The Queen v Hibberd [2001] NZCA 29; [2001] 2 NZLR 211; (2001) 19 CRNZ 15 (22 February 2001)

Last Updated: 14 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA387/00

THE QUEEN

V

NIGEL GREIG HIBBERD

Hearing:	15 February 2001
Coram:	Richardson P Blanchard J McGrath J
Appearances:	J H Wiles for Appellant J C Pike for Crown
Judgment:	22 February 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

Introduction

[1] Nigel Greig Hibberd has been convicted of 32 offences of sexual misconduct with boys between the ages of 12 and 16. His appeal against conviction raises two separate questions relating to time-bars. In addition he appeals against his effective sentence of eight years imprisonment.
[2] The greater number of the charges (which we will call “prior offences”) related to offending prior to the amendments to the Crimes Act 1961 effected by the Homosexual Law Reform Act 1986 – to a period beginning in 1975 and ending in 1981. The appellant was convicted in respect of 24 charges of indecent assault, two charges of inducing an indecent act and two of sodomy. There were five complainants.
[3] The sodomy convictions were for offending in 1975 and 1979, charged under the former s142(1)(b). They both related to the same complainant. The argument has been made that the 1986 Act prevented any prosecution for that offending because it was not commenced within one year after the commission of each act of sodomy. It was argued that s7(2) of the 1986 Act gave the appellant the benefit of the one year time-bar in s142 (as enacted in 1986).
[4] There were in addition four convictions for offending with a sixth complainant between 1 May and 30 September 1993. All were for indecent assault, charged under s140A(1)(a). Two related to the performance of anal sex. The argument made was that the time-bar on a prosecution for anal intercourse under s142 (as enacted in 1986) of 12 months from the commission of the act must also prevent a prosecution after such a period for an indecent assault which consisted only of touching connected with the act of anal intercourse.

Retrospective effect of 1986 amendments

[5] It was submitted for the appellant that the 1986 amendments to the Crimes Act were intended by Parliament to have retrospective effect and that, implicitly, a time-bar of twelve months from the date of the occurrence must have been intended to apply to acts of sodomy. In other words, the same bar was to apply as in the case of such acts (now called anal intercourse) after 1986. Such a bar had long been applicable to consensual intercourse between a man and a girl between the ages of 12 and 16 (s134(7)).
[6] The amending legislation did not expressly enact a retrospective time-bar. But on behalf of the appellant it was argued that, on human rights grounds, it was proper for Parliament to have done so and that it is implicit in s7 of the Homosexual Law Reform Act:

7. Past offences – (1) No person shall be liable to be convicted of an offence against any of sections 140, 141, or 142 of the principal Act committed before the commencement of this Act if the act that constituted the offence does not constitute an offence after the commencement of this Act.

(2) Subject to subsection (1) of this section, where, before the commencement of this Act, any person has been charged with any offence against section 140 or section 141 or section 142 of the principal Act, the proceedings in respect of the charge shall continue as if this Act had not been passed, except that –

