The Queen v Stewart
[2006] NZCA 216
•15 August 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA515/05
THE QUEEN
v
LYNETTE KAYE STEWART
Hearing:18 July 2006
Court:Glazebrook, Chisholm and Wild JJ
Counsel:J K W Blathwayt for Appellant
P K Feltham for Crown
Judgment:15 August 2006 at 11am
JUDGMENT OF THE COURT
The appeal, which is against both conviction and sentence, is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] This appeal is against both conviction and sentence.
[2] With her co-accused Christina Oliver, the appellant was tried in the District Court at Wellington between 31 October and 2 November 2005. She and Ms Oliver between them faced seven counts, all arising out of a series of events alleged to have occurred in the early hours of the morning of 8 December 2003 at Masterton.
[3] The jury found Ms Oliver guilty on three of the four counts she ultimately faced, and the appellant guilty on one of the three counts she ultimately faced. We say ‘ultimately’ because the trial Judge, Judge Davidson, discharged Ms Oliver on one count and the appellant on two counts.
[4] The appellant was convicted and subsequently sentenced by Judge Davidson to two years’ imprisonment.
[5] The appellant appeals her conviction on the ground that the jury’s verdict finding her guilty on count 4 was inconsistent with its verdicts on counts 3, 5 and 6 and therefore unreasonable, resulting in a substantial miscarriage of justice.
[6] The appellant’s submission on her sentence appeal is that the two year sentence was manifestly excessive, counsel submitting that a sentence of 12 months’ imprisonment would have appropriately recognised the degree of criminality involved.
[7] Before returning to deal, in turn, with the appeals against conviction and sentence, some factual background is necessary.
Factual background
[8] In the latter months of 2003 the appellant and Ms Oliver were living in Masterton. Ms Oliver met the complainant (C) and the complainant’s female partner (P) while the two were living temporarily in the Masterton Women’s Refuge.
[9] Ms Oliver invited C and P to a meal at the home Ms Oliver shared with the appellant. They went to dinner, not leaving until about 5am the following morning, having been supplied with cannabis as well as food.
[10] The following day, the appellant invited C to come home that evening for coffee, but this time by herself. After a long evening, during which cannabis was again smoked, C became upset and lay down on the living room floor where she was given a blanket and pillow by the appellant. Ms Oliver lay down beside C and began hugging her and touching her breasts. C told Ms Oliver to stop but the touching continued and C said she wanted to go home. Ms Oliver said “No” and pulled, then pushed, C so that she fell backwards striking her elbow and then her head. The appellant was sitting at a computer in the living room while this was happening.
[11] C then spent some time in the bathroom, where she had a small epileptic seizure. When she returned to the living room all the lights were off so she decided to lie down again on the floor and try to get some sleep. C woke some time later to find Ms Oliver was again lying beside her with her hand up her T shirt. Ms Oliver then bit C’s hand and scratched her vigorously, including on the inside of C’s mouth. When C objected, Ms Oliver threatened to kill C and then kicked her in the knee and ribs.
[12] Ms Oliver then knelt down, pulled down C’s pants, put fingers inside her vagina and then, despite C protesting, penetrated C’s vagina with her fist. By this stage the appellant was kneeling down beside C encouraging Ms Oliver by telling her, several times, “Go for it, go”.
[13] C’s evidence was that the appellant then took over from Ms Oliver, kneeling down between the complainant’s legs and putting her fist inside C’s vagina.
[14] The complainant gave evidence that the appellant went into the bathroom after she had finished sexually violating the complainant. Once in the bathroom she ran a cold bath. She then told C to strip off before pulling her by the arm into the bathroom where C was told to get into the bath. The appellant then dunked C’s head under the water a number of times before telling her to get out of the bath and put her clothes on again.
[15] At that point P telephoned to find out where C was. This was at about 7am. Before C left, both the appellant and Ms Oliver warned her not to tell anyone what had happened.
[16] Despite that warning C told the coordinator of the Women’s Refuge later that afternoon that Ms Oliver had raped her. Later that afternoon, C made a rape complaint to the Police, and a doctor examined her the following day. Ms Oliver was arrested and charged on 23 December 2003, following two interviews.
