ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 140 CRIMINAL JUSTICE ACT 1985. NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985. IN THE COURT OF APPEAL OF NEW ZEALAND CA477/2014 [2015] NZCA 394 BETWEEN AND R (CA477/2014) Appellant THE QUEEN Respondent Hearing: 21 May 2015 Court: Counsel: Judgment: French, Heath and Mallon JJ G H Allan for Appellant M A Corlett for Respondent 26 August 2015 at 2.30 pm JUDGMENT OF THE COURT A The appeal against conviction is dismissed. B The appeal against sentence is allowed. The sentence of 15 years imprisonment for the rape charge is quashed and replaced with a sentence of 12 years imprisonment. The other sentences are confirmed. The effective end sentence is 14 years imprisonment. C Order prohibiting publication of appellant s name, address and occupation under s 140 of the Criminal Justice Act 1985. R (CA477/2014) v R [2015] NZCA 394 [26 August 2015]
REASONS OF THE COURT (Given by Heath J) Introduction [1] R was tried in the Wellington District Court before Judge Tompkins and a jury on 18 charges alleging physical and sexual assaults on members of his immediate family. The jury returned guilty verdicts on seven of those charges. [2] The charges on which R was found guilty were one representative charge of rape, four of indecent assault on a girl under the age of 12 years, one of indecent assault and one of assault with intent to injure. Judge Tompkins imposed a sentence of 17 years imprisonment. 1 No minimum non-parole period was imposed. [3] R appeals against his convictions and sentence. The conviction appeal is brought on the basis impermissible propensity evidence was admitted that had an unfairly prejudicial effect. In support of the sentence appeal, it is submitted the starting point of 15 years taken in respect of the rape charge by Judge Tompkins was manifestly excessive. Background [4] The Crown alleged R had physically and sexually abused his former wife D, his three daughters T, K and A, and had also physically ill-treated his intellectually disabled son N. The offending was alleged to have spanned a lengthy period between 1988 and 2006. R and D separated in 2007. [5] At trial, the dynamics of R s family interactions played an important part, the Crown case being that the offending occurred in the context of a dysfunctional family. Judge Tompkins described the dysfunction in his sentencing notes as the combination of anger, effective domination and control and psychological abuse, 1 R v [R] DC Wellington CRI-2011-032-3813, 5 August 2014 [Sentencing notes] at [24].
[amounting to] a domestic reign of terror [by R over his] wife and their children. 2 It is the contextual evidence of this domination, control and abuse that R submits had an unfairly prejudicial effect on the trial. [6] R was convicted of a representative count of raping D, and of assaulting her with intent to injure. He was convicted of five counts of indecent assault against A. He was acquitted of the alleged offending against T, K and N. [7] A table showing the charges, the period during which the offences were allegedly committed, the victim and each verdict is set out below: Charge Time of offending Victim Verdict 1. Assault with a weapon 1 January 1988 1 January 1990 T Not Guilty 2. Indecent under 12 2 October 1988 2 October 1990 T Not Guilty 3. Indecent under 16 2 October 1990 2 October 1994 T Not Guilty 4. Indecent under 16 2 October 1990 2 October 1994 T Not Guilty 5. Indecent assault 2 October 1994 2 October 1996 T Not Guilty 2 Sentencing notes, above n 1, at [2].
6. Assault with a weapon 1 January 1992 31 December 1992 K Not Guilty 7. Indecent under 16 2 October 1990 2 October 1994 T Not Guilty 8. Indecent assault 2 October 1994 2 October 1996 T Not Guilty 9. Indecent under 12 2 October 1993 2 October 1996 A Guilty 10. Indecent under 12 2 October 1993 2 October 1996 A Guilty 11. Indecent under 12 2 October 1993 2 October 1996 A Guilty 12. Indecent under 12 2 October 1993 2 October 1996 A Guilty 13. Assault with intent to injure 1 January 1994 31 December 1999 D Guilty
14. Wilful illtreatment of child under 16 1 January 1994 31 December 2002 N Not Guilty 15. Rape 1 January 1999 31 December 2005 D Guilty 16. Assault with intent to commit sexual violation 1 January 2006 31 December 2006 D Not Guilty 17. Indecent assault 1 January 2006 31 January 2006 D Not Guilty 18. Indecent assault 1 January 2006 31 December 2006 A Guilty Conviction appeal Pre-trial decision [8] Much of the evidence challenged on appeal was admitted as a result of a pre-trial decision of this Court. 3 In its decision, the Court quashed an order made in the District Court for severance of the single charge of wilful ill-treatment of N. 4 [9] At the pre-trial appeal, the Crown submitted it was a cornerstone of the Crown case that R had exercised control and dominion over the family for a prolonged period of time and that by sheer force of his personality had coerced family members to do things against their will and inhibited them from disclosing the abuse to others. 3 4 R v R (CA459/2013) [2013] NZCA 433. R v [R] DC Wellington CRI-2011-032-3813, 24 June 2013.
