R v P (CA140/05)

[2005] NZCA 214

IN THE COURT OF APPEAL OF NEW ZEALAND

CA140/05

THE QUEEN

v

P (CA140/05)

Hearing:11 August 2005

Court:Anderson  P, William Young and Robertson JJ

Counsel:R A Harrison for Appellant

A M Powell for Crown

Judgment:24 August 2005 

JUDGMENT OF THE COURT

A.The convictions for sexual offences against complainant A, entered in the High Court at Auckland on 8 August 1997 are quashed.

BThe sentences imposed in respect of those convictions are consequently quashed.

C        There is an order for new trial in respect of those alleged sexual offences.

DThe sentence of preventive detention imposed on P in the High Court at Auckland on 10 February 1999 is quashed.

EIn substitution for the sentence of preventive detention there is imposed a sentence of nine and a half years imprisonment on the count of sexual violation of B, and a concurrent sentence of six years imprisonment in respect of the conviction for sexual violation of B by unlawful sexual connection.

REASONS

(Given by Anderson P)

Nature of the appeal

[1]       On 18 April 2005 Her Excellency the Governor-General, in Council, referred to this Court the questions of P’s convictions for sexual offences entered in the High Court at Auckland on 8 August 1997 and his sentence for sexual violations imposed in the High Court at Auckland on 10 February 1999.  The Reference was made pursuant to s 406(a) of the Crimes Act 1961 and accordingly the questions so referred are heard and determined by this Court as in the case of an appeal against conviction and sentence.

[2]       The convictions on 8 August 1997 were on two counts of sexual violation by rape, three counts of sexual violation by unlawful sexual connection and four counts of inducing a girl to do an indecent act.  On 9 September 1997 P was sentenced to 11 years imprisonment.  The complainant is referred to in the Reference, and in these reasons for judgment, as A.

[3]       On 22 July 1998 P was convicted in the High Court at Auckland of sexual offences against another complainant, B.  These comprised one count of sexual violation by rape and one count of sexual violation by unlawful sexual connection. 

[4]       On these counts P was sentenced on 10 February 1999 to preventive detention.  The Judge’s decision to impose preventive detention was influenced by the convictions in respect of A.

Events leading to the s 406(a) Reference

[5]       Subsequent to P’s conviction and sentence on the counts relating to A, that complainant has stated that P did not sexually abuse her and that the evidence she gave at the trial that he did was false.  Such statements appear in a letter dated 12 August 2002, from her to P; in an affidavit dated 9 September 2002 by her; and in interviews between her and a Queen’s Counsel, Ms Ailsa Duffy, who had been appointed by the Minister of Justice. 

The conviction

[6]       P sought leave to file the documentary record of A’s retraction.  There was no objection by the Crown and the Court received and has considered that material.

[7]       The Crown accepts that the nature of the retraction, the reasons given by A about how she came to give the evidence she did, her explanation for the retraction, and the examination and report by Ms Duffy QC, are such as to render unsafe the convictions entered on 8 August 1997.

[8]       We are satisfied, and the Crown has not suggested otherwise, that those convictions ought therefore be quashed.  A consequential issue is whether this Court should order a new trial.  That is almost invariably the outcome on a successful appeal against conviction because the decision whether or not to prosecute is the responsibility of the Solicitor-General, not the Court.  Sometimes, however, the only sensible course is to quash without making an order for retrial.  That might occur, for example, where evidence crucial to a proper conviction has been excluded or has ceased to exist.  But that is not the case here.

[9]       A’s evidence at trial has not been held inadmissible but found affected in its credibility by the retraction.  It is still possible, albeit highly unlikely, for the complainant to renounce her retraction with sufficient cogency to justify its being led before another jury.