[17] On 20 July 2004, for the first time, C complained to the Police that the appellant had also assaulted and threatened her during the events in the early hours of 8 December 2003.
[18] Three days later, on 23 July 2004, C made a further statement to the Police in which she alleged that the appellant had put her fist into C’s vagina during the events of 8 December 2003. This was a fresh complaint.
[19] On 24 August 2004, in a further (fourth) statement to the Police, C described for the first time the events she claimed had occurred in the bathroom in the early hours of 8 December 2003.
Conviction appeal against inconsistent verdicts
[20] In summary form, the counts faced by the appellant and Ms Oliver, the underlying facts alleged by the Crown relating to each, and the outcome on each count, is:
COUNTS Facts alleged by Crown Result Count 1: assault. Assault by Ms Oliver in pulling and pushing C so that she struck her elbow and head. Appellant alleged to be party to this. Appellant: discharged under s347 Crimes Act.
Ms Oliver: guilty.Count 2: assault. Alleged Ms Oliver assaulting C by kicking her in the ribs and knees while C lying on the floor. Ms Oliver: guilty. Count 3: threatening to kill. Ms Oliver threatening to kill C at the time of the count 2 assault, and prior to the alleged sexual violation. Ms Oliver: not guilty. Count 4: sexual violation by unlawful sexual connection. Ms Oliver penetrating the complainant’s genitalia with her fingers and fist. Appellant alleged to have encouraged Ms Oliver “Go for it, go”. Ms Oliver: guilty (as principal offender).
Appellant: guilty (as party to Ms Oliver’s offending).Count 5: sexual violation. Appellant sexually violating C with fist. Ms Oliver charged as party. Appellant: not guilty.
Ms Oliver: discharged under s347.Count 6: assault. Appellant alleged to have assaulted C in bathroom, forcing her into bath and then dunking her head. Appellant: not guilty. Count 7: sexual violation. Appellant alleged to have again sexually violated C with fist following the assault in the bathroom. Appellant: discharged under s347. (C gave no evidence about this at the trial.) [21] An appellant alleging inconsistent verdicts must demonstrate that no reasonable jury, properly directed and properly considering the facts, could have reached the verdicts in issue: R v Irvine [1976] 1 NZLR 96 (CA) at 99, citing three decisions of the Criminal Division of the English Court of Appeal and one decision of the Supreme Court of Canada.
[22] Implicit in this is that mere inconsistency is not enough. For example, the inconsistency might be explicable by the jury finding the same witness’s evidence credible on one count, but not on another. That was the point emphasised recently by this Court in R v A & Ors CA301/05 11 April 2006:
[77] … It is not necessarily illogical for a jury to be convinced as to the credibility of some aspects of one person’s story, but not as to others, a fortiori where it is convinced, but not beyond a reasonable doubt.
[23] An apparent inconsistency may also be unobjectionable if it appears that an acquittal on a particular count reflects the jury’s innate sense of justice, rather than lack of proof of the count: R v H [2000] 2 NZLR 581 (CA) at [27]. Similarly, a not guilty verdict, seemingly inconsistent with other guilty verdicts, may reflect a jury’s wish to be merciful, or to arrive at an overall answer acceptable to all the jurors. This was essentially the point this Court made in R v Keeley [1962] NZLR 565 at 567:
Juries do not act with complete harmony, or complete logic, in arriving at their verdicts, and in this case there was, to go back to the point that we started from, ample evidence on which the jury could have convicted on all the counts. They have chosen to convict on some only. That does not allow of the argument that their acquittal on some counts is inconsistent, within the meaning of the authorities in which that term is employed in the criminal law, with a conviction on other counts.
[24] In Foley v The Queen CA287/94 24 July 1996, this Court said:
The jury were entitled to reach that conclusion, and to convict the appellant on the charge they thought correctly described his culpability. On that basis the verdict is not perverse, nor has there been any miscarriage of justice.
[25] An appellant must be able to point to verdicts so inexplicably inconsistent that interference by the appellate Court is called for: R v H [2000] 2 NZLR 581 at [27]. This requires verdicts which, on any view, are irrational, or verdicts which can only be viewed as “perverse”, the term used by this Court in Foley in the passage cited in [24] above.
