R v N (CA249/05)

[2006] NZCA 526

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA249/05

THE QUEEN

v

N (CA249/05)

Hearing:         27 November 2006

Court:            Chambers, Randerson and Potter JJ Counsel:   B J Hesketh for Appellant

M D Downs for Crown

Judgment:      14 December 2006         at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1]      The appellant appeals against conviction and sentence.

R V N (CA249/05) CA CA249/05 14 December 2006

[2]      He was convicted following trial by jury of charges of male assaults female, assault with a weapon, threatening to kill and rape (Counts 4-7).  All charges related to the complainant C and arose from an incident on 30 June 2004 involving the appellant and C.

[3]      The appellant was discharged under s 347 Crimes Act on two charges of breach of a protection order and one charge of wilful damage, also related to C (Counts 1, 2 and 3).

[4]      Judge D C Clark, who was the trial Judge, sentenced the appellant to nine years and nine months imprisonment with a minimum period of imprisonment of five years.   The appeal against sentence relates only to the minimum period of imprisonment.

[5]      The appeal against conviction challenges the ruling of Judge Clark which granted leave to the Crown to cross-examine the appellant as to the fact of certain previous convictions, which also related to C.

Factual background

[6]      The Crown case as given in evidence by C was that she and the appellant had been in a volatile relationship between 1996 and 2004.  In 2001 she had obtained a protection order against the appellant.  She said the relationship continued “the same way as it was always” after the protection order was made.   In March or April of

2004 the complainant decided to terminate the relationship.  The appellant did not accept this decision and in late June began leaving threatening messages on C’s answering machine.  She saved these messages and subsequently played them to the Police.  The messages recorded were made on 18 June (two), 19 June and 26 June. C  nevertheless  continued  to  see  the  appellant  on  occasions  (they  had  a  child together).

[7]      On 30 June 2004 C went to the appellant’s home at his request to return a petrol can.  She said that the conversation between them became heated and when she got out of the car where they had been talking, the appellant restrained her, threw

her against the car and began to strangle her first with his hands and then with a seat belt.  (Those actions were the basis for Counts 4 and 5 in the indictment).

[8]      The appellant then dragged her into the house and threatened to kill her (Count 6).  He told her that he had dug a hole in the forest for her, that he would cover her with petrol and burn her alive and that her children would never see her again.  She said that the appellant then told her to go into the bedroom which she did. He then raped her (Count 7).  She said that she cried during the sexual intercourse but she did not fight or resist the appellant because she was scared.

[9]      C said she left the property immediately afterwards and drove to her friend’s house close by.  The friend called the Police.

[10]     The appellant gave evidence at trial and offered a very different account of events on 30 June 2004.  He said that when C arrived at his house that morning she walked  straight  into  the  kitchen  and  gave  him  a  hug.    She  then  went  into  the bedroom, took off her jeans and underpants, sat on the bed and invited him to have sex with her, which he did.  He said that C enjoyed the sexual intercourse.  After he and C had consensual sex, he told C that he planned to move in with another woman. That upset C and she “spun out”, yelled abuse at him and fled the house, falling on the porch as she did so.

[11]     The appellant said C got into her car and he did also, as he was hoping to calm her down.  They continued arguing and she grabbed a screw driver and lashed out at the appellant who blocked her strike and inadvertently hit her in the face.  She threatened to call the Police, so he threw her phone out of the window.  He became very angry at this point and pulled the car stereo out, he having originally given her the stereo as a present.   Eventually after they both calmed down, they found the cellphone and C left.  The appellant denied assaulting C or threatening to kill her.

[12]     The appellant’s case was that C had concocted a false complaint of rape, motivated by jealousy because of his advice that he proposed to move  in  with another woman.

Judge’s Ruling

[13]     At the conclusion of the appellant’s evidence, the Crown made application to cross-examine the appellant on his previous convictions, on the ground that the appellant  had  cast  imputations  on  the  complainant’s  character.    The  appellant opposed the application.  Having heard from counsel, the Judge ruled that some of the appellant’s convictions could be put to him in cross-examination.  These were his convictions for contravening a protection order on 28 March 2001, contravening a protection order and male assaults female on 15 June 2002, and contravening a protection order on 1 December 2003.

