R v Rimene

[2024] NZHC 13

NOTE: PUBLICATION RESTRICTIONS APPLY

PURSUANT TO S 19(1) OF THE BAIL ACT 2000. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-4

[2024] NZHC 13

THE KING

v

WAYNE RIMENE

Hearing:	16 January 2024
Appearances:	S C Carter and M E Page for the Appellant K J Basire for the Respondent
Judgment:	16 January 2024

JUDGMENT OF PALMER J

Solicitors

Luke Cunningham & Clere, Wellington K J Basire, Barrister, Christchurch

R v RIMENE [2024] NZHC 13 [16 January 2024]

What happened?

[1]    On 23 March 2023, Mr Wayne Rimene, now aged 53, was found guilty and convicted by Judge N J Sainsbury, in a Judge-alone trial, of two offences of indecent assault, four offences of sexual violation by unlawful sexual connection, and two offences of sexual violation by rape.1

The offending and appeal

[2]    The offences all arose from an episode on 17 September 2021 in Masterton. Mr Rimene went to the victim’s address around 6 am, looking for a friend. In the living room, he rubbed his body against her body, grabbed her head and tried to kiss her, which she resisted. She went to the bedroom to text her partner to ask for help. He followed her, took her phone and, against her will, put his fingers in her genitalia (twice), used his mouth or tongue on her genitalia, introduced his penis into her genitalia (twice), and connected her mouth with his penis. The offending stopped when the victim’s partner’s father arrived at the address at the request of the victim’s partner. Mr Rimene’s defence was that the victim offered to have sex with him for methamphetamine or to make false ACC claims and that the conduct was consensual.2

[3]    In his lengthy reasons judgment, the Judge explained that he found the Crown case provided compelling evidence of the truth of the victim’s allegations and Mr Rimene’s evidence, which he found unconvincing, did nothing to displace that.3 He held beyond reasonable doubt that the victim did not consent to any of the sexual activity and that Mr Rimene did not believe she was consenting.4 Mr Rimene has a lengthy criminal record in which the Crown counts 108 previous convictions, including for violent offences. He has attracted 51 sentences of imprisonment and committed 73 offences while on bail. On 15 June 2023, the Judge sentenced Mr Rimene to seven years’ imprisonment for this offending.5

1      R v Rimene [2022] NZDC 8202. These offences are punishable by up to seven years’, 20 years’, and 20 years’ imprisonment respectively: Crimes Act 1961, ss 135, 128(1), and s 128B.

2      At [47]–[49] and [59].

3      At [197] and [202].

4 At [219].

5      R v Rimene [2023] NZDC 13732.

[4]    Mr Rimene appeals his conviction on the grounds that the Judge pre-determined Mr Rimene’s guilt, had a closed mind to defence arguments, and erred in his assessment of the evidence. The hearing is scheduled for 20 February 2024.

District Court’s bail decision

[5]    Mr Rimene applied for bail pending the outcome of that appeal, with a 24-hour curfew. The address had not been able to be assessed for electronically monitored (EM) bail.  He had been on EM bail in  Hamilton leading up to  the trial for  over   12 months in total.

[6]    On 21 December 2023, in the District Court at Wellington, Judge A Nicholls granted the application for bail.6 He recognised that he must only grant bail if satisfied on the balance of probabilities that it would be in the interests of justice to do so, under s 14 of the Bail Act 2000.7 He did not consider he could make a confident assessment of the strength of the appeal either way but accepted there were substantive points in Mr Rimene’s counsel’s view that would be raised on appeal.8 He identified the key considerations to be the two month period on which Mr Rimene would be on bail, his long and daunting criminal history, Mr Rimene’s demonstration that he had been prepared to respect EM bail arrangements prior to trial, the victim’s anxiety about Mr Rimene being on bail given that she often visits Masterton, and the Crown’s concerns that there could be interference with several Crown witnesses who live in Masterton ahead of any further trial. The Judge concluded:

[19] I have grappled with that, but in my view the performance of Mr Rimene on bail ahead of the trial deserves some visibility in this conversation. Given his performance ahead of the trial on bail arrangements, and the short period of time that we are talking about here until the appeal and any subsequent decision, then in my view the s 8 Bail Act risks appear manageable with rigorous bail conditions, including a 24-hour curfew. In my mind there is nothing inherently contradictory or abhorrent to the interests of justice in granting bail to someone who says they have been wrongly convicted while there is a relatively short process to sort that out.

6      R v Rimene [2023] NZDC 28874.

7 At [2].

8 At [12].

[7]    The Crown appealed the decision on an urgent basis. On 22 December 2023, Ellis J ordered that Mr Rimene be placed on EM bail until the appeal could be heard. Mr Rimene attended the hearing today.

