S v Police HC Blenheim Cri-2006-406-1

[2006] NZHC 838

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2006-406-001

BETWEEN  S

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         17 July 2006

Appearances: D M Fraundorfer for Appellant

J C Bonifant for Respondent

Judgment:      19 July 2006

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 19th day of July 2006.

RESERVED JUDGMENT OF GENDALL J

[1]      This  is  an  appeal  against  convictions  entered  in  the  District  Court  at Blenheim after a defended hearing.   They relate to five charges of behaving in an offensive manner in breach of the Summary Offences Act 1981, and two charges of attempting to induce females (one aged 12 years and one under the age of 12 years) to do an indecent act upon the appellant in breach of ss133 and 134 of the Crimes Act 1961.  The appellant was convicted before a Judge alone and fined $200 in each of the offensive behaviour offences;   fined $1,000 and sentenced to nine months’ supervision in respect of the inducing an indecent act charges.

[2]      The appeals against  convictions are on the basis that  the Judge erred  in finding the appellant’s conduct amounted to offensive behaviour and, in respect of

S V NEW ZEALAND POLICE HC BLE CRI-2006-406-001  19 July 2006

the Crimes Act offences, the Judge erred in finding that the conduct was sufficient to comprise an attempted crime of inducing the performance of indecent acts.

Background facts

[3]      The appellant resides in Blenheim and on four separate days, namely 18 and

22 April, 21 May and 4 June 2005 the appellant approached groups of young girls in areas adjacent to a riverbank, and a local park, near Blenheim posing as a person conducting a survey.  The girls were aged between 11 and 13.  They were in groups of about 10.  He said to them that he was conducting a survey and offered them $5 each in return for their providing saliva samples to him.  He had bottles with him, similar to specimen bottles, and an exercise book, which, he explained to the girls, was necessary for the survey that he was undertaking.   When asked by one of the young girls to explain why the samples were required the appellant was evasive.  It raised her suspicions about the genuineness of his actions.   However, a number of young girls participated and received $5 for half a bottle of saliva or $10 for a full bottle.  With such inducements, he was readily able to find young people to provide him with such samples.  Unbeknown to the young women Mr S   had bizarre and prurient motives.  Later when interviewed by the police he was to say that he wanted those items to provide him with the “scent of a woman” which he was to use, and did use, for purposes of arousal when masturbating.

[4]      At  the  defended  hearing  the  essential  facts  in  relation  to  the  offensive behaviour charges were not  in dispute but  it  was argued that the actions of the appellant did not, and could not, fall into the category of being offensive behaviour.

[5]      The Crimes Act charges arose out of actions of the appellant on 22 April

2005, before he went on to approaching separate groups of girls, seeking their saliva. The appellant twice spoke to two  young girls, aged 12 and 11 years,  in central Blenheim as they walked past him.  He said to each of them words to the effect “I’ll give you $5 for a blow job for three minutes”.  He was holding a bundle of $5 notes. Both girls’ evidence was that he emphasised that it would be “only three minutes”. They were alarmed and, as they hurried away, the appellant called out words to the effect that “it would only take three minutes”.  The appellant admitted speaking to

the girls but denied that he had made any sexual approach to them.   He said the approach was for saliva, as later occurred on the day elsewhere to other youngsters.

[6]      The Judge, in his decision when dealing with the offensive behaviour charges observed that an objective test had to be applied as to whether or not the appellant’s behaviour was offensive and:

“It involves the Court asking the question, ‘What would a reasonable person think of the defendant’s behaviour?’  Was the defendant’s behaviour clearly unacceptable or objectionable to a reasonable person?   It is up to the prosecution to prove beyond reasonable doubt that his behaviour was objectionable or unacceptable and also that his behaviour sufficiently interfered with the rights of others to justify the intervention of the criminal law.”

