of time by over six months.
No reason for the late filing of the appeal was given in the notice of appeal but counsel for the appellant asked the appellant to explain the delay when he gave evidence before us. His answer was that he was not sure why it took so long, he had asked for an appeal as soon as he got sentenced, and it was only when served with the Crown appeal papers (in fact, the Crown’s submissions in support of the Solicitor-General’s application for leave) that he realised no appeal against conviction had been filed.
This is hardly a compelling explanation. However, this Court has indicated that the reasons for the delay are not the only criteria. Others include the strength of the proposed appeal, any prejudice to the Crown, the impact on others affected and on the administration of justice and the practical utility of any remedy sought.[3]
[3] R v Knight [1998] 1 NZLR 583 (CA) and R v Lee [2006] 3 NZLR 42 (CA) at [99].
For the Crown, Ms Edwards suggested that the timing of the appeal, just after the appellant received the Crown submissions in relation to its appeal, suggested that there had been a deliberate decision not to appeal which was reversed when the appellant became aware of the Crown appeal. However, we do not consider that the co-incidence of timing allows us to draw that conclusion.
Given the traumatic consequences for the two victims of the offending and the ordeal of giving evidence in the High Court, the need for finality is a matter of significance.[4] This is a particularly significant factor in cases of sexual offending. In the present case, the victims would have thought that the matter was finished when no appeal was filed, so that the resumption of the proceedings nine months after the sentencing would have been as matter of concern, though it must be acknowledged that the proceedings were not entirely completed because of the Crown’s sentence appeal.
[4]This was a factor emphasised in Elia v R [2011] NZCA 381 at [7] and Williams v R [2010] NZCA 616 at [23].
We do not see that there is any prejudice to the Crown in the delay, and Ms Edwards did not suggest there was.
Against this backdrop, it is clear that the strength of the proposed appeal will be a determining factor in deciding whether an extension of time should be given. We therefore propose to turn to the merits of the proposed appeal before returning to the question as to the outcome of the application for extension of time.
Grounds of conviction appeal
The focus of the conviction appeal was on two aspects of the appellant’s trial. The first of these was the fact that the counts relating to A and the counts relating to B were dealt with in the same trial. No application for severance was made before the trial and there does not appear to have been any particular focus on issues arising from the joint nature of the trial during the course of the trial itself. Mr Barnsdale initially framed this ground of appeal as a counsel incompetence argument, arguing that either Mr Tomlinson or Mr Gowing ought to have applied to sever counts one to five (which related to A) from counts six and seven (which related to B).
During the course of oral argument, the argument was reframed as a more direct argument that the joint nature of the trial and the omission of the Judge to give directions to neutralise the risk of propensity reasoning by the jury led to a miscarriage of justice.
The second focus of the conviction appeal is the decision of the appellant not to give evidence at the trial. This was framed as an allegation of trial counsel incompetence, based on the allegation that Mr Gowing had not adequately advised the appellant about the necessity for him to give evidence in order to succeed in relation to the rape count involving B, where his defence was that B had consented to the sexual intercourse that he admitted had taken place between them.
We will consider each of these matters in turn.
Issues arising from joint trial
As explained earlier, the count relating to the District Court incident was initially in a separate indictment from the counts relating to A and the rape count relating to B. The Crown’s application to include the District Court count with the other six counts was opposed, and there was some consideration in the decision allowing that application as to the consequences of the effective joinder of counts. But there was not, at any stage, any focus on the joinder of the counts relating to A with the rape count relating to B. In his evidence in this Court, Mr Gowing said that he did not seek severance because he did not consider that such an application would be successful.
The appellant’s defence to the rape count relating to A was that it had not happened, and that A was not telling the truth. In contrast of this, his defence in relation to the rape count involving B was that he acknowledged that he had sexual intercourse with B, but said that she had consented or, at least, that he had believed on reasonable grounds that she had consented. The Crown did not seek to rely on any propensity reasoning and the trial was conducted on the basis that there were separate trials taking place at the same time so that the evidence from one was not used in support of the evidence of another.
Having said that, the two rape allegations were interlinked in that the appellant’s contact with B resulted from the events involving the violent and sexual offending against A, as explained in the summary of the facts above. So to that extent the events were part of a continuous narrative over a period of about four days, and the evidence of at least some of the witnesses was relevant both in relation to A and in relation to B. Many of the witnesses knew both of them, although A and B did not have anything more than a passing acquaintance.
We agree with Mr Gowing that there was no realistic prospect of a successful severance application, given that the Crown was not seeking to run the trial on a propensity basis and the interlinking of the events involved in the offending against both complainants. However, Mr Barnsdale argued that, even though the Crown’s case was not expressly based on any propensity argument, there was still a risk that the jury illegitimately drew support for the verdict against A from the evidence against B and vice versa, and that some statements by the prosecutor in closing had provided a basis for real concern about this. He argued that the Judge ought therefore to have given an explicit direction warning against propensity reasoning.