[10] When explaining the background to the alleged offending in some detail, this Court said: 5 [4] The charges arise out of complaints made by [D], T and another daughter, A. [D] says that from early in their marriage her husband was violent and sexually abusive towards her. She says he was a controlling and demanding man who sought to dictate how the household was run and the way family members lived their lives. She alleges that he controlled the family finances and would not let her learn to drive. T and A say he decided when dinner would take place and which members of the family could eat together. He attempted to dictate who they could associate with, constantly checked up on them and followed them to school, sports games, friends houses and social gatherings. Any challenge to his authority was met with verbal abuse and physical violence. [5] A says [R] kept a stick on top of the fridge and whenever the children were naughty, he would beat them with it. [6] There are seven counts alleging indecent assaults of T. The first in time, when T was nine or 10, allegedly occurred when T was in the shower. Her father opened the shower door, yelling at her to get out, then stroked her nipples. T says that when she was a teenager her father began to touch her breasts and, on one occasion, pushed her onto the bed, put his body between her legs and began rubbing himself up and down. She says that on [another occasion] when she was on the bed, he unzipped her jeans and put his hand down her pants. [7] There are five counts of indecently assaulting A. A says that her father started coming into her bedroom when she was nine or 10, pressing himself against her and touching her all over her body, including her breasts and genitalia. These incidents would occur late at night when everyone was asleep. A says he became more and more aggressive and would try to pull off her pyjama pants and underwear. He would touch himself and rub his erect penis against her A says that her father was still making sexual overtures to her when she was in her twenties. The final count in the indictment alleges that while A was doing the dishes, [R] came up behind her and rubbed his erect penis against her. [8] Three of the counts charge [R] with sexual abuse of his wife. There is a representative count that he raped her over a seven year period. [D] says that from the beginning, her husband demanded sex whenever he wanted it and would hit her and abuse her if she demurred. In the later years of their marriage, after their youngest child was born, she began to resist him but he would force himself on her at least two or three times a week. 6 [9] T and A both say they heard the sound of their mother being raped, her crying out in protest and their father saying, you re my wife, you ll do 5 6 R v R (CA459/2013), above n 3. References to evidence not subsequently led at trial have been omitted. It was not suggested on appeal that the evidence omitted would have justified the trial Judge not following the pre-trial ruling. In her evidence at trial, D stated sex she did not want to have would happen almost every day, interspersed with occasions in which she agreed to have sex with R to keep the peace.