[7]      The Judge rejected the defence argument that the actions could not fall into the “offensive category”.  He expressed the view that the appellant was deliberately targeting young girls not in the presence of adult company and whilst  in public places but where there was less likely to be adult frequency and in areas where children congregated such as parks, riverbanks and places where young children might play in an unaccompanied fashion.  The Judge said that he took into account the manner in which the appellant conducted himself and the steps that he took to trick young girls having items with him, which gave some semblance of genuineness to his activity.  The Judge went on to say:

“I also need to take into account the fact that he misled and lied to the young people.  He suggested to them that he had a legitimate purpose, that he was conducting a survey, he had gone to the trouble of getting money, so this is all pre-prepared.  He was also paying money for the requests for samples and was encouraging young girls to provide half full bottles for $5 or full bottles for $10 and I take into account the fact that on a couple of occasions at least a number of children ended up providing saliva samples in the one bottle. Also, when he learned of the interests of the parents of some of this group, then, as one of the young girls noted, he looked worried and then left fairly quickly.”

[8]      The Judge referred to the Court of Appeal authority in R v Rowe [2005]

2 NZLR 833 (CA) and in finding the offensive behaviour charges proved, said:

“In my view the Defendant’s behaviour sufficiently interferes with the rights of others to justify the intervention of the criminal law.  I am satisfied that if I take into account the relevant time, place and circumstances, all of the factors  that  I  have  just  listed,  that  a  reasonable  person  looking  at  it

objectively would decide that the Defendant’s conduct was clearly unacceptable and objectionable.”

[9]      The Judge noted the criticism in R v Rowe (supra) of a Judge taking into account  prior  conduct  when  determining  “offensiveness”,  but  said  it  was  not pertinent where there was a number of charges, spanning the same conduct, and he said:

“Here we have a demonstrated and admitted course of conduct and a deliberate targeting of young girls unaccompanied in parks, and the sorts of places you would expect young people to be found without adult company for the purposes of taking the saliva samples and he was masquerading as a legitimate surveyor and duping these young girls and was lying to them with a nefarious purpose.  Of course the girls didn’t know that, but certainly there was a lack of legitimate purpose, so I am quite satisfied that a reasonable person would find his behaviour unacceptable and objectionable….”

[10]     Accordingly, the appellant was convicted of the offensive behaviour charges.

[11]     In dealing with the Crimes Act charges the Judge accepted the evidence of the two girls and rejected the appellant’s claims.  He said:

“I am quite satisfied that the Defendant did say words to the effect of, ‘I’ll give you $5 for a blowjob for three minutes’ and that he repeated on a couple of occasions that it would only take three minutes.  But that of course is not the end of the matter because [counsel] has of course reminded me that this is an attempt and what I have to do then is go a step further in terms of if those words were said, does this go beyond mere preparation.   Have the prosecution proven beyond a reasonable doubt that it goes  beyond  mere preparation?  What he has reminded me of is that this took place in a public place, that it was daylight, according to the girls’ evidence it was sometime after midday…that if those words had been said by him that then there was a good deal that would need to have been done before the actus reus itself could have been carried out.

….

[It was argued] that this was very much in the initial or early stages and that there was still a good deal further to go before this could move anything beyond a preparation through to the attempt stage.”

[12]     The Judge, after further analysing the evidence, said:

“Taking into account the nature of the act that was suggested, which is a blowjob,  taking into  account  that  there was  an  offer  of  money  and  the shortness of time that it was suggested that it would take, take into account the fact that the Defendant had with him the necessary funds and that those monies were available to him at that time and that the young girls were able

to see those monies, given his knowledge of the area and in particular the knowledge that I have heard in this case of the whereabouts of parks and places where adults are less likely to be find [sic] I am quite satisfied that this suggestion taken in this context goes beyond mere preparation and in fact is an attempt.  He had the money, the ability, there was only going to be a short amount of time required and he had a knowledge of the area and where he could find such places within a short period of time, so I am satisfied that the charge is proven beyond a reasonable doubt.  That is both charges in relation to both girls.”

