R v F(CA261/07)
[2007] NZCA 417
•25 September 2007
NOTE: NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA261/07 [2007] NZCA 417
THE QUEEN
v
F(CA261/07)
Hearing: 17 September 2007
Court: O’Regan, Potter and Keane JJ Counsel: P E Dacre for Appellant
B J Horsley for Crown
Judgment: 25 September 2007 at 2.30 pm
JUDGMENT OF THE COURT
The application for extension of time to appeal is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
R V F(CA261/07) CA CA261/07 25 September 2007
[1] The appellant seeks an extension of time to appeal against the following sentences imposed on him by Judge Bidois in the District Court:
(a) A sentence of eight years imprisonment imposed on 21 December
2004 after the appellant pleaded guilty on arraignment to counts of rape, abduction, male assaults female and assault with intent to injure. The victim of this offending was his then partner to whom we will refer as “A”;
(b) A cumulative sentence of 3 years imprisonment imposed on 13 May
2005 after the appellant had been convicted following a jury trial of unlawful sexual connection with a girl under the age of 12. The victim of this offending was the daughter of the appellant and A, to whom we will refer as B. The offending involved the appellant getting B to perform oral sex on him. B was about eight years old at the time of the offending.
[2] The notice of appeal is dated 25 May 2007 and was filed in early June 2007. This means that, for the more recent sentence, it is almost two years out of time. The Crown opposes the granting of an extension of time to appeal.
Issues
[3] The first issue for determination is whether, in light of the explanation given by counsel for the late filing of the notice of appeal and the merits of the appeal itself, an extension of time to appeal should be granted. If an extension of time is
granted, the second issue is whether the total sentence of 11 years imprisonment is manifestly excessive for the offending against both A and B, having regard to the totality principle now codified in s 85 of the Sentencing Act 2002.
Our approach
[4] The approach to applications of this kind was set out in R v Knight [1998] 1
NZLR 583 at 587 (CA). The ultimate test is the interests of justice in the particular case, but powerful considerations are the need for finality in litigation which must be balanced against the interests of the applicant. The Court said at 589 that the applicant must demonstrate “some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given”. The Court identified a number of factors which are relevant to the assessment. These are:
(a)The strength of the proposed appeal and the practical utility of the remedies sought;
(b) The length of the delay and the reasons for the delay;
(c) The extent of the impact on others similarly affected and on the administration of justice;
(d) The absence of prejudice to the Crown. [5] We consider those factors in turn.
(a) Strength of the proposed appeal and practical utility of remedies sought
[6] There is no doubt as to the practicality of the remedy sought: counsel for the appellant, Mr Dacre, suggested that the appellant’s sentence should be reduced by between one and two years.
[7] As to the merits, the essence of the proposed appeal is the contention that
11½ years is manifestly excessive for the totality of the offending against both A and
B.
[8] The most serious count in relation to A was rape. The evidence was that A had an abortion which, because of complications, made normal sexual relations difficult for her. Nevertheless the appellant badgered her for sex and, when she refused, dragged her into the bedroom, tied her to the bed and raped her.
[9] The Judge took a starting point of eight years for the rape count. He added one and half years to reflect the separate offence of kidnapping (abduction) – this was taking the complainant against her will into the bedroom and tying her to the bed for the purposes of the commission of the rape. The Judge added a further year and a half to reflect the two assault counts. The male assaults female count was a representative charge, reflecting assaults on the victim on a number of occasions over a three and a half year period. The more serious count of assault with intent to injure reflected the fact that the appellant assaulted A by kicking and punching her on numerous occasions over a ten month period. The overall starting point for the offending against A was therefore 11 years.
[10] The Judge then gave a generous discount of almost 30% for the relatively late guilty plea, reflecting that the plea saved A from having to give evidence. This led to the sentence of eight years imprisonment for the offending against A.
[11] Mr Dacre said the Judge erred in principle in treating the abduction as a distinct and separate offence because “almost all rapes involve elements of violence, coercion and some form of restraint. The abduction was part of the incident and should have been treated as one of the aggravating features”.
[12] Where the abduction increases the trauma and facilitates the commission of the offence of rape, it should be provided for separately at sentencing. Indeed, in the tariff case for rape sentencing, R v A [1994] 2 NZLR 129 (CA), Cooke P expressly said that kidnapping may be an aggravating feature justifying a higher starting point (at 130). Where there is a separate charge of abduction it will not make any difference to an appellate court that the allowance is made as an aggravating feature of the rape count or as an increase for the separate offence of abduction: the court’s focus is on the extent of the allowance and its impact on the end sentence rather than
the precise methodology. We see this issue therefore as whether the sentence is manifestly excessive, not as a possible error of principle, as suggested by Mr Dacre.