as I say. 7 On one occasion A says she fought her father to stop him raping her mother. He responded that it was her mother s role as his wife to fuck him whenever he wanted. 8 [10] [R] and [D] s son, N, their fourth child, was born in 1987. At a young age he had surgery for a heart condition. As a result of medical misadventure, he suffered a serious permanent brain injury. He is severely disabled, with the mental age of a two-year-old. [11] T and A say that [R] would lock N in his car, with the seatbelt on, for hours at a time, sometimes all day. This happened when he took N to work with him and at home in the driveway. N would soil himself and, at times, became so frustrated that he bit his hands and arms, leaving gouge marks. A says [R] also punched and kicked N and, when he shouted, would hold his wrists and yell and scream at him. She says [R] would not allow N to sit in the dining room with them for dinner. [11] After reviewing the nature of the charges, this Court took the view it was necessary for contextual evidence of the way in which R interacted with his family to be adduced, so that the circumstances in which the offending allegedly occurred could be fully explained to the jury. 9 As regards the sexual offending, the Court concluded that evidence of Mr R s propensity to act and think in a dominating, violent and/or sexually abusive way was demonstrably of high probative value on the issue of whether or not the conduct occurred. 10 [12] The Court cited M (CA85/2013) v R, in which it was held that it would be artificial in the extreme to sever evidence of the appellant s violent conduct from his trial of sexual allegations. 11 Exclusion of such evidence would deny the jury the advantage of the full picture of the harsh domestic regime in the household of which the physical offending was a very real part. 12 [13] The pre-trial decision of this Court firmly established that evidence of the background of domination, violence and control would be relevant at trial. The charges brought against R were therefore always going to be considered against that 7 8 9 10 11 12 In her evidence at trial, A said she would wake up many nights to D screaming and crying and R yelling at her. She said R would not let D sleep. In her evidence at trial, A said R told her it s a woman s job to give the man whatever he wants. R v R (CA459/2013), above n 3, at [27]. At [23]. M (CA85/2013) v R [2013] NZCA 239 at [30], cited in R v R (CA459/2013), above n 3, at [28]. R v R (CA459/2013), above n 3, at [28].
backdrop. The underlying premise of control and domination continued to form the basis of the Crown case throughout the trial. Competing submissions on appeal [14] Mr Allan, for R, submitted the propensity evidence of violence, deplorable conduct and deplorable characteristics admitted for contextual purposes was unfairly prejudicial because the charges involving physical abuse alleged discrete instances that were neither serious nor protracted. As a result, Mr Allan contended the evidence supported a level of denigration of R that was not linked to any trial issue and could only have unfairly disposed the jury against him. [15] Mr Allan submitted that, because R had little choice but to give evidence, the Crown had the opportunity to cross-examine on collateral issues which became a focus of the Crown s closing address. The essence of Mr Allan s point was that the trial lost its way, resulting in a substantial miscarriage of justice. [16] Mr Corlett, for the Crown, resisted that attack on the jury s guilty verdicts. He submitted the fact of seven guilty and 11 not guilty verdicts demonstrated that the jury had been able to assess evidence relevant to individual charges. That type of dispassionate approach was, Mr Corlett submitted, antithetical to a trial ruled by prejudice and sympathy. He submitted no miscarriage of justice arose. The contextual evidence [17] The Crown elicited the contextual evidence at issue on the basis of this Court s pre-trial ruling. The trial Judge was obliged to apply that ruling in the absence of some change to the underlying facts that justified a different approach. [18] Trial counsel for the Crown opened to the jury on the basis R had over many years ruled his household by dominance, fear, intimidation and violence. The jury was told [w]hat [R] said went and there was no room for negotiation or discussion. R was described as a dictator who ruled both the household and the individuals within that household, and the Crown said it was by that dominance he was able to offend sexually against his wife and two of his daughters. Likewise, it
was said he was physically violent and intimidatory towards his wife and children, something that continued until his wife left him. [19] While somewhat stirring in the context of a Crown opening at trial, when counsel for R subsequently opened, he made no specific attempt to temper what had been said. Rather, his focus was on presenting the position R was to take in his defence. Counsel told the jury the account provided by the Crown was biased and one-sided against R. He described D as very short-tempered, emotional and prone to striking out at R. Counsel talked about a bitter separation involving a large amount of money, of family money, hundreds of thousands of dollars of ACC money paid in a trust for the boy. Reference was made to A being a prime instigator against R who influenced her sister, T, to give misleading and false accounts of what happened. Trial counsel for R also suggested accusations made by A, T and K were designed to discredit R in his bid to obtain day-to-day care of the 15 year old daughter, M. That proceeding had been before the Family Court for some years. [20] During the course of the trial, a number of statements were made by witnesses that can be seen, objectively, as no more than attempts to blacken R s character in a manner likely to cause prejudice to his defence. For example, evidence was given that R only took his family on holiday to [X country] to get his hands on his dead mother s money; he did not like New Zealanders; he was crazy and a psychopath ; he was not even fucking human ; he was a pervert and a child molester ; he never showered; he reeked ; his breath was horrible ; and he was a fucking animal. That is not dispassionate evidence about the family dynamics in issue. That type of evidence descends into an attempt to portray R as a monster who must have offended in the manner alleged by the Crown. [21] In the context of a trial in which the evidence spanned some six days, inflammatory comments of that character might not carry the weight that, with the benefit of hindsight, is now attributed to them. They must be considered in the context of an appeal in which there is no challenge to the convictions either on the grounds of inconsistent verdicts or inflammatory advocacy on behalf of the Crown.