Counsel’s submissions

[13]     Mr Fraundorfer argued that the acknowledged observable behaviour of the appellant did not reach the threshold of being considered offensive.   The appellant took deliberate steps to make his behaviour observable, and nothing about the observable actions could  be described  or regarded  as being  offensive.    Counsel submitted that the Judge placed improper weight upon the lack of any legitimate purpose  for  the  appellant’s  actions.    Later  actions,  or  intended  actions,  of  the appellant as to what he would do with the saliva samples, not being observable matters, ought not to have been taken into account in assessing the offensiveness of the behaviour.  That is, the lack of legitimacy or pretending to operate a survey in this fashion, could not amount to be objectionable behaviour, and that the acts, as were observed, could not in the circumstances of time and place be regarded as being offensive by a reasonable observer.  He submitted that in applying a balancing test the behaviour did not require the intervention of the criminal law.

[14]     In respect of the indecency charges, counsel accepted that the Judge was entitled to make his findings of fact and credibility as he did, but contended that he erred in finding that the actions of the appellant went beyond preparation, so as to comprise an attempted crime.  He submitted that whilst an inducement was offered, there was no substantial step taken, or proven to be taken, by the appellant to commit the substantive offence.   He argued that the appellant had not taken any physical action towards the girls or behaved in any way other than calling out to them.  Whilst not expressed in this way by counsel, it was implicit from his submission that the appellant went no further than inviting the girls to accept his offer.   It was argued that the appellant had not arranged a venue for the act to occur nor did he try to persuade the complainants by further inducement.   Counsel said that because no

steps had been taken to “perform” the act of oral sex, the factual circumstances were no more than preparation through the initial “invitation”.

[15]     It was submitted that the Judge erred by failing to consider the requirement that the intent to commit the substantive offence had to be present at all times and that the utterance of the words was not sufficient to prove that the appellant had the required intention.   That is, that simply utterance of inappropriate words did not prove, or follow, that he intended to go through with having the indecent act performed.

DISCUSSION

The offensive behaviour charges

[16]     The law relating to this offence has recently discussed and applied by the Court of Appeal in R v Rowe (supra).   In that case an accused had surreptitiously taken multiple photographic images of high school girls and the developers of the film informed the police.  As a consequence, a constable was stationed so as to be able to observe the accused taking further photographs of high school girls through a gap in curtains of a vehicle that he had parked near the entrance to the school gates. The girls were unaware that they were being photographed.  The issue was whether the conduct of the accused on that later occasion was offensive behaviour.   The Court of Appeal reviewed the authorities and reiterated that the test for the offence of offensive  behaviour  in  public  was  whether  the  behaviour  was  such  as  to  be calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.  The standard to be applied was not one of undue sensibility, nor high tolerance, but rather the resilience of a reasonable person and the  behaviour  had  to  be  sufficiently  serious  to  warrant  the  intervention  of  the criminal law.  It was necessary to consider whether the behaviour had the potential to cause serious disturbance to the use and enjoyment of the relevant place by others at the particular time.  The lack of legitimate purpose for taking the photographs in this case was said to be a factor that weighed against the offender but the fact that the offender had acted in a similar way on previous occasions, although relevant to penalty did not inform the judgment concerning whether the relevant conduct was

offensive.  The Court of Appeal by a majority upheld the appellant’s convictions that the appellant’s conduct was in all the circumstances as a matter of law capable of amounting to offensive behaviour.

[17]     On  the  other  side  of  the  coin  an  example  can  be  seen  from  Rowe  v New Zealand Police (2005) 22 CRNZ 244 a decision of the High Court on appeal from a decision of the District  Court.   There the appellant  was observed to  be furtively taking photographs of female occupants of a university library while seated at the desk, the subjects all being unaware that they were being photographed.  The High  Court  upheld  an  appeal  against  a  conviction  on  a  charge  of  offensive behaviour.  In applying the “reasonable observer test” the Judge held that reasonable persons would not have aroused in them the necessary feelings through the activities of the appellant, although acting in a stage manner, made no effort to conceal himself using a large camera and possibly photographing people or other features of the library.  John Hansen J observed that it is the action that must be offensive and that if an observer has no knowledge of being photographed the content of the photographs could not be used to create the necessary level of offence.  His finding that there was not evidence of a discernible purpose, which might be relevant in considering to strike the balance between competing interests.  Although the absence of a legitimate purpose may create a tendency to offend the Judge concluded that there was no such discernible purpose present.