[26] Mr Blathwayt put his argument simply. He submitted that the Crown case was that C was a credible and reliable witness. The Crown accepted its case stood or fell on the credibility and reliability of C. The Judge’s summing up reflected this:
You will all appreciate that your assessment of the credibility and the reliability of the evidence of the complainant is vital in this case.
[27] Mr Blathwayt emphasised also that the Crown case alleged what he described as “a single continuing incident involving a series of alleged criminal acts”. He was referring to the continuum of events that began in the home of the appellant and Ms Oliver around 3am on 8 December 2003 and ended when P telephoned at about 7am.
[28] Given this, Mr Blathwayt submitted that it was difficult to see how the jury could find the appellant not guilty on count 6, while convicting her on count 4, where the Crown allegation was that she was an encouraging party only. Mr Blathwayt emphasised that the Crown case on count 6 came close to attempted murder, or at least alleged serious and gratuitous violence inflicted on a person who had already, shortly before, suffered serious violence at the hands of both the appellant and Ms Oliver.
[29] In similar vein, Mr Blathwayt submitted that the not guilty verdict on count 3, charging Ms Oliver with threatening to kill, seemed irrational if the jury saw C as a reliable and credible witness. He pointed out that C had given evidence that both the appellant and Ms Oliver had threatened her:
They told me they would kill me if I told anybody.
Indeed, those threats were part of C’s explanation for the seven month delay in making any allegations against the appellant. Mr Blathwayt inquired: if the jury disbelieved C on this point, how could they rationally account for that delay in C making her complaint against the appellant?
[30] To summarise, Mr Blathwayt submitted there is a clear inconsistency, particularly between the jury’s verdict finding the appellant guilty on count 4, as against the not guilty verdicts, especially those on counts 5 and 6. Summarising, Mr Blathwayt submitted that the verdict on count 4 can only, in the circumstances, be viewed as unsafe.
[31] We do not accept these submissions. We consider the jury’s verdicts are explicable when they are lined up with the evidence the jury heard. They become even more readily explicable when the delays in C complaining about some of the events, and the explanations C gave for those delays, are taken into account.
[32] There was medical evidence corroborating the assaults charged in counts 1 and 2, including a bite mark on C’s hand and scratches on the inside of her mouth. Guilty verdicts against Ms Oliver on both counts 1 and 2 resulted.
[33] The evidence was not strong on count 3. The Crown opened and closed on the basis that Ms Oliver had threatened to kill C at the time of the count 2 assault, before any of the alleged sexual violations had occurred. In her submissions Ms Feltham accepted that C’s evidence about threats at that stage “was particularly lacking”. C did, however, give clear evidence that, as she was leaving the house around 7am after P had telephoned, both the appellant and Ms Oliver made threats to her. These threats included a threat to hurt P’s two children if C said anything about what the appellant and Ms Oliver had done to her. Neither the appellant nor Ms Oliver were charged with those threats. So the evidence did not line up with count 3. A not guilty verdict resulted.
[34] There was also medical evidence supporting count 4. The doctor who examined C on 9 December 2003 considered C had suffered relatively severe genital injuries consistent with blunt force trauma applied to her vagina and internal abrasions of the vagina wall that could have been caused by a fingernail during digital penetration. As we have mentioned, C complained almost immediately of sexual violation by Ms Oliver, but did not implicate the appellant in that until July 2004, some seven months after the event. A point dwelt upon by Mr Blathwayt at trial, which he also emphasised to us, was that in the meantime C had signed a deposition which did not implicate the appellant. Mr Blathwayt cross-examined C at length about this. C accepted she had not made any complaint about the appellant in her depositions. The cross-examination included these exchanges:
Q.… I just want to summarise it – on the 8th December 2003 you made a statement in which you said [the appellant] had simply been on the computer – gone to a shower – and in particular she didn’t say anything to you afterwards?
A.I’ve already answered that question – I’ve already told you.
Q.Yes but I am asking it now – you see I am representing (the appellant) and I just want to be quite clear I don’t want any misunderstanding right – so – in your deposition which you signed and which would it be fair to say had to be read to you in April?