[13] While we accept that the additional one and half years was high, it must be balanced against other aspects of the sentence. Looking at the overall sentence in the round, we do not consider an end sentence of eight years imprisonment is manifestly excessive. The increase from the starting point for the assault offences, which reflected repeated assaults on A, was relatively modest and the discount for the guilty plea was generous, given that the plea was late (though it did avoid the need for A to give evidence).
[14] The sentencing in relation to B was conducted by the same judge. He determined that the appropriate sentence for the offending was five years imprisonment, but reduced this to three and a half years because of the need to ensure that the combined sentence for the offending against both A and B complied with the totality principle. The offending involved two incidents in which the appellant induced his daughter to perform oral sex on him, while she was visiting him during weekend access. The appellant and A had separated after the rape of A, and A had custody of B, but B stayed with the appellant from time to time. The Judge rightly saw the aggravating features as breach of trust and the vulnerability of the victim. He took into account the previous convictions, particularly those against A, and determined there were no meaningful mitigating factors.
[15] Mr Dacre said the Judge had been wrong to take five years as the starting point, because this was at the top of the range set out in R v M [2000] 2 NZLR 60 (CA). However, as this Court noted in R v Tranter CA486/03 14 June 2004, the two to five year range set out in R v M should be seen as conservative at each end of the scale. We do not believe that a starting point of five years was out of the available range for offending of this kind, particularly given the biological relationship and relationship of trust between the appellant and B, and the fact that there were two separate incidents.
[16] As noted earlier, the real issue as to the merits of the proposed appeal is the totality of the sentence of 11½ years, given the overall offending against A and B.
The Judge reduced the sentence for the offending against B to three and a half years because it was cumulative on the sentence for the offending against A and he therefore needed to ensure that the total sentence for the combined offending did not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. The Judge correctly applied s 85(2) in so doing. Again there is no error of principle so the only issue for an appellate court would be whether the cumulative sentence of 11½ years is manifestly excessive. In our view, it is within the available range.
[17] We conclude therefore that the proposed appeal does not have substantial merit.
(b) The length of the delay and reasons for delay
[18] Counsel for the appellant, Mr Dacre, explained the reasons for the delay as follows. Mr Dacre was assigned to act for the appellant by the Legal Services Agency in September 2006. That appears to have occurred because the appellant had indicated a wish to appeal and to be represented at the appeal. This was about
15 months after the date of the more recent sentence.
[19] Some problems ensued in obtaining legal aid for the appellant, and there were communication problems between counsel and the appellant. Counsel was led to believe that a notice of appeal to this Court had been filed, and it was only in May
2007 that it became apparent that that was not the case. This was rectified and the notice was filed in June 2007.
[20] Mr Dacre said the appellant had had mental health issues while in prison. He appeared to have very little understanding of the sentencing process to which he had been subject, and this may explain why the appellant thought a notice of appeal had been filed, when, in fact, it had not been.
[21] The delay is therefore considerable in this case: almost 15 months before the appellant sought assistance from Mr Dacre, and almost two years until the appeal itself was filed. While there are understandable reasons for the delay after counsel
became involved, counsel’s involvement began at a time when the appeal period had lapsed by well over a year. There is no real explanation for that delay other than the appellant’s unfamiliarity with the appeal process.
(c) The extent of the impact on others similarly effected and on the administration of justice
[22] Crown counsel conceded that there was no particular prejudice to the Crown arising from the delay. However, he rightly noted the importance of finality for victims of sexual offending. He said that the raising of the offending some years after the completion of the criminal process has the potential to set back the victim’s recovery from the trauma of the offending. We agree that the need for finality in litigation is particularly emphasised in relation to offending of this kind.
(d) The overall assessment
[23] Taking all of these matters in the round, we conclude that the appellant has not made out a case for the extension of time for the filing of an appeal in this case. The reasons for delay prior to his approach to the Legal Services Agency are not compelling, even if the delay thereafter is explicable. The appeal does not have merit. We are satisfied that the interests of justice favour finality over indulgence.
Result
[24] We dismiss the application for an extension of the time to appeal.
Solicitors:
Crown Law Office, Wellington
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