R v Edwards
[2007] NZCA 382
•31 August 2007
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA83/07 [2007] NZCA 382
THE QUEEN
v
DANIEL JOHN EDWARDS
Hearing: 20 August 2007
Court: Arnold, Wilson and Priestley JJ
Counsel: N J Sainsbury and C Parkin for Appellant
K B F Hastie for Crown
Judgment: 31 August 2007 at 10 am
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Arnold J)
R V EDWARDS CA CA83/07 31 August 2007
Introduction
[1] The appellant was convicted on one count of sexual violation by rape following a jury trial in the High Court at Wellington. Miller J sentenced him to a term of imprisonment of seven years six months: HC WN CRI 2005-078-212
15 December 2006. He now appeals against that sentence.
[2] The appellant’s counsel, Mr Sainsbury, submitted that Miller J erred in three respects:
(a) He adopted a starting point that was too high;
(b) He did not give sufficient credit for the appellant’s mental health problems;
(c) He did not give credit for the appellant’s remorse.
Mr Sainsbury said that the sentence of seven years six months is manifestly excessive and that an end sentence of less than six years imprisonment is appropriate.
[3] We deal with each ground in turn.
Starting point too high
[4] The complainant was the appellant’s flatmate. She had moved into the appellant’s rental property about four days before the incident occurred, in response to an advertisement placed by the appellant. At the time the complainant was on medication for depression, her partner having committed suicide shortly before.
[5] On the evening of the incident, the complainant was in her room listening to music. The appellant arrived home about 11pm, having been out drinking with some friends. He was intoxicated. The appellant went into the complainant’s room, and,
despite the complainant’s repeated requests that he stop, forced the complainant to have sexual intercourse with him.
[6] We describe the course of the proceedings in more detail at [16] and [17] below. For present purposes it is sufficient to note that the appellant did not give evidence at trial, although he gave two video interviews to the police. His defence at trial was that the sexual intercourse (which he accepted occurred) was consensual.
[7] Miller J adopted a starting point of eight and a half years. The Judge noted that the starting point for a contested rape is eight years imprisonment (R v A [1994]
2 NZLR 129 (CA)), but adopted a starting point of eight and a half years imprisonment to reflect two aggravating factors in the offending. Those were breach of trust, arising from the fact that the complainant was the appellant’s flatmate, and the complainant’s vulnerability, as reflected in her receiving medical treatment for depression brought about by her partner’s suicide.
[8] Mr Sainsbury submitted that the six month increase on the eight year starting point identified in R v A was unjustified. This was because breach of trust and vulnerability are features of every rape and are already taken into account in the eight year starting point. Accordingly to treat these factors as aggravating was to double count.
[9] We do not accept this submission. While we accept that sexual violation by rape can, in a general sense, involve breach of the victim’s trust and exploits the victim’s vulnerability, in the present case there were features which went beyond the ordinary in those two respects. The complainant had recently become a flatmate of the appellant. She was relaxing in the privacy of her bedroom. Inevitably flatmates have to trust one another in this and other contexts. The appellant acted in gross dereliction of the trust that the complainant necessarily placed in him by becoming his flatmate. Further, the complainant was more than usually vulnerable. She was facing difficult personal circumstances, sufficient to cause her to be placed on medication to combat depression. This was a low point in her life, and she was entitled to expect understanding and support from the appellant, rather than exploitation.
[10] We have no doubt that the Judge was right to take the two aggravating features identified into account in the present case. We consider that a starting point of eight years six months was fully justified. Indeed, we think that a higher starting point, in the region of nine years, could have been justified in light of these features.
Credit for appellant’s mental health problems
[11] The appellant suffers from schizophrenia. At the time of the offending he was in his mid thirties. He had been receiving medical treatment for some years prior to that and had been found not guilty of a violent assault in 1996 on the grounds of insanity.
[12] The evidence before Miller J showed that if the appellant maintained his medication, he was capable of functioning satisfactorily in the community. At the time of the sexual violation he was working as a truck driver. He had been in a stable relationship with a partner with whom he had three children. However, that relationship had broken down at the time of the offending, although it subsequently resumed.