A.No – I just signed it.
Q.At the time that you say Ms Oliver was not telling – what you weren’t to tell anyone because she would hurt (P’s two children) you’ve said in your deposition following your statement [the appellant] did not say anything to me?
A.I’ve already said to you I was scared I was afraid.
Q.But that was a lie wasn’t it – if what you’re saying is now is true –
A.It wasn’t a lie – I just didn’t tell the whole lot at once I was afraid – I was scared – I was terrified.
Q.Well you are wanting the jury to believe now that in fact [the appellant] was threatening you?
A.She was.
Q.So when you said in a court document which you had said this is true to the best of my knowledge and belief (the appellant) did not say anything to me – that was untrue wasn’t it?
A.No it wasn’t untrue – I just hadn’t told everything at once.
Q.Well you don’t think that saying that she hadn’t said anything when in fact you are now wanting the jury to accept that she’d actually threatened you – was not untrue?
A.Well she did threaten me – I know what she said to me – I know how terrified I was and have been.
Q.All right – well – in the statement of 20 July there is no suggestion that there had been any sexual interference with you by [the appellant]?
A.I’ve already told you I was scared – I was afraid – I was scared for my life.
Q.Right you specifically said to the police officer [the appellant] did not sexually assault me.
A.I was scared I’ve already answered you.
[35] In that evidence C explains that she did not complain earlier of sexual violation by the appellant because of the threats the appellant had made to her.
[36] Ms Feltham pointed out that the jury were obviously concerned about C’s delay in making any complaint about the appellant, because, while deliberating, they asked the Judge for clarification of the evidence about the nature of the complaints.
[37] We accept Ms Feltham’s submission that an explanation of the jury’s verdicts on counts 4 and 5 is that they were satisfied that the appellant had been encouraging Ms Oliver when Ms Oliver sexually violated C, but were not satisfied about C’s evidence that the appellant had then herself sexually violated C. The jury may well have been unable to accept that C would have complained only about Ms Oliver, if both Ms Oliver and the appellant had violated her with their fists in the same way. There would not be the same difficulty in the jury accepting delayed complaint if the appellant’s role had been restricted to encouraging Ms Oliver. On that view of the evidence, the jury’s verdicts on counts 4 and 5 are consistent and explicable.
[38] The not guilty verdict on count 6 is explicable on the same basis. It was only in her last – fourth – statement to the Police on 24 August 2004 that C eventually mentioned the assault she claimed had occurred in the bathroom. As Mr Blathwayt pointed out, C then described a serious, even life threatening, assault. C’s long delay in mentioning this in any way may well have left the jury in doubt.
[39] Ms Feltham also pointed out that the Crown faced evidentiary difficulties on both counts 5 and 6. In relation to count 5, C’s account in evidence at the trial about the appellant’s body position differed from what she had described to the Police in her statement. She had told the Police the appellant sat on her, straddling her, with her knees outside C’s legs. At trial her evidence-in-chief was:
Q.When Krissie stopped doing that, what did she do?
A.She just stopped and got off and then Lyn started on me.
Q.And again we need to be …
A.Yeah.
Q.… quite precise and specific about what you’re saying happened. So when Krissie got off what did she do, where did she go?
A.She just moved away.
Q.Did you see where she moved to?
A.I can’t remember.
Q.And what did Lyn do?
A.She knelt down and put her fist inside my vagina.
Q.So when you say she knelt down?
A.In between my legs.
Q.So you were still lying on your back?
A.Yeah.
Q.And what did she do once she’d knelt down between your legs?
A.Put her fist inside me.
Q.Inside where?
A.In my vagina.
[40] As to count 6, it lacked the supporting medical evidence that existed in relation to the counts 1 and 2 assaults and the count 4 sexual violation.
[41] More generally, Ms Feltham emphasised that C’s evidence concerning Ms Oliver’s actions was consistent throughout, and was consistent with the medical evidence. The one exception was that C made only one brief reference to the threat to kill which was the basis for count 3:
Q.Had she said anything to you before she started kicking you?
A.That she was going to kill me.
[42] Ms Feltham contrasted this to C’s quite detailed evidence about the kicking and subsequent sexual violation by Ms Oliver. Again, that was consistent with the guilty verdicts on counts 2 and 4, and a not guilty verdict on count 3.
