The Queen v Trevor Roy Hill
[2002] NZCA 255
•21 October 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA94/02 CA111/02 |
THE QUEEN
V
TREVOR ROY HILL
| Hearing: | 14 October 2002 |
| Coram: | McGrath J Baragwanath J Salmon J |
| Appearances: | P Mabey QC for the Appellant A E Kiernan for the Crown |
| Judgment: | 21 October 2002 |
| JUDGMENT OF THE COURT DELIVERED BY MCGRATH J |
Introduction
The appellant was convicted of sexual violation by rape following a jury trial in the District Court. He was sentenced to 3½ years imprisonment. He has appealed against the conviction. The Solicitor-General has appealed against the sentence on the grounds that the approach of the sentencing Judge was wrong in principle and the sentence was manifestly inadequate.
When the appeal was called in this Court Mr Mabey QC, who did not appear for the appellant at his trial, indicated that he had not been able to identify a basis on which to pursue the appeal insofar as it had been brought against conviction. In particular Mr Mabey could not support the grounds advanced in the notice of appeal, which were that the summing up was unfair and that the Judge should not have permitted the extensive cross-examination of the appellant’s character witnesses. Mr Mabey’s instructions did not, however, enable him to abandon the appeal. In those circumstances we have considered the transcript of the summing up and of the evidence of character witnesses together with much of the other evidence at the trial. We are satisfied that the Judge’s summing up was a balanced and fair one and that there is nothing in the evidence suggesting the appellant’s trial was unfair in any respect. The appeal against conviction accordingly must be dismissed. We turn to consider the Solicitor-General’s appeal against sentence.
Background facts
The appellant, who is aged 38 years, was drinking with others at the home of friends in a provincial town on the evening of 12 April 2001. His wife and three sons were initially at the friends’ house with him but by around 8pm had left and gone home. Also present at the gathering was the complainant, who is 30 years of age. During the evening both the appellant and the complainant were drinking heavily and became intoxicated.
In the early hours of the morning the complainant and the appellant left the friends’ house in a taxi to go home. It was intended to drop the complainant off at her house, but a conversation in the taxicab resulted in the appellant being invited in for coffee by the complainant. Inside they had some more to drink, and conversed for about an hour in the complainant’s lounge. There were two different versions of what happened next. The complainant gave evidence that she asked the appellant to leave after he had steered the conversation towards their respective relationships and declared his love for her. She told him it was time for him to go. The complainant herself got up and left the room. She went to her bedroom, changed into pyjama shorts and a top, then returned to the lounge area. The appellant was still there and the complainant said she told him once more that he should leave.
The complainant said the appellant then made a comment about her pyjama pants and, gripping her by the hips, pulled the complainant down so she was sitting on his lap. He then pulled her pants down. She said she reiterated that he had to go. She pushed the appellant towards the door. The appellant once there, however turned around and, grabbed her arms with both hands. In the face of her protests he pushed the complainant back into the room and on to the couch. At this point she began screaming at him. In the course of this she said he pushed her into a cane basket causing scraping and bruising to her thigh. She also said the appellant told her that it was “alright” because he’d “had a vasectomy”. He then pulled down the complainant’s shorts and underwear again and, this time pushed his penis inside her vagina, as she put it, “just a few” times. The complainant said it was all very quick but she protested throughout. The appellant abruptly stopped sexual intercourse and jumped up. The complainant said it was like a light bulb went on in his head. He immediately started apologising. Still screaming she told him to get out of the house. Whilst departing, and once finally outside, the appellant continued to apologise for his conduct.
The complainant then sent a text message to her boyfriend who was at work and he rang her back. He came over and she told him what had happened. A complaint was made to the police the following morning. The respondent when interviewed by the police maintained, and continues to maintain, that the sexual intercourse was consensual.
On the afternoon of 13 April the appellant was interviewed by the police in relation to the complaint. The interview was recorded on video and seen by the jury at the trial. In the interview the appellant said he and the complainant were lying down on the sofa, with their clothes off, kissing and cuddling prior to intercourse taking place. He agreed he put his penis inside her vagina adding “but that was agreed to”. He also said: “it was in and then out and a lot more kissing and cuddling and then in again.” The complainant, he said, then told him she could not do it, as the appellant’s wife was her mate. She told him to get his clobber on and go home. The appellant said that as a result at this point he stopped, stood up, put his clothes on and left.
