NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985. IN THE COURT OF APPEAL OF NEW ZEALAND CA142/07 [2007] NZCA 424 THE QUEEN v GEORGE DARREN CANT Hearing: 18 September 2007 Court: Counsel: Judgment: O'Regan, Potter and Keane JJ S Bailey for Appellant B J Horsley for Crown 28 September 2007 at 11 am JUDGMENT OF THE COURT The appeal against conviction and sentence is dismissed. REASONS OF THE COURT (Given by Keane J) R V GEORGE DARREN CANT CA CA142/07 [28 September 2007]
[1] On 23 January 2007, at trial in the District Court, at Christchurch, George Cant was convicted of three sexual offences on 20 21 November 2001 against Mrs X, a woman whom he had known for some two years - assault with intent to commit sexual violation, sexual violation by unlawful sexual connection (digital penetration), and indecent assault. On 20 March 2007 he was sentenced in the High Court, at Christchurch, to preventive detention with a non-parole period of six years. [2] Mr Cant appeals his conviction on the single ground that the trial Judge, Judge G S MacAskill, allowed counsel for the Crown to elicit from the complainant, when re-examining her, evidence that was inherently prejudicial: that at the time of the offending alleged Mr Cant might also have offended sexually against others. That evidence of propensity, he contends, might well have convinced the jury that he had committed the offences charged. [3] Mr Cant appeals his sentence contending that the sentencing Judge, John Hansen J, did not consider sufficiently whether a finite sentence would be adequate to protect the community. Had a finite sentence been imposed, Mr Cant says, he would have had to complete a Kia Marama program and that would have reduced any likelihood that he would have offended sexually again. The Judge failed also to take into account that he was then subject to an extended supervision order. Issue at trial [4] At trial the issue was not whether there had on 20 21 November 2001 been in some sense the intimacies Mrs X described. The issue was whether on 20 November Mr Cant assaulted her to violate her and violated her, and whether on 21 November he indecently assaulted her. Everything that happened between them over those two days, it was his case, Mrs X invited; and the background against which that had to be resolved was singular. [5] The jury was made aware that as at 20-21 November Mr Cant, who had been staying with Mrs X, her husband and their four children, for almost a month, in a caravan on their property, was a sentenced prisoner on parole. The immediate issue was whether Mrs X and her husband, both pastors of a local church that they had
founded, had, as they said, invited Mr Cant to stay out of pastoral concern, or whether, as Mr Cant said, this came about because while he was in prison he and Mrs X had already formed a relationship. [6] Mr Cant and Mrs X had met in 1999, the jury was told, while he was serving the sentence in respect of which he was granted parole, that she was then a prison visitor and that she, and sometimes her husband, had continued to visit him. The sentence he was then serving was withheld from the jury. It was a sentence of nine years and nine months, imposed in January 1997 for aggravated robbery, burglary, escape from custody, common assault, and lesser offences. [7] Mr Cant s defence did not rest there. He put in issue why Mrs X delayed in complaining as long as she did. Mrs X did tell her husband on 20 November 2001 that Mr Cant had assaulted her sexually. She did not say more. She did not tell him of what happened the next day. She delayed telling him completely what had happened until early February 2003. She did not complain to the police until 16 October 2003; and then, Mr Cant contended, she was trying to explain their relationship away. [8] A closely related issue for the jury was why, when Mr Cant returned to custody on 26 November 2001, and not as a result of any complaint by Mrs X, she continued to visit him over the next year or so, sometimes with her husband but not always. Mr Cant called two witnesses to say that she was affectionate; to say that she took Mr Cant s hand, she put her arm around his neck, she cuddled him and even sat on his knee. [9] Mrs X denied ever showing such manifest signs of affection. She denied ever feeling more than sympathy for Mr Cant, and after November 2001, she said, she felt in some sense accountable. She thought Mr Cant had wilfully misunderstood her and manipulated her. She also thought him highly vulnerable. When he returned to prison he attempted suicide three times. She could not exclude the possibility that, unwittingly, she may in some sense have contributed.
[10] The jury clearly found Mrs X worthy of belief but on this appeal, it is contended, must have been influenced in its verdict by an illegitimate consideration. [11] The jury was not told, nor could it have been allowed any inkling of, why on 26 November 2001 Mr Cant returned to custody that he had, while staying with Mrs X and her husband, on 17 November indecently assaulted a boy aged over 12 and on 25 November three other boys and a girl, all aged under 12. Nor could the jury be told, nor was it, that on 13 June 2002, having admitted these offences immediately, Mr Cant was sentenced to two years and three months imprisonment. [12] Equally, the jury was not told, nor could it be, that when at large in late 2003 and early 2004 Mr Cant committed, and admitted to, two burglaries and some lesser offences for which on 11 May 2004 he was sentenced to three years imprisonment; a sentence he was still serving at the time of his trial. [13] It is Mr Cant s case that when Mrs X was re-examined and disclosed that others had complained he had offended against them, she tipped the jury off. She did not name the children, or describe the harm they had suffered, or disclose that he had admitted the offending and been sentenced. The jury could only have inferred, however, that what was complained of was offending sexual in character and could well have inferred that it accounted for Mr Cant s return to custody. Almost certainly, the jury must have concluded that he had a propensity to offend sexually. Disclosure inconsequential and remedied [14] We do not consider that this ground of appeal has substance. The disclosure came out in evidence inadvertently. It was included in an answer to a question entirely open to counsel for the Crown. It was brief and oblique and the Judge dealt with it more than adequately in his summing up. [15] In advancing this point Mr Cant assumes that, when she was re-examined, Mrs X disclosed the children s complaints in answer to a question to which his then counsel had objected prospectively. That is not so. The question his counsel feared might carry that risk was as to why on 24 November 2001, when the officer
investigating the children s complaints spoke to her, Mrs X denied that she herself had suffered any physical or sexual assault; a theme pursued when she was cross-examined. [16] The Judge seemingly allowed that question to be put but may well have directed that it be carefully circumscribed. Certainly Mrs X was circumspect in her answer. This was the exchange: Q. You were asked by my friend yesterday about being specifically asked by a police officer, I think it was on the 24 th of November, whether Mr Cant had either physically or sexually assaulted you. A. Mm. Q. And I think you d answered that no. Immediately prior to that what had happened to you personally? A. Just before he had asked me that, earlier that day I had been physically assaulted and um it was only five or six days after what had happened with George so I was very, very traumatised and um yeah. [17] The disclosure came in answer to the next question that counsel for the Crown asked, one as to which no issue had been raised and which he was obliged to ask why Mrs X had continued to visit Mr Cant in prison. And the answer she gave could not have been anticipated. This was the crucial exchange: Q. I want to move on because my friend asked you about your ongoing contact with Mr Cant after he went back to jail. A. Mm. Q. Was there a specific reason why both you and your husband had initially ongoing contact with Mr Cant. A. There were a number of different reasons for me um one of the reasons was, well for me, I suppose for me the greatest reason was that he was suicidal and I couldn t cope with that. I think my husband would have said look, you know, it doesn t matter we ll you know um break contact anyway but um he had also offended against someone in our oh sorry, made an allegation um I shouldn t have put that out um of offending. There was an allegation of offending against someone in our church um and ah um I think my husband felt that we it would be helpful for us to continue to contact in that sense. I also had a because I d put out years ago that I would also be George s friend I had this sort of misplaced loyalty um that I would go through anything, whatever the cost, because I d
made that commitment and um it was all things yeah I had to reassess. [18] Mrs X seems to have made the disclosure almost inadvertently. Immediately she began, she said that she should not have. She was quick to say that she was not speaking of offending, but of complaints, and she did not say of what sort. She immediately reverted to the point of the question why she and her husband continued to support Mr Cant. [19] The Judge dealt with any risk of prejudice to Mr Cant arising from this disclosure when he instructed the jury that the fact that Mr Cant had been in prison before and after the offending was relevant only to context, not whether he had committed the offence. The Judge tied in the disclosure in passing. He said: You have heard evidence that the accused has been in prison and that his association with the complainant began when he was in prison and continued while he was in prison. There was also mention of the fact that there was an allegation against him by a member of the complainant s church. [20] Then, the Judge told the jury, they would not normally have heard that Mr Cant was a sentenced prisoner, because of the prejudice this entailed. He explained that they had to know of this. Otherwise they would not have begun to understand the case. That, he said, was its sole significance. In passing, once again, he gathered in the disclosure. With our interpolation, he said: you must be very careful not to allow this evidence [the evidence described in para [19] above] to weigh unfairly against the accused. The evidence is not relevant to the question whether the accused committed the offences alleged. You must not assume that because he has spent time in jail and that someone has made an allegation against him that this suggests that he is or might be guilty of the offences now charged or that he is the sort of person likely to commit crimes of the type charged. Except to the extent that the evidence explains the background to the relationship between the accused and the complainant provides context to the events that happened, therefore, you must ignore it. [21] Mr Cant accepts that this direction met any prejudice to him inherent in the jury learning, as it had to to understand his defence, that he was a sentenced prisoner. It did not, he contends, meet the prejudice to him resulting from Mrs X s disclosure. The Judge should instead have directed the jury, quite distinctly, that they ought to have ignored that disclosure altogether. We cannot agree.
[22] The Judge strongly directed the jury to treat the evidence in both categories as going only to context, not guilt, and otherwise to ignore it and that is all that he could have said about the disclosure independently. Moreover, had he spoken of it independently, he would have highlighted it and that carried a risk of prejudice that did not otherwise exist. In mentioning it in passing, he invited the jury to do likewise. That can only have been to Mr Cant s benefit. Sentence appeal [23] On his appeal against sentence Mr Cant contends that in imposing preventive detention John Hansen J, the sentencing Judge, did not adequately consider, as s 87 of the Sentencing Act 2002 required, whether a finite sentence might equally well have served to protect the community, especially when coupled with the extended supervision order then in place. [24] John Hansen J did consider that question, however, and in the detail that s 87 requires. He identified the question at the outset and set it against each of the five factors in subs 4, including that in subs 4(e): The principle that a lengthy determinate sentence is preferable as this provides adequate protection for society. [25] As to that last consideration, John Hansen J was clear. Both assessors, he said, considered that there was a high risk that Mr Cant would offend seriously in the future, violently as well as sexually. Mr Cant s most recent offending, he held, so reflective of his past offending, made that prospect almost inevitable. A finite sentence, even combined with an extended supervision order, he concluded, could not begin to be adequate. [26] In this John Hansen J relied especially on a passage from the psychiatric assessment, which fairly states also the best case for a finite sentence: Overall, the historical and situational risk factors support the view that the defendant poses a comparatively high risk of further violent or sexual offending in the following context: the absence of further treatment regarding his sexual arousal patterns; persistent emotional regulation difficulties; access to vulnerable victims; access to alcohol and/or illicit
substances; inadequate social network; persistence of antisocial tendencies; inadequate external supervision. If he does offend again, potential victims of sexual offences including both male and female adults and children, who are vulnerable because of their age or accessibility. Potential victims of violence will include members of the public in the context of acquisitive offending. In my clinical view, the chronicity, severity, and persistence of his personality difficulties (underpinned by significant developmental trauma) which are characterised by lifelong instability, strongly suggest that in terms of future risk management, the defendant would benefit from a strong emphasis being placed in the provision of adequate external constraints and supervision. [27] Having reviewed the assessments ourselves against Mr Cant s history of past offending, and the offences for which he was for sentence, we are satisfied that there was no error in John Hansen J s approach and we agree with his conclusions. [28] We should be clear that John Hansen J did not deny Mr Cant the opportunity to complete a Kia Marama program. At most he set back that opportunity, indeed necessity, a little later than would be the case had he imposed a finite sentence in the vicinity of six years or more. But that is a peripheral consideration. [29] What John Hansen J had to decide, in the public interest, was whether, if a finite sentence were imposed, Mr Cant was likely to offend on his release date in a serious way either sexually or violently. Whether a Kia Marama program, to which Mr Cant had proved more receptive on a second attempt, before Mrs X made her complaint, was likely to reduce the risk of further sexual offending neither assessor was able to predict. But that apart, both assessors were equally concerned about Mr Cant s propensity to offend seriously in a violent way. [30] When he was young and in care Mr Cant suffered, and was clearly very damaged by, sexual abuse. The effect on his life has been profound and he has become a risk to the community. As the assessments say, Mr Cant fears abandonment and rejection, he cannot cope with anger and fear, he blames others, he resorts to substances and he can be violent. [31] This is reflected in his offending. Amongst his many convictions, Mr Cant has 44 convictions for burglary, 37 at night, and a not insignificant number for assault, for possession of weapons and for threatening to kill or do grievous bodily harm. The risk to the community inherent in this pattern of offending alone must
continue to be high. His propensity to offend sexually, though more recent, must continue to remain equally concerning. Result [32] Mr Cant s appeal against his conviction is dismissed, as is his appeal against his sentence. Solicitors: Crown Law Office, Wellington