We have carefully read the closing address by Crown counsel, and we do not consider that it can fairly be characterised as inviting the jury to engage in propensity reasoning.
The statements from the Crown prosecutor’s closing that Mr Barnsdale relied on were as follows:
(a)the prosecutor’s statement at the beginning of her closing address about the District Court incident, where she rhetorically quoted the statement the appellant had made just after that incident to the effect that he had no problem with “putting a woman in line”.[5] After repeating that phrase, the prosecutor added “To which he has no problem”;
(b)the prosecutor’s submission that this was not a case of two “bland complaints”, but compelling and detailed and consistent accounts from both appellants. The prosecutor suggested that this detail and consistency gave the complainants’ evidence a real ring of truth; and
(c)the prosecutor’s submission that the manner in which the complainants gave evidence was an important factor. The prosecutor said the defence was alleging that “their clear and apparent distress when giving evidence, their tearfulness and their obvious upset” was an act and that the tears were crocodile tears. The Crown asked the jury to see these factors as indications that they were honest witnesses.
[5] See [14] above.
Mr Barnsdale was particularly concerned about the first of these,[6] which he said invited the jury to conclude that the appellant was the sort of man who would sexually assault a woman. However, the words that are quoted there by the prosecutor are the words that the appellant was alleged to have said to another prisoner in the District Court and were clearly made in reference to count seven, the count relating to the District Court incident. They appear in a paragraph in which counsel was summarising the narrative and identifying the question for the jury in each case; whether the appellant did the things complained of. The prosecutor could have made exactly the same point, using the same narrative, in a separate trial relating only to the counts involving B, because the evidence was directly relevant. Counsel was not engaging in co-incidence or probability reasoning or invoking factors in s 43(3) of the Evidence Act 2006. A conclusion that the accused has a general propensity to commit sexual offences might follow the jury verdicts, but they were not being invited to conclude that he was guilty because he exhibited such propensity. Nor do we believe that the other statements can fairly be characterised as inviting the jury to engage in propensity reasoning. To the extent that the evidence may be said to demonstrate a tendency to act in a particular way, or to have a particular state of mind, the evidence was unlikely to unfairly predispose the jury against the appellant and a propensity direction was therefore not required.
[6] See [33](a) above.
Mr Barnsdale said the Judge ought to have done more to guard against the possibility of inappropriate propensity reasoning by the jury. The Judge gave standard directions about there being separate trials for each count and said that the evidence in relation to each count had to be carefully segmented (the words she used were “kept in its own box”). While we accept that a stronger direction as to the importance of not engaging in propensity reasoning could have been given, we do not consider there is any risk of a miscarriage resulting from this not being said. When the summing up is read in its entirety and in the context of what counsel had said in their closing addresses, the requirement for the jury to consider each count only on the evidence relating to that count was clear.
Mr Barnsdale said the reference to the need to keep the evidence relating to each complainant in its own box should have been supplemented by a clearer statement as to what the relevant evidence was in relation to each count. Again, that might have made matters clearer, but we do not think there is any real risk that the jury would have misunderstood which evidence was relevant to each count, given the very thorough and accurate summary of the Crown in defence cases that been given by the Judge earlier in the summing up.
One of the criticisms made by the appellant of Mr Tomlinson and Mr Gowing was that they had not advised him that, had he pleaded guilty to the rape of A, he could have expected a discount on the sentence for that offending. In cross-examination in this Court, he said that he had always acknowledged his guilt in relation to the rape of A and was prepared to plead guilty to that as long as the violence charges were consolidated into one charge, in which case he would have pleaded to the rape charge and the consolidated violence charge. If he had done so, of course, the problem of the joint trial would have disappeared: there would have been only a trial in relation to the offending against B.
This would then have allowed him to give evidence in relation to the counts involving B (in support of his position that the sexual episode between him and B was consensual) without exposing him to cross-examination in relation to the counts involving A. It was clear from the evidence given in this Court both by the appellant and by Mr Gowing, that it was the exposure to cross-examination in relation to the counts involving A, that weighed heavily in the appellant’s decision not to give evidence at the trial. The appellant put it quite candidly that he was keen to tell his side of the story in relation to B, but did not want to expose himself in relation to cross-examination in relation to A.
We find the position now taken by the appellant (that he always acknowledged his guilt in relation to A and wished to plead guilty) very difficult to reconcile with the position he took at the trial and even after the trial in relation to the sentencing exercise. It is beyond belief that someone who acknowledges guilt in relation to a rape would go through a trial process in which his trial counsel cross-examines the complainant, accusing her of lying, and putting her through what was obviously a significant trauma for A reliving the experience while giving evidence, all at a time when he really acknowledged guilt.