(a) Where the person is charged with an offence against section 141 of the principal Act and the charge relates to a boy of or over the age of 12 years and under the age of 15 years, he shall be entitled to raise any defence that he would have been entitled to raise if the charge had been brought under section 140A of the principal Act (as substituted by section 3 of this Act); and
(b) Where the person is charged with an offence against section 142 of the principal Act, he shall be entitled to raise any defence that he would have been entitled to raise if the charge had been brought under section 142 of the principal Act (as substituted by section 5 of this Act).
[7] Our first response to this argument is that a failure to give retrospective effect to the reforms does not offend against any human rights norms, including anything in the New Zealand Bill of Rights Act 1990. Mr Wiles was unable to point to any guaranteed right which would be breached by the absence of retrospectivity. When committed before the commencement date of the reforms, the act of sodomy was a crime which could be prosecuted at any future time. Provided a fair trial was still possible, which was not an issue here, there could be no unfairness in proceeding to prosecute more than 12 months after the event. Offending in 1975 and 1979 could have been the subject of a prosecution for a number of years prior to the reforms. Any failure to provide in the reforms for what would amount to an amnesty is not, as Mr Wiles asserted, the equivalent of the retrospective imposition of a penalty.
[8] Mr Wiles submitted, alternatively, that s7(2) indicates a Parliamentary intent that the legislation is in this respect to have retrospective application. We do not so read it. Section 7(1) indicates that in respect of acts occurring before the commencement of the reform legislation, a conviction cannot afterwards occur if what has previously been an offence would not be an offence after that date. Whereas before 1986 homosexual acts between males of all ages were proscribed as criminal behaviour, the substituted sections of the Crimes Act, generally corresponding to existing provisions concerning sexual acts between male and female, are directed only to sexual activity involving an underage person (that is, under 16). Therefore no one could be convicted after the commencement of the reform legislation of a prior offence performed on a consenting male aged 16 or above.
[9] Subsection(2) deals with the possibility that, on the commencement of the amending legislation, a man might be awaiting trial on a charge involving a consensual sexual act with another male. It would have been inconsistent to continue with such a prosecution without affording to that person the defences now made available by the reforms. The subsection prevented this. It was Mr Wiles’ argument that the time-bar now appearing in the new ss140A(6) and 142(8) is a “defence”. Subsection (2) says that, in the case of a charge under the old ss141 and 142, the defendant is entitled to raise any defence that he would have been entitled to raise if the charge had brought under the new sections.
[10] Notwithstanding the obvious omission from the 1986 Act of a general time-bar which, if intended, can hardly have been overlooked, such an argument might have been plausible if the new sections had not themselves introduced any new defences i.e. defences not to be found in the old ss141 and 142. But that is not the case. Sections 140A and 142 provide for special defences where the person charged is under 21 or is younger than the boy. Those defences did not appear in the old sections. In our view, it is these defences which subsection (2) extends to those charged in respect of prior offences.
[11] Nor would it be correct in this context to classify a time-bar as a “defence”. The time-bar provisions prohibit the commencement of a prosecution (“no person shall be prosecuted”). Any such purported prosecution is a complete nullity. The time-bar therefore does more than merely provide a defence.
[12] So when subs(2) speaks of a “defence”, it is not to be read as extending the time-bars in the amending legislation to offences committed before that legislation came into force.
[13] This ground of appeal is misconceived and fails.

Extent of time-bar relating to act of intercourse

[14] The second ground of appeal against conviction relates to two charges only (counts 38 and 43) concerning events in 1993 charged under s140A(1)(a), as introduced in 1986. Section 140A provided:

140A Indecency With Boy Between 12 And 16

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, being a male,—

(a) Indecently assaults any boy of or over the age of 12 years and under the age of 16 years; or

(b) Does any indecent act with or upon any such boy; or

(c) Induces or permits any such boy to do any indecent act with or upon him.

(2) It is a defence to a charge under this section if the person charged proves that the boy consented and that he is younger than the boy:

Provided that proof of the said facts shall not be a defence if it is proved that such consent was obtained by a false and fraudulent representation as to the nature and quality of the act.

(3) It is a defence to a charge under this section if the person charged proves that the boy consented, that he was under the age of 21 years at the time of the commission of the act, and that he had reasonable cause to believe, and did believe, that the boy was of or over the age of 16 years:

Provided that proof of the said facts shall not be a defence if it is proved that the consent was obtained by a false and fraudulent representation as to the nature and quality of the act.

(4) Except as provided in this section, it is no defence to a charge under this section that the boy consented, or that the person charged believed that the boy was of or over the age of 16 years.

(5) The boy shall not be charged as a party to an offence committed upon or with him against this section.

(6) No one shall be prosecuted for any offence against this section, except under paragraph (a) of subsection (1) thereof, unless the prosecution is commenced within 12 months from the time the offence was committed.

[15] At the same time Parliament also enacted s142:

142 Anal Intercourse

(1) Every one commits an offence who commits an act of anal intercourse on any person—

(a) Who is under the age of 16 years; or

(b) Who is severely subnormal, and the person committing the act knows or has good reason to believe that the person upon whom the act is committed is severely subnormal.

(2) For the purposes of subsection (1)(b) of this section, a person is severely subnormal if that person is mentally subnormal, within the meaning of the Mental Health Act 1969, to the extent that the person is incapable of living an independent life or of guarding himself or herself against serious exploitation or common physical dangers.

(3) Every one who commits an offence against this section is liable to imprisonment,—

(a) In any case where the person upon whom the act was committed was, at the time of the commission of the act, under the age of 12 years, for a term not exceeding 14 years; or

(b) In any other case, for a term not exceeding 7 years.

(4) An offence against this section is complete upon penetration.

(5) The person upon whom the act of anal intercourse is committed shall not be charged with being a party to the offence.

(6) Subject to subsection (9) of this section, it is a defence to a charge under subsection (1)(a) of this section if the person charged proves that the person upon whom the act of anal intercourse was committed consented and that he is younger than that person:

Provided that proof of the said facts shall not be a defence if it is proved that such consent was obtained by a false and fraudulent representation as to the nature and quality of the act.

