R v Pickering CA288/03

[2004] NZCA 399

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA288/03

THE QUEEN

v

CHARLES WAYNE PICKERING

Hearing:         27 May 2004

Coram:Hammond J Laurenson J Doogue J

Appearances: M K Lowe for Appellant

K Raftery for Crown Judgment:  14 June 2004

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

Introduction

[1]    The appellant, Mr Pickering, was convicted following a jury trial in the District Court at Hamilton on 3 July 1999 of a number of charges relating to the abduction and sexual violation at various times of two girls known to the appellant. He was sentenced to a total of 10 years imprisonment by Judge Wolff on 23 July 1999. The specific convictions and their corresponding sentences are listed below :

R V CHARLES WAYNE PICKERING CA CA288/03 [14 June 2004]

1.Indecent assault on a girl         6 months imprisonment between 12 and 16

2.Kidnapping                )         8.5 years imprisonment concurrent

3.Rape  )         with each other but cumulative to

4.Attempting to stupefy   )         count 1

5.Attempted sexual violation       1 year imprisonment cumulative to

counts 1 to 4

6.Indecent assault on a girl         6 months concurrent over 16

[2]    The appellant’s appeal to this Court against his conviction was dismissed on an ex parte basis without reasons on 14 October 1999. He now applies for a rehearing of his appeal against his conviction in accordance with this Court’s decision in R v Smith [2003] 3 NZLR 617.

[3]    The appeal against conviction has been brought on the ground that a miscarriage of justice was caused by the conduct of his trial counsel. The appellant provided a waiver of his solicitor-client privilege following which affidavits were filed by him and the trial counsel. Both deponents were cross-examined on those affidavits at the hearing of the appeal.

[4]     The appeal against sentence was brought on the ground that the sentence imposed was manifestly excessive in the circumstances of the case.

Background facts

[5]    The appellant is the son of the first victim’s (P’s) adoptive mother. P’s adoptive mother is the second victim’s (N’s) grandmother but N is six months older than P.

Count 1

[6]    Between June and December 1985, when P was 12 years old, the appellant visited their house. P and her cousin were home alone. The appellant followed  P into the kitchen, put his hands down her underpants and rubbed her genital area.

Counts 2, 3 and 4

[7]    In 1986, when P was 13 years old, the appellant gave P and her cousin a lift to school. Having dropped the cousin at school, the appellant held P down on the floor of the car and drove her to his house, about 20 minutes away. During the drive, the appellant put two pills in P’s mouth, which she later spat out. At his house, he raped P and ejaculated on her stomach. When he went to have a shower, P ran from the house. It was a rural area and she was unable to find help. The appellant  followed her in the car and drove her back into town. Before leaving her, the appellant gave P $100. P then met N in town. She told N in general terms what had happened to her. N confirmed that, while she was waiting for the bus, she had seen the appellant driving towards his farm, rather than towards town as he did every other morning. P was sent to stay with family friends in Auckland.

Count 5

[8]    Following the above events, P began playing truant, stealing and getting into trouble. As a result, she was sent to stay with people in Auckland. During a visit to Hamilton, P visited the appellant’s house along with other children. When P went inside to check on a baby, the appellant pushed her to the floor and held a knife to her throat. He had his trousers around his ankles and was attempting to remove P’s trousers and underpants. He then heard someone calling for P and let her go.

Count 6

[9]    N was 20 years old at the time of the incident. She was at a pub. The appellant was also there and she asked him for a lift home. The appellant was also taking a friend home. When he went inside with the friend, N stayed in the car and fell asleep. She awoke to find the appellant on top of her, touching her breasts underneath her bra. When N told him to stop, the appellant did so and then took her home. N told her mother about the incident the following day.

[10]   N gave evidence that there had been a family meeting in 1994 to discuss the appellant’s “sickness and to talk about his problems”. According to N, at this

meeting, the appellant admitted to having sex with P, but had claimed that she had been sexually suggestive towards him. This was contested by other witnesses. The appellant’s behaviour towards N was also discussed. P did not attend this meeting.

