W v The Queen

[2019] NZHC 3144

ORDERS PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 AND OF PARTICULARS OF CONNECTED PERSON (P) PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011. SEE RESPECTIVELY:

align="center">NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011 AND OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE (RESPECTIVELY):

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2018-454-19

[2019] NZHC 3144

BETWEEN

W

Appellant

AND

THE QUEEN

Respondent

Hearing:	27 November 2019
Counsel:	L A Scott and S W O Campbell for Appellant J A Eng and J M Irwin for Respondent
Judgment:	2 December 2019

JUDGMENT OF ELLIS J

[1]                 On 17 August 2018, following a Judge alone trial before Judge Rollo,1 W was convicted of 11 charges relating to offending against his former wife (TL) and her twin children (C and L):

1      R v [W] [2018] NZDC 14411 [Conviction decision].

W v R [2019] NZHC 3144 [2 December 2019]

(a)one representative charge of assaulting a child (C);2

(b)two charges of assault with intent to injure (C and L);3

(c)one charge of assault with a weapon (C);4

(d)three representative charges of doing an indecent act on a child under the age of 12 (C);5

(e)one representative charge of threatening to kill (C);6 and

(f)three charges of sexual violation by rape (TL).7

[2]                 He was  discharged  or  found  not  guilty on  a  further  eight  charges.8  On 19 October 2018, Judge Rollo sentenced W to 13 years’ imprisonment and imposed a six and a half year minimum period of imprisonment (MPI).9 W now appeals both his conviction and sentence.

Background

[3]                 W was previously married to TL. She had twins from a previous relationship, L and C (now 15 years old). TL and W began their relationship in 2006 and were married in 2008.

2      Crimes Act 1961, s 194(a) [maximum sentence of two years’ imprisonment].

3      Section 193 [maximum sentence of three years’ imprisonment].

4      Section 202C [maximum sentence of five years’ imprisonment].

5      Section 132(3) [maximum sentence of 10 years’ imprisonment].

6      Section 306 [maximum sentence of seven years’ imprisonment].

7      Sections 128(1)(a) and 128B(1) [maximum sentence of 20 years’ imprisonment].

8      W was acquitted on one charge of threatening to kill (TL) on the grounds of “double jeopardy”, and three representative charges of assaulting C were combined into a single representative charge (resulting in two of the original three being dismissed). Another representative charge of assaulting C was dismissed for similar reasons and W was acquitted on two charges of ill-treatment of a child (C and L) because the judge was not satisfied that the Crown had proved a “major departure from the requisite standard of care”. Two charges of assaulting a child laid in the alternative to the ill treatment charges were also dismissed.

9      R v [W] [2018] NZDC 22207 [Sentencing decision].

[4]                 L and C were born in February 2004. Their father is dead. L has some mild intellectual impairment and learning difficulties. When L and C were between the ages of two and almost five years old, they were in the care of TL’s mother.

[5]                 On 12 January 2009, L and C returned to TL's care and they all lived with W in Christchurch until 13 January 2011. While living in Christchurch, in December 2009, TL and W had a son (P).

[6]                 On 13 January 2011, the  family  moved  to  Levin  and  stayed  there  until 11 December 2012. They then moved to Tokoroa where they lived until November 2014 when TL and W separated. From that point on, L and C remained in TL’s care in Tokoroa. W moved to Palmerston North with P, although in 2015 they moved back to Tokoroa for a period of time.

The evidence at trial

[7]                   At trial, the parties agreed a statement under s 9 of the Evidence Act 2006 that the above dates and places of residence were correct. The dates and places assumed some importance in this case because a number of the charges were representative. W pleaded not guilty to all charges and elected to give evidence at trial. His mother also gave evidence in support of his defence.

[8]                 L’s evidential video interview (EVI) was played for Judge Rollo and he gave further evidence at trial. In essence, his evidence was he and his sister were grabbed, kicked, smacked, sworn at and yelled at by W. He said on one occasion he had been playing with C when W grabbed him and threw him into the wall, hurting his head. He also described W smacking him on his face, shoulder and hand. He described W kicking and smacking C and seeing her bruises. When W would smack C, she would go to her room and cry and he would tell her to “shut up”.

[9]                 L also gave evidence that he saw W push his mother and tell her to go outside. He heard screaming, banging and his mother crying. L said that W had a number of “rules” for C and L. W would get “really, really angry” and would yell, shout, swear and slam doors which made L scared. L also thought that his mother was scared of W because of what he had done to her. He described going to the hot pools with his

family and said he did not like the “challenge” at the pools, where the children had to stay under water. He said he was scared he would drown or never come back up to the surface. In cross-examination, L confirmed that W's kicks left visible bruises on him and that the smacks to his face left marks. When it was put to him that his mother had asked him to lie for her, he denied this.

[10]              C’s EVI was also played and she too gave further evidence at the trial. She testified that the physical abuse from W began the second day they started living with him, saying “he started getting really angry and scary”. She said it started with yelling, then slapping, then hitting and beating. He used to throw her around, kick her (in the chest, back, bottom and legs), punch her and threaten that if she told anyone he would kill her. She had bruises which she had to cover up, to avoid more beatings. He beat her “so many times” that she could not remember the total number. He kicked her with a boot on one occasion; her mother saw the bruise and told her to cover it up. He also beat her with a stick on one occasion in Levin.

[11]              C’s evidence detailed indecent acts committed by W against her. She said he would touch her close to her vagina, rub it softly then touch her around her bottom when no one else was around. She said it happened in Christchurch. Once or twice when W took C out in the car, she said he put his hands down her pants and touched her “above” her vagina/on the “top bit” of her vagina. She did not tell her mother because she was too scared and thought she would get hurt because of “how much he would hit us and the power he had over us”. W told her that if she told anyone about the way he touched and abused her, he would get a knife and stab her or tie her to a chair and set the house on fire.