Submissions

[8]    Ms Carter, for the Crown, submits the Judge erred by treating the appeal the same as a pre-trial appeal and not referring to the fact the presumption of innocence no longer applies. There is nothing to distinguish Mr Rimene from anyone else who has been convicted. The Judge erred in holding Mr Rimene had established, on the balance of probabilities, that bail would be in the interests of justice and appears to have treated the test as whether granting bail would offend the interests of justice. The Judge also erred in concluding that a 24-hour curfew adequately mitigated the risks of offending and interfering with witnesses while on bail. The strength of the appeal here is a neutral factor, the length of sentence weighs strongly against granting bail, and the short time until the appeal lowers the interests of justice of granting bail. There is no information about why Mr Rimene’s father’s ill-health requires his proximity. The latest EM Bail report says that the bail address is less than 90 minutes from the victim. The mere fact of earlier compliance with the terms of EM bail in Hamilton before trial do not establish it is in the interests of justice to release Mr Rimene on bail in Masterton after conviction and sentence. The Judge was wrong to grant any form of bail given Mr Rimene’s extensive criminal history and connections in Masterton, the nature of the charges, the risk of offending while on bail, and the risk of interfering with witnesses. The extensive reasons given by the Judge make clear that he not pre-determined the case so the merits of the appeal do not suggest bail should be granted.

[9]    In her written submissions, Ms Carter submitted that, while the Judge did not refer to them, he must have considered the reverse onuses under ss 10 and 12 of the Bail Act were satisfied, which was also an error. I questioned whether ss 10 and 12 apply here because they apply to a defendant who faces charges. Orally, Ms Carter accepted that s 14 is the primary section that needs to be considered. The reverse onuses in ss 10 and 12, that apply to pre-trial bail applications, are relevant

considerations under s 14. Ms Basire, for Mr Rimene, accepts that the reverse onus in each section is relevant.

[10]   Ms Basire, for Mr Rimene, submits the Judge did not err, or misdirect himself, or reverse the onus. This case is different from many because the appeal is based on pre-determination or bias. Ms Basiere submits the most striking support for that is that the Judge said, during a defence witness’ evidence that was contrary to the complainant’s evidence, that he thought the witness was lying. She also submits the Judge misdirected himself that the witness had made a statement to the Police, interrupted the evidence on multiple occasions, took over the cross-examination, and read the formal written statements during witness’ evidence. The appeal has been delayed due to factors beyond Mr Rimene’s control. She submits the grounds of appeal are strong. Mr Rimene has now been on EM bail in Masterton without incident or any suggestion of the risks identified by  the Crown  have been  realised,  since  22 December 2023. The Crown’s concern about his interference with witnesses and retribution is speculative. He is in no better position to do so on EM bail than in prison. If there are any residual concerns with the Masterton address, a Hamilton address is now available. It is the interests of justice for Mr Rimene to continue on EM bail until the hearing. Mr Rimene says the grant of bail has greatly benefitted his aged father who is suffering from dementia. He can still assist his father to sort out his affairs from Hamilton.

Should the appeal be allowed?

Relevant law of appeal

[11]   Section 42(6) of the Bail Act 2000 provides that bail appeals are conducted by way of rehearing. In Taipeti v R the Court of Appeal held that, to succeed in appeal of a bail decision, the appellant must identify how the Judge erred.9 If the Court is satisfied that the correct decision is different from that of the court from which it is appealed, the appeal must be allowed. The Court is required to come to its own conclusion of the merits. This approach has been subsequently taken to appeals of cases decided under ss 13 and 14 of the Bail Act as well.10

9      Taipeti v R [2018] NZCA 56 at [59].

10     Dick v Police [2018] NZHC 628; and Bruce v R [2019] NZHC 1704.

Relevant bail law

[12]   Bail applicants are usually awaiting trial. In that circumstance, they are entitled to be presumed innocent until found guilty. Unless a reverse onus applies, they must be released on reasonable terms and conditions unless the Court is satisfied there is just cause for continued detention under s 7(5) of the Bail Act and taking into account the considerations in s 8. Here, if Mr Rimene had been a defendant charged with these offences, the reverse onus provisions in ss 10 and 12 of the Bail Act would apply because:

(a)when he committed the offences, which include a specified offence, Mr Rimene had previously been convicted of a specified offence; and

(b)the offences he committed carried maximum sentences of more than three years’ imprisonment, he had previously received more than 14 sentences of imprisonment, and he had previously been convicted for an offence which carried a maximum sentence of three or more years’ imprisonment.