[11]   The appellant pleaded not guilty to all charges, claiming that victims had laid the complaints in the hope of being awarded monetary compensation.

Appeal against conviction

[12]   The appellant submitted that his trial counsel’s handling of his trial was incompetent for two reasons. First, he had failed to follow certain instructions given to him, and secondly, that he had made a number of radical mistakes during the conduct of the trial. These matters, whether taken in combination or  even  separately, were sufficient to cause a significant prejudicial effect on the outcome of the trial which amounted to a miscarriage of justice.

[13]Two decisions of this Court were referred to by way of authority.    First,

R v Accused (1998) 15 CRNZ 611,612 :

The Court must guard against any tendency on the part of accused persons who have been properly and deservedly convicted to attribute the result to the  perceived  incompetence  of  their  counsel.  (See  R  v  Pointon  [1985] 1 NZLR 109,114); 1 CRNZ 348,352). Two principle ways in which an appeal based on counsel’s conduct at a trial can succeed, however, have been recognised; one is where counsel fails to follow instructions, and the other is where counsel has made a radical mistake.

And at 613 :

The other respect in which an appeal based on counsel’s conduct can succeed arises in those rare cases where the mistake in the conduct of the defence is so radical that a miscarriage of justice under s381(1)(c) of the Crimes Act 1961 is made out. (See R v Pointon, supra at page 114; page 353). In order to establish a miscarriage of justice an appellant must show that the mistake could well have had a significant prejudicial effect on the outcome of the trial (see R v Horsfall 1 NZLR 116,123 (CA)).

The second was R v Kerr (CA 504/99, 11 April 2000) in which it was stated :

In R v Pointon (Id.), this Court emphasised that the test is whether counsel made a “radical mistake or blunder”. This requires more than just a failure  to do all that it might have been prudent to do (R v Kneale [1998] 2 NZLR

169; R v Quinn (1991) 3 NZLR 146,153 (CA)). If counsel’s advice and trial tactics were appropriate in all the circumstances, it will not matter that he or she may have been mistaken as to some of the matters requiring consideration (R v B (CA 302/99, 11 October 1999)).

[14]   The appellant referred to the following five matters under the general heading of incompetence :

a)A radical mistake and failure to follow instructions in relation to calling the appellant to give evidence.

b)A failure to follow instructions by not calling all 15 persons present at the family meeting in 1994.

c)A failure to follow instructions to obtain an ACC file relating to a claim by one of the complainants.

d)A radical mistake in failing to cross-examine one complainant in relation to matters contained in a prior allegedly inconsistent statement.

e)A radical mistake in agreeing to an amendment to the date of the alleged offence in one count in the indictment.

We refer to each of these matters in turn.

Failure to prepare appellant prior to giving evidence

[15]   The appellant said he had discussed the issue of giving evidence with counsel prior to trial and had indicated that he wished to  give  evidence providing all the    15 persons who were at the family meeting also did so. He had, therefore, only  given a contingent instruction in this regard. Despite this, his counsel had indicated on a number of occasions when cross-examining Crown witnesses that the appellant would be giving evidence and before he, counsel, had any clear instruction in this regard. Having thus placed the appellant in the position where he had no choice in the matter, his counsel then failed to provide him with a brief of his evidence for

consideration beforehand. Furthermore, he had failed to discuss the nature of the cross-examination which could be expected by the appellant. The appellant alleged that the result was that he was both unprepared and otherwise ill-equipped to give evidence when he did.

[16]   His trial counsel, now retired, was at the time a counsel with considerable criminal experience accumulated over some 40 years of practice. He stated that he had seen the appellant twice before trial. Once when, having travelled  a  considerable distance to the appellant’s home to do so, the appellant had not kept an appointment until the following day. The second occasion was on the day before  trial when the appellant arrived late for the appointment. He said the appellant had given him a clear instruction that he wished to give evidence. He agreed he had not obtained a written statement signed by the appellant, nor had he prepared a written brief beforehand. His explanation was very simple, namely, that although the appellant was facing serious charges, his defence amounted to nothing more nor less than a complete denial of all the charges. He further said that he would never have indicated the appellant was going to give evidence in the course of cross-examining Crown witnesses unless he had a clear instruction that his client was in fact going to give evidence.