[12]              C recalled W telling her to wear a plastic bag over her head to see how long she could breathe. She said she could not really breathe when he did this and when she tried to take it off, he told her to leave it on and not to tell her mother.

[13]              C also gave evidence about what was referred to as the “fence incident” which had led to W being convicted of assault in 2010 (after a guilty plea). C said W had just arrived, started yelling and he got louder. She heard a thump and saw her mother “shoved up against the fence”. She said W threatened to choke her mother to death

and she was so scared she ran from the front room where she was up to her room and hid under her bed. She heard W shouting and her mother screaming while she was under her bed. After that day, she said W “got violenter and violenter” in the sense that he got “more aggressive and his outbursts were more common”.

[14]              C also described different treatment of P, saying she never saw him hit whereas “the only attention [C and L] got was beatings”. She said she and L were told they were not a part of W's family and they would be kicked out onto the street. She said her mother and W used to “fight a lot”, that he used to scream at her “and she would freak”. Under cross-examination, C denied that the only time she had been alone with W was once when he took her to McDonalds. She accepted there would have been times when she went swimming while bruised but that no one asked her anything or seemed to notice. She too denied that her mother had asked her to lie.

[15]              TL described a relationship of control and domination where she was made to feel worthless. She said the control started early in the relationship when she was discharged from a mental health facility and W prohibited her from contacting her family or friends. In 2008 – approximately two years into their relationship – she said things were “quite bad”. In 2010 there were two incidents in Christchurch: the fence incident and another where W pushed a chair TL was sitting on, causing her to fall down concrete steps (“the chair incident”).10

[16]              After those two incidents, TL testified that she stopped saying “no” to W because she was afraid and it was easier to go with what he wanted. After the move to Levin, she said the “psychological and emotional abuse just got worse”. W would want to know where TL was, and when she told him, he would accuse her of lying or tell her she should be home doing housework. The same control of her movements continued in Tokoroa, including demands to know to whom she had been talking, what she had been talking about (and accusations of lying) and threats that she should watch what she says. After ending the relationship with W, she received threatening text messages in 2014 and 2015 (two of which included threats to kill her).

10     In TL’s evidence she referred to these incidents occurring in 2011 but (given the date of W’s conviction) this is clearly a mistake.

[17]              TL described three separate occasions when W raped her. The first was on his birthday. She said she tried to make it as difficult as possible for him to rape her by holding her body taut. The next morning, he told her he was surprised she had not “called the cops … and [done] him for it”. On the second occasion, he blindfolded and then interrogated her about something she was “meant to have done”. When the interrogation ended he told her he wanted to have sex with her. She told him she did not want to have sex but he persisted. He justified himself by saying that on an earlier occasion she had said he could do what he liked to her. He told her that she had to obey him if he wanted something sexually, she had to do it. The third occasion was in Tokoroa. W told TL to wear a kimono, tied her to a table in the garage with her legs apart and told her that he would do whatever he wanted to her. Then he raped her. She tried to move her head but he held her neck. He was not pushing “right against” her throat but was holding “just enough … for [her] to know not to move [her] head coz it might get tighter”. During this rape (which continued over some time), P walked in and interrupted twice. On both occasions, W took P back inside the house.

[18]              TL observed that there was a clear connection between the way W treated her and the way he treated her children. She said, in the context of discussing the third rape, that it did not seem to matter whether she did what he wanted and “if it wasn’t to me then it would be to my children”. She said W normally treated C and L like they “weren't there”, but on one occasion she saw W throw L into a wall. On another occasion, when L had wet the bed, TL said she saw W punching him with a clenched fist “towering over” him as he was huddled on his bed.

[19]              TL was cross-examined on the basis that previous statements she had made were inconsistent with the violent, controlling and sexually abusive relationship she described. She was confronted with a Family Court affidavit in which she did not refer to rape or physical violence, as well as a string of emails with W which were ostensibly cordial (it was put to her that the emails “did not sound like someone that you’re scared of”). TL denied that in the course of her relationship with W she would initiate sex by saying things like “I want you to rape me tonight”. She accepted that on one occasion she had said “you can do whatever you want to me” (it was not put to her that she said that at any time proximate to the rapes). She denied telling her

children to lie for her and denied the proposition that she made up lies about rape with a view to getting custody of P. Finally, she said that she did not recall C showing her bruises or seeing any bruises on her.

[20]              W gave detailed evidence in his defence and called evidence from his mother. He presented himself as a loving, supportive and respectful partner and a concerned and attentive, if sometimes distant, step-parent. He described an “excessive” sex life and TL as the main initiator of sex in the relationship. He denied all allegations and said they were “incredible”, “unreal” and “crazy”. He said he was not “normally” threatening to people and wouldn't threaten someone “with actual intention”. When confronted with violent, threatening and abusive material he had posted on Facebook and in an email he initially claimed the privilege against self-incrimination but later denied authorship.

[21]              He denied ever squeezing C’s bottom and denied having ever been alone with her for any significant period, other than a single occasion where he took her to McDonalds. In relation to TL, he denied the second rape (the blindfold rape) in its entirety, saying it was “completely untrue”. He similarly denied the rape in the garage ever occurred (saying they had never had sex in the garage). In terms of the allegation of rape on his birthday, he said that there was no sex on his birthday, but the following morning TL initiated consensual sex. He said that TL used to ask him to rape her and described having monthly catch-ups where they would discuss their sex life. He said TL was “more than capable” of having input into their sex life.

[22]              He denied ordering TL around and said it was so rare that he asked her to do anything that she would be happy doing what he asked and would do it “right away”. He accepted he treated L and C differently from P, saying he had a “complicated relationship” with his step-children in that he could not show them affection, but he could to P.

[23]              W’s mother's evidence was that she had never seen him hit or yell at the children, and she spoke of encounters she had with the family.

