Ralyntyne v The Queen

[2019] NZHC 2665

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2019-419-0048

[2019] NZHC 2665

BETWEEN

SHAYNE SCOYT WINFIELD RALYNTYNE
Appellant

AND

THE QUEEN

Respondent

Date of hearing:	17 October 2019
Appearances:	Mr Ralyntyne in person ASC Alcock for the Crown
Date of judgment:	18 October 2019

JUDGMENT OF JAGOSE J

The judgment was delivered by me on 18 October 2019 at 3.30pm.

……………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Almao Douch, Hamilton

RALYNTYNE v R [2019] NZHC 2665 [18 October 2019]

[1]                Shayne Ralyntyne appeals against the decisions of Judge KBF Saunders in the District Court at Hamilton, finding Mr Ralyntyne guilty on two charges of indecent assault,1 and sentencing him to 17 months’ imprisonment, with standard and special release conditions applying for six months after expiry of the sentence.2

[2]                Mr Ralyntyne was released from prison on 27 November 2018 on time served. He then was admitted to the Henry Rongomau Bennett Centre (HRBC), a mental health facility operated by the Waikato DHB. He since has had three further admissions to HRBC.

Background

[3]                Mr Ralyntyne faced two charges of indecent assault.3 He was alleged serially to have indecently assaulted two 17-year-old girls, M and N, attending a youth camp at the Baptist Church on Ulster Street in Hamilton in 2016. He was not known to either of them (or them to each other). He withdrew his election of trial by jury. After being found fit to plead, he pleaded not guilty for a Judge-alone trial heard 24–26 September 2018.

District Court decision(s)

[4]                Evidence was given by A, accompanying M at the time of the alleged offending, M, N, the arresting officers,  and  Mr  Ralyntyne.  The  Crown  alleged Mr Ralyntyne had indecently assaulted M by running his fingers through her hair and by cupping her breast, and he had indecently assaulted N by squeezing her leg from the ankle to her underwear line, and by kissing her cheeks.

[5]                Mr Ralyntyne denied touching M at all. He accepted having laid his jacket down for her to walk on but said, after her dismissive response, he did not further interact with her.4 Mr Ralyntyne admitted stroking N’s hair, putting his arm around her and kissing her on both cheeks. But he said he put his arm around her to protect

1      R v Ralyntyne [2018] NZDC 20302.

2      R v Robinson (sic) [2018] NZDC 24793. The case name plainly is an error, the Judge expressly referring to Mr Ralyntyne at [2], and the sentencing clearly referable to the Judge’s earlier verdicts against him.

3      Crimes Act 1961, s 135. Maximum penalty of 7 years’ imprisonment.

4      R v Ralyntyne, above n 1, at [28].

her, he moved her hair out of her face to make sure she was okay, and he kissed her once on each cheek to say goodbye. He denied having any other physical contact with N, other than bending down and tying up her shoe laces for her. He said he did each of these things in a paternal Christian way.5 In short, he argued neither M or N were credible witnesses, and neither should be believed.6 The defence was Mr Ralyntyne had not engaged in any indecent conduct.

[6]                The Judge took the view the case turned on witness credibility.7 She found both M and N to be reliable and compelling witnesses as both appeared to be honest and articulate, and neither embellished their accounts of what had happened.8 M’s account of events also was corroborated by A.9 The Judge found there was no reason to believe either M or N had misinterpreted Mr Ralyntyne’s conduct, and as M and N did not know each other, the Judge was satisfied there was no need to be concerned about any collusion between them.10

[7]                The Judge rejected Mr Ralyntyne’s account entirely, refusing to accept his denials and his claim that there was innocent touching only. She found Mr Ralyntyne had been enamoured by M’s and N’s long hair, he had laboured over their appearance in his Police interview, and his concern for their clothing showed sexual attraction and not paternal Christian concern.11

[8]                The Judge also rejected Mr Ralyntyne’s claims his police interview was detrimentally affected by him earlier being pepper sprayed and tackled to the ground during his arrest, and led him to give an untrue account. This seemed unlikely as many of the other elements he provided in the interview matched up with the other witness accounts.