[17]   Having heard evidence on this issue we have no hesitation in accepting the counsel’s account of events. It is in our view inconceivable that an experienced counsel would cross-examine in this manner not once but several times and at an earlier mistrial as well, without having the clearest possible instruction beforehand that his client intended to give evidence. More particularly having examined the appellant’s evidence in chief at the trial we are quite satisfied that counsel adduced from the appellant all matters which were necessary to found the defence of complete denial. If the appellant felt that he had had insufficient time with his counsel prior to giving evidence then so far as we can see the fault for this lay squarely with the appellant. As we have noted, however, we cannot see that the appellant was in the event prejudiced in any way when regard is paid to the evidence actually given by him.

[18]We therefore find that this ground of appeal has not been made out.

Failure to call all 15 persons present at the family meeting

[19]   It had been left to the appellant who was on bail, to arrange for these persons to contact counsel. In the event only two such persons were called by the defence. Some persons had been made known to trial counsel only on the day before trial. Others had approached counsel at various points during the course of the trial. Counsel had then been required at a late stage to make decisions regarding their suitability as witnesses. Not surprisingly he concluded that in the majority of cases  to call those witnesses would have posed a real prejudice to the appellant’s case remembering too that absent a declaration of hostility, counsel would not have been in a position to cross-examine them.

[20]   We find counsel’s explanation in this regard as being entirely credible. Accordingly this ground of appeal must also fail.

Failure to obtain an ACC file relating to one complainant

[21]   The appellant alleged he had instructed counsel to obtain this file which related to a claim by one complainant arising from alleged sexual abuse. The appellant had wanted to demonstrate to the Court that the complainant’s sole object in accusing him was to enable her to make such a claim. That would have supported cross-examination on the point. The more important point appeared to be, however, that the complainant had not named the appellant as the abuser. The appellant submitted that had this matter been put to the complainant then this would have raised real questions as to her credibility.

[22]   Trial counsel denied that he had ever received instructions to obtain the ACC file but acknowledged that he had had a document from the file which evidenced the claim and that the appellant was not named as the abuser. He had, however, not relied on the document because he considered it would not be admitted for the reason that it also raised the issue of possible prior sexual contact on the part of the complainant with some person other than the appellant. Quite apart from that, and as was submitted by Crown counsel at the appeal, there was a very simple explanation as to why the appellant would not have been named. It seems that after the

complaints by the complainant against the appellant had become known to other members of the family, they had sided with the appellant and had effectively ostracised the complainant. She in turn had refrained from making public her accusations against him.

[23]   Viewing all these matters together in the context of what we perceive to have been a strong Crown case, we cannot see that any failure to obtain the ACC file or to cross-examine on the document in question can be said to have been a mistake, let alone a radical mistake, prejudicing the appellant’s defence and affecting the outcome of the trial.

[24]This ground of appeal must also therefore fail.

Prior inconsistent statement

[25]   One of the complainants, then aged 14, had made a lengthy statement to officers of the Department of Social Welfare on 8 March 1987 in which she complained of the appellant’s conduct. The appellant submitted that certain of the contents of this statement were inconsistent with the evidence given by the same complainant at trial. Accordingly, she should have been faced with these inconsistencies in an attempt to damage her credibility.

[26]   Trial counsel’s explanation for not doing so was brief and to the point. He said that if reference had been made to the prior statement in order to highlight alleged inconsistencies which would likely be easily explained away, and given the then age of the complainant some 12 years previously, there was the real danger that the whole statement would be admitted. If this occurred the result would be inevitable, namely, to reinforce the essential elements of the complainant’s evidence at trial.