Conviction decision

[24]              Judge Rollo's reasons decision is 346 paragraphs long. There is no challenge to the adequacy or substance of those reasons. After considering general matters of credibility, reliability and the significance of independent evidence, the Judge came to the following conclusions:

(a)C’s evidence in respect of the assaults on her generally was reasonably detailed, coherent and truthful. It made sense that she would have covered her bruises and not told anyone about the assaults, considering W's conduct towards her. Consequently:

(i)the representative charge for the Christchurch assaults was proved;

(ii)the assault with intent to injure charge (arising from an incident where W kicked her in the genital area) was proved; and

(iii)the assault with a weapon charge (arising from an incident where he beat her with a stick or tree branch) was proved.

(b)The three representative charges for indecent acts on a child under the age of 12 were also proved. The Judge rejected W’s denials and considered that aside from minor discrepancies in her evidence, C was “unshaken and consistent”.

(c)The representative charge of threatening to kill C was also proved. Judge Rollo again rejected W's denials and noted that while not all the threats were made the subject of the charge, they all formed a part of the wider narrative illustrating the relationship between W and C.

(d)The charge of assaulting L with intent to injure him was also proved. Considering L’s developmental delay and learning difficulties, Judge Rollo placed “minimal weight” on the lack of  evidence from  L about

the specific offence.11 The Judge was satisfied to the required standard that the event occurred as alleged and W intended to cause actual bodily harm to L.

(e)The Judge also found W guilty on the three charges of raping TL. He characterised W’s denials as self-serving, untruthful and unreliable. By contrast, the Judge said that, despite minor errors of detail, he found TL to be a truthful and generally reliable witness.

Sentencing

[25]              The Judge took the rape of TL in the garage as the lead offence. He adopted a starting point of eight years and nine months' imprisonment for this conviction, noting the aggravating factors included detention, breach of trust and TL’s vulnerability. He uplifted that by a further nine months for the other two rape convictions, yielding a starting point of nine years and six  months.  The Judge then  uplifted by a further two years for the three representative charges of indecent acts on a child and a further one year for  the  representative  charge  of  assaulting  C.  Once  at  12  years  and six months’ imprisonment, the Judge uplifted by 16 months for the representative charge of threatening to kill C and the charge of assault with intent to injure C. He then uplifted by a further eight months for the charge of assault with a weapon against

C. This led to a sentence of 14 years and six months' imprisonment for the offending against C and TL.

[26]              Finally, the Judge uplifted a further six months for the charge of assault with intent to injure L. This led to an overall starting point of 15 years’ imprisonment which was adjusted down to 13 years for totality. There were no mitigating factors warranting any discount  to that starting point  and the end sentence was therefore  13 years’ imprisonment.

[27]              The Judge observed that no MPI had been sought by the Crown and acknowledged the defence submission that the Parole Board was an adequate

11     C gave what the Judge described as a “truthful and generally reliable account” of W assaulting L in C’s bedroom “by pushing, punching, kicking him in the stomach and throwing him around the bedroom”: Conviction decision, above n 1, at [299] – [300].

safeguard in all the circumstances. But he went on to find the threshold test in s 86(2) of the Sentencing Act 2002 was met and imposed an MPI of 50 per cent or six and a half years.12 I set out his reasons for doing so fully, later in this judgment.

Grounds of appeal

[28]W appeals his conviction on the grounds that:

(a)the charges involving TL should have been severed from the trial of the charges involving the children and the failure to do so gave rise to unfair prejudice (and the improper use of propensity reasoning) such that a miscarriage occurred; and

(b)the Judge's consideration of the fact and circumstances of W’s prior conviction for assaulting TL (i.e. the “fence incident”) was essentially propensity evidence admitted wrongly and by stealth.

[29]              As for sentence, W does not take issue with the ultimate sentence but argues that there was a breach of natural justice in relation to the imposition of an MPI, which was (in any event) manifestly excessive and not justified in the circumstances.

Approach on appeal

Conviction

[30]              An appeal against conviction in a judge-alone trial is governed by s 232 of the Criminal Procedure Act 2011 (CPA).

[31]              W must satisfy the Court that a miscarriage of justice has occurred, either because “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or for any other reason.13 A miscarriage of justice is “any error, irregularity, or occurrence” that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was

12     Sentencing decision, above n 9, at [93].

13     Criminal Procedure Act 2011, s 232(2).

a  nullity”.14   Not every error or irregularity causes a miscarriage of justice; a miscarriage “is more than an inconsequential or immaterial mistake or irregularity”.15

Sentence

[32]              An appeal against sentence is governed by s 250 of the CPA. It is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied that there has been (for any reason) an intrinsic error in the sentence imposed and a different sentence should be imposed.16 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.17 An appeal against the imposition of an MPI is dealt with in the same way.18

The conviction appeal

[33]              Both aspects of W’s conviction appeal relate, in a sense, to the interplay between what is commonly termed “relationship” evidence and propensity evidence. It is therefore useful to begin by setting out how those issues were dealt with by the Judge. He dealt with them expressly a number of times in the course of his reasons decision.

[34]              First, and specifically in relation to the relevance of the “fence” and the “chair” incidents,19 he began by noting that the former appeared to have marked a turning point in the relationship between TL and W20 and the latter incident had “added to that situation of fear for TL of an angry or violent response from [W]”.21 Then, (under the heading “Relationship evidence”), he said:

14 Section 232(4).

15 Matenga v R [2009] NZSC 18 at [30]. More recently, in Sena v New Zealand Police [2019] NZSC 55 the Supreme Court re-examined the approach to conviction appeals from judge alone trials, holding (at [32]) that such appeals should proceed by way of rehearing in accordance with the well-established principles canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

16     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

17     Ripia v R [2011] NZCA 101 at [15].

18     Because a minimum period of imprisonment is defined in s 86(5) of the Sentencing Act 2002 as a sentence for the purposes of the appeal provisions under the Criminal Procedure Act.

