R v Toto [2001] NZCA 427 (26 November 2001)

Last Updated: 13 November 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

CA160/01

THE QUEEN

V

TAMA TOTO

Hearing:	20 November 2001
Coram:	McGrath J Fisher J Baragwanath J
Appearances:	F Hogan for the Appellant S P France for the Crown
Judgment:	26 November 2001

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1] The appellant was found guilty, following a jury trial in the District Court, on charges of burglary and sexual violation by rape. On the burglary charge the appellant was sentenced to 5 years imprisonment and on the sexual violation charge to 14 years imprisonment the terms of imprisonment to be served concurrently.

Background facts

[2] On 29 March 2000 the complainant attended a party at a friend’s home. Sometime after midnight friends drove the complainant, who was in a highly intoxicated state, back to her home. There was a conflict in the evidence concerning what happened after she was dropped off before she entered her home. The appellant gave evidence at his trial and said that he had encountered the complainant at that time. He had shaken her hand and hugged her, whereupon the complainant had asked him if he had any beers. The appellant said he was then told by his cousin to return to the cousin’s home where he was staying which was next door. He told the complainant he did not have any beers and he would see her later. He said that the complainant smiled and walked into her house.
[3] The complainant in her evidence said she had no recollection of encountering the appellant outside her home and did not accept that there had been an encounter at all. She acknowledged however that others were more sober than she was at the time. The appellant’s cousin gave evidence and said that the appellant was outside sitting in a car when the complainant arrived home. He said that he saw the appellant get out of the car, walk over to the complainant and have “a bit of a cuddle” with her, which she reciprocated. He then encouraged the appellant to come back inside his house which the appellant did.
[4] Having made her way inside the complainant said she went to sleep on a mattress in the lounge of her home. She gave evidence that at some time during the night she woke up and, in her semi conscious state, realised somebody was playing with her and that she felt something sticky on her leg. She went back to sleep but later woke up again because something heavy was on her and she couldn’t breathe. She realised a man was lying on top of and having sexual intercourse with her. She remonstrated with the man and he took off. She lost consciousness again for a short period, then got up, got dressed and went into her daughter’s room and told her what had happened. By this time, according to her daughter, it was after 3 am. The complainant, believing she knew who the man involved, was then went next door and confronted the appellant over what had happened accusing him of raping her while she was asleep. The appellant denied the allegation.
[5] The appellant, in his evidence however, accepted that sexual intercourse had taken place between him and the complainant. His version of the circumstances was that on his return to his cousin’s house he went to sleep, but awoke near daylight and remembered he had to take some beers to the complainant. He did so entering the house through the unlocked front door. He located the complainant in the house and woke her up. They talked, he was encouraged to remain, and after an extensive period of preliminary sexual contact consensual sexual intercourse took place between them. The appellant denied that this had taken place while she was in a drunken stupor. The complainant, he said was awake, fully participating, and consented to sexual intercourse.
[6] The appellant was charged with the rape of the complainant and burglary of her home. The defence to the rape charge was that the complainant had consented to sexual intercourse or alternatively that he had believed on reasonable grounds at the time sexual intercourse took place that the complainant’s consent had been given. These defences were rejected by the jury which, as indicated, convicted the appellant on both counts.

Grounds of appeal

[7] The appellant has appealed against his conviction and sentence on the following grounds:

• (a) That the Judge was wrong in fact and law in his directions to the jury on the issue of the complainant’s capacity to consent.
• (b) In his summing up the Judge failed to adequately put the defence case to the jury.
• (c) That the sentence imposed was manifestly excessive.

