R v Proctor

[2007] NZCA 289

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA439/06 [2007] NZCA 289

THE QUEEN

v

MICHAEL GEORGE PROCTOR

Hearing:         16 May 2007

Court:            Chambers, John Hansen and Priestley JJ Counsel:      P T R Heaslip for Appellant

K B F Hastie for Crown

Judgment:      12 July 2007         at 4.30 pm

JUDGMENT OF THE COURT

A        The time for appealing is extended.

B        The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

R V PROCTOR CA CA439/06  12 July 2007

An appeal against conviction following a guilty plea

[1]      A 14 year old girl came to stay with Michael Proctor, the appellant.  She had behavioural  difficulties  and  had  been  in  trouble  with  the  police.     Later  she complained that, while she had been in Mr Proctor’s care, he had on numerous occasions forced her to have sexual intercourse with him.  She also said he had made her perform oral sex on him.  Mr Proctor was charged with six counts of rape (one representative), two charges of sexual violation by unlawful sexual connection, and two charges of indecent assault.

[2]      Mr Proctor told his then lawyer, Mr Douglas Blaikie, that all the sexual activity between him and the complainant had been consensual.   Nonetheless, he decided to plead guilty to the charges.  Judge McDonald sentenced him to ten years’ imprisonment: DC KAIH CRN 0502-007787-9 1 June 2006.

[3]      Mr Proctor now appeals against his conviction and sentence.

Issues on the appeal

[4]      Mr Proctor pleaded guilty.  It is only in “exceptional circumstances” that an appeal against conviction will be entertained after a plea of guilty.   An appellant must in effect show that a miscarriage of justice will result if the conviction is not overturned: R v Le Page [2005] 2 NZLR 845 at [16] (CA). The sole issue on the conviction appeal is therefore: will a miscarriage of justice result unless Mr Proctor is able to impugn his pleas of guilty?

[5]      The  issue  on  the  sentence  appeal  is  whether  the  overall  sentence  was manifestly excessive.  Mr Heaslip, for Mr Proctor on this appeal, submits that the sentence was manifestly excessive as a result of the following errors by the judge:

(a)     He took into account facts which were not admitted; (b)           He adopted too high a starting point;

(c)     He gave too small a discount for mitigating factors.

[6]      The appeal was filed out of time.  Mr Proctor swore an affidavit in support of an application to extend time.  He explained that he had been in ill health since his incarceration.   The Crown did not oppose an extension of time for appealing. Although the grounds for extension are not particularly strong, we are prepared to extend time so that the appeal can be determined on its merits.

Will a miscarriage of justice result unless Mr Proctor is able to impugn his pleas of guilty?

[7]      Counsel were agreed that the principles to be applied on conviction appeals following pleas of guilty were correctly set forth in Le Page. As this court said in that case, “it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty”: at [16]. Where an appellant fully appreciated the merits of his or her position, and made an informed decision to plead guilty, the conviction cannot be impugned. This court noted that “these principles find expression in numerous decisions of this Court”, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 were said to be examples.

[8]      This court went on to note, however, that a miscarriage of justice might be indicated in at least three broad situations, which were identified and discussed in Robertson (gen ed) Adams on Criminal Law (looseleaf ed) at [CA385.21].   (The current equivalent paragraph is [CA385.17].)  Mr Heaslip accepted the law as there stated.  He submitted the present case came within the category summarised in Le Page at [17] as follows:

The first [situation] is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge.   These are situations where the plea is shown to  be vitiated  by genuine  misunderstanding or mistake.  Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element.

[9]      In  support  of  his  appeal,  Mr  Proctor  swore  an   affidavit  as  to  the circumstances  in  which  he came  to  enter  his  guilty pleas.    Mr  Proctor  waived

privilege.  As a consequence, Mr Blaikie also swore an affidavit.   Both deponents were cross-examined before us.

[10]     Having heard the witnesses, we are in no doubt that this case does not fall within that category of Le Page quoted at [8] above. We were extremely impressed by the care with which Mr Blaikie had performed this legal aid assignment. He took detailed instructions from Mr Proctor. Mr Proctor asserted the sexual activity had been consensual. That contrasted with the position taken by the complainant in her statement: she asserted the activity was anything but consensual.

