R v P(CA383/02)
[2003] NZCA 373
•18 March 2003
ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT TO PROTECT THE COMPLAINANT'S RIGHTS UNDER S139, CRIMINAL JUSTICE ACT, 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA383/02
THE QUEEN
v
P(CA383/02)
Hearing:18 March 2003
Coram:Blanchard J
Robertson J
William Young JAppearances: R A Barnsdale for Appellant
M A Woolford for Crown
Judgment:18 March 2003
JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J
[1] Following a jury trial in the District Court at Hamilton, on 13 August 2002 the Appellant was convicted on one count of sexual violation by rape. There had been before the jury an alternate count of assault with intent to sexually violate by rape on which the jury did not need to return a verdict.
[2] On 23 October 2002, he was sentenced to six and a half years imprisonment.
The Appeal
[3] He appeals against conviction on the basis that the evidence did not establish beyond reasonable doubt that the appellant had penetrated the complainant’s genitalia and that a jury acting reasonably would have entertained doubts about that essential ingredient. Associated with this ground was a complaint that the directions given by the trial Judge as to the elements of the offence, while being correct in law, could have been more specific in the circumstances and that there was a miscarriage of justice because of the way the matter was dealt with.
[4] The appeal against sentence is advanced on the basis that six and a half years imprisonment was excessive having regard to the mitigating circumstances.
The Issue of Penetration
[5] The evidence relevant to penetration is found first in the evidence in chief of the complainant when she said:
What happened then when you’re on the couch? … Um he managed to get my pants off and um, he managed to get himself unzipped and he started fondling me with his penis, my vagina.
What do you mean by that? … Um his penis was rubbing on, on the outside of my vagina at that point.
What state was his penis in? … semi erect I would guess.
What position were you in when he did that … Um, I was in a sitting position on the couch, um, and, year, he literally ripped my legs open and went in and yeah
How long do you think he rubbed his penis on the outside of your vagina .. I have no idea.
Did he continue to doing it? … Yes, and he continued doing it and he pushed closer as I was using, trying to use my legs to push him away, and, um, I had hands over my head, both my arms were over my face like this and still crying and saying, “Don’t stop, please stop” and he wouldn’t.
Again just demonstrating what you did, you had both hands held together straight over your face, with elbows bent? … Straight over my face.
What was he doing while you were doing that? … Um fondling um just pushing me back and, yeah maybe his, at that point in time, his penis may have penetrated, um, he just carried on.
Do you know whether he did penetrate you with his penis or not? …I think there was some penetration, um, but he did not go the full length in.
[6] In cross examination the complainant said:
So he did that first, you say, and then rubbed his penis down on the outside of your vagina? …. (no audible response)
And you said that you think there was some degree of penetration? … Yes.
Would it be fair to describe that in this way that there may have been some penetration or there may not have been? … Um, I believe there was, from my understanding now of what penetration is according to the law, um, there was penetration.
Alright. You’re putting it this way then, that you believe there was? … Yes.
Would it be fair to say [] that you are unsure about it? … At the time of my statement, yes.
Is this the statement to the Police? ….Yes
Did you say to the Police that you weren’t sure if he’d gone into you properly? ….Yes
He may have gone in part or some of the way? … Yes
And now you’re saying you believe there may have been some degree of penetration? …Yes
And as I said, would it be fair to say that you’re not sure about it? … I’m pretty sure there was penetration.
[7] Finally, in re-examination she said:
Q. You have been asked questions about a statement that you made to the Police where you said you weren’t sure if you’d been properly penetrated. What did you mean in that statement?
R. Um, that his, I didn’t believe that his penis was fully, the whole shaft was inside of me.
[8] There was also material in the voluntary video taped interview which the Appellant had with a Police officer a short time after the event. This included:
APPELLANT Yep, I unzipped myself yeah
POLICE OFFICER Okay
APPELLANT Yeah
POLICE OFFICER And, ah, did you penetrate her at this point? Or what did you do?
APPELLANT No, I think I just played around.
POLICE OFFICER What, what do you mean by
APPELLANT Rubbed myself around. I didn’t actually penetrate. I just sort of rubbed it.
POLICE OFFICER With, with your penis?
APPELLANT Yep.
POLICE OFFICER On, on, round her vaginal area?
APPELLANT Yep
POLICE OFFICER Okay
APPELLANT Yep
POLICE OFFICER When you say you don’t think you penetrated, what do you, do you
APPELLANT No I didn’t. Sorry, no I didn’t
POLICE OFFICER Okay
APPELLANT Later on I did. To start off with I just rubbed around.