[43] We consider the jury’s verdicts on counts 3, 4, 5 and 6 are anything but inconsistent. We view them as reflecting the strength (or weakness) of the evidence relating to each count, and also C’s very prompt complaint about some matters, but much delayed complaint about other matters.
[44] The ground on which the appeal against conviction is based is not made out and we dismiss that appeal.
Sentence appeal
[45] From a starting point of four years’ imprisonment, Judge Davidson sentenced the appellant to two years’ imprisonment, and granted her leave to apply for home detention.
[46] On three grounds, Mr Blathwayt submitted this sentence was manifestly excessive, a two year starting point reduced to 12 months’ imprisonment being the appropriate sentence:
(a) The Judge’s starting point was too high and was wrong in principle.
(b) The Judge overstated the criminality of the appellant’s actions.
(c) The Judge failed to take account of s 8(e) of the Sentencing Act 2002.
Starting point too high and wrong in principle
[47] Mr Blathwayt submitted the Judge’s seven year starting point for Ms Oliver, as principal offender, was too high and was wrong in principle. Consequently, the Judge’s four year start point for the appellant, as party to Ms Oliver’s offending, was too high as well. Because Ms Oliver’s appeal against sentence has yet to be heard, it is inappropriate for us to comment on the sentence imposed on Ms Oliver, including on the starting point the Judge adopted for Ms Oliver.
[48] Nevertheless, we can deal with this first ground of the appellant’s sentence appeal, because Mr Blathwayt accepted that this Court had, in R v M [2000] 2 NZLR 60 at [9], observed:
This Court has not attempted to set any tariff for cases involving sexual violation by digital penetration, but the cases show sentences fixed against starting points ranging from two to five years on conviction after trial and before allowing for mitigating factors …
[49] Amplifying his submission that the Judge’s starting point in sentencing the appellant was too high, Mr Blathwayt contended that the 2 - 5 years’ imprisonment sentencing range for sexual violation by digital penetration indicated by this Court in R v M [2000] 2 NZLR 60 at [9] covered minor penetration with a single digit, at one end of the spectrum, and at the other end of the spectrum the use of all fingers in the form of a fist.
[50] Subsequent to R v M, in R v Trantor CA486/03 14 June 2004, a Solicitor-General’s appeal against sentence on one count of sexual violation by unlawful sexual connection, this Court observed:
[95] Given the variety of mitigating and aggravating factors, we believe it is more helpful to refer to starting points for sentence, assuming conviction after trial, allowing for appropriate adjustments to be made by the sentencing judge for mitigating and aggravating factors. The range of 2-5 years referred to in R v M should not be seen as limiting the options available to the sentencing judge, and both the low point and the high point are conservative. In light of the increase in the maximum penalty to 20 years for sexual violation involving digital penetration it would be only in rare cases that a two year starting point would be appropriate, and a starting point in excess of five years may well be appropriate in more serious cases.
[51] On the evidence the Judge heard, and the relevant parts of which he summarised in his sentencing remarks, the Judge was entitled to find that the appellant had encouraged Ms Oliver sexually to violate C, first digitally, and then by ramming her fist repeatedly into C’s vagina.
[52] The Judge viewed violation using the fist as different from and significantly more serious than digital penetration. He said:
[21] I am in no doubt that a starting range greater than those commonly applied for digital penetration is warranted. After all, here both fingers and then a fist was inserted. The penetration was repeated. Protests to stop were ignored. Genital injury, soreness and swelling resulted.
[53] We see no error of principle in this. A fist is not, in common usage and understanding, a digit or digits.
[54] It cannot therefore be maintained that the Judge’s four year starting point for the appellant was too high. First, it was within the 2 - 5 year range identified in R v M, which this Court in Trantor subsequently made clear was “conservative” at both its low and high points. Second, it was a start point for a sentence for encouraging, not only digital penetration, but Ms Oliver’s use of her fist, in the manner we have referred to. Third, we consider that four year start point appropriately reflected the fact that the appellant had been convicted as a party, her role limited actively to encouraging Ms Oliver.