19     In light of the fact that there was no charge in relation to the “chair” incident and that by the time of the reasons decision there was also no charge relating to the “fence” incident.

20     A point expressly made by TL in her evidence – she said it was as a result of that incident that she no longer tried to resist or argue with W when he was angry or abusive.

21     Conviction decision, above n 1, at [62].

[63]      These respective incidents, the ‘fence incident’ and the ‘chair incident’, are not the subject of any charges in this trial. They are offered by the prosecution as relationship evidence, that is, evidence of what the relationship was between [W] and TL, and to some extent between [W] and L and C.

[64]      There has been other relationship evidence offered by the prosecution, and by the defence, as part of the overarching narrative I have heard.

[65]      And I specifically note that much of [W]’s evidence-in-chief was in the nature of relationship evidence, what his relationships were with TL, with each of the twins, in their household, with their school, with neighbours and friends, and with his mother. As with much of the Crown case, in his own evidence [W] was painting a larger landscape, filling in the smaller, but important details, washing out parts, emphasising other segments.

[66]      This relationship evidence presented by both the Crown and [W] respectively, the narrative of their lives within their family and community scope, is important. It gives context, it provides colour and assists with understanding meaning.

[35]              Later in the decision (but prior to his analysis of any of the specific charges) the Judge turned more to the question of the general admissibility of such “relationship” evidence, noting:22

[117] Relationship evidence is properly admissible and relevant in a case such as this. In T (CA561/2014) v R, the Court of Appeal said:

[21]In Perkins v R the appellant faced a number of charges of sexual violation by rape and assault with a weapon against his former partner. At trial the jury heard evidence concerning violence against the children of the family (although no charges were filed in respect of those matters) as well as violence against the former partner. This Court noted that it was important to the Crown case to show a general atmosphere of violence in the household. This set a background for what the Crown claimed was the complainant's unwilling acquiescence to sex, who on past experience knew that if she declined she would be assaulted. It was stated by the Court:

So also where violence erupts in the familial context the underlying family dynamics are relevant to explain why and in what context alleged incidents occurred, and the effect of them. This may be particularly so where the violence is across the board in a family, and/or when there is sexual abuse. In this respect as was stated in the minority decision in Mahomed:

So in cases of alleged intra-familial sexual abuse, a victim may be unable to give a coherent account of what happened and why without discussing the underlying family dynamics.

22     (citations omitted).

[22]It was also stated:

This is not propensity evidence that falls within the category of orthodox similar fact evidence. Rather it is what is sometimes called relationship evidence. The evidence is allowed in not because of the similarity between what is alleged by way of background and the actual offending (although there are similarities) but rather because otherwise the complainant’s evidence as to the alleged offending which is the subject of charges will be necessarily incomplete and perhaps not comprehensible from the point of view of the jury.

[118]          In MacDonald v R, the Court of Appeal approved the trial Judge’s decision to admit evidence of two previous incidents involving the complainants as correct in order to give the jury the overall view it needed of the relationship between Mr MacDonald and the complainant.

[119]At [30], the Court of Appeal said:

[30]... The basis for its admission is well described by William Young J in this Court's judgment in R v MacDonald:

It is not uncommon for the prosecution to lead evidence of background (or relationship evidence as it is sometimes called) from a complainant which discloses offending by the defendant going beyond what is alleged in the charges the defendant faces. Such evidence does not usually have an independent probative value which buttresses the credibility of the complainant's core allegations – the usual reason why “true” similar fact evidence is admitted. Indeed, commonly the credibility or otherwise of such evidence is no more or less than the credibility of the complainant’s core allegations which are the subject of charges. Judges allow such evidence to be given not because of the similarity between what is alleged by way of background and the actual offending (although, or course, usually there are similarities) but rather because otherwise the complainant’s evidence as to the alleged offending which is the subject of charges will necessarily be incomplete and perhaps not comprehensible from the point of view of the jury.

[31]We accept [counsel’s] submission that there is nothing in the majority judgment of the Supreme Court in R v Mahomed detracting from the authority of MacDonald, and a good deal in the minority's judgment supporting it.

[36]              The interplay between relationship and propensity evidence referred to in these dicta then became a more specific focus when the Judge was considering the three charges of doing indecent acts against C. Having already indicated his clear preference (in credibility terms) for the evidence of C over that of W, he said:

[235] Additionally, and critically, much of C’s evidence about the events against her, or her brother, L, or her mother, TL, is entirely consistent with the

evidence which I have heard from them. That evidence, as I have analysed it above, also illustrates that the fundamental undercurrents running through the household of [W] and TL have been consistently identified by other witnesses in addition to TL, L and C.

[37]Next, under the heading “Propensity evidence” he went on:

[236]    I have characterised much of this evidence as relationship evidence, being part of the context or narrative of life within [W]’s household at its various locations in New Zealand. Such relationship or narrative evidence is not necessarily propensity evidence, it fulfils a wider purpose of giving context to the events alleged. In that sense, it is not generally the subject of propensity evidence analysis under ss 41 and 43 Evidence Act 2006.

[237]    However, such evidence can also constitute propensity evidence if it meets the statutory criteria within ss 40, 41 and 43.

[238]    Clearly the core issue in dispute this case is whether [W] committed the offences of violence and sexual assault alleged against his then wife, TL, and her twin children, L and C. That is, whether the allegations against [W] are truthful and reliable?

[239]    There are the three complainants. They allege common offending against each of them, in the form of assaults (and I include TL's allegations of being tipped off the chair and pushed down the steps as an allegation of assault, although not a specific charge before the court). L, as I have commented above, refers to various forms of assault on him by D, although again those are not the subject of any specific charge before the court.