[14]     The Judge issued written reasons for her decision on 9 June 2006.   She acknowledged it could be expected, in the context of the contested allegations, that there would be a direct and vigorous attack on the credibility of C.  Such an attack, she said, would include allegations that the complainant was lying about the events and motivated to make a false complaint.  She said that an attack of that kind would not provide a foundation for the Crown’s application to be allowed.

[15]     However, she held that in cross-examination allegations of benefit fraud and damaging property had been put to C, and that the appellant in evidence in chief made allegations against C of threatening behaviour and burglary.  She considered that the cumulative effect of those matters tended to suggest that the complainant was dishonest, aggressive/violent, and a criminal and fell outside the ambit of the appellant’s challenge that she was a liar in respect of the events in question.

Cross-examination on previous convictions

[16]     The  permitted  previous  convictions  were  put  to  the  appellant  by  Crown counsel as follows:

Now you’ve been convicted of charges relating to her, haven’t you?  Yes I

have.

On the 1st of December 2003, you contravened that protection order?  Well I, I must of, yeah.

On the 15th of June 2002, you breached that protection order?  Yeah. And you also assaulted her? Assaulted her?

Assaulted her, didn’t you?   Well that’s how the Police charged me, that’s how they looked at it, as assault, but it wasn’t assault.

You’ve got a conviction for assaulting [C] on the 15th of June 2002?  Yeah, it, it is, it’s written down as assault by the Court, but if you would like to, like me to explain what led to that particular charge, I can explain to you.  It will be written down as assault but, events relate, um, leading up to that, I know what …

You’ve got a conviction for assaulting her? Yeah.

Which means you either were found guilty or pleaded guilty of it?  I had to plead guilty to it.

And  you’ve  got  a  further  conviction  for  breaching  the  protection  order against [C] on the 28th of March 2001?  Yes, I do.

[17]     There was no complaint by the appellant as to the nature or extent of the cross-examination of the appellant on the permitted previous convictions.

Warnings

[18]     The Judge gave two warnings to the jury, the first immediately after the permitted previous convictions were put to the appellant in cross-examination by counsel for the Crown, and the second as part of her summing up.

[19]     The first warning was in these terms, and the second, virtually identical:

Now, normally a jury does not hear if an accused person has any previous convictions but it can happen as it has here.  You must not, however, assume that Mr Crawford is guilty or has not told the truth simply because he has previous convictions.  Now the evidence about his past is not relevant at all to the likelihood of him having committed the offences here.  It is relevant only to the issue of his credibility, that is whether or not you believe his evidence, so please keep that in mind when you assess all the evidence.

Submissions

[20]     Mr Hesketh submitted that, given the complainant’s credibility was central in this case, it was legitimate that his cross-examination of the complainant at trial

should be directed at testing and undermining her credibility.   He accepted that, inevitably, parts of the cross-examination carried imputations against the complainant’s credibility but submitted that Judge Clark was in error in allowing previous convictions to be put to the appellant.   He submitted that the prejudicial effect of the previous convictions significantly outweighed any probative value they might have, and the Judge’s ruling had resulted in a miscarriage of justice.

[21]     Mr Downs for the Crown submitted that the Judge’s Ruling was correct, but even if the Judge did err, no miscarriage of justice has resulted.

Was there a risk of a miscarriage of justice?

[22]     It is unnecessary for us to decide whether the Judge was correct in ruling that certain previous convictions could be put to the appellant  in  cross-examination, because we are quite satisfied that there was no risk of a miscarriage of justice as the result of the ruling, for the following reasons:

(a)     The risk of prejudice to the appellant was minimal in the circumstances of this case.  The evidence provided by the previous convictions was essentially already before the jury.  The complainant gave evidence that the appellant had been violent towards her (punching her); she had taken out a protection order against him, but had nevertheless continued with their relationship.   The volatile nature of the relationship was abundantly in evidence from both parties.  The only additional evidence provided by the convictions, was the fact of conviction which was of minimal significance in the overall context of the case.

(b)The previous convictions were put to the appellant in a limited and controlled manner, as set out in [16].

(c) The Judge appropriately warned the jury on two occasions (immediately after the previous convictions were put to the appellant and in summing up), of the limited use to which such evidence could be put, as set out in [19]. While in some circumstances, such a warning

may have  little  impact  on  a  jury  given  the  nature  of  the  previous convictions, in this case the jury would have had little difficulty in understanding and applying the direction that they were not evidence of guilt.

[23]     The appeal against conviction is dismissed.