[55] Mr Blathwayt did not challenge the 50% (two year) reduction the Judge allowed the appellant from his four year start point, in arriving at the two year sentence he imposed. In addition to giving that allowance for the mitigating features he identified, the Judge specifically noted that he was making it “because of (the appellant’s) lesser involvement as a party”.
[56] We reject this first, and pivotal, ground of the appellant’s sentence appeal.
Judge overstated criminality of appellant’s actions
[57] Mr Blathwayt’s second ground was that the Judge overstated the criminality of the appellant’s actions. Mr Blathwayt developed this point by referring to three aspects of the evidence at trial. The first was the evidence of the doctor, who examined C the following day to the effect that C:
9.0… “displayed some of the worst physical findings of more than one hundred sexual assault victims she had examined over fourteen years of practice”.
Mr Blathwayt suggested that evidence begged the question whether the doctor had in fact observed any examples of forced rape of a really serious nature. He contended that the seriousness of the injuries was best judged by considering the doctor’s actual findings, to which he referred.
[58] The second aspect was the evidence of various witnesses who saw C the following day and who deposed that she did not appear to be in obvious pain or in physical discomfort or distress.
[59] The third aspect involved a submission that, on the evidence, the Judge could not have found that the appellant was aware that Ms Oliver had inserted her fist into C’s vagina or that C was experiencing pain. The lights were off and C appeared not to have physically resisted or protested, at least not loudly. Based on the jury’s verdicts, the incident then ended: nothing subsequent occurred in the bathroom.
[60] As to the first aspect of the evidence referred to by Mr Blathwayt, the Judge’s remarks about the examining doctor’s evidence were these:
[10] The complainant was medically examined the next day. She had significant areas of tenderness and bruising consistent with kicking, scratching and biting. There was clear evidence of blunt forced trauma to her vagina and scratching consistent with some forceful insertion. The doctor who examined the complainant said she displayed some of the worst physical findings of the more than 100 sexual assault victims she had examined over 14 years of practice.
[61] In Mr Blathwayt’s cross-examination of the doctor, there was the following exchange:
Q.And one final matter doctor, the trauma to her genitalia that was consistent with what you were told, forced entry of a – of three fingers and a fist?
A.Yes that would be consistent.
Q.Was it consistent however with a fist being inserted in a vagina on two separate occasions, both forcibly but without lubrication? Would you expect to have that amount of injury or more injury or less injury?
A.It’s difficult to convey the degree of tenderness that was present at the time that I examined her or the extent of redness or swelling. I have been doing examinations on rape victims for at least 13 going on 14 years, I have examined well over 100 patients – persons who have been sexually assaulted, the findings on this examination were probably among the top five percent, if not the worst physical findings that I have found when I have examined a rape victim. I am familiar with the term fisting, where a fist is forcibly pushed through a vaginal opening or in a male victim through the anus and the finds subsequent to that happening, I’ve heard this described in peer review meetings with other DESAC doctors, are tenderness, redness, swelling and bruising and these were the findings and they were significant findings. It was not touch, “oh that hurts”, it was extremely sensitive, extremely tender to the point that I had a difficult time completing my examination. Yes I believe that the findings were entirely consistent with fisting.
Q.First question then, have you actually examined a patient who has fisting done to her?
A.This is the first patient that I’ve examined where fisting has been reported to me but as I have mentioned before during peer review with other DESAC doctors this has been described and the findings described by my colleagues and the pictures presented were identical to the findings that I had on this examination.
Q.Right. And when you did your examination there was nothing in what you observed to suggest to you that the incident had happened twice rather than once?
A.No there is no way of knowing that from examination.
[62] In that passage, the doctor outlined her relevant experience fully and fairly.
[63] Our response to Mr Blathwayt’s second ground is that the Judge heard the evidence of the witnesses and his findings of fact for sentencing purposes were made with the benefit of that evidence. Mr Blathwayt specifically asked the examining doctor whether she noticed C having difficulty walking:
Q.Now I take Ms Watson was able to walk into your surgery without any observable difficulty?
A.She walked in, I don’t recall whether she was in obvious discomfort at the time she walked in.
Q.But you’ve got no recollection of her having difficulties in walking?