[22] In our view, having regard to the earlier decision of this Court, much of the contextual evidence led, which necessarily covered the duration of the alleged offending (1 January 1988 until 31 December 2006) was properly admitted by the Judge. Those parts we have highlighted 13 do not appear to have been led deliberately. To a large extent, they were spontaneous and emotive utterances from witnesses who were asked questions of a much narrower nature. [23] The question is then whether the jury received sufficient judicial assistance to complete their evaluative task and whether the results of their deliberations demonstrate that they were able to avoid viewing R s defence in an unfairly prejudicial manner. [24] Judge Tompkins touched on two aspects of the evidence in question in his summing-up. No specific propensity direction was given, but the Judge did focus on the need to avoid prejudice and sympathy. In directing the jury on the need to consider the evidence dispassionately, he said: You must reach your verdicts solely on the evidence put before you in this Court so you must not speculate or guess about anything which has not been covered in the evidence that you have heard. Speculation and guesswork have no part of play in a criminal trial because the accused is entitled to be judged only on the evidence given in this courtroom during the trial and as I have said you must reach your verdicts uninfluenced by prejudice or sympathy so when you are considering the evidence, making decisions about factual matters and in the end reaching your verdicts, you should never allow a feeling of prejudice against somebody or indeed sympathy for somebody to influence your decision in any way. In a case such as this, this is particularly important given all the evidence you have heard as to the family s perhaps somewhat chaotic and difficult history, the very severe brain damage suffered by [N] and the impact that that had on the family and the kinds of conduct that is alleged by the Crown against the accused. You may well feel sympathy for or indeed prejudice against one or more family members you heard from as being involved in, responsible for or caught up in the events you heard described in evidence but you must put those feelings to one side. You must assess the evidence in a calm, dispassionate and above all a fair way, fair to the accused and fair to the community represented here by the Crown. [25] The question is whether Judge Tompkins went far enough in explaining the contextual nature of the evidence adduced, and the legitimate use to which it could 13 See above at [20].
be put. In addition, did he err in a material way in not directing the jury to ignore bad character evidence of the type to which we have referred? [26] Those questions must be judged by reference to the jury s verdicts. 14 It is clear from the way in which counsel for the Crown closed that the jury was being asked to accept everything that had been said by each of the complainants. For example, after referring to the evidence given by D, T and A, trial counsel for the Crown continued: Their evidence is central and crucial to the Crown case. It s important for you not to just consider what was said but also how each woman displayed their emotions and communicated to you. How they came across in Court. Demeanour. Reactions. The Crown says you should have no concerns about the reliability, credibility and most importantly honesty of these witnesses. They laid themselves bare and told us everything. The Crown asks you to acknowledge that. The Crown says to you that the violent and aggressive and controlling manner the accused used in that household enabled him to be the way he was. [27] Mr Allan submitted the fact the jury reached different verdicts did not support the proposition that they had ignored unfairly prejudicial evidence. He supported that submission by contending that evidence on charges on which not guilty verdicts were returned was weak and incapable of supporting a conviction. [28] We do not agree. In our view, it is plain the jury was able to separate illegitimate prejudicial evidence from contextual evidence explaining family dynamics. Guilty verdicts were returned in respect of alleged offending on A and D, but not in respect of the alleged conduct against T, K or N. Differing verdicts were returned in relation to conduct alleged against D. While found guilty on a charge of rape, R was found not guilty on charges of assault, indecent assault and assault with intent to commit sexual violation. [29] The jury s verdicts demonstrate that they approached their evaluative tasks in a nuanced and dispassionate way. If that were not the case, it is difficult to know how the jury could have reached not guilty verdicts on all the charges relating to T and reached differing conclusions on charges arising out of D s complaints. 14 Edmonds v R [2015] NZCA 152 at [32]; R v M (CA638/2008) [2009] NZCA 246 at [16].