POLICE OFFICER Okay
APPELLANT and then, and then a little bit later I penetrated, yeah
POLICE OFFICER Okay, when you say a little bit later on, how, how much later is, is that?
APPELLANT Oh, a couple of minutes
POLICE OFFICER Okay
APPELLANT Yeah
POLICE OFFICER What, what was she saying?
APPELLANT She was just saying no, no
POLICE OFFICER No, just
APPELLANT Don’t, no, don’t do this, I don’t want this, no
POLICE OFFICER Okay (pause). When you say eventually you did penetrate her
APPELLANT Yes
POLICE OFFICER um she, sort of had her legs apart at this, at this point
APPELLANT Yes
Later in the interview;
POLICE OFFICER So the point from when you started, um, rubbing yourself around, to the point you penetrated her would have been, you say, two minutes, is that, is that correct? About
APPELLANT From rubbing around to actually penetrating
POLICE OFFICER Yeah
APPELLANT Yeah probably a couple of minutes around about I suppose, yeah
POLICE OFFICER Okay and did you ejaculate?
APPELLANT Year
POLICE OFFICER You did. Okay
APPELLANT Not in her
POLICE OFFICER Okay, not, not in her
APPELLANT No I didn’t come inside her no
POLICE OFFICER Okay, okay. Were you, were you wearing a condom or anything?
APPELLANT No
POLICE OFFICER Okay. So when you say not inside her, did you withdraw?
APPELLANT Yeah, I rubbed around for a bit, like I say for a couple of minutes
POLICE OFFICER Yeah
APPELLANT penetrated for a little bit and then after a while I pulled back out and rubbed around a bit more
POLICE OFFICER Yes
APPELLANT to finish, to phew, year
POLICE OFFICER and then you ejaculated
APPELLANT Yeah
[9] The appellant gave evidence at trial in which he said:
Um, are you wanting me to describe actually what I did?
Yes? … I, I unzipped myself and I rubbed myself on her vagina.
Right. What part of yourself? … My penis.
Now, did you have any intention or not to have sexual intercourse? … Not without her consent, no.
All right. You rubbed your penis on her vagina? … Yes.
What happened then? … I just, that’s, that’s what I did. Just rubbed my penis around her vagina and then I ejaculated.
[10] The appellant later said in his evidence in chief that what he had said about penetration in the videoed interview was what he thought he had to say. When cross-examined on that point he said:
Well, you told him that you penetrated her, didn’t you? … Yes, that’s right.
If you didn’t penetrate her, why did you say that you did? … Because I felt like that’s what, that’s what I, I was supposed to say.
Well, why did you feel that? … Because I felt terrible.
Well in other regards you were telling the truth and being accurate about what happened, weren’t you? …. Yes.
So, why did you feel you had to say that penetration occurred if you say that it didn’t, or you’re not sure? … Because I, I thought that that’s what I’d done. I thought that that’s what I was supposed to say.
You have a description of the events which happened, in terms of you having your penis on [ ] vaginal area, didn’t you? … Yes
And your description was firstly that there was rubbing of your penis on her vagina? … Mmhmm.
And that you finished off by rubbing your penis on her again? … (no audible response).
I do need you to answer, I’m sorry, Mr [P]? … Sorry, yes, sorry, sorry, yes.
You gave a specific account of what you did, didn’t you? … Yes.
Well, why did you provide that detail if it’s something you’re not sure about? … I think – like I say, I thought that’s what I was supposed to say. Well, the policeman wasn’t putting any words in your mouth, was he? …. No, no.
But you told him at one part of it, page 38 – the question is, when you say you don’t think you penetrated, the cop says, “What did you do”. You said, “No, I didn’t, sorry, no, I didn’t”. The policeman says, “Okay” and you said, “Later on I did. To start with I just played around”. The policeman, “Okay”, and you said, “And then, and then a little bit later I penetrated, yeah”. Why did you say you weren’t sure of penetration if that’s what you now say the position is? … Sorry, what, what?
Why didn’t you say you weren’t sure at penetration if that’s what you think the position is” … Well, I just, I, I just felt terrible. I, I thought that that’s, I thought that I had raped her. That’s what I thought I’d done but then I thought about it and I wasn’t sure about it.
Well, do you accept that you never said to the policeman that you weren’t sure about it? .. Do I accept that I didn’t say that I was sure –
That you never told the policeman that you weren’t sure about penetration? … That’s right, yeah.
In fact, I would suggest to you on five separate occasions on this interview you’ve said that you penetrated. Do you accept that? … If it’s there, yes.
At one point the policeman asked you at page 41, “How long were you penetrating, how long did that” and you said, “A couple of minutes”. Why did you say a couple of minutes if you didn’t know what was happening? …. I don’t know, I just – that’s what I said.