A supplementary account from the appellant of the events was also before the jury. On 16 April the appellant returned to the police station where a further interview was undertaken this time recorded in a constable’s notebook. The appellant told the constable on this occasion he had remembered some other things that happened. He said there had been sexual intercourse that evening between him and the complainant, first on the floor and then later, on the couch. Later still they had gone back to the couch and started again, but he stopped when his wife’s name came up in conversation. The appellant said he then put his clothes on and the complainant pushed him out the door. He said the complainant was crying but was not screaming at him this time. A police constable gave evidence of this statement.
At the trial the appellant’s defence was put by his counsel to the jury principally on the basis that the complainant had consented to sexual intercourse, but counsel also emphasised the appellant’s co-operation with the police and put to the jury that at the very least it should accept the appellant reasonably thought the complainant was consenting. In support of this counsel said that the reason the appellant stopped could be seen as a realisation she was not consenting and a rapist would not have stopped on that account. The jury, however convicted the appellant of rape.
Judge’s sentencing remarks
The Judge referred extensively in his remarks on sentencing to the leading decision of this Court on sentencing for rape: R v A [1994] 2 NZLR 129. This judgment set eight years imprisonment as the starting point for sentencing for a contested rape, before consideration of aggravating and mitigating circumstances. The Judge cited a passage from R v A which referred to the need to increase the starting point where there were serious aggravating factors to the extent that the maximum of 20 years imprisonment under the new regime at times might have to be considered. The passage cited continued at p132 as follows:
On the other hand there may be features in a particular case justifying going below, possibly even well below, the eight year starting point. Some such cases are listed in Billam and Clark. Another illustration depending always on the particular circumstances, sometimes occur when consent to intercourse is refused after a degree of sexual stimulation. An extreme example is R v Brookes (1992) 14 Cr AppR (5) 496 where a sentence of three years for rape was upheld on the basis that the accused was not aware of the refusal of consent until the act of intercourse had began. The man’s persistence in such a case is criminal. But some allowance for the special fact may be made in sentencing.
The present judgment therefore signals an increase in the starting point for rape sentencing, and so probably in the average length of rape sentences, but it is not intended to fetter sentencing judges in assessing the gravity of particular cases. In the end, almost everything turns on the facts of the particular case. It is part of the judicial responsibility to weigh these. Generalisations are not likely to be of much assistance.
Having stated these principles the Judge addressed submissions received from the prosecution concerning trauma suffered by the victim, including additional trauma of a trial. He said that violence was an integral part of rape and the reason why significant jail terms were imposed even where there were mitigating factors. He referred also to a submission by the prosecutor that there had been a betrayal of trust by the appellant in offending as he did after being invited into the house. He then said:
[12] As to the breach of trust, that seems somewhat equivocal in this case. The two, according to the taxi driver, seemed to be getting on very well. And indeed it was in the course of her discussion that they decided that he would come in for a cup of coffee. He describes the conversation in the car as “very jovial, very laid back, very relaxed” and he has the two of them getting on very well. Then of course there was an hour inside in which quite plainly pretty intimate matters were seemingly discussed openly. It may have been that the prisoner mis-read a signal of the complainant changing into her night attire which was short pyjama pants.
[13] The rape itself was very short from the complainant’s own description of it. Her assessment was “a minute, two minutes, really quick.” It is always invidious to speculate on what a jury may have made of all the evidence in coming to the verdict they did. It seems at least possible in the circumstances that this man was found guilty because whilst he might have imagined in his drunken state some measure of consent on the part of the complainant, it was not a belief reasonably held. I mention that because unusually in a case like this, he did stop and immediately commenced apologising.
[14] Making therefore what I can of all the circumstances of this case, I do not weigh too heavily against the prisoner that he chose to defend this matter. He must of course be sentenced on the basis that he has been found guilty of rape, and rape is a violent crime, and that is what the Court will do. But it seems to me in the round that I am justified on the plain and clear words of R v A in adopting a different starting point to that that is referred to by the Court.
