R v F (CA206/05)
[2005] NZCA 394
•22 November 2005
NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA206/05
THE QUEEN
v
F (CA206/05)
Hearing: 16 November 2005
Court: Chambers, Goddard and Rodney Hansen JJ Counsel: S D Cassidy for Appellant
B J Horsley for Crown
Judgment: 22 November 2005
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
(Given by Rodney Hansen J)
Introduction
[1] On 10 May 2004 the appellant pleaded guilty on arraignment in the
High Court to seven counts of sexual offending against two young girls. Before
R V F (CA206/05) CA CA206/05 22 November 2005
sentence he applied for leave to vacate the pleas of guilty. That application was refused. He was later sentenced to ten years and six months imprisonment, with a minimum term of imprisonment of five years and three months. He appeals against the decision to refuse him leave to change his plea and against sentence.
Further background
[2] The younger complainant, L, was aged between seven and nine years when the offending took place. She is the niece of the appellant and his wife (his wife’s sister’s daughter). While staying with them between October 1998 and December 2001, the appellant sexually violated her by rape and by oral connection on multiple occasions and sodomised her once. He also induced her to masturbate him. Some of these activities are alleged to have occurred with the connivance of the appellant’s wife.
[3] The other complainant, H, and her younger siblings stayed with the appellant and his wife in 2000 and 2001 when H was aged 12 and 13. The children had been removed from the custody of their natural mother because of serious physical abuse. On several occasions the appellant attempted to rape H. He digitally penetrated her and indecently assaulted her. Two of the attempts to rape H were accompanied by violence and one of the incidents occurred in the presence of H’s infant sister.
[4] The appellant initially faced 12 charges. His wife faced two charges. The trial was to begin on 10 May 2004. After a series of discussions with his counsel, Mr Roger Chambers, an agreement was reached that the appellant would plead guilty to seven charges. The remainder would be withdrawn, including the charges against his wife.
[5] The appellant was remanded for sentence. On the day he was to be sentenced he intimated that he wished to withdraw his pleas of guilty. An application for leave to vacate the pleas was subsequently filed, supported by an affidavit by the appellant. He waived privilege and the Crown responded with affidavits by Mr Chambers and another barrister, Mr Nalesoni Tupou, who had been involved in the appellant’s
discussions with Mr Chambers. All deponents were cross-examined at the hearing of the application before Venning J.
Application to change plea
Judgment of Venning J
[6] In his judgment Venning J noted the application was brought under s 169 of the Summary Proceedings Act 1957. He referred to the leading authority of R v Ripia (1984) 1 CRNZ 145 (CA) which confirms that the decision to allow a change of plea before sentence should be exercised by reference to the interests of justice. He then went on to review the evidence of the appellant and the two lawyers.
[7] The evidence focused on meetings with the appellant which took place at Mt Eden Prison on 6 and 8 May 2004, a matter of days before the pleas of guilty were entered on 10 May. Both lawyers were present. The appellant is Tongan. His English is limited. Mr Tupou, as a Tongan-speaking lawyer, was asked to assist by Mr Chambers and acted as interpreter at both meetings.
[8] Mr Chambers said that much earlier he had formed the view that the appellant’s prospects of successfully defending the charges were negligible. With the appellant’s permission, he had discussions with the Crown which had agreed to reduce the number of charges against the appellant and withdraw the charges against his wife if he pleaded guilty. At the May meetings the case for pleading guilty to a reduced number of charges was explored.
[9] At the conclusion of the 8 May meeting, the appellant decided to enter pleas of guilty to the reduced number of charges. He signed, and Mr Tupou witnessed, a handwritten document prepared by Mr Chambers which reads as follows:
To Mr R P Chambers
Barrister
Auckland
I have received full and proper legal advice in respect of the charges that I face. I now instruct that I will plead guilty to the amended indictment, namely: -
Representative count that I raped L. Count that penetrated L’s anus.
Count that I connected my mouth with L’s genitalia (representative charge). Count that I induced L to do an indecent act on me.
Count that I touched H’s breast with my mouth. Representative count that I attempted to rape H. Count that I penetrated H’s genitalia by my finger.
[10] There was disagreement between the appellant on the one hand, and the two lawyers on the other, as to the circumstances in which the document was signed. The appellant said that he only agreed to plead guilty because he was pressured by Mr Chambers to do so. He said he believed he had no alternative. He agreed the contents of the document were translated to him by Mr Tupou but only after he had signed it. He maintained that when signing the document he told counsel he was not guilty and telephoned Mr Chambers four times after he had signed it to say he wanted to change his mind.