Appeal against conviction

[8] In the course of his summing up the trial judge referred to the alternative defences of consent and honest belief in consent on several occasions. For example he referred to the honest belief defence in the course of explaining to the jury that the giving of evidence by the appellant did not shift the onus of proof from the prosecution. He said that if the appellant’s evidence of his honest belief were accepted by the jury, or if it created a reasonable doubt in their minds as to the appellant’s honest belief, that would be a complete answer to the sexual violation count. Later in his address the Judge reiterated that both parties were agreed that the central issues were whether intercourse had occurred with consent or, alternatively, whether the accused believed on reasonable grounds consent had been given by the complainant. He spelt out the essential elements of the sexual violation charge, dealing separately with the need for the Crown to prove that penetration occurred without consent on the one hand, and without a belief, based on reasonable grounds, that the complainant had consented on the other.
[9] In the most comprehensive discussion of consent in the course of his summing up the transcript records the judge as saying:

Rape is not necessarily sexual intercourse by force, it is penetration without consent and with a belief on reasonable grounds that there was consent. Consent in this context means consent given by a women who is able to understand the significance of what is to happen and who is able to make an informed and rational decision as to whether she will consent or not. Any consent must be a freely given one. The fact that a women does not protest or physically resist is not of itself to be taken as consent. Consent may be conveyed by words, by conduct, or a combination of both.

A factual issue that may arise from my directions which you may need to address is, was (the complainant) capable of giving consent because you have heard here the stress on her state of being “off her face”. If the complainant is unaware, for example if she is asleep or so drunk that she cannot make a rational decision, she cannot consent. The issue for you is to decide factually whether as to sleep and the effects of alcohol, consider those features and decide whether or not she was capable of giving consent.

As well as proving that the act was done without the complainant’s consent, the Crown must prove that the accused did not believe on reasonable grounds that the complainant did consent. That is, the Crown has to satisfy you beyond reasonable doubt that he did not believe she was consenting or even if he did believe that she was, that there were not reasonable grounds for that belief. The material time when consent is to be considered is at the time the act actually took place. The complainant’s behaviour.... and attitude, before, or after the act itself may be relevant to that issue but it is not decisive of it. The real point is whether there was true consent or a reasonably based belief and consent at the time of the act itself.

[10] Later in response to an expression of concern by Mr Hogan, who appeared for the respondent at the trial as well as in this Court, the judge added:

Consent given when a person under the influence of alcohol may nevertheless be a valid consent, and this has particular significance for the accused’s belief.

[11] Mr Hogan, on behalf of the appellant, submitted in this court that the jury should have been directed, when considering the defence of reasonable belief as to consent, to focus on the state of mind of the appellant. That question, he said, was not concerned with the capacity or capability of the complainant to give consent on which a full direction had been given in relation to the first of the consent defences. Having told the jury, however, that: “if the complainant is unaware, for example if she is asleep or so drunk that she cannot make a rational decision, she cannot consent” he should have gone on to say such a finding would not avoid the need for the jury to separately consider the question of the appellant’s reasonable belief at the time.
[12] For the Crown Mr France argued that the original direction to the jury was sufficiently clear on both consent defences, and the redirection given after the expression of concern by defence counsel, made it absolutely clear that a drunken consent could still be a consent. The Crown also submitted that throughout the summing up the Judge had made it clear that there were three separate elements to be considered in the offence of sexual violation by rape. The judge’s instructions did not run those elements, which included the two consent defences, together.
[13] We first address a concern expressed by Mr Hogan over the appearance in the transcript of the summing up of the conjunctive ‘and’ in the final sentence of the extract quoted in paragraph [9] above. Read on its own this aspect of the summing up might suggest the jury had been told that in order to found the second consent defence a reasonable belief as to consent had to exist in conjunction with an actual consent. We are however satisfied that, in a judgment which has been satisfactorily constructed in its articulation of the legal elements of the separate consent defences, the word ‘and’ has been substituted for ‘in’ as a result of a simple transcription error. Mr Hogan realistically accepted he was unable to exclude that possibility. In our view it is plain the phrase concerned should read:

The real point is whether there was true consent or a reasonably based belief in consent at the time of the act itself.

Only if so read is it consistent with the several other references in the summing up to the distinct nature of the defence of reasonable belief in consent.