[240]    There are also the alleged sexual offences against C and TL. They are of a different type, indecent assaults as opposed to rapes, but they share some similarity in that they are alleged to have been committed by [W] against the two members of his household within the house where they all lived (other than the car incidents, C alleges). The evidence shows that [W] had significant control over both TL and C induced by his angry and potentially, or actually, violent behaviour towards them. That enabled him to carry out his abuses of his victims without fear of their protest.

[241]    This offending is alleged to have occurred over a relatively short time- frame, 2009 to 2015 in TL's case, 2009 to 2011 in C's case.

[242]I find no evidence of collusion or suggestibility.

[243]    I am satisfied that this propensity evidence is admissible in [W]’s trial. It is relevant, it is probative and not illegitimately prejudicial against [W]. I find it does show a marked tendency by [W] to use violence and threats of violence to exert excessive control over TL, L and C within his household, resulting also in sexually abusive acts against TL and C.

[244]    A similar case where contextual evidence was additionally admitted as propensity evidence is R v R (CA459/J 3). This case concerned an appeal against severance of a charge of wilful neglect of a child from sexual and violence charges against R. Those sexual and violence charges were levelled

by his wife and daughters. The judge at first instance ruled the wilful neglect charge was not amenable to propensity evidence admissibility.

[245]    The Court of Appeal overturned that decision. It was satisfied that the context of the sexual and violent offending was relevant to the jury's decision on this otherwise unrelated charge. It held it would be contrary to the interests of justice to deny the jury the advantage of the full picture.

[246]In discussing the issues, the Court said, at [22] to [23] –

[22]       In this case, there is a body of evidence which is plainly common to and admissible in respect of all counts. That contextual evidence, much of it likely to be uncontroversial, will include the family background and, in general terms, the way in which the household functioned.

[23]       In addition, it is accepted by both parties that the evidence of physical and sexual abuse of each of the female complainants is admissible as evidence of propensity in respect of the charges involving the other female complainants. It is evidence of Mr R’s propensity to act and think in a dominating, violent and/or sexually abusive way. The evidence is demonstrably of high probative value on the issue of whether the conduct occurred. It is not suggested that its probative value in relation to the alleged offending against other females in the household has an unfair prejudicial effect on Mr R.

[247]    This is directly applicable, on very similar facts and charges, to the present case before me.

[38]The Judge concluded:

[248] I do not find that the admission of these mutually supporting allegations by TL, C and to a lesser extent, L, unfairly predisposes me against [W]. Nor do I find that it will cause me to tend to give disproportionate weight in reaching verdicts on the separate charges to the evidence arising from the other accusers of [W] relating to their charges against [W].

The arguments on appeal

[39]              In essence, Ms Scott’s first point was that the failure to sever the (rape) charges involving TL from the charges involving the children meant the Judge’s verdicts were tainted by unfairly prejudicial propensity reasoning (namely that W had a propensity for alleged non-consensual predatory sexual behaviour). She said it would not have been possible for Judge Rollo to consider the indecent assault charges without being improperly or unfairly influenced by the rape charges (and vice versa).

[40]              While acknowledging that the Supreme Court in Mahomed v R held that certain background evidence could be admissible regardless of otherwise potential propensity

reasoning,23 she said those comments were focused on offending relating to the same complainant. By contrast, in the present case the rape and the indecency charges involved different complainants and so the Court was necessarily faced with a case of “coincidence” propensity. Relying on the Court of Appeal’s decision in R v E(CA369/03), she said the only way of avoiding the unfair prejudice which inevitably arose was to have separate trials.24

[41]              I am unable to agree with that submission. I begin by noting that no application for severance was made. And given that Ms Scott (very properly) did not seek to raise any issue about trial counsel competence, there is little to be said about the “failure” to order separate trials. But in any event, I do not consider that such an application (which would necessarily have been based on the risk of unfair prejudice arising from improper propensity reasoning) would have been successful, for the reasons that follow.

[42]              First, the decision in R v E(CA369/03) is not, in truth, analogous. In that case the defendant faced charges of sexual abuse against his step-daughter and one historic charge of indecent assault against his cousin. It was not, accordingly, a case where the proposed propensity evidence also formed part of the relevant narrative or could be termed “relationship” evidence. Relatedly, there was a temporal gap between the two sets of alleged offending which (in terms of s 43 of the Evidence Act) counted against the admission of the proposed propensity evidence which does not exist here.

[43]              Secondly, it is apparent from the excerpts from the Judge’s decision set out above that he was acutely aware of the potential issue about the interplay between relationship and propensity evidence. He clearly regarded the evidence of the alleged offending against each of the complainants as part of the underlying narrative of the family dynamics and relationships which was relevant and admissible in relation to all charges. But importantly, he also turned his mind to the specific propensity question in relation to the charges where it was most likely to be unfairly prejudicial, namely, the charges of a sexual offending against C. It was in relation to those charges that the risk of prejudice from the rape allegations involving TL was most acute.

23     Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [56].

24     R v E(CA369/03) (2004) 20 CRNZ 847 (CA).

[44]              In my view the Judge’s analysis of the relevant s 43 matters cannot be faulted. Nor can his reference to and reliance on the decision in R v R(CA459/13).25 Although I accept Ms Scott’s submission that there was more overlap between the evidence of the complainants in that case (making the evidence of each arguably more directly relevant to the charges relating to the others but also harder to disentangle) that case is, in my view much more analogous to the present than R v E(CA369/03).