[13]   Sections 10 and 12 would require that Mr Rimene must satisfy the Court that bail should be granted and, in particular, that on the balance of probabilities he will not commit any offence involving violence against or danger to the safety of the public and victim. The need to protect the safety of the public and the victim are primary considerations.

[14]   Mr Rimene has already been convicted, so he is not a defendant and he is not now charged with the relevant offences. I accept the terms of ss 10 and 12 do not apply directly to his application for bail. There do not appear to be any authorities that state that specifically. But the terms of ss 10 and 12 are clear that they apply to defendants who are charged. Mr Rimene no longer has that status. It follows that the Judge made no error in not referring to, or applying, ss 10 or 12. But I also accept that, while ss 10 and 12 do not apply, the Parliamentary expression of heightened requirements for potential offenders falling within ss 10 and 12 to be granted bail is relevant to a bail decision when the relevant offence has been proven but the conviction is subject to appeal. These are relevant considerations under s 14(3)(e).

Also, the need to protect the safety of the public and victims is always a relevant consideration in bail decisions.

[15]   Section 14 requires that, where an appellant is appealing their conviction, a court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. The onus is on the appellant to show cause why bail should be granted. Instead of the considerations in s 8, under s 14(3), the court may take into account the apparent strength of the grounds of appeal, the likely length of sentence, the likely length of time that will pass before the appeal is heard, the personal circumstances of the appellant, and any other consideration the court considers relevant.

[16]   Stevens J, in the Court of Appeal in Hosking v R, stated that the prospects of success on appeal must be “very strong” to enhance a case for bail under s 14(3)(a).11 Otherwise, the grounds of appeal are neutral as to bail and do not displace the presumption the conviction was correct.12 The appellant usually needs to show more than an arguable case under s 14(3)(a) for the interests of justice test to be met.13 The case for bail is also much weaker if an appellant has been sentenced to a very substantial prison term.14 Kós P, in Lock v R in the Court of Appeal, stated in relation to s 14, that “the reversal of onus, non-application of the presumption of innocence and undeniable fact of a considered determination of guilt, are all distinct obstacles to a successful application for bail pending appeal”.15

The appeal here

[17]   Applying the law to the circumstances here, the standard applied by the Judge was expressed to be whether granting bail was “not contradictory or abhorrent to the interests of the justice”. That was an error. The standard in s 14 is whether granting bail is in the interests of justice and it is for the appellant to satisfy the court of that.

11     Hosking v R [2012] NZCA 263 at [5].

12     Watson v R [2021] NZCA 542 at [18].

13     R v Huata CA 411/05, 14 December 2005 at [7].

14     R v Karena CA 387/05, 22 December 2005 at [4].

15     Lock v R [2019] NZCA 163 at [10].

[18]   It is difficult to assess the strength of the grounds of appeal, as the District Court Judge stated. But, by a good margin, they are not so strong here as to displace the presumption the convictions were correct. Mr Rimene has been sentenced to a relatively lengthy term of imprisonment. It is not long until his appeal will be heard. He has a lengthy history of offending and, in particular, of offending while on bail. I do not doubt he has assisted his elderly father but I have no independent evidence of that and it is not a reason for a sentence to effectively be suspended. The bail address is located in Masterton, where the offending occurred, Crown witnesses live, and the victim visits. Granting bail is inconsistent with adequate mitigation of the risks of Mr Rimene offending while on bail, of interfering with witnesses, and with protecting the safety of the victim.   In any case, irrespective of location, the considerations under   s 14(3) militate against bail.

[19]   The primary factors relied upon by the Judge appear to have been that Mr Rimene had previously complied with the conditions of EM bail and there was only a short period until the appeal. But complying with the conditions of EM bail in Hamilton when presumed innocent leading up to trial is an inadequate basis on which to establish it is in the interests of justice to release Mr Rimene on bail simpliciter in Masterton after he had been convicted of serious offending and sentenced to a relatively lengthy period of imprisonment.

[20]   I do not consider Mr Rimene can discharge the onus on him of satisfying the Court, on the balance of probabilities, that it is in the interests of justice to grant him bail after conviction and sentence. I consider the Judge erred and the correct decision is different from that made by the District Court. I allow the appeal and quash the grant of bail and its subsequent variation to EM bail. If his conviction appeal next month is successful, that would of course end his sentence.

[21]   Mr Rimene must present himself to the Police Station nearest him by 5 pm Wednesday 17 January 2024 to be taken into custody. He will then be remanded in custody to serve his sentence, as usual.

Palmer J