R v M (CA336/05)

[2006] NZCA 401

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

˝

˝ ORDER: PROHIBITING PUBLICATION OF NAME, ADDRESS OR PARTICULARS IDENTIFYING APPELLANT.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA336/05

THE QUEEN

v

M (CA336/05)

Hearing:         6 April 2006

Court:            O’Regan, John Hansen and Harrison JJ Counsel:         R A B Barnsdale for Appellant

E M Thomas for Crown

Judgment:      12 April 2006

JUDGMENT OF THE COURT

AApplication   for   leave   to   appeal   against   conviction   and   sentence dismissed.

BOrder    prohibiting    publication    of    name,    address    or    particulars identifying appellant.

R V M (CA336/05) CA CA336/05  12 April 2006

REASONS

(Given by Harrison J)

[1]      On  14 July 2004  a  jury  found  M  guilty in  the  High  Court  at  Hamilton following trial on two charges of rape (one representative) and three of indecent assault (one representative) of his daughter when she was aged between 14 and

17 years.

[2]      On 6 August 2004 the trial Judge, Laurenson J, sentenced M to concurrent terms of seven  years imprisonment on the rape charges and three  years  on  the indecent assault charges.

[3]      On 12 August 2005, nearly a year out of time, M filed an application for leave to appeal out of time against both his conviction and sentence.

Conviction

[4]      M’s counsel on appeal, Mr Richard Barnsdale, who did not appear for him at trial, accepts the settled principles governing applications for leave to appeal out of time.  He acknowledges that this Court has a discretion based upon the interests of justice in the particular case.  However, that power must be exercised in accordance with the legislative objective, as reflected in the stipulated time limit, of protecting society’s interest in the final determination of litigation (s 388 of the Crimes Act

1961; R v Knight, [1998] 1 NZLR 583 (CA) at 587).

[5]      Mr Barnsdale also accepts that M must show special circumstances to justify a departure from the principle of finality.  He relies particularly upon the strength of the appeal, the practical effect of the remedy sought, the length of and reasons for the delay, and the effect upon others.  Within the scope of this inquiry it is appropriate to consider the strength of M’s appeal.  Mr Barnsdale relies on three grounds.  The first two fall within the general rubric of trial counsel error.

[6]      First, Mr Barnsdale submits that trial counsel, Mr Michael McIvor, erred by failing to call M to give evidence, resulting in a miscarriage of justice.   There is

nothing in this point.  Mr McIvor has sworn an affidavit in this Court following M’s waiver of privilege.  It satisfies us that he discharged his professional responsibilities with skill and care.  Before trial Mr McIvor expressed concerns to M about whether he would be a good witness on his own behalf.   Nevertheless, to cover the contingency that M may wish to give evidence, Mr McIvor obtained a full brief.

[7]      His affidavit records this:

On 13 July 2004 (at the end of the Crown case) I consulted with [M] in order to see whether he wished to give evidence on his own behalf.  I definitely did not tell him that he could not give evidence as it is always the accused’s election as to whether or not to give evidence.  It made no difference to me whether or not he gave evidence.   I recall that the decision not to give evidence was made by [M] after consultation with me.  His sister also had a clear view about whether or not he should give evidence on his own behalf. Annexed hereto and marked with the letter ‘A’ is a copy of the note signed by [M] at my request which confirms that he did not wish to give evidence on his own behalf and that he understood that the jury would only have the video account as his account of the allegations.  To be perfectly frank, it was felt that [M] would perform poorly in the witness box whereas he had given a reasonable video interview.  I certainly indicated to [M] that the issue of whether or not to give evidence was a difficult one and that I only suggested that clients should give evidence on their own behalf if they were likely to improve their case in the witness box rather than make it worse.  Ultimately I made it very clear to [M] that the decision was his…

[8]      The note signed by M expresses his confirmation that:

I do not wish to give evidence on my own behalf.  I understand that the jury will only have my video account as my account of allegations.

