R v Dittmer Ca258/01 - [2002] NZCA 385

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA258/01

THE QUEEN

ROBERT JASON DITTMER

Hearing:	14 August 2002
Coram:	Gault P Tipping J McGrath J Anderson J Glazebrook J
Appearances:	T Ellis and L C Ord for Appellant S P France for Crown
Judgment:	24 October 2002

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

Mr Dittmer was convicted after trial on two charges of indecent assault and one charge of sexual violation by unlawful sexual connection. He was sentenced, on 12 July 2001 under the sentencing regime then in force, to preventive detention in relation to the sexual violation charge. He appeals against his conviction on all three charges and also against the sentence of preventive detention.

Background facts

Mr Dittmer and the complainant were both resident at a Salvation Army men’s hostel. Mr Dittmer was 25 at the time of the alleged offending and the complainant was 19. The charges arose out of an incident in a park in the early evening of Friday, 11 August 2000. The first count in the indictment was of indecent assault by kissing the complainant on the mouth. The second count was also of indecent assault. The allegation under this count was that Mr Dittmer touched the complainant’s genitals with his hand. The third count was of sexual violation through unlawful sexual connection occasioned by the penetration of the complainant’s anus by Mr Dittmer’s penis.
In evidence in chief the complainant said that Mr Dittmer had grabbed him by the arms and kissed him with an open mouth. After this Mr Dittmer pulled him to the ground and pulled his pants down. Mr Dittmer then pulled his own pants down. The complainant said that Mr Dittmer touched his stomach and chest with his hand but that he did not touch any other part of his body at this point. He then gave evidence as to Mr Dittmer pulling him up to his knees, pushing his head down and inserting his (Mr Dittmer’s) penis into his anus. The complainant said that he had at various times told Mr Dittmer to stop and that Mr Dittmer had told him to be quiet and threatened to kill him.
Mr Dittmer in evidence agreed that he and the complainant had gone to the park and that he had kissed the complainant. He maintained that the kiss was consensual. He denied touching the complainant’s genitals and the anal penetration but admitted that he had touched the complainant’s chest and stomach.
The jury returned verdicts of guilty on all three charges.

Conviction appeal

In relation to the conviction appeal Ms Ord for Mr Dittmer says first that there was no evidence on which the jury could have convicted in relation to the second of the indecent assault charges. Secondly she says that the Crown led inadmissible recent complaint evidence. Thirdly she submits that Mr Dittmer’s statement to the police, which was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dittmer Ca258/01

Details

AGLC: R v Dittmer Ca258/01 [2002] NZCA 385
Case: [2002] NZCA 385
Decision Date: 24 October 2002

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr. Robert Jason Dittmer was convicted of indecent assault and sexual violation by unlawful sexual connection, and subsequently sentenced to preventive detention. The appeal against his conviction and sentence was heard by Gault P, Tipping J, McGrath J, Anderson J, and Glazebrook J. Mr. Dittmer's counsel, T. Ellis and L. C. Ord, argued that there was insufficient evidence to support the conviction on the second count of indecent assault, that recent complaint evidence was improperly admitted, that prejudicial evidence was elicited by the Crown, and that the sentence of preventive detention was inappropriate. The Crown, represented by S. P. France, defended the conviction and sentence.

The court rejected the argument that there was insufficient evidence for the second count of indecent assault, finding that there was evidence to support the jury's decision. The court also found that the recent complaint evidence was properly admitted, despite some prejudicial elements. The court found no impropriety in the Crown's eliciting of evidence relating to the staff at the hostel and Mr. Dittmer's relationship with the complainant.

Regarding the sentence of preventive detention, the court rejected the general challenge to the appropriateness of the sentence under international law, finding that the New Zealand Parliament had approved the principles set out in the decision in R v Leitch. The court found that the psychologist's report should not have been admitted as it contained protected communications without proper consent. However, the court found that preventive detention was the appropriate sentence for Mr. Dittmer, taking into account the nature of the offending, the category of victims, the response to previous rehabilitation efforts, and the poor prognosis for the success of future treatment.

In conclusion, the appeal against the conviction was dismissed, while the appeal against the sentence of preventive detention was also dismissed, as the court found that preventive detention was the appropriate sentence for Mr. Dittmer.

Orders