The Queen v B(CA336/01)

[2002] NZCA 94

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND CA336/01

THE QUEEN

V

B(CA336/01)

Coram:	Gault J Keith J Blanchard J
Counsel:	R E Neave for Appellant A Markham for Crown
Judgment (on the papers):	9 May 2002

JUDGMENT OF THE COURT

1. This appeal against conviction and sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offences and sentence

1. The appellant was convicted at trial of aggravated burglary, sexual violation by rape, and threatening to kill. He pleaded guilty to a charge of breaching a protection order. The appellant was sentenced on 21 September 2001 in the High Court at Christchurch to twelve years imprisonment.

Relevant facts

1. The offending at issue on appeal occurred at a farm home stay, which had been jointly operated by the appellant and his wife prior to their separation. From the verdicts given, the jury clearly accepted that on the night of 23 June 2000, armed with a carving knife, the appellant broke into the house on the property and subjected his wife to a terrifying ordeal involving threats to kill and rape.

Grounds of appeal

1. The appellant appeals against conviction in respect of the charges of sexual violation by rape and aggravated burglary. The appellant also appeals against sentence. It is submitted that the trial Judge did not adequately put the defence case to the jury on the question of consent in respect of the sexual violation charge. Certain elements of the appellant’s account of events were either exaggerated or ignored. Further, the Judge erred in instructing the jury that they could find that the appellant lacked the requisite reasonable belief in consent even if they accepted his account of events. The appellant had in his evidence made it quite clear that he believed the complainant had consented to intercourse.

2. If the conviction for sexual violation is found to be unsafe, the appellant submits that the aggravated burglary conviction is consequently unsafe. The jury necessarily had to find that the accused broke into the house with the intention to commit a crime, and in the absence of a sound conviction on the sexual violation charge, and given that the jury had acquitted the appellant on alternative charges of attempted murder and kidnapping, no such criminal intent existed. In relation to the sentence imposed, the appellant submits that the trial Judge erred in his assessment of the aggravating features of the offending.

Reasons

1. The appeal against conviction must fail. The trial Judge gave a sufficient summary of the defence version of events, which was entirely consistent with the appellant’s own sworn testimony at trial, including what he said under cross-examination, in particular about the complainant’s having fainted.  Further, in respect of reasonable belief as to consent, the learned Judge’s instruction to the jury was sound. Even if the jury accepted the actual events as narrated by the appellant, they were entitled to come to a different conclusion about the appellant’s state of mind in respect of consent. As the sexual violation conviction was not unsafe, the appellant’s submission in respect of the aggravated burglary conviction is answered.

2. The appeal against sentence also fails. The appellant accepts that the learned Judge began with the correct starting point in respect of the offending. We see no error in the Judge’s treatment of the aggravating factors in the very serious criminal context of a home invasion rape.

Decision

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington