Wright v Police

[2020] NZHC 3515

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-62

[2020] NZHC 3515

BETWEEN

GARY WRIGHT

Appellant

AND

NZ POLICE

Respondent

Hearing:	7 December 2020
Appearances:	C Horsley for the Appellant O M Salt for NZ Police
Judgment:	22 December 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 22 December 2020 at 3.30 pm Registrar/Deputy Registrar

Date:

WRIGHT v NZ POLICE [2020] NZHC 3515 [22 December 2020]

[1]   Gary Wright has appealed his conviction and sentence on one charge of doing an indecent act within view of a public place.1

[1]    Mr Wright was convicted by Judge Cameron following a judge alone trial in the District Court at Tauranga. Mr Wright was subsequently sentenced to four months’ community detention, nine months’ supervision and ordered to make an emotional harm payment in the sum of $500.2

[2]    Mr Wright argues that Judge Cameron did not properly consider all the evidence, and that if it had been he could not have been found guilty. In the event his conviction is upheld, Mr Wright argues the sentence imposed was manifestly excessive given his age, previous good record and the relative seriousness of the offending.

The conviction

[3]    The Crown alleged that on 9  April  2019,  at  the  Waihi  beach  township, Mr Wright, whilst seated in a motor vehicle, exposed his penis to the 15 year old complainant, E.

[4]Judge Cameron summarised E’s evidence as follows:

(a)On the afternoon of 9 April she and her friend, T, got off the bus outside the Waihi dairy and waited nearby to be picked up.3

(b)While waiting, E noticed an elderly male, Mr Wright, seated in a truck- like car directly opposite where they were standing. They were separated only by the distance of the footpath between them and the vehicle.

(c)The man smiled and E said she looked at him for about 20-30 seconds before she realised “what he was doing”. She noticed that he kept

1      R v Wright [2020] NZDC 791 (“conviction decision”).

2      Police v Wright [2020] NZDC 13845 (“sentencing decision”).

3 Conviction decision at [3].

looking down at himself, and it was then that she saw the top of his penis. In her evidence E was clear that she could not see his hands or whether his pants were pulled up or down, but she inferred he was ‘playing’ with his penis or masturbating.

(d)After noticing this the girls moved away from the vehicle to a bench located directly outside the dairy and situated at the rear of the vehicle. They were soon thereafter picked up by T’s mother.

[5]    Judge Cameron stated that T “gave evidence broadly consistent with [E’s] evidence but stated that she did not see what the man was doing”.4

[6]    Mr Wright did not give evidence at trial but had previously undertaken an evidential video interview with Police following the incident. In that interview he stated he had arrived at the Waihi dairy around 3:15 or 3:20, brought an ice-cream and returned to his vehicle to eat it. He said he had seen T and E but had not interacted with them. He denied exposing his penis and by way of explanation said they may have observed him wiping his trousers after dropping ice-cream. Mr Wright also said that he was unable to obtain an erection so could not have been masturbating or exposing his penis that day.5 He said he was parked outside the diary for a period of 15 to 20 minutes.

[7]    As Judge Cameron noted, CCTV footage disclosed that Mr Wright entered the dairy at 2:59 pm and exited soon after at 3:02 pm and returned to his vehicle. At  3:29 pm the girls’ bus arrived and between 3:31 and 3:39 the girls were in the vicinity of Mr Wright’s vehicle. Mr Wright drove away at 3:43, one minute after the girls had been picked up.6 Accordingly, he was parked outside the dairy for around 40 minutes; much longer than he had reported.

[8]    As a result Judge Cameron rejected Mr Wright’s statements contained in his Police video interview.7 His Honour noted the discrepancies between Mr Wright’s

4 At [4].

5 At [5].

6      At [6] and [7].

7 At [9].

evidence and the CCTV footage,8 and that Mr Wright “had no explanation for why he remained outside the dairy, seated in his car, for so long” or why he left the “scene only one minute after the girls left in the car”.9 Judge Cameron noted that the absence of reasonable explanations lent “considerable weight to E’s  evidence as to what   [Mr Wright] was doing”, and suggested that Mr Wright’s departure so soon after that of the girls’ was “more than just coincidence”.

[9]    On the other hand, Judge Cameron accepted that what E told the Court was “truthful and accurate”, and was of the view that the inconsistencies in her evidence did not undermine her credibility.10 E had told Police she could see Mr Wright playing with himself once she had walked away from the vehicle and was standing near the bench, however, it was clear she could not have seen what Mr Wright was doing from that position. Judge Cameron acknowledged that E “had no real explanation” for this inconsistency, but that she remained clear she had seen Mr Wright’s penis when standing closer to the vehicle, and this was supported by T’s evidence that once they had moved away, toward the bench, E wanted to go back to double check what she had seen.11   Judge Cameron concluded that although E could not have seen what    Mr Wright was doing once she moved away, she had seen what he was doing when she was near the vehicle.

[10]   Judge Cameron noted a further concern with the E’s evidence, namely that she had stated the defendant was playing with himself or masturbating himself, but at all times was unable to see his hands. However, his Honour was “satisfied on the evidence that the complainant, having seen the top of the defendant’s penis, then made an assumption that he was masturbating himself, and [it was] in that way the inaccuracy in her previous statements arose”.12 This also did not undermine E’s credibility as her evidence was otherwise “clear and concise and consistent with all the other evidence except the defendant’s video interview”.13

8 At [8].

9 At [8].

10     At [10] and [12].

11 At [10].

12 At [11].

13     At 12].

[11]   After accepting E’s evidence and rejecting that of Mr Wright, Judge Cameron found that Mr Wright’s actions staring at the complainant, smiling at her and looking down at himself while his penis was exposed had been done for the purpose of being seen by E. His Honour was satisfied beyond reasonable doubt that such an action would be regarded as indecent by right thinking members of the community and that Mr Wright had intended to commit an indecent act when he did this and that it was done within view of a public place.14 Accordingly, Judge Cameron found Mr Wright guilty.

The appeal against conviction

[12]   Mr Horsley, on behalf of Mr Wright, submitted Judge Cameron erred in two respects. First, in his submission, Judge Cameron implicitly placed an evidential onus on Mr Wright when his Honour  commented  that  the  alleged  inconsistencies  in Mr Wright’s interview and the CCTV footage coupled with his “absence of reasonable explanations for his conduct” lent considerable weight to E’s evidence. Mr Horsley submits that if Judge Cameron rejected Mr Wright’s evidence, he was required to put it to one side rather than rely on it to assist the prosecution in proving its case.

[13]   Secondly, Mr Horsley submitted that Judge Cameron erred by failing to address what exactly E saw and whether there was sufficient evidence to establish beyond a reasonable doubt that Mr Wright was playing with or masturbating himself. Mr Horsley noted that Judge Cameron was clear that E could not have seen what   Mr Wright was doing when she moved to standing behind the vehicle.  However,  Mr Horsley, with reference to the girls’ evidence, states that even when standing by the vehicle both E and T could only see Mr Wright from mid-chest upwards, and thus could not have seen his penis. In addition, Mr Horsley notes that Judge Cameron failed to address E’s admission that she could have been mistaken about what she saw. In sum, he submits there was an insufficient evidential foundation to find Mr Wright was either playing with or masturbating his penis.

[14]   Mr Horsley submits that as a result of these two alleged errors there has been a miscarriage of justice and the conviction should be quashed.

14 At [12].

Discussion

[15]   Section 229(1) of the Criminal Procedure Act 2011 (CPA) allows a person to appeal against their conviction to the High Court.15 Section 232 of the CPA sets out that an appeal against conviction must be allowed if, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason. In any other case the appeal will be dismissed.

[16]There are two key issues with the conviction appeal:

(a)whether Judge Cameron reversed the onus of proof; and

(b)whether there was sufficient evidence to establish to elements of the charge.

[17]   On the first issue I do not find Judge Cameron to have reversed the onus of proof. The passage relied on by Mr Horsley – that the “absence of reasonable explanations for his conduct lends considerable weight to E’s evidence” – if viewed in the context of the remainder of Judge Cameron’s comments, does not illustrate any wrongful reversal of the onus of proof. In the paragraphs that precede this statement, Judge Cameron noted the inconsistencies between Mr Wright’s evidential interview and the CCTV footage, and that Mr Wright had offered no explanation for why he remained seated in the car for so long or why he left only one minute after the girls left, and it is directly after this statement that Judge Cameron rejects the explanation of Mr Wright. It is in this context that the statement arises. The statement therefore did not reverse the onus of proof, it was merely a note that Mr Wright’s account did not give rise to any reasonable alternative narrative, leaving only the narrative offered by E and T. In the absence of a plausible explanation offered by Mr Wright (noting that the same issues were in fact put to Mr Wright directly in his evidential interview), Judge Cameron then turned to address the prosecution case to examine whether E and T’s evidence satisfied him the charge was proven. He then found the charge proven beyond a reasonable doubt. I can find no error in this methodology.

15     Criminal Procedure Act 2011, s 230(b).

[18]   I also do not find Judge Cameron to have erred in his assessment of the evidence relating to what E and T saw as submitted by Mr Horsley, who contends that from these statements it is clear that neither of the girls could have seen Mr Wright’s penis. In her evidence E confirmed that when standing near the vehicle she saw the top of Mr Wright’s penis. She was clear that she did not see his hands, his waist, or if his pants were pulled down. When cross-examined about how much of Mr Wright she could see, she answered, “I don’t know, his arm upwards”, whilst pointing to the bend of her elbow. Counsel then read into the record: “You’ve indicated about, well your elbow, the bend of your elbow, so from half way up his chest upwards?”, to which E responded “yep”. In contrast, in her evidence T said that she could see Mr Wright’s shoulders, and probably from his mid-chest upwards. T was clear from the outset that she had never seen Mr Wright’s penis.

[19]   In the absence of questioning around the exact position of Mr Wright’s body, how he was sitting, and at what angle E may have been looking in through the window, there is no basis to conclude that E could not have seen the top of Mr Wright’s penis from her vantage point. Furthermore, it is clear from E’s evidence that her focus was on Mr Wright’s penis and it does not follow that any inaccuracy of recollection on the amount of the rest of Mr Wright’s body she could see reduces the credibility of her evidence overall.

[20]   Any suggestion that E got confused in cross-examination about how much of Mr Wright’s body she could see must be seen in this light. For example, at the end of cross-examination, and in response to the question of whether she could “be mistaken about what [she] saw”, E answered, “I don’t know. Yes and no”. Mr Horsley then put the defence theory to E, that Mr Wright had been wiping up ice-cream, and E clearly responded, “well I didn’t see any ice-cream, I didn’t see him wiping himself, I seen the top of his penis…”. In re-examination she describes that the incident has shaken her and reasserts that she could see Mr Wright’s penis.

[21]   It is likewise not possible to conclude that as T did not see Mr Wright’s penis, then neither could E. It is clear for example from the CCTV footage available, while not comprehensive, shows that at approximately the time E was adamant she could see Mr Wright’s penis and before the girls moved to the back of the vehicle, she was

considerably closer to Mr Wright’s vehicle than T who remained consistently against the wall of the shop.   It was also entirely possible that T simply did not notice      Mr Wright’s penis, even if she had been in a position to see it.

[22]   Taking these matters together and on the evidence before the Court, I consider it was open to Judge Cameron to find E’s evidence credible. E was consistent in asserting that she saw Mr Wright’s penis and it was for Judge Cameron, who was in the best position to make assessments of the way the witnesses’ presented, to determine whether her evidence on that matter was credible. It is not appropriate for me to upset that credibility assessment on appeal. Having accepted E’s evidence, Judge Cameron had a sufficient basis to find the charge proved. I note here that there was no need to find Mr Wright had been playing with or masturbating his penis, as was argued by Mr Horsley.  It was enough, as was found by  Judge Cameron, that  Mr Wright exposed his penis for the purpose of it being seen by the complainant, and that the remaining elements were also made out, namely that such an action would be regarded as indecent by right thinking members of the community, that Mr Wright had intended to commit an indecent act, and that when he did this it was done within view of a public place

[23]   Accordingly, I do not find Judge Cameron to have erred, and the appeal against conviction must be dismissed.

[24]I move now to address the appeal against sentence.

The sentence

[25]   In sentencing Mr Wright Judge Cameron did not calculate a starting point, rather he listed a range of factors he considered, namely, that the defendant was 79 years of age and only had one previous conviction, that he continued to deny his offending, and that on account of this denial it made it difficult to assess the risk he posed.16 Judge Cameron went on to say:17

[Mr Wright] needs to be held accountable for his actions. I need to denounce them and also he needs to be deterred from like behaviour in the future. I will

16 Sentencing decision at [4].

17 At [5].

deal with this by way of a combination of supervision, community detention and an emotional harm repayment. Community detention will be imposed as it constitutes an essential punitive element to the sentencing.

[26]   Judge Cameron proceeded to sentence Mr Wright to nine months’ supervision and four months’ community detention. He also ordered Mr Wright to pay reparations totalling $500.

The sentence appeal

[27]   Mr Wright’s appeal against sentence is governed by the Criminal Procedure Act 2011 (“CPA”). Section 250(2) provides that this Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed, and a different sentence should be imposed. In any other case, the Court must dismiss his appeal.18 The measure of error that must be shown, is that the sentence is “manifestly excessive”.19 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[28]   Mr Horsley submits that the sentence imposed by Judge Cameron was manifestly excessive. Given Mr Wright’s good character, the fact he is a first time offender and the minor nature of the offending, he submits the sentence of community detention was unnecessarily punitive and inconsistent with the principle that the court should impose the least restrictive outcome available. Mr Horsley refers to Marszolek v Police20 where a fine was imposed for similar offending, and to Burrows v Police21 where emotional reparation was ordered for offending of a much more serious nature, to support the submission that the end sentence in this case was manifestly excessive.

[29]   Conversely Mr Salt, in submitting the sentence was appropriate, has referred to the decision of the Court of Appeal in Hosking v R22 in which a starting point of 12 months’ imprisonment had been imposed.

18     Section 250(3).

19     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27].

20     Marszolek v Police [2015] NZHC 2858.

21     Burrows v Police [2014] NZHC 2594.

22     Hosking v R [2012] NZCA 460.

Discussion

[30]   I am satisfied the appeal against sentence should be allowed. It is quite clear that Hosking involved much more serious offending and indeed the 12 month starting point imposed by the Court of Appeal, effectively covered no less than five convictions.23 Although Judge Cameron commenced his sentencing notes by suggesting that in convicting Mr Wright the Court had found a degree of pre- meditation, that Mr Wright had “sat in a motor vehicle outside a dairy for the purpose of awaiting the return of a school bus”,24 that was however not apparent from the conviction decision. On the contrary, Mr Wright has no history of relevant offending. He was in fact just about to turn 80 at the date of sentence, and with only one historical conviction for a minor driving offence, he otherwise has a long history of good character. The offending was relatively minor in nature and there is otherwise no indication that Mr Wright poses a risk of further offending. In the circumstances, I do not see the sentence of community detention as necessary to achieve any of the principles or purposes of the Sentencing Act. With regard to these factors and the cases relied on by Mr Horsley, I am of the view that a sentence of community detention was manifestly excessive, and instead conclude the sentence of supervision by itself is sufficiently satisfactory to deter any future offending and otherwise to ensure     Mr Wright is monitored to avoid any future offending.

Conclusion

[31]The appeal against conviction is dismissed.

[32]   The appeal against sentence is allowed in part and the sentence of four months’ community detention is quashed. The other components of the sentence are confirmed.

23 Hosking involved an appellant who was convicted of seven counts of doing an indecent act in a public place. The more serious of those charges attracted a starting point of 15 months imprisonment and a starting point of 12 months’ imprisonment was deemed appropriate for the remaining five charges. There can be no comparison between that case and the current offending.

24 At [1].

Powell J