[45]              And lastly, I consider there is a relevant distinction to be drawn between jury trials and trials before a judge alone, in terms of any risk of unfair prejudice. While Ms Scott did refer me to the decision of Venning J in Hamilton v R,26 there are many cases in which the Courts have accepted that the risk of unfair prejudice/improper reasoning is diminished in a judge alone trial. By way of example only:27

(a)In Otimi v R the Court of Appeal upheld the admission of propensity evidence in a Judge-alone trial, saying:28

[31] The Judge was satisfied that the propensity evidence fell within the definition of propensity evidence as demonstrating a tendency to behave in a particular way, or have a particular state of mind. … Weighing the probative value against the prejudicial value, he concluded that there was a low risk of unfair prejudice. He noted that the trial was a Judge alone trial and that the risk of jurors placing too much weight on the evidence was not present. …

…

[34]   … The Judge’s conclusion that the probative value outweighed any illegitimate prejudicial effect was right.

[35]    … In the context of a Judge alone trial, we do not think the way in which the application was made and determined gives risk to any risk of a miscarriage of justice.

(b)In R v Peck Toogood J allowed the admission of propensity evidence in a judge alone trial, saying:29

25 R v R(CA459/13) [2013] NZCA 433.

26 Hamilton v R [2013] NZHC 3101 at [34].

27 The proposition that Judges are less susceptible to unfairly prejudicial reasoning than a jury  because of a judge’s expertise was also noted and accepted by the New Zealand Law Commission in its discussion paper Law Commission Evidence Law: Character and Credibility (NZLC PP27, 1997) at [296].

28 Otimi v R [2012] NZCA 216.

29 R v Peck [2015] NZHC 2278.

[33] This being a trial by judge alone, there was no likelihood that the evidence was likely to unfairly predispose me against the defendant, and no risk that, in reaching verdicts, I would tend to give disproportionate weight to evidence of other acts.

(c)In Liu v Police Wylie J upheld the admission of propensity evidence in a judge alone District Court trial, saying:30

[22] … In the present case, however, the trial will be proceeding as a Judge-alone trial. Any risk of unfair prejudice is lessened. The Judge will be well aware of the burden and standard of proof and of the need to exercise appropriate caution in the use of propensity evidence.

[46]I consider those dicta apply equally here.

The fence incident

[47]              Despite his earlier assault conviction arising out of the fence incident, a further charge of threatening to kill was laid in relation to that incident. At the time the evidence about that incident was led at trial that charge was live and the evidence was therefore relevant and admissible. It is only as a result of the Judge’s decision to dismiss that charge (essentially on the grounds of “double jeopardy”) that the evidence arguably assumed a more peripheral role.

[48]              As I understood it, Ms Scott’s submission was that at the point the threatening charge was dismissed, the evidence’s lack of continued and direct relevance rendered it unfairly prejudicial. She submitted that the unfair prejudice was amplified because the evidence that was led from the complainants about the incident was more detailed and more harmful than the summary of facts to which W had pleaded guilty which caused the Judge to be unfairly critical of him for contesting those new and aggravating matters.31

[49]              Again, however, I am unable to discern any error in the Judge’s approach. As I have said, the evidence was, initially, directly relevant to a specific charge. And

30 Liu v Police [2017] NZHC 1319.

31 In particular, the Judge said the fence incident “is an example of one of many allegations in this case either completely or at least significantly denied by [W] as untrue or as a total fabrication”: Conviction decision, above n 1, at [53].

again, the Judge was plainly alive to the continued relevance of the evidence in light of the dismissal of that charge and addressed it in his decision (as I have set out above). The fence incident undoubtedly formed an important part of TL’s narrative in particular because (as noted earlier) she said it marked a turning point in her relationship with W and, importantly, explained her apparent lack of active resistance to his later more serious offending. And, in my view, the Judge’s reasons make it clear that while he regarded it as an important part of the relationship narrative, he placed no separate weight on it in propensity terms. As I think Ms Scott accepted, there was no requirement that the evidence about the incident be confined to the summary of facts; W had the opportunity to test and respond to the elaborated allegations but the Judge (for reasons he gives at some length) did not find him a truthful or reliable witness.

The sentence appeal

[50]As noted earlier, there are two limbs to the appeal against the MPI:

(a)an alleged breach of natural justice; and

(b)the submission that in the circumstances of W’s case an MPI could not be justified.

[51]              Before addressing those two matters, it is useful to begin by setting out the relevant part of the Judge’s reasons in full. He said:32

[92]      The next matter I need to deal with is the issue of a minimum period of imprisonment. That is not sought by the Crown but as the Court of Appeal noted in Nicholson v R, at [18] and following, the Court noted in the R v AM decision that I have previously referred to in reviewing past sentences, the observation that minimum periods of imprisonment of at least half the determinant sentence were very routine in cases involving multiple counts of sexual offending against children, but making the point at paragraph [19] that, as the Court has often said, each case must be considered on its own facts and by reference to specific purposes set out in s 86 Sentencing Act 2002.

[93]      In this instance, as I have said, the Crown has not applied for a minimum period of imprisonment. Mr Foster’s submissions on your behalf, [W], are to say that, given your present denial of the offending, the Parole

32     (citations omitted).

Board would not admit you to parole if you were otherwise were eligible to apply and that that is an adequate safeguard in the circumstances.

[94]      My view of the matter is that s 86(2) has a threshold test, of whether the usual period under s 84(1) Parole Act 2002 in which a person would be entitled to apply for parole is sufficient. That requires consideration of whether or not a minimum period of imprisonment that is longer than that period would hold the offender accountable for the harm done to the victim in the community by the offending, would denounce the conduct, deter the offender and other persons committing the same or similar offending and would protect the community from the offender.

[95]      The fact that you have not acknowledged in one iota any of the offending for which you have been convicted is a significant factor, in my view. Without a minimum period of imprisonment being imposed, I do not see that the ability for you to apply for parole at one third would hold you accountable for the harm done to the victims and indirectly to the community by your offending.

[96]      This is very serious offending of a sexual nature. The incidents of sexual offending against C were not as significant as many that come before the Court but seen in the context of the climate of violence that facilitated that offending, and the illustration of further violence inherent in the act of rape itself, indicate in my view that s 86 appropriately should apply in this instance. That will hold you accountable for the harm you have done, increase the denunciation of your conduct and the deterrence factor and protect the community from you.