[18]     I have been referred to a number of other cases including Ceramalus v Police (1991) 7 CRNZ 678 (HC);   Messiter v Police [1980] 1 NZLR 586 (HC) which highlight that in the end the judgment of the conduct in question must in every case be a matter of degree depending on the relevant time, place and circumstances when viewed objectively. In marginal cases such as this, the assessment is not easily made.

[19]     Counsel contended that the crucial  feature in R v Rowe (supra)  was the surreptitious nature of the actions of the appellant whereas the present appellant’s actions were open for all to see.   But that alone would not determine whether the behaviour was objectively offensive.   Openness, in the sense of being in a public place, is after all an ingredient of the offence.  It may point against stealth, depending

on the circumstances, but not necessarily so.  If other features of deception exist and are or would be apparent to the reasonable observer so as to invoke outrage, resentment or offence, the public acts may infringe the law.

[20]     The intent or motive of the person whose behaviour is in question cannot make observable behaviour offensive, unless it contains the necessary “offensive” quality.  As the English Court of Criminal Appeal said in R v Rowley [1991] 1 WLR

1020 (CA) when dealing with an offence of committing acts of “outraging public decency”:

“the offence consists in the deliberate commission of an act which is per se of a lewd, obscene or disgusting nature and outraging public decency.  The crux of it is therefore the nature and effect of the act itself.   Although the ultimate intention of the actor and his motive for his act may be the subsequent performance of lewd, obscene or disgusting acts, his intention and motive cannot, in our judgment, supply lewdness or obscenity to the act if the act itself lacks those qualities.   A member of the public is  either outraged by the act  or  not.    He will not  be affected in his  reaction  by thoughts or fantasies in the actor’s mind or his diary.   Evidence of those would not be before him.”

[21]     So, the Court has to look at the proven “behaviour”.  The acts here comprise the obtaining of bodily samples from young girls through deception or deceit.  The deception and deceit formed part of the behaviour.   Without it consent could not have been obtained.  Of course, the girls were not worldly enough to understand the deception but some described the actions as being “questionable”, not “normal”, “odd”, “strange”, and “a little bit weird”.  The fact that none of the girls expressed outrage or offence is not itself determinative or for that matter relevant.   That is because the test is whether responsible members of the community viewing the behaviour would  have regarded  it  as capable of arousing  resentment,  disgust  or outrage in the mind of the reasonable person.

[22]     In R v Rowe (supra) the Court of Appeal observed that the case was on the margin, whereas in Rowe v Police (supra) the Judge found that the behaviour fell outside the margin, so as to require the intervention of the criminal law.  A balancing exercise has to be undertaken to ensure that criminal sanctions do not apply where the  behaviour  may  offend  the  unduly  sensitive  and  the  issue  is  whether  the established facts in this case justified the intervention of the criminal law.

[23]     Just as R v Rowe (supra) was on the margin, so too is this case.  However, I have come to the view that the District Court Judge was entitled to conclude as he did that the facts comprised offensive behaviour so as to warrant the intervention of the criminal law.  Implicit in the actions of the appellant was his deceit and deception of young girls on a number of occasions.   On each occasion there were up to 10 children present who were approached in their “play” environment.  He sought and obtained from them bodily samples and succeeded in some instances.  He could not otherwise have obtained the children’s saliva without  fraudulently inducing their consent.  Apart from their feelings, although perhaps not of outrage or resentment, one of the girls at least said:

“I thought  it  was  questionable because he could  not  give  me  a  straight answer and I didn’t think it was a normal thing to be doing asking people to spit.”

[24]     A reasonable adult bystander may well not have known of the deception, but upon observing the appellant’s actions unquestionably would have asked him “What on earth are you doing?”   Indeed, the evidence from the children was that some adults came upon the scene on 4 June, whereupon the appellant:

“looked like he was pretty scared and didn’t want to know and…he ran away.”