(7) Subject to subsection (9) of this section, it is a defence to a charge under subsection (1)(a) of this section if the person charged proves that the person upon whom the act of anal intercourse was committed consented, that the person charged was under the age of 21 years at the time of the commission of the act, and that he had reasonable cause to believe, and did believe, that the person upon whom the act was committed was of or over the age of 16 years:

Provided that proof of the said facts shall not be a defence if it is proved that the consent was obtained by a false and fraudulent representation as to the nature and quality of the act.

(8) Subject to subsection (9) of this section, no one shall be prosecuted for any offence against this section unless the prosecution is commenced within 12 months from the time when the offence was committed.

(9) The provisions of subsections (6), (7), and (8) of this section shall not apply where the person upon whom the act of anal intercourse was committed was under the age of 12 years at the time of the commission of the act.

(10) Except as provided in this section, it is no defence to a charge under this section that the person upon whom the act of anal intercourse was committed consented, or that the person charged believed that the person was of or over the age of 16 years.

[16] It is apparent that although s140A(1)(a) uses the term “indecent assault”, any indecent touching, even with the consent of the boy, is included (see subs(4)). There is no separate offence for a true assault (a touching without consent) on a boy of between 12 and 16 in circumstances of indecency. It is possibly for this reason that s140(A)(6) contains an exception for charges under subs(1)(a). Oddly enough, however, the time-bar does apply to a charge under subs(1)(b), which also appears to extend to non-consensual acts.
[17] Section 140A and 142 brought the law relating to indecencies falling short of sexual violation performed on a boy into line with those pertaining to such offending on an underage girl. Compare s134, [sexual intercourse or indecency with girl between 12 and 16], where subs(7) contains the same exception to the time-bar for an indecent assault. Note also s138 [sexual intercourse with severely subnormal woman or girl] where strangely there is no time-bar, whereas there is one in s142 which, because it uses the term “person” for the complainant, is also available for offending on a severely subnormal woman or girl.
[18] The argument made by Mr Wiles is that Parliament can never have intended, in placing a 12 month time-bar on prosecutions for anal intercourse, to permit a prosecution after that time for an indecent assault restricted to the very same act. He noted that the jury had acquitted Mr Hibberd of sexual violation by unlawful sexual connection (s128(1)(b)) in respect of both acts of anal intercourse, presumably because it was not proved to the requisite standard that the activities were non-consensual.
[19] Mr Wiles relied in support of his submission on a decision of this Court which long ante-dated the 1986 reforms, R v Blight (1903) 22 NZLR 837. In that case, by a majority of four to two, this Court overturned a conviction for indecent assault on a female under s188 of the Criminal Code Act 1893. That section provided that in the case of a female under 16 it was no defence that she had consented to the act of indecency. Section 196 of the same Act made it an offence to have or attempt to have carnal knowledge of a girl of or above 12 and under the age of 16, but provided that no prosecution should be commenced more than one month after the commission of the offence.
[20] The prosecution of the indecent assault did not commence until after the birth of a child to the complainant. Williams J, in one of the majority judgments, observed that s196 created two offences, carnal knowledge and attempted carnal knowledge. He said that before the carnal connection was complete there must have been the attempt. Everything the accused did was therefore an offence under the section. The indecent assault was not a step towards the attempt, but was the attempt itself. (It seems to us that the fact that an attempt is now governed by s72 does not provide a valid basis for distinguishing the case. A defence or time-bar applicable to the offence will also apply to an attempt to commit it.)
[21] Williams J then reasoned as follows:

Apart from section 196, the act of the accused would have come within the definition of an indecent assault under section 188. But section 196 takes this particular set of facts, makes them a separate crime, and provides that a prosecution shall not be instituted in respect of them unless within a limited period. It seems to me that the effect of this is to exclude the offences created by section 196 from the operation of section 188, and that if the facts show that a man has committed an offence under section 196 he must be prosecuted under that section. If the facts showed that he had committed an offence under that section, and had also committed an indecent assault under section 188 which did not amount to an offence under section 196, then the time limit would possibly not extend to such latter offence. But if the facts amount to an offence under section 196 and to nothing more, then the prosecution is in substance a prosecution for an offence under that section. The offence consists in what the man did. If what the man did is an offence under section 196 the time limit, in my opinion, applies, unless it appears that he also committed an offence which was not an offence under that section. (pp846-7)