[11]     Mr Blaikie explained how, with Mr Proctor’s consent, he went to discuss the case  with  the  police  officer  in  charge  of  the  prosecution,  a  Detective  Johnson. Mr Blaikie put to the detective that “the evidence…did not clearly rule out consent”. He indicated, however, that Mr Proctor might be prepared to plead guilty to an alternative count of sexual intercourse with a child under his care and protection. The detective discussed the matter further with the complainant and then came back to Mr Blaikie.  He said to Mr Blaikie that “the complainant’s statement had firmed very considerably and her position was very strong and she was more than keen to give evidence”.  He added that “she wanted retribution”.

[12]     Following this, Mr Blaikie discussed the matter further with Mr Proctor.  He explained to Mr Proctor the elements of the various offences with which he was charged.  He explained to Mr Proctor the options he had.  Mr Proctor told Mr Blaikie he did not think any jury was likely to believe him.  (This was a realistic assessment: he was after all 58 and 59 at the time of the sexual activity – and certainly looked his age.  Life experience tells one that not many 14 year old girls are keen to have sex with men their grandfathers’ age.)  Mr Proctor told Mr Blaikie he wished to plead guilty.  Mr Blaikie said he “felt really uneasy at that”, given Mr Proctor had told him that it was his belief the complainant had consented.  Mr Blaikie went on:

I was therefore at pains to explain to him that it was his decision and his alone, but he had to understand fully what his decision was and that, if he was going to plead guilty despite his instructions that the girl had consented, that he had to understand what he was doing and what the consequences were.  He told me that he needed a week or so to get his affairs into order, basically to arrange his house into order, and I indicated to him [that] I would take his instructions in writing at that time.

[13]     Mr Blaikie did later take his instructions in writing.   They were very full instructions.   He read those instructions out as he was writing them.   Mr Proctor signed them.  Mr Blaikie then waited a further week before actioning Mr Proctor’s instruction that he wished to plead guilty in case Mr Proctor wished to change his mind.  But Mr Proctor did not change his mind: he confirmed his instruction and the guilty pleas were entered.

[14]     Mr Blaikie could not have taken greater care to ensure that Mr Proctor fully understood the options open to him and the consequences of entering guilty pleas. Mr Blaikie had made it clear to Mr Proctor that he was happy to act as his lawyer in defending the charges, should Mr Proctor wish to defend.  Mr Proctor’s decision not to defend the charges was not brought about by any misunderstanding or mistake. The decision was either a recognition by him that the complainant was telling the truth (whatever his instructions to the contrary) or a recognition that his account was unlikely to be believed.  In either event, he appreciated the advantage which would accrue to him from guilty pleas, namely a significant discount in sentence.  He and Mr Blaikie carefully went through the proposed summary of facts on which sentencing was to take place.  Mr Proctor agreed to the facts contained in it.

[15]     No miscarriage of justice will result if Mr Proctor is unable to impugn his pleas of guilty.  The appeal against conviction fails.

Was the sentence manifestly excessive?

[16]     Judge McDonald took a starting point of 13 years’ imprisonment.  He granted a discount of three years (23%).   The bulk of that discount represented the guilty pleas, although His Honour did say he was allowing, but only to a “limited extent”, a discount for age and medical condition.  On that latter point, the judge said there was no medical evidence before him, but he had noted from the pre-sentence report that Mr Proctor had reported that he had recently had a heart attack and was awaiting cardiac surgery.  Mr Proctor had also reported suffering from gout and arthritis.

Taking into account facts which were not admitted

[17]     Mr Heaslip noted that the judge had identified five aggravating factors.  The first of these was “the violence, both the sexual violation and the other violence in the house”.  Of course, the violence inherent in sexual violation itself cannot be an aggravating factor: such inherent “violence” is reflected in the starting point adopted. Mr  Heaslip’s  real  concern,  however,  was  with  respect  to  Judge  McDonald’s reference to “the other violence in the house”.  Mr Heaslip submitted that the only charges against Mr Proctor were sex charges; there were no charges indicative of violent behaviour.  Further, the agreed statement of facts contained no reference to violence, other than the following statement with respect to one specific rape charge:

On this occasion the victim was fearful that if she did not co-operate with the Defendant he would drag her into the room and do it anyway as well as give her a hiding.

[18]     It appears the judge got the reference to “violence in the house” from the complainant’s victim impact statement.  We have read that statement.   It was in a most inappropriate form.  It did not comply with ss 17-19 of the Victims’ Rights Act

2002.   It contained much information about the alleged offending which was not contained in the agreed summary of facts.  The purpose of victim impact statements is set out in s 17; they are to provide the sentencing judge with information about the following matters:

(a)     Any physical injury or emotional harm suffered by the victim through, or by means of, the offence; and

(b)Any loss of, or damage to, property suffered by the victim through, or by means of, the offence; and

(c)     Any other effects of the offence on the victim.