Even after the verdict, the probation officer who prepared the pre-sentence report relating to the appellant recorded that the appellant admitted to the assault on A and to possession of cannabis, but maintained his innocence in respect of the other more serious charges. This was also noted by Andrews J in her sentencing notes. She said that the appellant had maintained that he was not guilty of the charges, which meant that the probation officer had not undertaken any assessment of his motivation to address the factors contributing to his offending.
In short, we do not accept the appellant’s evidence that he wished to plead guilty to the offending in relation to A. If he had done so, he could have given evidence in the trial involving the allegation of rape by B. The fact that he did not left him with the dilemma that, in a joint trial, a decision to give evidence would mean he could be cross-examined in relation to both the events involving A and those involving B. However, the fact that he wished to give evidence in relation to one complainant but not the other would not, of itself, have led to a successful severance application
We conclude that a severance application, had one been made, would not have succeeded. The trial was not conducted on the basis that the jury was invited to engage in propensity reasoning. The Crown prosecutor’s remarks could not be fairly construed as making such an invitation. The Judge’s directions provided sufficient guidance to the jury to avoid illegitimate propensity reasoning. This ground of appeal would therefore fail.
Decision not to give evidence
We can deal with this point relatively briefly. In his evidence in this Court, the appellant accepted that Mr Gowing had advised him about the pros and cons of giving evidence, and had told him that it was the appellant’s decision to make. Mr Gowing had on two previous occasions explained to the appellant that it would be the appellant’s decision as to whether to give evidence, and that the decision would need to be made at the end of the Crown case. The appellant accepted that, at the conclusion of the Crown case at the trial and after discussing the matter with Mr Gowing, he instructed Mr Gowing not to call him to give evidence. At that time, he signed a handwritten document prepared by Mr Gowing recording that instruction. There is no question, therefore, that Mr Gowing failed to follow instructions when he did not call the appellant to give evidence.
The proposed appeal point is that the advice given by Mr Gowing (to the effect that the appellant should not give evidence) was negligent. In short, it is argued that the successful defence of the charges involving B required that the appellant give his account of the incident involving B to provide a proper foundation for his defence that B consented or that he believed on reasonable grounds that she consented.
We see that analysis as too simplistic. It omits from the equation the key element in the decision not to give evidence, namely the risk of exposure to cross-examination in relation to the events involving A. It was obviously a finely balanced decision and a difficult one to make. It was clear that Mr Gowing’s cross-examination of B had been effective and that there was good material for the defence closing address even without the appellant’s version of events being heard. We have no concerns that the appellant made the decision on the basis of incomplete or inadequate advice. This ground of appeal would also therefore fail.
Extension of time: conclusion
Having concluded that the appeal would fail on its merits, it becomes academic as to whether an extension of time is granted or not. In the circumstances we think that the better view is that having regard to the seriousness of the offences and the sentence imposed on the appellant and the lack of any prejudice to the Crown in defending the appeal, an extension of time should be granted. We therefore grant the extension of time but dismiss the appeal.
Solicitor-General application
The Solicitor-General argues that the total sentence of 14 years was manifestly inadequate, because the Judge gave insufficient uplift to the sentence that would have been imposed if the only offending had been that against A for the additional offending against B. The Crown argues that the total sentence of 14 years should have been between 16 and 18 years.
The Judge’s sentencing notes
Having outlined the facts, the Judge reviewed the victim impact statements. These highlighted the very significant trauma suffered by A and B and the ongoing impact the offending has had on the lives of both of them. Both were only 16 when the offending occurred, and both have had ongoing problems with loss of self esteem and difficulty with relationships.
The Judge then considered the pre-sentence report. The appellant came from a household in which he was a victim of regular physical abuse by his parents. His one long term relationship had ended because of substance abuse, infidelity and, finally, imprisonment. Because he continued to maintain his innocence, there was no addressing of the factors contributing to his offending. However the report writer noted that a psychological assessment done in 2009 after a previous sexual offence conviction concluded that the appellant had “an over-developed sense of entitlement, including sexual entitlement, and that [he] minimised [his] offending behaviour”. The Judge noted that the appellant had 27 previous convictions including one for sexual connection with a 13 year old girl in 2005. He also had previous convictions for male assaults female and threatening to kill or do grievous bodily harm. He also had convictions for breaching protection orders.
The Judge then turned to the starting point. In applying the decision of this Court in R v AM[7], she started by identifying factors reflecting the culpability of the offending and dealt with these as follows:
(a)Premeditation: the Judge decided not to take this into account given her doubt as to the extent of premeditation in relation to both rapes.