[97]      I therefore direct that a minimum period of imprisonment apply to the rape convictions for a period of six and a half years. That is a 50 percent minimum period of imprisonment.

Breach of natural justice?

[52]              There is no dispute that an MPI was not sought by the Crown and raised by the Judge only at the sentencing hearing itself. Ms Scott submits this constituted or resulted in a breach of natural justice because defence counsel had inadequate notice of that possibility and were not given the opportunity to file written submissions responding to the proposal. She refers in that regard to the decisions in R v Rongonui,33 R v Potae,34 R v Grant,35 and Fleming v R.36

[53]In my view, however, those cases are all materially different from the present:

33     R v Rongonui CA321/00, 9 May 2001 at [40].

34     R v Potae [2007] NZCA 539 at [7].

35     R v Grant [2009] NZCA 266 at [19].

36     Fleming v R [2011] NZCA 646 at [16] – [17].

(a)In Ronogonui, Potae and Grant the sentencing Judges had not put counsel on notice at any stage that an MPI was being considered and no submissions (oral or otherwise) were invited or received. The Court of Appeal in each case made clear that the Judge should have given counsel the opportunity to make submissions before deciding to impose an MPI.

(b)In Fleming, counsel for the defendant had (in his written submissions) addressed the question of an MPI and submitted that one should not be imposed. Later written submissions filed by the Crown did not address the question of an MPI. At the sentencing hearing itself, neither counsel addressed the question and the Judge did not raise it. The Judge nonetheless imposed an MPI. The Court of Appeal said:

[16] The Judge did not warn [counsel for Mr Fleming] in  the course of submissions that despite the lack of any Crown submissions on the point he was considering a minimum term of imprisonment. [Counsel] was entitled to assume in the absence of a Crown submission or a reference from the Judge there was no risk of a minimum term of imprisonment being imposed. If he had been put on notice that a minimum term was being considered, we have no doubt that he would have made additional submissions tailored to respond to whatever reasons were being put forward for the minimum term. Those submissions could have been persuasive. In those circumstances we consider that there was a risk of injustice in the Judge imposing a minimum term of imprisonment, without being invited to do so by the Crown and without giving Mr Fleming’s counsel, in the course of oral submissions, the opportunity to address the point.

[54]              It is, I think, implicit in these cases that the outcome on appeal would have been different if defence counsel had been given the opportunity to make oral submissions on the issue. The relevant principles are straightforward and, I am sure, well understood by the defence bar. And even if I were to accept that there might have been some relevant authority which (unlike the principles themselves) counsel would not have had at his fingertips at the hearing, that is a matter which can be addressed and corrected if necessary in a substantive appeal. So it is, accordingly, to that matter I now turn.

Did the imposition of an MPI render the sentence manifestly excessive?

[55]I have found this issue more finely balanced.

[56]              In the Court of Appeal’s decision in Nicholson v R (referred to at [92] of the Judge’s reasons, above) the appellant was convicted of three counts of sexual violation of his step daughter. He was sentenced to 10 years’ imprisonment with an MPI of four years and six months’ imprisonment.37 He had denied his offending for eighteen months before pleading guilty. He was assessed as genuinely remorseful, with insight into his offending, and motivated to rehabilitate himself. On appeal, the Court of Appeal quashed the MPI and in doing so, made some observations about the imposition of MPI in cases of sexual abuse:38

[19]  … First, as the Court has often said, each case must be considered on its own facts and by reference to the specified purposes. To recognise a class of case in which MPIs commonly result is not to say that they may be imposed routinely at sentencing. In a number of decisions an MPI has been found to be inappropriate (or too long) although the case involved sexual offending against children, and this may be so particularly where the offender has had good rehabilitative prospects. Second, the sentencing purposes in s 86(2) also appear in s 7. The court must consider them when setting the determinate sentence. Put another way, the court ordinarily assumes that the offender may serve the entire sentence, as the Parole Act 2002 allows, and if paroled will be subject to supervision and at risk of recall until the sentence expiry date.

…

[21] We prefer the view that an MPI was not required here. We accept that the offending is of a kind that demands denunciation and calls for general deterrence, but those purposes are built into the AM bands and in this case they are sufficiently met by the determinate sentence. There is no additional need for specific deterrence. Nor, given the appellant’s history and rehabilitative prospects, is there a need for additional community protection.

[57]              One obvious feature of the present case which distinguishes it from Nicholson is W’s continued denial of his offending and (consequently) Judge Rollo’s dim view of his present rehabilitative prospects.

[58]              But as Ms Scott submitted, there are other not dissimilar cases where an MPI was either not imposed or quashed on appeal.

37     Nicholson v R [2018] NZCA 352.

38     At [19] – [21].

[59]By way of example, at first instance:

(a)In R v S the defendant was found guilty of multiple rapes, assaults and threats to kill his wife. He was sentenced to 13 years and six months’ imprisonment. No MPI was imposed, with the Judge noting:39

A minimum term is only warranted if the sentence that I have imposed on you would be insufficient to hold you accountable, to denounce your conduct, or to protect others. The sentence that I have imposed on you is lengthy. It is deterrent in nature and effect and it denounces your offending emphatically. I do not consider that there is any need to impose a minimum term to protect the community.

(b)In R v Toru, the defendant was found guilty of 15 charges of sexual violation (by rape and unlawful sexual connection), indecent assault and kidnapping of his former partner. He was also found guilty of one count of attempting to pervert the course of justice and continued to deny his offending at sentencing. He was sentenced to 12 years and nine months’ imprisonment. The Crown sought an MPI. While noting that “offenders sentenced to this length of sentence would generally face a minimum period of imprisonment”, Dobson J declined to impose one saying:40

[34] [Defence counsel] has submitted that the necessary length of prison term renders [an MPI] unnecessary in your case, and I agree. This is another respect in which I can have some regard to the complainant’s wishes. If you demonstrate a commitment to rehabilitation, hopefully with the continued support of the complainant, and participate in whatever course may be available to you in prison, then there will not be a need to defer the first consideration of your entitlement to parole.