There was further evidence that the adults talked to the appellant as:

“They were trying to get out of him what he was doing.”

and that:

“They [then] went to try and chase him and they found him and they rang the cops.”

Clearly, some adults had some feelings of resentment or concern.   That does not decide the issue because it is how a reasonable observer might react to the behaviour. But it is some evidence or some adults’ attitude.

[25]     The circumstances to which the Judge directed his mind included the fact that two large groups of young pubescent or pre-pubescent girls were approached by an adult male stranger, described in one part of the evidence as “not very tidy looking”

and looked “a bit scruffy”, “having a beard that was different lengths” on 22 April in places where the children were unaccompanied  by adults and other  adults were unlikely to be present.   Money was given to the children as an inducement.   The behaviour included the spoken words of the appellant fraudulently obtaining their consent to securing bodily samples from them, which he could not otherwise have obtained.   Indeed, their consent  was invalid  having  been obtained  through such deceit.    It  was  an  interference  with  the  rights  of  others  (groups  of  children) sufficiently serious to warrant the intervention of the criminal law.  In my view the behaviour had the potential to cause serious disturbance in and to the use of the recreational places in which the children played.   In the absence of any legitimate purpose for obtaining the saliva samples, together with the behaviour comprising deception, are facts which weigh heavily against the appellant.  Whilst the behaviour may be categorised as near to the margin, in my view the District Court Judge was entitled to find as he did that the offensive behaviour charges had been established.

[26]     The appeals against these five convictions are dismissed.

The charges of attempting to induce females to do indecent acts upon the appellant

[27]     Sections 133 and 134 of the Crimes Act 1961 (now repealed) provided that it was an offence for a male to induce or commit any girl under the age of 12, or between the ages of 12 and 16 to do any indecent act with or upon him.

[28]     Attempted crimes are governed by s72 of the Crimes Act 1961.  If a person does or omits an act for the purpose of accomplishing his object, having an attempt to commit an offence, he is guilty of an attempt to commit the intended offence. Whether acts done or omitted with intent to commit an offence are or are not only preparation for the commission of that offence, or too remote to constitute an attempt to commit it, is a question of law.  The act or omission may constitute an attempt if immediately or approximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit the offence.

[29]     Not  every  act  or  omission  done  for  the  purposes  of  accomplishing  the criminal object will be sufficient to lead to a conviction and the current approach

being one of proximity of the act to the completed offence requires the Court to ask whether  the act  or omission constitutes a “real or  substantial step” towards the commission of the offence;  Police v Wylie [1976] 2 NZLR 167 (CA) (at 170). The inquiry:

“must be left to common sense to determine in each case whether an accused has gone beyond mere preparation.”

[30]     There must be an intent to commit the offence, that is of inducing the girl to do the indecent act.  If acts or omissions are sufficiently proximate to the completed offence, that is of performing the indecent act then there will be an attempted crime. There cannot be an “attempted inducement” because the completed offence is inducing a girl to do an indecent act upon the offender.

[31]     In the present case there was an inducement.  It was not “attempted”.  But the issue  is  whether  the  appellant’s  conduct,  being  an  inducement  offered  for  “a blowjob”, was sufficiently proximate to the completed offence.  In other words was it a “real or substantial step” towards commission of that offence – that is,  the indecent act, not simply the inducement offered.

[32]     Counsel relied upon the decision of R v Wilcox [1982] 1 NZLR 191 (CA) where significant steps had been undertaken by the accused before they were apprehended on the way to the intended crime scene by the police, yet the Court held there was no attempt in that case because of the physical distance required to be travelled before an attempt could be properly launched. That decision was followed in the case of R v Burrett, Payne & Philpott HC WN T3347/02 13 February 2003

Hammond J.   There a similar geographical distance existed between the offenders and the final destination when apprehended.   The approach adopted in these cases was to look forward to steps still to be taken by an accused.