[30] While it would have been better for the Judge to have gone further and explained to the jury in more explicit terms the purpose of the contextual evidence and the use to which it could be put, we do not consider the error is sufficiently serious to call into question the safety of the guilty verdicts. For that reason, the appeal against the convictions is dismissed. The sentence appeal [31] R v AM (CA27/2009) is the controlling authority on sentencing for serious sexual offending. 15 The representative charge of the rape of D was the lead charge for sentencing purposes. The Judge considered the rape justified a starting point of 15 years imprisonment, based on his classification of the offending as within band 3 of the guidance given for rape sentencing. That band provides a starting point of between 12 and 18 years imprisonment. 16 [32] In setting the starting point, Judge Tompkins said: 17 [19] In my view this offending, and in particular the rape offending, falls squarely within band 3 in R v AM. As noted, the charges reflect an extended period of criminal offending against his wife by the defendant in circumstances where he kept control of her and subsequently of his family, both by the offending itself and through other direct and indirect forms of control and domination. [20] The evidence given at trial by family members was eloquent as to the all pervasive atmosphere of fear and anger that dominated the household and which in a variety of different ways both blighted the childhood of the children growing up in the house and subsequently and severely detrimentally affected their adult lives. [21] In those circumstances the suggested starting point, as advocated for by the Crown, is in my view appropriate. The cumulative effect of the aggravating features identified by the Court of Appeal in R v AM make a 15 year starting point properly reflective of the offending in this case. [33] The Judge held there were no relevant mitigating factors. [34] The Judge concluded a cumulative sentence of two years imprisonment for the indecent assaults of A should be added to the sentence for rape. For the assault 15 16 17 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750. At [105]. Sentencing notes, above n 1.
of D with intent to injure he imposed a concurrent term of one year s imprisonment. The Judge took account of the need to impose a sentence reflecting the totality of the offending in reaching the view that the effective end sentence would be one of 17 years imprisonment. 18 He concluded there was no need for a minimum non-parole period to be imposed. 19 [35] On appeal, Mr Allan submitted the offending did not fall within band 3 of R v AM (CA27/2009). In particular, he contended the offending did not involve two of the aggravating factors identified in R v AM (CA27/2009) present to a high degree, or three or more to a moderate degree. Counsel submitted the key aggravating feature was the scale of the offending, and the available evidence was too vague to support a conclusion that the non-consensual sexual activity had occurred either often or frequently. [36] Putting to one side the single incidents of cruel, callous or violent episodes that fall within band 3, the Court explained band 3 in these terms: [105] This band will encompass offending accompanied by aggravating features at a, relatively speaking, serious level. Rape band three is appropriate for offending which involves two or more of the factors increasing culpability to a high degree, such as a particularly vulnerable victim and serious additional violence, or more than three of those factors to a moderate degree. [37] Judge Tompkins was entitled to accept on the basis of evidence led at trial that the rapes occurred often. We consider the scale of offending, involving multiple rapes over a number of years, and R s breach of trust towards his wife justifies a starting point at the lowest end of band 3, namely 12 years imprisonment. We consider the remaining convictions on sexual charges, involving gross breaches of trust towards his child, should be met by a cumulative sentence of two years. That is the same sentence imposed by Judge Tompkins in respect of that offending. Accumulating those sentences results in an effective end sentence of 14 years imprisonment, rather than the 17 years imposed. 18 19 At [22] [24]. At [25].
Result [38] The appeal against conviction is dismissed. [39] The appeal against sentence is allowed. The sentence of 15 years imprisonment for the rape charge is quashed and replaced with a sentence of 12 years imprisonment. The cumulative sentence of two years imprisonment for the indecent assault charges is confirmed. We confirm also the concurrent sentence of one year s imprisonment for the charge of assault with intent to injure. The effective end sentence is 14 years imprisonment. [40] To protect the identity of the complainants, we make an order prohibiting publication of the appellant s name, address and occupation under s 140 of the Criminal Justice Act 1985. Solicitors: Paino and Robinson, Upper Hutt for Appellant Crown Law Office, Wellington for Respondent