[19]     Victim impact statements should not contain  the  victim’s  account  of  the actual offending.   In cases where the offender has pleaded guilty, details of the offending come before the court either in an agreed statement of facts or by way of a

disputed facts hearing.  Victim impact statements are to inform the sentencing judge of the effects of the offending, not the details of the offending.

[20]     Accordingly, in our view, this complaint by Mr Heaslip is well-founded.  The judge should not have taken into account alleged “violence in the house” when no such violence had been recorded in the agreed statement of facts.

The starting point

[21]     As we have said, the judge adopted a starting point (including aggravating features of the offending) of 13 years.   It seems he reached that starting point by taking the eight year starting point in R v A [1994] 2 NZLR 129 (CA), and then making an upward adjustment for the repeated occasions on which Mr Proctor raped the victim, her young age, and the fact that there was a gross abuse of trust.

[22]     Mr Heaslip submitted the starting point should have been ten years.   With respect, that was a completely unrealistic submission.  Ten years would have been an appropriate starting point for a single rape of a 14 year old girl who had been entrusted to the offender’s care and protection.   In this case, however, Mr Proctor had, over a five month period, raped the complainant on at least 15 occasions.  In addition, he had forced her on at least seven occasions to perform oral sex on him. He also on one occasion made the victim masturbate him until he ejaculated in her hand.

[23]     R v A is of little assistance in cases of multiple sexual offending, especially against children and teenaged girls.  It is no more than a pivot for other tariffs which have developed, in the same way that Millberry and Others [2003] 2 Cr App R(S) 31 (CA) became the pivot for the United Kingdom Sentencing Guideline Council’s definitive guideline on the Sexual Offences Act 2003 (UK): Sexual Offences Act

2003: Definitive Guideline (SGC 2007).

[24]     The leading appellate authorities on sentencing for repeated sexual violations are collected in R v S (CA64/06) [2007] NZCA 243 at [76]-[91]. They establish that the starting range for repeated sexual violations against children and young persons,

especially those entitled to the offender’s care and protection, is 13-19 years’ imprisonment.  (As it happens, that is the same sentencing range the UK Sentencing Guideline Council has also stipulated for offending with those characteristics.)

[25]     In light of those appellate authorities, to none of which the judge referred, we have no doubt that his starting point of 13 years was extremely generous.  It was at the lowest end of the range – but this case ought not to have been at the lowest end. This was very serious offending.  The offending continued over a period of about five months.  There were repeated rapes of a young vulnerable girl who had been entrusted to Mr Proctor’s care.

Discount for mitigating factors

[26]     Mr Heaslip submitted that a 23% discount was inadequate, especially given the relatively early guilty pleas.   Ms Hastie, for the Crown, accepted the discount was “not generous”.  She submitted the Crown would not have complained about a one-third discount, but said nonetheless the discount was “within range”.

[27]     Had we considered the judge’s 13 year starting point to be correct, we would have regarded this discount as too small.   We do not consider any reduction was warranted on the basis of age.  Perhaps a very small discount was justified on health grounds.   But a more substantial discount would have been justified for the guilty pleas.  These pleas did come at a very early stage and, despite the absence (as yet) of a guideline judgment, it is now well established that guilty pleas at the earliest opportunity should give rise to a discount of 30 to 33% (which is applied to the provisional sentence after all aggravating factors and all other mitigating factors have been taken into account): see, for example, R v M (CA517/04) 5 May 2005 at [16], R v Hannagan CA396/04 18 July 2005 at [25], R v S (CA465/05) 11 April 2006 at [19], R v Fonotia [2007] NZCA 188 at [50]-[51], and R v Andersen [2007] NZCA

288 at [34]-[36].

[28]     In  this  case,  however,  the  perhaps  niggardly  discount  is  to  be  balanced against an over-generous starting point.   We are not persuaded the end result was manifestly excessive.  Indeed, we think it was right, even if we would have reached

it by a slightly different route.   This court has consistently stressed that appeals against sentence will be dismissed if the end result is right, even though this court might have reached the result somewhat differently: R v Zhang CA437/03 3 June

2004 at [21], R v Franklin CA363/04 15 March 2005 at [26], and R v T (CA139/05)

26 July 2005 at [18].

[29]     The appeal against sentence is dismissed.

Solicitors:

Paul Heaslip, Auckland, for Appellant

Crown Law Office, Wellington