The Queen v Baisley Tuimalu Leger
[2001] NZCA 154
•17 May 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA22/01 |
THE QUEEN
V
BAISLEY TUIMALU LEGER
| Hearing: | 14 May 2001 |
| Coram: | Blanchard J Doogue J Randerson J |
| Appearances: | J M Jelas for Crown P J B Winter for Respondent |
| Judgment: | 17 May 2001 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
The respondent was convicted on one count of sexual violation by rape. He was sentenced to two years imprisonment, suspended for two years, eight months periodic detention, seven months supervision and a $2,000 fine. The Solicitor-General seeks leave to appeal this sentence on the grounds that it is manifestly inadequate and contrary to the principles governing suspension.
Facts
The complainant (then aged 14 years) and respondent (then aged 18 years) first met in January 2000 when the complainant and her two friends stayed at the respondent’s home. He indicated an interest in her. She thought he wanted to have sex with her, but this did not occur. After this first meeting, they stayed in touch, with the complainant ringing the respondent approximately once a week. They next met accidentally during the early hours of Sunday 23 April 2000 on Queen Street, Auckland. Both had been drinking. The complainant gave evidence that the respondent twice asked her to return home with him: an offer which initially she refused. However, she finally agreed to share a taxi with the respondent.
The respondent took her to his great-grandmother’s home in Avondale. The complainant and respondent slept in the same bed, although both were fully dressed. They kissed before sleeping. However, the complainant gave evidence that, before going to sleep, she expressly told the respondent that she “didn’t want to have sex”.
Later that day (the Sunday), the respondent and complainant moved to a sleep-out at the rear of the property. With no means of getting home without walking, the complainant sought to telephone her mother but was unable to do so. The respondent and complainant slept in the same bed in the sleep-out that night. They kissed, but both again were fully clothed. While the complainant gave evidence that the respondent made sexual advances, these were rebuffed. The following day (Monday 24 April 2000), the respondent told the complainant that his great-grandmother would take her home the next day.
On the Monday night, the complainant and respondent were again fully clothed, lying in bed in the sleep-out. The respondent began kissing the complainant. This time, however, the respondent removed the complainant’s belt. He then went into the bathroom and returned holding a condom. The complainant gave evidence that he asked her whether she knew how to put a condom on; and whether she would put it on him. When she refused, he put it on his penis and climbed on top of her. It was the complainant’s evidence that, while holding her arms above her head with one hand, the respondent removed her lower clothing with the other.
The complainant told the respondent that she was still a virgin. She gave evidence that he replied “I [the complainant] was alright and that he [the respondent] would look after me”. The respondent then penetrated the complainant’s vagina with his penis. The complainant complained that she was “sore” and told him to get off her. She slapped the respondent across the head and swore loudly at him. The complainant’s evidence was that the respondent told her to “shut up, stop making a noise, everybody is asleep, my family is asleep”.
Although the respondent gave evidence at trial that the sexual intercourse was consensual - that the complainant had put the condom on his penis, removed some of her own lower clothing and helped the respondent put his penis in her vagina - he was convicted of sexually violating the complainant by rape.
District Court sentencing
The sentencing judge noted five factors that in her view made the case “highly unusual”:
[a] the fact the respondent and complainant knew each other prior to the rape and “were starting to regard each other as having some form of relationship”.
[b] the youth of both the respondent and complainant;
[c] the respondent had no previous convictions;
[d] the respondent was unworldly and immature,
[e] he was at very low risk of reoffending.
The probation officer’s report had recommended a suspended sentence. The probation officer stressed the respondent’s lack of previous convictions and his good employment record. He described the respondent as “quite immature” in terms of emotional development, which was seen as understandable given the respondent’s shift from an upbringing in the Cook Islands to the problems of a large city. The probation officer stated that a term of imprisonment would unduly damage the respondent.
The sentencing Judge also noted that the victim impact report indicated no long-term physical injury, although emotional damage was apparent. The complainant was unable to continue her education at the time and has only recently been able to consider moving on emotionally. The report also stated that the complainant no longer feels comfortable in the presence of males, whether by herself or with others. She feels angry with herself for stupidly putting herself in the situation and is angry with the respondent for his actions. She feels vulnerable, as she now knows how easy it is to be a victim.
The Judge said that the appropriate starting point in rape cases where there has been no guilty plea is eight years imprisonment but agreed with Crown counsel that it was “utterly inappropriate” on the facts of this case. She appreciated that the Court could not suspend a sentence of more than two years. After examining various authorities, the Judge said that youth and naivety are important factors to consider. She considered that there must be a balancing exercise between retributive and rehabilitative considerations in sentencing and the interests of the community as a whole. Sending the respondent to jail would merely incorporate him into the criminal regime. The effects of rape on a young person could not be minimised, even though the complainant was living a lifestyle where “something of this nature was inevitable.” However, the Judge saw it as a case of two young people “who have not helped each other”. She did not consider it appropriate for two lives to be adversely affected.