[11] Both Mr Chambers and Mr Tupou said the document was prepared only after the appellant had decided to plead guilty. That decision followed detailed advice by Mr Chambers, all of which was translated into Tongan by Mr Tupou. Mr Tupou said it was only after much discussion that the appellant decided to plead guilty and that he twice read the authority to the appellant in Tongan before it was signed.
[12] Mr Chambers said that following the entry of pleas on 10 May he saw the appellant twice to discuss sentencing matters. On neither occasion did the appellant convey that he was having second thoughts about the decision to plead guilty. Mr Tupou said he also had a number of communications with the appellant after
10 May and before sentence, and the appellant never suggested that he wished to resile from his pleas of guilty.
[13] Before Venning J, the appellant’s counsel argued that he should be granted leave to withdraw his guilty pleas on the ground that he had not really intended to plead guilty and had done so mistakenly. It was therefore in the interests of justice that leave be granted. The Judge emphatically rejected the submission. His findings are encapsulated in [27] and [28] of the judgment:
[27]The overriding issue is the interests of justice. The first two grounds can be dealt with together. The affidavits and oral evidence of Mr Chambers and Mr Tupou satisfy me that at the time the applicant agreed to plead guilty on 8 May and then pleaded guilty on 10 May he fully understood the decision he had made and the consequences of that decision. I am unable to accept the evidence that the applicant gave before the Court today. The applicant’s evidence is in direct conflict with the evidence of both Mr Chambers and Mr Tupou on the important points of the discussions that took place on 6 May and 8 May. In particular it is in direct conflict in relation to sequence of events and the steps taken by counsel to ensure that the applicant understood the consequences of the guilty plea before he confirmed his instructions that he would plead guilty and then subsequently did so on 10 May. I prefer the evidence of Mr Chambers and Mr Tupou.
[28]The applicant was not forced to plead guilty by Mr Chambers or by Mr Tupou. Having seen the applicant give evidence I am satisfied that despite his limited ability to understand English (and it is limited, not absolute) he is not a person who would be forced to agree to anything that he did not wish to do so.
[14] After referring to aspects of the appellant’s evidence which supported his credibility findings, the Judge went on to say:
[33] I am satisfied that the implications of the guilty pleas were fully explained to the applicant. Both he and his wife obtained concessions from the Crown in exchange for the pleas. He understood what he was doing by pleading guilty. I accept Mr Tupou’s evidence is that the situation was explained to the applicant on two separate days, and that the authority was read out to him by Mr Tupou twice before they were signed off by the applicant. I also accept the applicant understood what he was pleading to because of the language and words used by Mr Chambers in the instructions when referring to the particular counts to which he was to plead guilty.
[34] The situation of this applicant is that, having obtained a number of benefits from the pleas he now wishes to maintain the benefits but not accept the consequences of the guilty pleas and repents on the guilty pleas on that basis. With the passage of time and the pending sentence the applicant
further reflected on his position and repented of the informed decision he made earlier.
[35] The interests of justice require consideration of not only the applicant’s position but also that of the complainants’ position and the integrity of the Court process. That includes the maintenance of guilty pleas especially where the pleas are entered after proper advice and in exchange for concessions by the Crown. While the accused’s interests are important, and he faces serious charges, which are particularly relevant factors, they are not the sole determinant of the interests of justice.
[36] In this case in my judgment given the applicant’s understanding of what he was doing before he entered the guilty pleas and given the other factors I have referred to above the interests of justice do not support the application. The application for leave is declined.
Argument and analysis
[15] Mr Cassidy accepted that the Judge applied the correct legal test. He also acknowledged that he could not challenge his key factual findings. The task of showing the decision to have been wrong was therefore a daunting one.
[16] Mr Cassidy began by expressing misgivings about the place of plea bargaining in the process and referring to the pressure which the offer to withdraw the charges against the appellant’s wife would have created. He then pointed to evidence of a possible misunderstanding between the appellant and his counsel as to the identity of the person whom the appellant maintained was responsible for the sexual abuse.
[17] In our view, there is nothing in these matters which could have led to error. The claim that the appellant was subjected to undue or improper pressure was fully canvassed and rejected by the Judge. It relied on evidence by the appellant who the Judge found lacked credibility. It may well be that the offer to withdraw charges against the appellant’s wife added to the case for pleading guilty, but that could not detract from the Judge’s finding that the appellant fully understood the advice he was given and made an informed and considered choice to act on it.