[13] Section 9(2)(e) of the Sentencing Act 2002 requires the Court to take into account as a mitigating factor, to the extent applicable in the case, the fact that the offender “has, or had at the time the offence was committed, diminished intellectual capacity or understanding”. Quite apart from that provision, this Court has accepted that a convicted person’s psychiatric condition is relevant to sentencing: see R v Tuia CA312/02 27 November 2002 at [9] – [22] and the cases discussed therein.
[14] In the present case Miller J did take the appellant’s mental condition into account. He said (at [12]), referring to Tuia, that the only mitigating factor was the appellant’s mental illness, which reduced the appellant’s moral culpability to the extent that it contributed to the offending, and also reduced the need for deterrence. The Judge also noted that, to some extent, any impairment of judgment suffered by the appellant was the result of intoxication rather than mental illness, and that this was not a mitigating factor. Further, although he acknowledged that the appellant
had expressed some remorse for the harm done to the complainant, the Judge attached no weight to that because it was not accompanied by a genuine acceptance of responsibility. In light of these factors, the Judge reduced the sentence from eight years six months to seven years six months, a discount of approximately 12 per cent.
[15] On appeal, Mr Sainsbury argued that this discount was inadequate to reflect the appellant’s mental illness and that something in the order of 25 per cent was required. To address this submission we need to consider the psychiatric reports before Miller J. They came from four psychiatrists. To put them in context we must outline the way in which the proceedings developed.
[16] The offence occurred on 18 November 2004. The police interviewed the appellant on 7 January 2005 and again on 10 February 2005. The appellant was arrested towards the end of the second interview and charged. He was on bail until July 2005. In March 2005 a psychiatrist, Dr Leslie, assessed the appellant and prepared a report for the Court under s 38(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. He expressed the opinion that there was no clear evidence that the appellant was acutely unwell at the time of the offending. He said that the appellant was fit to plead. He also noted that the appellant said that he used alcohol and drugs as coping methods, and said that this was a significant risk factor for relapse of his mental illness.
[17] In July 2005 the appellant entered a plea of guilty to the charge. On
12 October 2005 he applied to vacate that plea, on the grounds that he was suffering from a mental disorder at the time he entered it and was confused as to the advice which he received from counsel. In that context, he was examined by Dr Brinded. On the basis of his preliminary report, MacKenzie J granted the application: HC WN CRI-2005-485-153 7 February 2006.
[18] Dr Barry-Walsh prepared a lengthy report on the appellant’s mental condition in September 2005. He had read Dr Leslie’s report. He had had some contact with the appellant in June and September 2004, when the appellant’s regular psychiatrist was away. In September 2004 Dr Barry-Walsh diagnosed the appellant as being actively psychotic with various presecutory delusions and hallucinations, and
organised his admission to hospital. After seven days as an in-patient, the appellant was released. He proved to be difficult to follow up, and his compliance with his medication regime was described as “somewhat erratic”. However, in December 2004 he seemed to be functioning in the community and he was operating his truck driving business. His condition appears to have deteriorated after February 2005 for a period, and then to have improved when he re-engaged with his mental health team. In his report, the doctor said that the history that the appellant gave was “of persistent psychotic experiences over the last twelve months, likely caused by a combination of intermittent compliance at best with medication and cannabis and alcohol use”.
[19] Dr Barry-Walsh reported that the appellant had said that he had been drinking heavily on the day of the offending, and was not hearing voices at the time. The doctor also noted, however, that the appellant had “considerable ability to mask his psychotic experiences and hide them from others”.
[20] Dr Brinded prepared a final report dated 6 March 2006. He had seen the reports of both Dr Leslie and Dr Barry-Walsh. In his report Dr Brinded said:
On closer questioning Mr Edwards was at pains to make it clear to me that he was aware of the difference between being intoxicated and suffering from mental disorder. In his view, he was not suffering from any signs of mental disorder at that time [ie, when the offence occurred] and his actions were certainly not driven by any abnormal thought processes or perceptual abnormalities. In Mr Edwards account, he did not develop signs and symptoms of illness again until after he had been charged with rape in January 2005 after some protracted discussions with Police.