Taking all these factors into account, the Judge considered two years imprisonment, suspended for two years, to be the appropriate punishment. She described the suspension as an “unusual step”. She also sentenced the respondent to eight months periodic detention, seven months supervision and a $2,000 fine.
Application for leave to appeal out of time
Counsel for the respondent, Mr Winter, pointed out that the sentencing took place on 15 December 2000 and the time allowed for the Solicitor-General to appeal under s388 of the Crimes Act 1961 was 10 days from that event. But the present application was not made until 30 January 2001. It was therefore 35 days out of time. The Court has power to extend time, but Mr Winter submitted that we should not do so, particularly when Crown Counsel, Ms Jelas, who did not appear below, accepted that there was “no excuse for the lateness.” She indicated that the matter had not immediately after sentencing been referred to the Crown Law Office. For the respondent it was observed that he had already commenced his sentence of periodic detention before the Crown applied and, because the periodic detention centre was not advised of the appeal, he has continued to attend and has now completed half that sentence.
The legislature has not provided any guidance in s388 by way of specifying criteria. In R v Knight (1997) 15 CRNZ 332, an application by a convicted person, this Court said (at 336) that the touchstone in deciding whether to extend time is the interests of justice in the particular case. The reason for a time limit is the societal interest in the finality of decisions. Those matters considered to be relevant included the strength of the proposed appeal, the length of the delay, the reasons for it, and the impact on the administration of justice. We would add to this, in circumstances such as the present, the position of the victim of the offending.
Mr Winter suggested that the Crown’s failure immediately to apply for leave simply reflected its position at sentencing and that it should not be allowed to proceed with an appeal in the particular circumstances of the case. He stressed the fact that the Crown was belatedly seeking a full-time sentence in the place of a non-custodial sentence which it had not opposed at sentencing.
Because one of the relevant factors involves an evaluation of the strength of the applicant’s case we heard counsels’ submissions on that question.
Submissions on behalf of the Crown
In support of leave to appeal, counsel for the Crown argued that a sentence of two years imprisonment, suspended for two years, was manifestly inadequate and, in an absence of truly exceptional circumstances, was quite out of line with authority and unavailable to the sentencer.
Counsel said that the prosecutor had been wrong at the sentencing in advocating, for substantially the same reasons relied upon by the Judge below, a starting point lower than eight years. In addition, the prosecutor had erred in failing to make submissions on either a specific starting point or term of imprisonment. The Crown submitted that its submissions at sentencing should be open to reconsideration (R v Tipene and Edwards, CA 309/00 and 310/00, 26 October 2000) and should not prevent this Court from readjusting the sentence to a more appropriate level. Counsel submitted that, giving the respondent as much credit as possible for his age, previous good record and otherwise good character, the shortest sentence available to the Judge was five to six years imprisonment.
The Crown submitted also that the sentencing Judge gave undue weight to the five mitigating factors outlined above in para [8]. Young first offenders often appear before the Court on serious offending. This Court has recognised that youth alone does not automatically justify leniency (R v Accused [1989] 1 NZLR 843, at 855). It is also not unusual for sexual offenders to lack a criminal history (R v Donaldson (1997) 14 CRNZ 537, at 545). Further, the Crown submitted that the respondent’s naivety was not the cause of the offending and was unrelated to the events that evening. There is no suggestion that he naively got into a situation beyond his understanding, nor that he was naive in relation to what he was or was not permitted to do. The offending was merely a result of the respondent’s lack of self-control.
Counsel submitted that a very low risk of reoffending is not a mitigating factor, but merely the absence of an aggravating feature. While a Judge may include a deterrent or protection of the community element where high risks of reoffending exist, no credit should be given for a non-aggravating factor. In addition, this Court has previously made it clear that a woman’s rights over her body are not subject to any prior relationship with the offender (R v N [1987] 2 NZLR 268). The Crown therefore submitted that the previous relationship between the respondent and the complainant should not have given rise to any credit in sentencing the respondent.
The Crown also observed that the respondent ignored the complainant’s repeated requests for assistance to get home. This made her vulnerable to his sexual advances and should have been considered an aggravating factor. The Judge also should have taken into account the respondent’s continued denial of the offending.
Submissions on behalf of the respondent
Mr Winter traversed the evidence in detail, pointing out that the complainant was prepared to spend a further evening in bed with the respondent being fully aware that he had sexual intentions towards her and had already attempted to remove her pants.