[10]     Moreover, there is evidence of an admission by P early in 1999 when he was being examined by a consultant psychiatrist in preparation for a report requested by the High Court for the purposes of s 75(3)A of the Criminal Justice Act 1985.  That section, now repealed, prevented a Court from imposing a sentence of preventive detention in relevant circumstances unless the Court had first obtained a psychiatric report on the offender and the Court is satisfied, having regard to that report and any other relevant report, that there is a substantial risk that the offender will commit a specified offence upon release.  Admissions made in the course of such interviews can be admitted in evidence.  See R v King CA162/05 18 July 2005.

[11]     Mr Harrison submitted, and we accept, that  P’s  admissions to the  psychiatrist may, themselves, be unreliable.  This was because P was by no means unfamiliar with the judicial system at that time and would have been well aware of the possibility of enhancing his prospects of a finite, rather than an indefinite sentence by acknowledging guilt in respect of matters of which he had been convicted.  He has, moreover, retracted that admission.

[12]     Generally, it is not for this Court to assume the function of the Solicitor General in evaluating the evidential basis for proceeding to trial.  Only if it were plain that there was no evidential basis for a conviction this Court might consider it appropriate not to order a new trial.

[13]     If the Crown decides to proceed with a new trial, it will still be possible for P to apply for a discharge under s 347 of the Crimes Act 1961 supported by an affidavit covering the retraction of P’s admission and the reasons why the admission was made.  It could be that such an application may be supported also by evidence from A.  Those are all issues properly to be determined by a High Court Judge if that point is reached.

[14]     In all the circumstances we consider it appropriate to follow the usual course of ordering a new trial.

The sentence

[15]     It is plain from the sentencing record that when Salmon J imposed the sentence of preventive detention on 10 February 1999 he was substantially influenced by the convictions in respect of A.  That is, of course, what one would expect.  Now that those convictions are set aside by this judgment it is just that this Court resentences P for the offending against B. 

[16]     Between the convictions in respect of A and the convictions in respect of B the appellant had been convicted and had received a five month cumulative sentence for indecently assaulting another girl.  We do not have information about the date of that offending and in any event have not been asked to consider a confirmation of the sentence of preventive detention.  Rather, both counsel for the appellant and counsel for the Crown have submitted that a finite sentence should be substituted.  There is a mutual acknowledgment that the offending was aggravated by the young age of B and considerations of breach of trust.  In the Crown’s submission, an appropriate sentence would be ten years or more.  In Mr Harrison’s submission the appropriate sentence should be in the vicinity of eight to nine years.

[17]     A matter for us to take into consideration is that some three months ago P was granted bail in anticipation of this hearing.  A consequence is that a sentence in excess of nine years six months would require him to return to prison for a short period.  A further matter for consideration is that having regard to the provisions in the Parole Act 2002, particulars of which need not be iterated in this judgment, the finite sentence imposed in substitution for the sentence of preventive detention cannot relate back to the period during which P was serving a sentence of imprisonment in respect of A.

[18]     Both of those factors justify, in our view, a reduction in the sentence which would otherwise have been appropriate for the offending in respect of B.  That otherwise appropriate sentence would have been at least ten years.  Having regard, however, to those other factors we consider it appropriate to impose a sentence of nine years six months for the sexual violation of B by rape, and six years imprisonment, to be served concurrently, for the sexual violation by unlawful sexual connection which was integral to the rape.  This substituted sentence obviates recall to prison.

Conclusion

[19]     The result is as follows:

(a)   The convictions for sexual offences against complainant A, entered in the High Court at Auckland on 8 August 1997 are quashed.

(b)   The sentences imposed in respect of those convictions are consequently quashed.

(c)   There is an order for new trial in respect of those alleged sexual offences.

(d)   The sentence of preventive detention imposed on P in the High Court at Auckland on 10 February 1999 is quashed.

(e)   In substitution for the sentence of preventive detention there is imposed a sentence of nine and a half years imprisonment on the count of sexual violation of B, and a concurrent sentence of six years imprisonment in respect of the conviction for sexual violation of B by unlawful sexual connection.

Solicitors:
Crown Law Office, Wellington