[33]     Some commentators have criticised this approach as making a distinction between an attempt and the full offence to be so marginal as to make it impossible for police to intervene before an offence is committed.  I do not think a geographical proximity between acts or omissions and the place at which a full offence is to be carried out would necessarily be the test.  The real question is whether an alleged

offender had left the stage of preparation behind him and was already trying or attempting to fulfil his objective of having the girls perform indecent acts upon him. No abstract test can be applied in any useful way to determine whether the boundary has been crossed.

[34]     There  must  be  immediate  or  proximate  connection  between  the  acts  or omissions and the intended offence.  Remoteness or otherwise of acts or omissions to the offence although questions of law, must be matters of degree.  The utterances of the appellant to the two girls were clearly indecent  in the context of today’s meaning  of  “blowjob”.    Counsel  accepted  that  it  was  offensive  behaviour,  or language.   But there is force in counsel’s submission that the mere utterances, disreputable as they were, made as the girls passed by did not elevate the acts into that which is required before they could be said to amount to an attempt.  Utterances couched in those terms made in broad daylight in a public street, offensive though they are, were not sufficiently proximate to the completed offence of persuading the girls to perform indecent acts.  They could be described as hopeful, but futile (and doomed to fail) overtures.  The conclusion may have been different had the requests, offers or acts of persuasion been made in a situation where it was clear that the appellant  intended the  indecent  act  to  be performed  immediately,  or there were attempts to persuade the girls to accompany or follow him to a place of seclusion. But the utterances themselves could not amount in law to an attempt.  It must follow that the convictions in respect of the two charges pursuant to ss133 and 134 of the Crimes Act 1961 should be quashed.

[35]     Nevertheless,  the  appellant  could  properly  have  been  convicted,  on  the evidence accepted by the Judge, of an offence under s4 of the Summary Offences Act 1981 of addressing indecent or obscene words to any person in or within hearing of a public place.  That is a summary offence for which a fine not exceeding $1,000 is provided.

[36]     Pursuant to s121 of the Summary Proceedings Act 1957 this Court in hearing any general appeal may amend any conviction and impose any sentence that the District Court could have imposed on the conviction if so amended.  An example of such a situation can be seen in Police v Dronjak [1990] 3 NZLR 75 (HC). Given the

concession made by counsel that the language used was offensive, and indeed the Judge’s finding is that it was indecent and obscene, I am of the view one conviction only should be substituted, namely that  the appellant  is convicted of an offence against s4(1)(c) in that “within hearing of a public place he addressed indecent or obscene words to persons”.   One event occurred.   That conforms to the proof and correctly describes the charge that could or should have been brought against the appellant in respect of those actions.

[37]     It must follow that the fines and order for supervision imposed in respect of the two Crimes Act convictions are quashed.  In lieu thereof there is to be substituted one fine of $500, together with Court costs of $130.   The order for nine months’ supervision must by law be quashed because such a sentence may only be imposed if an offender is convicted of an offence punishable by imprisonment or the enactment prescribed in the offence expressly provides that a community-based sentence may be imposed on conviction.  Section 4 of the Summary Offences Act 1981 does not so provide.

[38]     I am aware that this outcome may not be seen to provide the best guidance for the appellant, from the point of his having treatment, given the recommendation of the probation officer.   But he will have served four months of the supervision sentence.   There being no jurisdiction for it to be imposed, as a matter of law, he cannot be otherwise subjected to that sanction.

Conclusion

[39]	(a)	The  appeal  against  the  convictions  for  four  charges  of  offensive behaviour  under  s4(1)  of  the  Summary  Offences  Act  1981  is
dismissed.
(b)	The appeal against the two convictions of inducing females aged 12 years and between the age of 12 and 16 years to do indecent acts upon
the appellant pursuant to s134(1) and (2) of the Crimes Act 1961 are allowed.    The convictions and sentences  in the District  Court  are quashed.

(c)      In  lieu  thereof one  conviction  is entered  against  the  appellant  for addressing indecent or obscene words to two persons in or within hearing of a public place in breach of s4(1)(c) of the Summary Offences Act 1981.  He is fined $500, together with Court costs $130.

…………………………………… J W Gendall J

Solicitors:
Gascoigne Wicks, Blenheim for Appellant
Crown Solicitor, Nelson for Respondent