(c)In Booth v R the defendant was convicted of two counts of rape against his former partner and one count of assault against a different former partner. He was sentenced to 11 years and nine months’ imprisonment.

39     R v S HC Tauranga, CRI-2010-070-4081, 23 April 2012 at [43].

40     R v Toru [2018] NZHC 1598.

He continued to deny his offending at sentencing and no MPI was imposed.41

[60]And on appeal:

(a)In C(CA159/2018) v R the appellant was found guilty of multiple charges of sexual violation (by rape and unlawful sexual connection) and indecent assault against his step daughter following a jury trial. He continued to deny his offending after he was convicted. He was sentenced to 15 years and six months’ imprisonment with an eight year MPI. The MPI was quashed on appeal. Referring to Nicholson, the Court said:42

[40] [C’s counsel’s] submissions on the MPI are however cogent. As [she] noted, the R v AM bands have the principles of accountability, denunciation, deterrence and protection built in. While, as we have said, this is very serious offending, we do not consider the usual parole conditions are insufficient to meet those principles, bearing in mind that C will need to satisfy the Parole Board that he should be released at the earlier dates. We are also mindful that this is C’s first sentence for offending of this kind. His rehabilitation remains a primary consideration and should be encouraged, even though he presently denies the offending.

(b)In Ikinepule v R Mr Ikinepule was sentenced to nine years and six months’ imprisonment with an MPI of four years on one count of rape and one count of indecent assault of a child under the age of 12 years old.  In   imposing   the   MPI  the   sentencing   Judge   referred   to Mr Ikinepule’s criminal history and a Provision of Advice to Courts (PAC) report which opined that he had a propensity to resort to violence to get his own way and the Judge considered he posed a “high risk of harm to others”. The  Court  of Appeal  quashed  the  MPI  because Mr Ikinepule’s conviction history revealed only limited and historic offending and his criminal history “could not reasonably be taken to indicate a current propensity to resort to violence, let alone a propensity justifying imposition of a minimum period of imprisonment”.

41     Booth v R [2015] NZDC 1586.

42     C(CA159/2018) v R [2018] NZCA 628.

[61]              But while there may be similar cases where an MPI has not been thought appropriate, appellate intervention cannot be justified in the absence of an identified error in the Judge’s approach. And as to that, I do not accept Ms Scott’s submission that the Judge’s statement at [92] is indicative of any mistaken premise as to the qualifying/index offending. The Judge later makes it clear that it was the rape charges which gave rise to the MPI; the point made at [92] was simply that an MPI is more routinely imposed where the index offending is against children.43 That was not the case here.44

[62]              On the face of the Judge’s sentencing notes, it seems the Judge considered that an MPI was warranted because:

(a)W had taken no responsibility whatsoever for the offending;

(b)if W were granted parole after serving one third of his sentence he would not have been hold sufficiently accountable for the harm done to the complainants and the community; and

(c)an MPI was also necessary adequately to denounce, deter and to protect the community because the index offending was very serious offending of a sexual nature and the lesser sexual offending against C was both indicative of the “climate of violence” that facilitated the offending, and an “illustration of further violence inherent in the act of rape”.

[63]              I respectfully confess I find these reasons more conclusory than persuasive. I acknowledge the Judge had good reason for taking a jaundiced view of W’s probity and character and (so) of his rehabilitative prospects at the time of sentencing.45 But the reality is that he has no prior convictions for offending of this kind and his rehabilitative potential has not yet been tested. And while I also acknowledge that his

43 See for example Harris v R [2012] NZCA 525 and R v A [2018] NZHC 2024.

44 Moreover, although the offending giving rise to the MPI was against an adult, as Ms Irwin submitted, the lesser sexual offending against C and, indeed, the whole “offending narrative” was not an irrelevant consideration. The Court of Appeal has made that clear in Tereroa v R [2015] NZCA 120 at [52].

45 I refer in particular to that part of the Judge’s conviction reasons in which he addresses some particularly nasty, racist and abusive posts on social media by W about TL and her family, and about TL’s lawyer in the Family Court (all of which were put to W at trial).

present offending was certainly serious, it is not (regrettably) unusually or exceptionally so and it is difficult to see why the purposes of denunciation and deterrence which are built into the R v AM bands are not met by the quite significant determinate sentence imposed here. And lastly, as W’s counsel submitted at trial, the almost certain reality is that W will not be released after serving one third of his sentence unless he is able to exhibit remorse and demonstrate his rehabilitative prospects. In light of the absence of any relevant criminal history I think he should be given both the opportunity and the incentive to work towards those goals sooner rather than later.

[64]              For these reasons I have concluded that the Judge erred in imposing an MPI here and that it rendered W’s sentence manifestly excessive.

Result

[65]The appeal against conviction is dismissed.

[66]              The appeal against sentence is allowed and the six and a half year MPI is quashed. No minimum period is substituted.

[67]              I record that W owes Ms Scott and Mr Campbell a debt of gratitude for the careful and coherent way in which they advanced his appeals.

Name suppression

[68]              W, TL, C and L already have either automatic statutory name suppression or permanent ordered name suppression.46 I make a further order under s 202 of the CPA suppressing P’s identity as a person connected with the proceedings who, if identified, could lead to the identification of other persons whose names are suppressed by order or law (namely W, TL, C and L).47

Rebecca Ellis J

46     Criminal Procedure Act, ss 200 and 203 – 204.

47     Sections 202(1)(c) and (2)(d).