[18] Both Mr Chambers and Mr Tupou referred in evidence to the appellant’s suggestion that a social worker was responsible for the abuse of the complainants. Mr Cassidy said this involved a misunderstanding of the appellant’s instructions
which were that the social worker sided with the family of the victims, a member of whom may have been the perpetrator. This is what the appellant told the probation officer who prepared the pre-sentence report.
[19] There is nothing to indicate that the point was ever raised with the Judge but even assuming he had found counsel to have been under a misapprehension on this issue, it could not have affected his decision. The identity of any third person who may have been responsible for the abuse was irrelevant to counsel’s assessment that there was a strong case against the appellant. The evidence of the complainants in that regard was supported by independent witnesses. A defence of mistaken identity or fabrication was realistically judged unlikely to succeed.
[20] We cannot find any reason to disturb the Judge’s refusal to grant leave to change the guilty pleas. We may add that even now there is nothing to suggest what the defence to the charges might be. Subsequent to Venning J’s decision, the appellant made a fulsome confession which Harrison J recorded in the course of sentencing the appellant: see below at [22]. The appellant’s attempt now to resile from that confession lends weight to Venning J’s credibility findings.
Appeal against sentence
[21] In sentencing, Harrison J identified a number of aggravating features of the offending. They were the gross abuse of trust and confidence involved; the particular vulnerability of the victims; the severe emotional harm which resulted; and the violence and cruelty which accompanied the offending. He referred to two authorities of this Court – R v T CA251/02 31 October 2002 and R v Kolio CA219/01 1 November 2001 – in adopting a starting point of 14 years imprisonment.
[22] In discussing mitigating factors, Harrison J noted that, notwithstanding his guilty plea, the appellant had maintained his innocence. He said if that had remained the appellant’s position, he would have allowed a discount of two years to recognise that the victims had at least been spared the ordeal of a trial. However, at the
Judge’s suggestion, the appellant’s counsel had taken further instructions. The sentencing notes record what then occurred:
As a result you returned to Court and addressed me personally. This course is unusual but I am satisfied it was appropriate here. You have spoken with humility and honesty. You have sought forgiveness from all against whom you have committed crimes. You have, in particular, apologised to your victims, to your family, and to all who have been affected by your crimes. You have assured me that you will never offend in this way again. I accept what you have told me. Your words reflect your acknowledgement for your wrongdoing and a recognition of the demons that have driven you to these crimes. Your actions will enable you to move forward and face the future with a more constructive approach. As a result I am taking the unusual step of reducing the starting point of your sentence by three and a half years; that is, from 14 years down to 10½ years imprisonment. In that assessment I also take full account of your previous good record.
The appellant’s expressions of remorse thus earned him a further 18 months reduction in sentence.
[23] Harrison J then considered a Crown submission that he should impose a minimum term of imprisonment. He had no difficulty in finding that the offending was sufficiently outside the normal range of sexual offending to justify imposing a minimum term. He acknowledged the requirement to fix a term which adequately punished, deterred and denounced the crimes. He recorded his initial intention to impose a minimum term of seven years imprisonment but said that, in recognition of the appellant’s words of contrition and remorse, he would impose a lesser term of five years and three months or 50% of the total term.
[24] After taking instructions, Mr Cassidy wisely elected not to pursue the appeal against the finite term of imprisonment. He recognised, no doubt, that the insincerity of the appellant’s expressions of remorse at sentence had been exposed by his renewed protestations of innocence. The appellant can count himself fortunate to retain the benefit of the additional 18 month discount given by the Judge from a starting point which, in light of cases such as R v T and R v Kolio, was entirely appropriate. The offending involved callous and at times brutal abuse of two vulnerable girls who had been entrusted to the appellant’s care. The aggravating features of the offending amply justified the Judge’s starting point of 14 years.
[25] Mr Cassidy acknowledged that the offending justified the imposition of a minimum term of imprisonment. He argued, however, that the Judge should not have exercised his discretion to impose a minimum term because the appellant would be deported to Tonga on his release. The protection of the public did not therefore require his serving a sentence beyond the minimum parole period.
[26] There is no merit in this submission. Section 86 of the Sentencing Act 2002, as originally enacted, applied. The protection of the public was not a relevant factor. As Harrison J explicitly acknowledged, he was required to fix a minimum term which would adequate punish, deter and denounce the crime. The fact that the appellant would be deported on release was irrelevant to his determination.
[27] A minimum term of 50% was fully justified. A longer term could have been imposed and would have been were it not for the appellant’s expressions of contrition and remorse. On this component of his sentence too, the appellant should regard himself as having been leniently treated.
Result
[28] The appeal against the refusal to grant leave to vacate guilty pleas and against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
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