(b)Violence, detention and home invasion: The Judge saw the violence against A as significant, and noted the intimidation of both A and B with a knife. In relation to A the offending involved home invasion and, indeed, the breach of court orders prohibiting the appellant from going to A’s home.
(c)Vulnerability of the victims: The Judge said both victims were vulnerable, particularly B, given the circumstances in which the rape of B took place.
(d) Harm to the victims: we have already referred to this above.
(e)Scale of the offending: The Judge considered the offending was serious, particularly the fact that there were two victims and two offences of rape within a few days.
(f)Breach of trust: This applied particularly to A, with whom the appellant had been in a relationship. However the Judge accepted that this was not as significant as in many other cases of rape.
[7] R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
Taking all of these together, she concluded that the offending fell between rape bands two and three in R v AM and that it was therefore appropriate to place the offending at the upper level of the second rape band.
She therefore set a starting point for each of the sexual violation charges at 12 years imprisonment.
The Judge then turned to the question as to whether there should be cumulative or concurrent sentences. She concluded that given the close connection between the two rape offences, concurrent sentencing was appropriate. However, she applied an uplift of 12 months to the starting point to reflect that the appellant was being sentenced on two charges involving two different victims. She then gave a further uplift to reflect the appellant’s previous record for sexual offending. This uplift was six months, taking the adjusted starting point to 13 years and six months. She then turned to consider the violence offending in relation to A. Apart from the offending that had taken place on the Monday, the day before the rape of A, she concluded that the starting point for the rape of A had effectively taken into account the associated violence. Accordingly concurrent sentencing was appropriate.
However she considered the offending on the Monday, which was a separate incident from the rape incident, should be dealt with by a cumulative sentence of six months imprisonment. She also set a sentence of 12 months imprisonment for the count of attempting to dissuade B from giving evidence (the District Court incident). Again, she considered that this justified a cumulative sentence given that it was quite discrete and at a quite different time from the rape of B.
Bringing all these together, she reached an adjusted sentence for the rape charges and associated charges, including the cumulative sentences, of 15 years imprisonment. There were no mitigating factors.
The Judge then stood back to undertake a totality assessment as required by s 85 of the Sentencing Act. She concluded that some adjustment was necessary to ensure that the total period of imprisonment was not wholly out proportion to the overall offending. She therefore reduced the total end sentence to 14 years imprisonment comprised as follows:
(a) rape of A: 13 years imprisonment;
(b) rape of B: 13 years imprisonment (concurrent);
(c)injuring with intent to injure (A): 15 months imprisonment (concurrent);
(d) threatening to kill (A): three years imprisonment (concurrent);
(e)threatening to do grievous bodily harm (A): 12 months imprisonment (concurrent);
(f) male assaults female (A): three months imprisonment (cumulative);
(g)attempting to dissuade a witness (B): nine months imprisonment (cumulative).
She imposed a minimum period of imprisonment of seven years.
Grounds of sentence appeal
For the Solicitor-General, Ms Edwards said that the sentencing went awry at the point at which the Judge applied an uplift for the fact that the appellant had committed two separate rapes. She did not take issue with the Judge’s approach to concurrent and cumulative sentences, and did not contest the Judge’s starting point of 12 years imprisonment. Her criticism of the Judge’s approach was that the uplift to reflect the fact that there were separate rapes of two victims should have been higher than 12 months, because, as she put it, the totality adjustment made by the Judge effectively cancelled out the uplift that had been made for the second rape.
She said that if the Judge had made an appropriate uplift adjustment, an end sentence of 16 to 18 years would have resulted, and that would have been the correct result.
Looked at in the round, the Crown appeals boils down to the proposition that the end sentence of 14 years was manifestly inadequate, given the nature of the offending and the fact that there were two separate victims. We are not persuaded that the sentence meets the “manifestly inadequate” standard. We accept that the end sentence arrived at by the Judge was at the lower or end of the available range, but in our view it was within that range. We do not think there is any great utility in focussing on the uplift applied by the Judge, because the key reason for the 14 year sentence was the fact that the Judge felt obliged to make a downward adjustment to reflect the totality of the offending. As the trial Judge, she was well placed to make that assessment. We are not persuaded that we should interfere with it.
Solicitor-General’s application: conclusion
We accept that the issues raised by the Solicitor-General are ones that ought to be aired and that leave is appropriate. But, having granted leave, we dismiss the sentence appeal.
Result
We extend time for the appellant to appeal against conviction but dismiss the appeal.
We grant leave to the Solicitor-General to appeal against sentence but dismiss the appeal.
Solicitors:
Crown Law Office, Wellington for Solicitor-General