The prosecutor had taken the position at sentencing that, as recorded by the Judge in expressing her agreement, an eight year starting point was “utterly inappropriate” in the circumstances. Counsel said that an appellate court should be reluctant to interfere with the merciful sentence imposed by an experienced Judge who had the benefit of presiding over the trial. She was entitled to view this case, as she did, as being “at the bottom of the scale of offending”. Two years imprisonment was said to be within the range available to her on sentencing the respondent.
Counsel cited a decision of this Court, R v Carmichael (CA 521/94, 23 March 1995), which considered an application for leave by the Solicitor-General to appeal against a sentence of two years imprisonment, suspended for two years, where the respondent (aged 15) was convicted of the sexual violation by rape of a girl of the same age.
In Carmichael, the sentencing Judge relied on factors similar to those in the present case: the respondent’s youth; his previous lack of convictions; his strong employment record; his low risk of reoffending; the fact that he was responding well to supervision and the need for rehabilitation rather than imprisonment. On appeal, this Court held that increases in the maximum penalties available for rape had not “affected the broad approach of the Court that the youth or mental state of the accused may justify an exceptional response”. Further, the Court held that the suspension of the respondent’s imprisonment was entirely in accordance with relevant principles. The Solicitor-General’s application for leave was dismissed. Mr Winter submitted that, as in Carmichael, the circumstances of this case deserved an “exceptional response”.
Decision
While eight years imprisonment will normally be the starting point where an accused is convicted of sexual violation by rape, there may well be features in a particular case justifying going below, possibly even well below, that level of sentencing (R v A [1994] 2 NZLR 129, 132). Once an appropriate starting point is established, the Court will then consider any mitigating or aggravating factors that should be taken into account. This will generally be for the sentencing Judge in his or her discretion. We agree that the youth or mental state of an accused remains an important factor in determining an appropriate sentence. However, we do not consider that the circumstances of the present case justified reducing the respondent’s term of imprisonment from eight years to two years.
As submitted by the Crown, neither youth nor an absence of previous criminal convictions will automatically justify leniency. We accept the Judge’s findings that the respondent lacked a certain degree of social sophistication. But there is no evidence that he failed to fully appreciate what he could or could not do on the night in question. Further, the previous relationship between the respondent and complainant does not appear, even in conjunction with the factors just mentioned, to have justified a reduction of anywhere near the magnitude necessary to arrive at a sentence of only two years.
In our view, the appropriate sentence could not have been less than five years although, if the present appeal were to be permitted, a substantial further reduction would be necessary to reflect both the prosecutor’s position at sentencing and the Crown’s subsequent failure to file a timely appeal. There would also need to be a significant allowance for the portion of the periodic detention sentence already served.
In Tipene and Edmonds, after examining the authorities, this Court determined that the Crown is not debarred, on appeal, from taking a different stance. But it is a matter to be taken into account that the Crown acquiesced in the course taken by the sentencing Judge. The weight to be given to that matter depends upon the particular circumstances of the case. But the Court said that it may be of considerable significance where the respondent has been given a non-custodial sentence at first instance. Considerations which justify an increase must be more compelling than those justifying a reduction (R v Donaldson at 549). The Court’s disinclination to interfere increases where a community-based sentence has been imposed and conditions which have been ordered have been complied with (Donaldson at 550). All the more so where the situation arises from a change in the attitude of the Crown.
Nevertheless, such was the inadequacy of the sentence that the Crown’s application, if brought in time, would have been likely to succeed to the extent of the imposition of a custodial sentence longer than two years. Suspension would then have been unavailable. On the facts of this case a two year sentence was well below the appropriate range, even allowing for the respondent’s youth and comparative social immaturity. He committed on a much younger, and indeed under-age, girl a crime which involved serious violence. Although the victim was not physically injured and there were no degrading features additional to the act of forced intercourse, she has suffered emotional harm. In our view Carmichael is distinguishable because of the age of the offender, who was three years younger than the present respondent and was the same age as the victim in that case.
However, because of the prosecutor's attitude, the respondent had very good reason to believe, when the appeal period expired, that he was no longer in peril of imprisonment. There followed a substantial period of inexcusable delay (35 days). When an appeal application was eventually forthcoming, the respondent was not told that his periodic detention was in abeyance and has continued to attend in the belief that he must do so.
There would in our view be an appearance of injustice if this Court, in the face of this unhappy combination of events, were to countenance the Crown’s application, particularly when it involves a youthful offender. We are very conscious of the position of the complainant and aware of the strength of the appeal. But, in the end, it seems to us that the administration of justice is better served by declining the application. In a situation in which the Crown wishes to change its stance, particularly where it previously appeared to be accepting of a non-custodial sentence and obviously did not see that as contrary to the interests of the complainant, the Crown must be expected to comply with the s388 time limit. Some allowance could have been made for the holiday period, but the time actually taken in this case was far too long.
The Solicitor-General’s application for leave to appeal is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington
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