[9]                On the evidence provided by M, N and A, the Judge was satisfied that the elements of both charges had been proved beyond a reasonable doubt; in regard to

5      At [25]–[27].

6 At [4].

7 At [3].

8      At [47] and [49].

9 At [48].

10 At [44].

11     At [50]–[56].

both M and N, Mr Ralyntyne had engaged in an indecent act that would be regarded by right-thinking members of the community as indecent; and Mr Ralyntyne had engaged in those acts recognising they would be regarded by right-thinking people as indecent.12 The Judge also was satisfied neither M or N had consented to being touched by Mr Ralyntyne, and there were no grounds for him to have honestly held the belief either M or N was consenting.13 Accordingly, guilty verdicts were delivered on both charges.

[10]            On sentencing,14 the Judge noted Mr Ralyntyne posed a high risk of reoffending as he continued to deny his offending and minimise his conduct. The Judge identified the vulnerability of the victims as an aggravating factor, but acknowledged Mr Ralyntyne’s history of offending did not warrant an uplift as this was his first offence of this kind.15

[11]            Judge Saunders therefore set the starting point at 12 months’ imprisonment.16 She uplifted it by eight months to reflect the two separate offences. Although a deduction was sought on account of Mr Ralytyne’s schizophrenia diagnosis, the Judge declined to apply a discount as Mr Ralyntyne continued to deny that that he had mental health concerns.17 To adjust for totality the Judge reduced the overall sentence to 17 months’ imprisonment.18

Grounds of appeal

[12]            Mr Ralyntyne only has filed a notice of general appeal. He has not complied with timetable orders for filing submissions. The Registry’s attempts to contact him have been complicated by his residence at HRBC. His former counsel – Ann-Marie Beveridge, assigned by Legal Aid Services to explain the grounds and merits of his appeal, but then granted leave to withdraw on its confirmation it would not fund the appeal – advised the Registry Mr Ralyntyne was aware of today’s scheduled hearing, which he expects to attend on discharge from HRBC.

12     At [57]–[ 60].

13 At [61].

14     R v Robinson, above n 2.

15     At [7] and [12].

16 At [13].

17 At [14].

18 At [15].

[13]            Mr Ralyntyne’s notice of appeal identifies that he appeals his conviction pursuant to s 232(b) of the Criminal Procedure Act 2011 (“CPA”). He contends the trial judge erred in her credibility findings to such a degree a miscarriage of justice has occurred. In particular, Mr Ralyntyne points to paragraphs [41]–[62] of the substantive judgment, which he says contain findings made based on contested oral evidence. The notice does not identify the grounds upon which Mr Ralyntyne appeals his sentence, but (as I will explain) it can only be the sentence was manifestly excessive.

[14]            The notice of appeal also explains Mr Ralyntyne has consistently been advised by former counsel, David Allan, there is no basis to appeal the conviction or sentence. As Mr Ralyntyne has decided to proceed with the appeal against counsel’s advice, he now is unrepresented.

[15]            In those circumstances, despite the absence  of  written  submissions  from Mr Ralyntyne (and therefore no response from the Crown), I decided to proceed with today’s hearing.

[16]            Mr Ralyntyne appeared at the hearing, and explained he wished to have the District Court judgment overturned, because it was wrong and prejudicial to him in his work and family relationships. He said the Judge was wrong to prefer the complainants’ evidence, because that was ‘not him’. Mr Ralyntyne started to give evidence as to what had occurred with the complainants, but I stopped him, explaining my decision had to be based on my consideration of the District Court’s judgment, and the evidence on which it was based.

[17]            Mr Ralyntyne also disagreed with the length of the sentence imposed by the District Court Judge, saying – taken together with engagements with four doctors for the purpose of determining his fitness to plead – he had lost four years of his life.

[18]            Given it is for me to review the District Court’s judgment for either any miscarriage of justice and/or a manifestly excessive sentence, I did not consider I would be assisted by anything the Crown may have to say, and therefore did not require to hear from its counsel, Amy Alcock.

Approach on appeal

—appeal against conviction

[19]            Section 229(1) of the CPA allows a person to appeal against his or her conviction under Subpart 3 of the Act. The High Court is the first appeal court for a conviction entered by a District Court Judge.19

[20]            Mr Ralyntyne brings his appeal pursuant to s 232(2)(b) of the CPA, contending the Judge erred in her assessment of the evidence to such an extent a miscarriage of justice has occurred. The approach to appeals under s 232(2)(b) previously was an unfair trial will have existed where the error made by the judge is so “so gross, or so persistent, or so prejudicial, or so irremediable” the court must quash the decision.20

[21]            More recently, in Sena v Police, the Supreme Court re-examined the approach to appeals under s 232(2)(b), holding my role is to re-evaluate the trial evidence, to decide if Judge Saunders substantively was right or wrong.21 In this respect, the appeal is not a rehearing de novo but a rehearing of the trial record. If on this record I come to a different view on the evidence, Judge Saunders will have erred in her assessment.22 The Supreme Court was careful to note I should still have regard to the various advantages Judge Saunders may have had. And where the challenge is to a credibility finding based on contested oral evidence, I should exercise “customary caution”.23

[22]            Given Mr Ralyntyne’s lack of representation, I take a wider view more generally, to be alive to any indication of a miscarriage of justice on the record. By ‘miscarriage of justice’ I mean something has occurred in relation to the trial to create a real risk against a more favourable outcome for Mr Ralyntyne, or has resulted in an unfair trial or a nullity.24

19     Criminal Procedure Act 2011, s 230(b).

20     R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing R v Howse [2005] UKPC 30, [2006] 1 NZLR 433 at [36], approving Randall v R [2002] 1 WLR 2237 (UKPC) at [28].

21     Sena v Police [2019] NZSC 55 at [34] and [38].

22     Sena v Police, above n 22, at [38].

23     Sena v Police, at [38]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at [13].

24     Criminal Procedure Act 2011, s 232(2)(c) and (4).

—appeal against sentence

[23]            I must allow the appeal against sentence only if I am satisfied both there is an error in the sentence, and a different sentence should be imposed.25 In any other case, I must dismiss the appeal.26 The approach previously taken by courts on sentencing appeals continues to apply;27 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentencing appeals.28 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.29

Discussion

—conviction

[24]            On my own assessment of the evidence, both M and N were reliable and credible witnesses, M’s testimony directly corroborated by A, and M’s and N’s evidence each corroborating the other’s at least in a propensity sense. M, N and A accurately assessed Mr Ralyntyne’s demeanour. They did not misinterpret his conduct. I prefer their version of events. Mr Ralyntyne’s evidence was unclear and unconvincing. It was in material parts also corroborative of the complainants’ evidence. His reliance on “paternal Christian” motives is not absolving. I reject his alternative account, and his claim his police interview was affected by the circumstances of his earlier arrest. His account there was consistent with much the complainants said.

[25]            I am not satisfied Judge Saunders erred in her credibility assessment, or there was any miscarriage of justice. I am satisfied Mr Ralyntyne’s conduct constituted indecent assaults on M and N, as he deliberately touched them, in a way that would be regarded indecent, and he intended to do so in that way. I see no prospect from the evidence of any more favourable outcome for Mr Ralyntyne, or of any unfairness or

25     Section 250(2).

26     Section 250(3).

27     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

28     At [33] and [35].

29     Ripia v R [2011] NZCA 101 at [15].

nullity at trial. As such, there is no ground on which the conviction appeal may succeed.

—sentence

[26]            The sentencing approach adopted by Judge Saunders is sound. The relevant features here are the repetition of Mr Ralyntyne’s conduct to vulnerable victims. Repeated indecent assault offending against younger victims may support a starting point toward two years.30

[27]            With reference to similar cases – notwithstanding the “idiosyncratic combinations of unusual features” involved in such offending, such as make it “less likely that a range of useful comparators can be found in other sentences for indecent assault”31 – this sentence nonetheless is well within the range open to the Judge.32 The sentence in no way is ‘manifestly excessive’.

Result

[28]Mr Ralyntyne’s appeals against conviction and sentence are dismissed.

—Jagose J

30 Hishon v R [2016] NZCA 558 at [9].

31 Moore v R [2018] NZCA 551 at [15].

32 Paerau v R [2018] NZCA 139: Mr Paerau had sniffed the victim and stroked her genital area over her clothing. He was sentenced to 14 months’ imprisonment on the charge of indecent assault; Hallett v Police [2018] NZHC 648: Mr Hallett attempted to intimidate the victim by standing close to her, he then reached out and grabbed the victim’s breasts. On the charge of indecent assault a starting point of 15 months’ imprisonment was adopted. This was uplifted by four months to reflect the additional charges of common assault and assaulting a constable; R v Campbell [2016] NZHC 2817 at [19]: Mr Campbell grabbed the buttocks of a corrections officer. But for the three-strikes law, he would have received a starting point of no more than 12 months’ imprisonment.