[15] Weighing as best I can the mitigating and aggravating features such that they are, they seem to me to argue for a starting point of approximately three and a half years. I reflect that three and a half years is still a significant term of imprisonment. There seemed to be no matters that then otherwise stand out in this case that would argue for an increase or decrease from that point, given that in reaching that starting point I have weighed the matters that I consider to be appropriate.
Crown submissions
On the sentence appeal Ms Kiernan for the Crown submitted that, by taking a starting point of 3½ years imprisonment, the Judge was effectively revisiting the Court’s finding in R v A. The Judge she argued had failed to give sufficient weight to the aggravating factors in the case. The betrayal of trust and impact on the victim was also given little weight.
Ms Kiernan also submitted that the Judge was wrong to treat as a mitigating factor that the respondent had “misread a signal of the complainant” when she changed into her night attire. The Crown argument was that this was not a mitigating factor on the evidence taken as a whole. The Judge’s view there was a possibility that the respondent may have had a reasonable belief in consent was contrary to the verdict. The respondent’s evidence which was that the intercourse was consensual, had obviously been disbelieved by the jury. She pointed out there had also been evidence of a laceration to the upper vagina wall which was accepted under cross-examination as consistent with both rape and vigorous sexual intercourse. The Crown criticised the Judge’s failure to mention the respondent’s low motivation to change and inability to assess his risk of re-offending due to his continuing denial of the offending which was proven.
The Crown submitted from a starting point of 8 years (R v A), and giving weight to aggravating and mitigating factors, a sentence of between 6 and 8 years was appropriate in this case. A sentence of 3½ years imprisonment was manifestly inadequate.
Appellant’s response
Mr Mabey for the appellant accepted that the Judge was in error in describing 3½ years as a starting point. He argued, however, that this was no more than a mistake of expression which did not reflect the actual approach of the Judge. He said the Judge had in fact started with a sentence of 8 years imprisonment and reached a term of 3½ years only after weighing the competing aggravating and mitigating factors of the particular offending. In doing that he had acted in accordance with the principles in R v A which emphasise the need for sentencing judges to assess the gravity of particular cases.
Counsel was also critical of the Crown’s submissions concerning a number of factors, such as absence of remorse and failure to accept responsibility as aggravating. Like the failure to plead guilty, these matters Mr Mabey said, were unavailable in mitigation but it was wrong to categorise them as aggravating the gravity of the offending.
Mr Mabey also said that the Judge in weighing the factors bearing on gravity rightly had regard to the short duration of the offending and to the appellant’s immediate apology. He submitted that the Judge in forming a view of the facts for purposes of sentencing was entitled to find that the jury found that the appellant, in his drunken state, may have considered the appellant had a drunken belief the complainant was consenting albeit an unreasonable one.
The Judge’s reference to the complainant giving the appellant a signal which he had misunderstood had been based on his own view of the evidence of discussion of intimate matters that took place inside the complainant’s home, and the appellant’s subsequent reaction to her changing into pyjamas. Mr Mabey said he was entitled to reach it. Overall, Mr Mabey argued, the Judge was acting with the discretion he had identified as available under the judgment in R v A and was exercising his judicial responsibility to assess the gravity of the case. The conclusion that 3½ years was the appropriate sentence emerged from this approach.
Decision
Clearly the Judge was wrong to say that the mitigating and aggravating features of the offence together indicated a starting point of 3½ years imprisonment. The judgment of this Court, from which he had earlier cited, made plain that the starting point in sentencing for this contested rape was eight years imprisonment. We accept however that, read as a whole, the sentencing notes make it clear that the term of 3½ years imprisonment that the Judge imposed was the outcome of his consideration of the gravity of the offending and that he reached that outcome having had regard to the 8 years referred to in R v A and the relevant features of the particular case as he saw them.
In his assessment of the gravity of the particular offending it is also clear that the Judge saw no aggravating factors in the rape other than those which were inherent in the crime and already reflected in a sentence of 8 years imprisonment. In particular the Judge was not persuaded that there was a breach of trust involved in the offending. As he saw it the appellant had been invited in for coffee by the complainant following their relaxed and general conversation in the taxi on the way to the complainant’s home. Whilst inside there was an hour of conversation concerning what the Judge called “pretty intimate matters” and which it seems concerned their relationships. We take the view that it was open to the Judge in this context to say there was no element of breach of trust involved in the subsequent offending of a kind that made the appellant’s crime one warranting additional punishment.