[27]   We agree. If reference had been made to the statement this could well have amounted to a radical mistake. That mistake was not made.

[28]We find that this ground of appeal must also fail.

Change of date of offence in indictment

[29]   The appellant said his trial counsel had agreed at some point to an amendment being made to the date of the offence in one count contained in the indictment. He said this was done without his consent and that in some way this caused him prejudice. We are unable to see how this could be the case. Indeed, appellant’s counsel was unable to point to any such amendment. Furthermore, no such amendment was otherwise apparent to us from the available Court documents. We were, however, shown a copy of the original information which referred to the offence having been occurred on or about a particular date. Copies of the  indictments presented at and prior to trial all show the date as being between two dates encompassing a whole year which included the on or about date referred to above. It is open to the Crown to frame a count in this way subject to objection if in doing so this poses some prejudice for some reason.

[30]   On the basis of the position as outlined above we have difficulty in understanding the basis of the appellant’s complaint, nor were we able to receive any further information in this regard. This ground of appeal is therefore also dismissed.

Decision

[31]The appeal against conviction is dismissed.

Appeal against sentence

[32]   It was submitted, as we have already noted, that the sentence imposed in this case was manifestly excessive.  No oral submissions were made. Time prevented  any further submissions being received in this regard, but we have the benefit of written submissions from counsel sufficient to enable us to make a decision in relation to it.

[33]   In his sentencing notes, the Judge emphasised the level of trust which was placed on the appellant by the victim by virtue of their intimate familial relationship. He acknowledged the significant disruption to the victim’s life as a result of the

appellant’s “predation upon her”, including loss of contact with and alienation from family members who sided with the appellant. The psychological impact of a second attempt of sexual violation while brandishing a weapon was also noted.

[34]   The Judge acknowledged that the Crown Counsel referred to the appellant’s absence of remorse and denial as aggravating features. To this, the Judge noted that the verdict was inevitable, but “I am not prepared to count your belief [of innocence] as absence of remorse”.

[35]   The Judge acknowledged that the offending pre-dated the increase in sentencing tariffs for rape in 1993, and accordingly that the relevant sentencing policy for a contested rape committed by an adult without any aggravating or mitigating features had a starting point of 5 years: R v Clark (1987) 1 NZLR 380. The aggravating features of the offending were: the gross breach of trust; the young age of one of the victims; and the attempt to drug a victim to “improve [the appellant’s] chances of success”. No mitigating features were considered by the Judge to be “particularly apparent in this case”. All that the Judge was prepared to take from the character references supplied by the appellant was that he could be, in other circumstances, “a pleasant person”.

[36]   The Judge concluded that the aggravating features relating to the kidnapping, attempted stupefaction  and  sexual  violation  charges  warranted  an  increase  to  8½ years. Six months was given on the first count, noting that an attempted sexual violation involving a knife would of itself usually attract a term of imprisonment of five years. However, a one year imprisonment cumulative on the other  two sentences was instead imposed, “because of the other sentences ... and the need to keep a total sentence in proportion”.

Appellant’s submissions

[37]   The appellant submitted that the ultimate sentence of 10 years was manifestly unjust in all the circumstances. In support of this submission,  the  appellant  contends :

•     The Judge placed too much weight on the actions of others (namely support given by family members to the appellant at the expense of the victim) when considering the impact of the crime on the victim, and that such an approach is incorrect.

•     The Judge should have given more weight to mitigating factors (namely character references illustrating a generally good character).

•     The Judge’s approach in accepting that absence of remorse may be an aggravating factor was incorrect, and that the effect of an assertion of innocence on sentence should be neutral. A number of authorities are cited in support of  this proposition.

•     An effective increase of three and a half years from the five year tariff recognised in R v Clark (1987) 1 NZLR 380 to take into account the aggravating features is manifestly excessive in all the circumstances.

•     The Judge erred in imposing a final sentence of 10 years imprisonment when one considers the totality of the offending and that such a sentence may also be seen as manifestly excessive.

•     The abduction, while serious, did not involve additional violence to the victim, or use of a weapon.