[22] Edwards J said that the offence which the jury had found to have been committed was one which necessarily included the offence under s188:

The acts which constitute the alleged indecent assault can be nothing but the laying hands upon the girl with intent to carnally know her; and this is nothing but an attempt to carnally know her, which is one of the offences mention in section 196. It appears to me, both upon reason and authority, that the prisoner cannot be so indicted. A prosecution in respect of the offence under section 196 is a prosecution in respect of an offence against society, not in respect of the name by which that offence is called in the statute book. Upon that prosecution the Legislature has, in my opinion, wisely imposed certain limits. It appears to me to be impossible to hold that, by the simple device of calling the offence of carnally knowing, or the offence of attempting to carnally know, a girl under the age of sixteen years the offence of an indecent assault upon her, the limitation imposed by section 196 can be evaded. (p854)

[23] The majority made clear that if there were indecent touchings which were separate from the act of intercourse, not being a step towards having intercourse, the time-bar would not affect the prosecution under s188 for those acts. This may of course be a difficult distinction to apply on the facts of a particular case.
[24] R v Blight has stated the law on this subject for nearly a century. The framers of ss140A and 142 can be expected to have had it in mind in 1986. Even if we were free to do so, we would not depart from it, for we agree with counsel for the appellant that Parliament is not to be taken to have intended to permit a prosecution for the touching involved in an act of anal intercourse when the time-bar would prevent the charging of the act itself or of the touching involved in acts which are immediately and proximately connected with the intended intercourse.
[25] Protection of underage persons from non-consensual touchings of this type is provided by the offences of sexual violation (s128) and attempt to commit sexual violation and assault with intent to commit sexual violation (s129). Mr Pike, for the Crown, sought to draw a distinction between consensual and non-consensual assaults, submitting that it will only be in the former case that there would be likely to be any abuse in allowing a prosecution under s140A(1)(a) to be brought after 12 months in relation to an act of anal intercourse. But, in that event, the Crown would certainly, as here, have brought the s140A charge as an alternative to a s128 or s129 charge. The course proposed by counsel would involve a Court in appearing to contradict a jury’s not guilty verdict on the more serious charge by allowing to stand a verdict of guilty of indecent assault if it considered that the assault was in fact non-consensual. We do not think that would be appropriate.
[26] For these reasons the appeal in relation to counts 38 and 43 succeeds and the convictions on those charges under ss140A(1)(a) are quashed.

Sentence appeal

[27] That leaves an appeal against the sentence of eight years imprisonment in relation to the remaining 30 charges where there were six underage complainant boys. In addition to the acts of sodomy with one complainant, there were acts of oral sex on or with boys, fondling of genitals, digital penetration and permitting an underage boy to have anal sex with the appellant, as well as other indecent touchings. Additionally, since the sentencing on those charges, Mr Hibberd has pleaded guilty to another charge involving an indecent assault, in 1981, by performing oral sex upon a seventh boy under the age of 16. In respect of that matter he was sentenced to a concurrent three year term.
[28] We note that at the original sentencing the Judge, being conscious of the point to be raised in relation to counts 38 and 43, said that there was a serious question whether those counts were able to be brought and that he dealt with them “inclusively in respect of all other matters so that you will not be disadvantaged by that aspect”. It therefore appears that the Judge added nothing to the sentence specifically for that offending.
[29] Notwithstanding the careful submissions of Mr Wiles, we are far from persuaded that an eight year sentence was excessive given the scale and variety of the offending, the length of time over which it originally occurred, the resumption of offending in comparatively recent years, the breaches of trust (some victims were relatives) and the absence of guilty pleas for many of the charges necessitating the giving of evidence by five of the complainants. In saying this we have allowed for the fact that the general level of sentencing for this kind of offending was rather lower in the period covered by the prior offences than it has become in more recent years.
[30] Mr Wiles referred us to a number of sentencing decisions of this Court where lower sentences were involved but none of them appears to have reached the seriousness of this case. The closest was R v Darke (CA255/88, 20 April 1989) where an appeal against a sentence of seven years imprisonment failed, save for the imposition of a condition. But that appellant had pleaded guilty to all charges. Although they included some in relation to boys younger than those affected by Mr Hibberd’s activities, the number of complainants in the present case is larger and, as we have observed, most of them had to give evidence.

Result

[31] Save for the quashing of the convictions on counts 38 and 43, the appeals against conviction are dismissed, as is the appeal against sentence.

Solicitors
Crown Law Office, Wellington