The Judge also said he “did not weigh too heavily against the prisoner that he chose to defend this matter”. Contesting the charge however is not an aggravating factor at all for the purposes of sentencing. It rather, as Mr Mabey said, indicates the absence of a factor that might have otherwise been available in mitigation. Overall, although there is no specific finding to that effect, we read the notes as implicitly concluding that there were no aggravating factors beyond those accounted for in the 8 year starting point for the sentence. This conclusion was open to the Judge.
It follows that the Judge considered that the factors he went on to identify as mitigating the seriousness of the offending warranted a reduction in the appropriate sentence from 8 years to 3½ years imprisonment. These factors are discussed in the passage we have cited from the Judge’s remarks on sentencing in para [11] of this judgment. The passage itself, however, has caused us some difficulty. It was not of course open to the Judge to question the jury’s verdict on sentencing the appellant. While it was certainly the Judge’s responsibility to form his own view of the facts for the purposes of sentencing, within the limits set by the jury’s conviction, in this case the Judge does not appear to have formed such a view. He has rather simply opined on possible bases for the jury’s verdict.
His Honour’s references to it being “invidious to speculate” on what the jury may have made of the evidence, and to it being “at least possible” that the jury thought the appellant had formed a drunken and unreasonable belief as to consent to sex are at the least an unfortunate form of expression. Assuming, however, in favour of the appellant, that the Judge was in this context expressing his own views it would appear that there were two mitigating factors influencing him to impose a sentence of 3½ years imprisonment. The first was that the appellant had misunderstood as a signal of encouragement the complainant’s return to the lounge wearing pyjamas. The second was that, the act of rape was brief, that it ceased suddenly and was followed by an immediate apology. From these findings he inferred that the appellant, in his drunken state, believed, albeit unreasonably, that the complainant was consenting to sex; but, in his favour, the appellant did not persist once that unreasonable belief was dispelled. These were mitigating circumstances that led to the sentence that he imposed.
Such a view does not appear readily reconcilable with the jury’s verdict but we have decided it may have been open to the Judge if he accepted that the appellant’s version of the offending as portrayed during his videotaped interview was a genuine if unreasonably erroneous one. The only other way to interpret the Judge’s approach is that improperly, he did not accept the verdict. That would not assist the appellant.
What is plain on any reading of the Judge’s remarks is that the circumstances he has identified can not possibly justify a reduction of 4½ years in the 8 year starting point for a sentence on conviction of rape following a trial. This case is plainly different to one where consent to sexual relations was refused after a degree of sexual stimulation of the accused (of which type of case the decision in Brookes was seen in R v A as an extreme example). To commit rape under a mistaken but unreasonable belief there is consent, induced by drunkenness of the accused, is not a mitigating factor at all. Nor is the gravity of sexual offending greatly mitigated by its brevity, sudden cessation and immediate expression of regret.
We have considered everything put to us by Mr Mabey, including the appellant’s good character, but conclude that it was not open to the Judge, for the reasons he gave, or for any other reason raised with us, to depart to such a great extent from the starting point of a sentence of 8 years imprisonment for this rape conviction. Giving the appellant every possible benefit for the Judge’s desire to impose a merciful sentence we conclude that the sentence should nevertheless have been very close to 8 years imprisonment. It was not possible in the circumstances in light of the decision in R v A to impose a sentence of less than 6 years imprisonment. Bearing in mind this Court’s policy of imposing sentences at the bottom end of the possible range, on a successful appeal by the Solicitor-General, we have decided a term of six years imprisonment is the appropriate sentence we must now impose.
The appeal against sentence by the Solicitor-General is accordingly allowed, the sentence of 3½ years imprisonment is quashed and a sentence of 6 years imprisonment is substituted. For the reasons indicated in the judgment the appeal against conviction is dismissed.
Solicitors
Crown Solicitors, Auckland
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