Then at the bottom of page 41 the policeman was asking you about ejaculation. He says, “So when you say not inside her, did you withdraw”. You said , “year, I rubbed around for a bit, like I say a couple of minutes.”
The policeman says, “Year” and you said, “Penetrated for a little bit then after a while I pulled back out and rubbed around for a little bit more, ejaculation”. In what way do you say that’s inaccurate, Mr [P], when you’ve given a deliberate step-by-step account of what you say you did? …. I just, I, I just felt really bad about the whole thing. Whatever, whatever happened I just felt terrible about it and, ah, I just thought that that was the thing I was supposed to say.
[11] There was also medical evidence which was consistent with penetration. A doctor examined the complainant the day after the assault. The doctor identified two small bruises on the “introitus” of the vagina. This was described by the doctor as the entrance to the vagina within the mucus membrane area. The complainant also stated that her vagina “felt like it had been grazed … it stung”.
Conviction Challenge
[12] Mr Barnsdale in his submissions has suggested there was real doubt in the complainant’s mind about whether the appellant’s penis had penetrated her vagina.
[13] On the issue of penetration the Judge said:
Now the indictment charges two counts in the alternative and the first is one of sexual violation by rape. To establish this charge, the Crown must prove three essential issues. Firstly, the accused intentionally penetrated the genitalia of the complainant with his penis, and this is the element which the defence say you need to particularly focus upon. The accused disputes that penetration is proven beyond reasonable doubt. The degree or extent of penetration which is required to be proven by the Crown is irrelevant. If there is any penetration at all, no matter how slight or how ever short a time that will be sufficient. It suffices if some of the penis is within the female’s labia. It does not have to be a full act of intercourse in the sense of there being ejaculation by the accused.
[14] The jury was entitled to take into account the total circumstances of what happened on the evening in determining the weight and meaning to be given to these various parts of the evidence. We have no doubt that there was a proper and sufficient evidential foundation for the conclusion which it reached. The jury heard and saw the two participants and the videoed interviews. It was a classic jury issue arising from all the available material. Considering the totality of the evidence it is difficult to contemplate the jury not being satisfied beyond reasonable doubt that there had been some penetration. The complainant may have thought that rape required total penetration but the law on that is beyond debate.
[15] The associated question of the adequacy of the direction lacks substance. At trial the issue which was explored was whether the appellant knew he had penetrated. The fact of penetration was not directly explored. In those circumstances the direction was totally appropriate.
[16] The jury were fully apprised of what they had to be satisfied about. There was evidence from both the complainant and the appellant which could have led them to the conclusion that penetration was established beyond reasonable doubt and there is no basis to intervene on appeal.
Sentence Appeal
[17] The appeal against sentence is based on a number of issues including the proper starting point and the effect of mitigating factors. Reference was made to a number of decisions in this Court and in the High Court dealing with appropriate sentences in sexual violation cases. The lack of focus which has developed in this area was noted by the Court in R v Tawha (CA396/02) 26 February 2003.
[18] R v A [1994] 2NZLR 129 indicates a proper starting point for a contested rape as eight years and then aggravating and mitigating factors need to be taken into account.
[19] Mr Barnsdale (who was not counsel at trial) submitted that there were no aggravating factors which would have taken the matter above that starting point. We do not accept that to be the position. The fact that these people had been in a prior sexual relationship provides no basis for a different approach: R v Tikitiki, CA195/96, 10 August 1998.
[20] What was aggravating was that this man persisted and treated the woman as if he had some proprietorial control over her. He made it clear that his intent was to hurt and humiliate and, although the complainant was crying and pleading with him to stop, the appellant ignored her protestations and persisted with the violation. The appellant’s failure or inability to recognise that the marriage had ended is no credit to him.
[21] We accept, as the Judge did, that there were mitigating factors including his immediate remorse and fulsome co-operation with the authorities including his early recognition that what had occurred was wrong.
[22] But he then chose to act in a manner inconsistent with this initial stance. No plea of guilty was forthcoming so there can be no discount on that account. There was not even an acknowledgement that the alternative offence had been committed. The complainant was forced to recall and recite the circumstances of this difficult and embarrassing event a year after it occurred. As a result her healing process was delayed for that length of time.
[23] Giving every credit which could be given for his remorse and concern after the event, the Judge was still faced with a serious breach by this man towards his former partner. When one considers his persistence, the introduction of a knife and the determination in the face of clear opposition, in our judgment there had to be an increase beyond eight years so a reduction of two or two and a half years gave proper weight to the mitigating factors which existed.
[24] There is no basis upon which it could be said that the sentence was manifestly excessive. The appeals against both conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington
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