Respondent’s submissions

[38]   In response to the appellant’s first contention, that the Judge incorrectly placed too much weight on the actions of others in considering the impact on the victim, the Crown referred the Court to its judgment in R v Barrett [1999] 1 NZLR

146. There this Court noted that serious psychological harm to the victim resulting from her family’s rejection of her complaint is a relevant factor in sentencing, and that failure to have regard to these consequences is contrary to the objective of the Victim of Offences Act 1987.

[39]   Additionally, while the Crown acknowledged that an absence of remorse should be considered a neutral factor at sentencing, it is submitted that the tenor of the sentencing notes demonstrated that the Judge did not consider the appellant’s lack of remorse as an aggravating factor.

[40]   Finally, the Crown addressed in general terms the appellant’s contentions that an increase of three and a half years was manifestly excessive, and that a total sentence of 10 years was manifestly excessive. The Crown submitted:

•     The term of eight and a half years addressed three separate serious charges.

•     The maximum penalty for kidnapping is 14 years and for stupefaction 2½ years.

•     Given this, the aggravating features identified by the Judge including the victim’s age and relationship to the appellant, eight and a half years cannot be manifestly excessive.

•     The imposition of a total sentence of one and a half years to address two separate indecent assault charges and an attempted rape charge involving the use of a weapon demonstrates cognisance of the totality principle and a lenient approach by the Judge.

Discussion

[41]   The offending in this case involved two complainants who were members of the appellant’s family. The first five counts related to offending with the first complainant P, which occurred as three separate incidents within a period of about two years. The first incident was, compared to the latter two, relatively less serious. The second and third incidents were about one year apart. Both were serious sexual assaults. The first involved kidnapping, attempting to stupefy, and finally, rape. The second was an attempt at sexual violation when the appellant produced a knife to force the complainant to submit. Fortunately this attempt was thwarted when another family member came on the scene. The offending in relation to the second

complainant was, comparatively speaking, less serious and occurred some years later.

[42]   The Judge was therefore required in these circumstances to consider a sentence which recognised the totality of the offending, which related, as we have noted, to two complainants within a period of some eight years.

[43]   The incidents involving the complainant P were committed at a time when the starting point in accordance with R v Clark was 5 years imprisonment. We agree with the Crown’s submission that the Judge was entitled for a start to consider the totality of the offending in the three counts, numbers 2, 3 and 4 which together encompass the three distinct elements of kidnapping, attempted stupefaction and rape. There were in addition, the seriously aggravating elements of breach of trust and the profound and unjust effect on the complainant.

[44]   In these circumstances, we consider the sentence of 8½ years imprisonment imposed in respect of counts 2, 3, and 4 cannot be regarded as excessive let alone manifestly so. The second incident involving the complainant P was also serious given the use of the knife. The Judge considered that had this occurred in isolation, it could have warranted a sentence of 5 years.

[45]   Although the Judge imposed cumulative sentences in relation to all three incidents involving the complainant P, he clearly paid regard to the need to recognise the totality of all that offending. He did so by reducing significantly the penalty imposed in relation to the third incident involving the knife.

[46]   So far as the second complainant N was concerned, the Judge imposed a concurrent sentence of 6 months. In our view, he could well have imposed this sentence cumulatively to recognise the separate complainant and the interval in time before this occurred.

[47]   Taking account of the total offending, we are quite satisfied the total sentence of 10 years imprisonment was not excessive let alone manifestly so.

[48]   In reaching this conclusion, we are satisfied the Judge was entitled to take into account the profound detrimental effect on the complainant N. We are also satisfied that he treated the absence of remorse as a neutral factor. Finally, it is clear that the Judge did pay regard to the testimonials as to the appellant’s usual good character. He was, however, correct in not taking this into account as a mitigating factor given the extent of the offending relating as it did to complainants over a period of some eight years.

Decision

[49]The appeal against sentence is also dismissed.

Solicitors:

Crown Solicitor, Auckland