Appeal against sentence

[24]     At  issue  on  appeal  is  the  five  years  minimum  period  of  imprisonment imposed.  No issue is taken with the sentence of nine years and nine months.

[25]     The appellant was convicted of the offences of assault on a female, assault with a weapon, threatening to kill and sexual violation by rape which arose out of events on 30 June 2004 (incorrectly recorded in the Judge’s sentencing notes as

16 June 2004).   On 7 July 2004 the Sentencing Amendment Act 2004 came into effect.  It amended s 86 of the Sentencing Act, which provides for minimum periods of imprisonment to be imposed in certain cases.

[26]     While the Judge does not specifically state, it appears that she applied s 86 as it stood before amendment.  She referred at [22] of her sentencing notes, to the case of R v Brown [2002] 3 NZLR 670 (CA) which set out the test to be applied in determining whether an offence is “sufficiently serious” to justify a minimum period of imprisonment in terms of s 86(2) as it stood prior to amendment. On the authority of R v Chadderton (2004) 21 CRNZ 566 (CA) this was the correct approach as the offending occurred before the amendment to s 86 took effect.   We are aware the Crown has challenged the correctness of Chadderton in another appeal, judgment in which is currently reserved.  In that case, the Crown has submitted that the new s 86 should be applied to all sentencings taking place after its enactment.  We do not find it necessary on this appeal to determine whether the old s 86 or the new s 86 should apply.  We are satisfied that, whichever applies, this is a case in which a s 86 order was appropriately made.

[27]     Section 86 as it applied at the time of the offending provided:

Imposition   of   minimum   period   of   imprisonment   in   relation   to determinate sentence of imprisonment

(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may at the same time as it sentences the offender, order that the offender serve  a  minimum  period  of  imprisonment  in  relation  to  that particular sentence.

(2)The court may impose a minimum period of imprisonment under this section if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under section

84(1) of the Parole Act 2002.

(3)For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.

(4)A  minimum period  of  imprisonment  imposed  under  this  section must not exceed the lesser of –

(a)      two-thirds of the full term of the sentence; or

(b)      10 years.

(5)For the purposes of Part IV of the Summary Proceedings Act 1957 and Part XIII of the Crimes Act 1961, an order under this section is a sentence.

[28]     The Judge referred to the factors in this case which she considered made it appropriate to impose a minimum period of imprisonment.   They included the detention of C, the level of violence and psychological abuse, which included the threats to kill and the circumstances in which they were made, and the prior phone calls made by the appellant to C.  She noted that these all occurred before the rape and she appeared to accept the Crown submission that they constituted unusual callousness.

[29]     Counsel for the appellant in his written submissions (which proceeded on the basis that s 86 in its amended form applied) referred by way of comparison to R v Affleck CA446/06 14 September 2006 and R v Deverell CA116/06 13 September

2006.  Also to R v Bradbury CA243/04 16 March 2005 which had been referred to in submissions to the sentencing Judge and was mentioned in her judgment.  Minimum periods of imprisonment were imposed in all those cases.

[30]     Mr Hesketh submitted that all those cases involved offending more serious than in this case.  He was unable to direct the Court to any case with similar facts to this case or where the offending was in a similar league, where no minimum period of imprisonment had been imposed.

[31]     Once  it  is  acknowledged,  as  it  must  be,  that  the  jury  accepted  the complainant’s version of events, this was a very serious case.  In addition to the rape, there were the aggravating factors identified by the sentencing Judge.  The violence inflicted by the appellant on the complainant included an attempt to strangle her.

[32]     As the Judge noted, the author of the probation report considered that the appellant was of high risk of re-offending, that he showed a lack of insight into his offending behaviour and presented as feeling “victimised himself”, showing no inclination of changing that stance.

[33]     The circumstances of the appellant’s offending were “sufficiently serious” to justify a minimum period of imprisonment in terms of s 86(2) as it then applied.  It was well open to the Judge to conclude that the one-third parole eligibility was insufficient to punish, deter and denounce the offending and accordingly to impose a minimum period of imprisonment of five years.

[34]     It is accepted that the new s 86 permits the imposition of a minimum period of imprisonment in a wider range of circumstances than the old s 86.   (That was, after all, the basis upon which this Court decided in Chadderton and the cases that have since followed it, that the old s 86 should apply to pre-amendment offending.) Had the Judge  applied s 86 in its amended form, she  would undoubtedly have concluded an order was required.  Such a conclusion would have been available to her.

[35]     The appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington