[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Proctor

Details

AGLC: R v Proctor [2007] NZCA 289
Case: [2007] NZCA 289
Decision Date: 12 July 2007

CaseChat Overview and Summary

In this case, the appellant, Michael Proctor, appealed against both his conviction and sentence following a guilty plea to multiple charges of sexual offending against a 14-year-old girl. The primary issue on the appeal was whether a miscarriage of justice would result if the appellant was unable to impugn his pleas of guilty. The secondary issue concerned whether the sentence imposed was manifestly excessive.

The court held that there was no miscarriage of justice as the appellant had fully appreciated the nature and consequences of his guilty pleas. The appellant's lawyer had taken great care to ensure that the appellant understood his options and the consequences of pleading guilty. The appellant's decision to plead guilty was either based on a recognition that the complainant was telling the truth, or an understanding that his account was unlikely to be believed by a jury. In either case, the appellant appreciated the benefits of a guilty plea, including a potential discount in sentence.

As for the sentence, the court found that the starting point adopted by the sentencing judge was extremely generous and at the lower end of the appropriate range for such offending. The discount given for mitigating factors, particularly the early guilty pleas, was perhaps too small. However, when balanced against the over-generous starting point, the overall sentence was not manifestly excessive.

The appeal against conviction was dismissed, and the appeal against sentence was also dismissed. The Court of Appeal upheld the original sentence of ten years' imprisonment imposed on the appellant.

Orders