[9]      M does not deny Mr McIvor’s account.  He expressly admits that he signed the document.  His affirmative instructions to Mr McIvor that he did not wish to be called to give evidence answer his complaint.

[10]     Second,   Mr Barnsdale   submits   that   Mr McIvor   should   have   obtained attendance records from the complainant’s high school to demonstrate the unreliability of her evidence.   There is nothing in this point either.   Mr McIvor confirms in his affidavit that an attempt was made to obtain the complainant’s school records.  He was advised either by M or one of his family that the school did not retain the records for the relevant time.  M does not challenge this advice.

[11]     Third, Mr Barnsdale submits that the jury’s verdict was against the weight of the evidence.  He concedes that M must meet a high threshold in satisfying us that a jury acting reasonably must have entertained a reasonable doubt about M’s guilty (R v Ramage [1985] 1 NZLR 392 (CA)).

[12]     Mr Barnsdale  pointed  to  three  factors  in  support.    They  related  to  the frequency of offending, whether or not the bedroom door would have been open when the offending occurred, and the timing of the complaints.   He referred to concessions made by the complainant in cross-examination.  However, on analysis, the passages upon which Mr Barnsdale relies fall far short of the threshold which M must satisfy.  Mr Barnsdale himself acknowledged that M faced difficulties.  In our view this ground must fail.

[13]     In view of our conclusion that M’s appeal has no merit, we decline his application for leave to appeal against conviction out of time.

Sentence

[14]     Laurenson J  adopted  a  starting point  of  nine  years  on  the  lead  or  index sentences of rape before allowing a discount of two years on account of age and health.

[15]     In summary, the offending was of some years duration during the late 1980s. The complainant was then aged between 13 and 17 years of age.  She suffered from significant learning disabilities.  Her condition was diagnosed when she was 16 and she was found to possess the learning abilities of an eight year old.

[16]     The offending occurred while the complainant was attending a special class at school.  M asked her to remain at home on occasions when his wife was absent. On the first he requested the complainant to join him in his bed.   He touched her vagina.   The activity was interrupted by the arrival of Mrs M.   M repeated this indecency in similar circumstances a few days later.  He then raped the complainant. This pattern of activity continued over the ensuing years.

[17]     The Judge placed weight on the fact that, within two weeks of the initial offending, the complainant advised a neighbour of M’s activities.   The neighbour then  spoke  to  Mrs M  who  confronted  M.    He  denied  offending  on  that  and subsequent occasions.  His denials were firm, even very angry.

[18]     The  Judge  was  satisfied  that  five  years  would  have been  an  appropriate starting point if the case had been a single incidence of rape in 1982.  He then took into account the multiplicity of M’s offending; the complainant’s particular vulnerability; M’s breach of trust and his relationship with the complainant; and the effect of the offending upon her.   In this respect the Judge was satisfied that the emotional consequences for her had been traumatic and longstanding.   She had suffered particularly from loss of self esteem and fear of her father.

[19]     During  argument  Mr Barnsdale  responsibly  accepted  that  he  could  not challenge the Judge’s starting point of nine years imprisonment, which we endorse.

[20]     This leaves only the discount of two years allowed by the Judge.  He took express account of M’s age – he was at sentencing 63 – and his medical condition. While M was in receipt of an invalid’s benefit as a result of a range of disabilities suffered since 1987, none of them were life threatening and could be treated in prison.   He acknowledged that these factors would, however, be a ‘significantly additional hardship for you … compared to a younger person in good health’.

[21]     The discount of two years amounted to over 20% from the starting point.  We are satisfied that it was sufficient recognition of the age and health factors.  M was unable to claim the benefit of the most substantial mitigatory factor.  His continued denial of guilt disqualified him from a right to reduction for contrition and remorse.

[22]     We are satisfied that the ultimate sentence was neither wrong in principle nor manifestly excessive.  Accordingly, we dismiss M’s application for leave to appeal.

Solicitors:

Crown Law Office, Wellington