[21] Dr Barry-Walsh then prepared a further report on 26 November 2006, after the appellant had been convicted but before he was sentenced. In that report he said:
Although I could not establish a direct nexus between his offending and his mental disorder nevertheless given the severity of his disorder and his current psychotic interpretation of the events around the time of the offending it is my opinion that there is some mediating effect between his illness and his actions. At the time of the offending [the appellant] was actively hallucinated, inconsistently taking his medication (if taking it at all) at a dose lower than is now required to control his illness and abusing substances. He has described a number of delusional beliefs and other experiences operating at the time and it is likely that the illness was having a significant impact on the extent to which [the appellant] could organise his thoughts. Therefore it seems highly likely that at the time of the offending
[the appellant’s] social judgment would have been impaired and he would have likely distorted the meaning and significance of events that were occurring around him including social interactions. I would speculate it is through these mechanisms that there is a mediating effect between his illness and the offending. I would thus suggest that his illness provides mitigation and some explanation for the offending although as I have previously noted there are a number of other factors likely involved.
[22] The “other factors” to which Dr Barry-Walsh referred in the last sentence of this extract were cannabis and alcohol use.
[23] Finally, the Judge had a report from Dr Skipworth, who was the appellant’s treating psychiatrist while the appellant was in custody on remand. This detailed the appellant’s positive progress while in custody.
[24] The position was, then, that the appellant denied that his mental condition contributed to the offending. He accepted that he was intoxicated at the time, but said that the sexual intercourse was consensual. Against that, Dr Barry-Walsh noted the appellant’s ability to mask his psychotic experiences and to hide them from others. Importantly, he expressed the opinion that there was “some mediating effect” between the appellant’s condition and his offending.
[25] Given the opinion expressed by Dr Barry-Walsh, it can fairly be said that the appellant’s mental illness played some part in his offending, but that there were other relevant features, in particular intoxication. The Court was entitled to take into account that the appellant’s offending was the result of a mix of factors, mitigating and non-mitigating. Other factors also had to be weighed, for example, the devastating impact of the offending on the complainant.
[26] On balance we consider that the discount allowed by Miller J was within the permissible range, albeit at the lower end. For ourselves, we would have been inclined to allow a greater discount to reflect the appellant’s psychiatric condition, something in the order of 15-20 per cent. However, for reasons which we develop at [30] and [31] below, this does not mean that the appeal should be allowed.
Credit for remorse
[27] Mr Sainsbury argued that the Judge was wrong to give the appellant no credit for remorse. He said that because of his mental condition the appellant genuinely thought that the complainant had consented to sexual intercourse. The appellant accepted that if she had not consented, the complainant must have suffered a terrible ordeal.
[28] As Mr Sainsbury accepted, this appeal point is closely related to the second appeal point. It assumes a clear causal connection between the mental illness and the offending. As we have said, the evidence before the Judge was ambivalent as to that. Moreover, the appellant’s expression of remorse did not involve full acceptance of responsibility. He continued to express the view that the complainant had consented.
[29] Accordingly we consider that the Judge was entitled to take the view that he did.
Decision
[30] The ultimate question on a sentence appeal such as this is whether the end sentence is manifestly excessive. As this Court said in R v T (CA139/05)
26 July 2005:
[18] An assessment of the overall correctness of the sentencing decision must necessarily focus on the end sentence imposed. Whilst the starting point of five years might be regarded as stern, the generous overall discount of 40% resulted in an effective sentence that can only be described as unexceptional. In a case such as this, where the sentencer has taken into account all of the relevant considerations and has arrived at an appropriate end result, the route by which the result was arrived at is of less importance, so long as it involves no error of principle. In the present case all of the relevant considerations were taken into account, there was no error of principle and the high starting point was remedied by a very generous deduction.
[31] In this case, we consider that a higher starting point, in the region of nine years, could have been justified, and a greater discount, in the region of
15-20 per cent, could have been given. But that would produce an end sentence identical, or very close, to that imposed by the Judge – essentially the same result by
a different route. The Judge took account of all relevant considerations, and made no error of principle. In those circumstances the appeal must be dismissed.
Solicitors:
Crown Law Office, Wellington
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