A.No I have no recollection. Sorry?
Q.You have no recollection of observing her having any particular difficulty in walking or moving?
A.I do not have that recollection.
[64] The third aspect of the evidence referred to by Mr Blathwayt, we think has no substance. It overlooks the following part of C’s evidence-in-chief, which in itself provided a foundation for the Judge’s finding that the appellant was aware of the manner in which Ms Oliver was violating C:
Q.Was there anyone else in the room when she was doing that?
A.Lyn [the appellant] was.
Q.At what stage had she come into the room?
A.I can’t really remember but she was there when Krissie [Ms Oliver] put her fingers inside – inside me and telling her to, “Go for it, go”.
Q.Who was saying that?
A.Lyn.
Q.And how far away from you was she? Like where in the room was she?
A.She was just kneeling down beside us.
Q.Lyn was?
A.Yeah.
Q.So was that something she said once?
A.Said it a few times.
Q.And at what stage did she first say that?
A.When she started doing it.
Q.Is there anything else that Lyn said?
A. Just told her to keep going.
Judge failed to take account of s 8(e) of the Sentencing Act 2002
[65] As a third ground, Mr Blathwayt submitted that the Judge failed to take account of s 8(e) of the Sentencing Act which requires that a sentencing Judge:
… must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.
[66] Mr Blathwayt submitted the Judge had failed to take account of the only directly comparable case in relation to sentencing the appellant and Ms Oliver and, more generally, of three other digital penetration sentencing decisions.
[67] The case Mr Blathwayt submitted was directly comparable was R v Hakaraia CA290/96 2 December 1996. That involved two inmates in a women’s prison sexually violating another inmate on her bed in her cell, while two further inmates looked on from the cell door. The appellant had been assisted by another inmate who held the complainant down on her bed and encouraged the appellant who digitally penetrated the complainant. The incident lasted only a very short time: the complainant had called for help which arrived contemporaneously with the digital penetration occurring.
[68] The ground of appeal was that the four year sentence imposed on the appellant was manifestly excessive and that there was unjustifiable discrepancy between that sentence and the 12 month sentence received by the co-offender.
[69] The Court of Appeal upheld the four year sentence. Commenting on the large gap between the four year and 12 month sentences, the Court observed:
[The co-offender] may have been fortunate with her sentence.
[70] We consider the Hakaraia incident was nowhere near as serious as the present one. We think the Court’s comment indicates that a two year sentence might have been more appropriate for Ms Hakaraia’s co-offender. If that is so, then it renders untenable Mr Blathwayt’s submission that the two year sentence imposed on the appellant by Judge Davidson was manifestly excessive.
[71] Mr Blathwayt then placed general reliance on three cases as indicating that the two year sentence under appeal was manifestly excessive. They were R v M; R v Wira CA452/98 22 April 1999 and R v T CA139/05 26 July 2005.
[72] Those cases involved quite different factual situations. In R v M a man had indecently assaulted and then digitally penetrated a 15 year old girlfriend of his daughter. There were three incidents over two successive nights. The complainant was staying in the appellant’s home. The Solicitor-General’s appeal was allowed and a three year term of imprisonment substituted for the (effectively) non-custodial sentences which the Solicitor had appealed.
[73] In R v Wira a sentence of three years three months’ imprisonment was upheld for “an aggressive assault over a sustained period” by one woman on another at a party. Both women had been drinking heavily. The sexual abuse included digital penetration.
[74] Factually, R v T is the most remote. A 20 year old man put his penis in the mouth of his three year old daughter. Psychiatric reports disclosed the prisoner had “a complex set of psychological problems”. A sentence of three years imprisonment was upheld.
[75] We are left unpersuaded by any of Mr Blathwayt’s arguments in support of the sentence appeal. We view the two year sentence under appeal as appropriate for the active encouragement the appellant gave Ms Oliver in what can only be viewed as a vicious, brutal and sustained sexual violation.
[76] The sentence appeal is dismissed.
Result
[77] Both the appeal against conviction and the appeal against sentence are dismissed.
Solicitors:
Wollerman Cooke & McClure, Carterton for Appellant
Crown Law Office, Wellington
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