[14] Where Mr Hogan in our view is on stronger ground in his criticism of the summing up is in relation to the lack of any factual content in the judge’s discussion of the two consent defences. His Honour’s very general discussion of the defence case towards the end of his summing up did not address the context in which the issues of consent and reasonable belief arose at all. We acknowledge the force of Mr France’s submission that, in a trial of relatively short duration, it will often be adequate for the judge simply to treat what counsel say concerning the facts as sufficient for the jury. In this case in which there was a factual dispute over the extent of the complainant’s intoxication during the act of sexual intercourse we would have preferred to see both the defence and the Crown’s cases on the facts put in specific terms by the judge to the jury. That was not done.
[15] Having made that point we accept, as Mr France also submitted, that the factual circumstances in this case were not complex. This, coupled with the judge’s accurate discussion of the legal elements of the charge, which included a clear differentiation and explanation of the two consent defences, has satisfied us there is no real cause for concern that the jury misunderstood the tests that had to be applied. We are accordingly satisfied the jury would have understood that the factual issue of whether the complainant was, due to her state, unable to make a rational decision to consent to intercourse was distinct from the issue of whether the appellant reasonably believed she was consenting. It is relevant here that the appellant’s own evidence in support of his assertion he had that reasonable belief was premised on his description of the complainant’s active conscious and consensual participation in preliminary sexual activity, as well as the act of sexual intercourse itself.
[16] For these reasons the absence of factual content in the course of the judge’s address to the jury does not cause us any concern that the verdict is unreliable and we accordingly dismiss the appeal against conviction.

Sentence

[17] Sexual violation by rape with a home invasion element carries a maximum term of imprisonment of 25 years. The sentencing Judge was referred to R v Accused (1999) 17 CRNZ 190 where this Court fixed a starting point of 11 years imprisonment for a contested rape with a home invasion element. Further aggravating features and any mitigating features then had to be taken into account. In the present case there was no basis for a discount to reflect a guilty plea nor was any remorse demonstrated by the appellant which could be considered.
[18] The Judge saw as separate aggravating features of the appellant’s case that he knew of the complainant’s state and had acted opportunistically in that situation both in entering her home and in committing the rape. He considered these features warranted an additional three years imprisonment in addition to the 11 year term for a rape involving a home invasion. Accordingly he sentenced the appellant to 14 years imprisonment.
[19] Mr Hogan submitted that if the conviction appeal failed the crime was not one appropriately characterised as a home invasion. He emphasised the appellant’s mental ill-health and his view that the complainant wanted some beer. The offending should be seen, he argued, as having been committed after the appellant had simply wandered next door and entered the house through the front door. There was no violence additional to that inherent in the act of rape, and no sound factual basis for the judge to add a further three years for ‘aggravating features’ to bring the total sentence to 14 years.
[20] For the Crown Mr France submitted that there was no evidence that the appellant’s mental health affected his culpability or that it should impact on the sentence. In particular there was no evidence of a causal connection between the offending and the appellant’s mental illness. In any event in this case issues of public safety would off-set any mitigation. Mr France did however acknowledge that while taking advantage of someone’s inability to protect themselves was often seen as an aggravating feature there was a question whether the factors that the judge identified warranted an additional 3 years imprisonment on top of the starting point of 11 years in cases involving a home invasion element.
[21] It is plain that the jury’s verdict indicates that the testimony of the complainant, in relation to the circumstances in which sexual intercourse took place, was believed and that of the appellant was disbelieved. It is not however clear whether the jury accepted that there had been an encounter of the kind described by the appellant and his cousin as the complainant was returning to her house. It would be entirely consistent with the guilty verdicts on both the rape and the burglary counts if the jury had accepted that the appellant had spoken to the complainant after she was dropped off and given her a hug. Unfortunately we are not assisted by the impressions of the judge on the evidence concerning that question. The appeal in this respect demonstrates the importance of the trial judge making and recording findings of fact on matters relevant to sentencing where they are not inherent or apparent in a jury’s verdicts. In this case, in favour of the appellant, we are prepared to accept that there was an encounter of the kind he described. There is no basis however in the evidence for any inference to be drawn that the appellant was given the right to enter the complainant’s house at any stage during the evening. The judge’s conclusion that this was a home invasion case in our view was inescapable and the judge’s decision, based on this Court’s decision in R v Accused, that the starting point in sentencing for the rape conviction should be eleven years was sound.
[22] We do not however agree with the judge that this was a case demonstrating further aggravating features over and above those inherent in the grave crime of rape in the course of a home invasion. The appellant’s opportunistic conduct in entering her home and raping her while she was in an alcoholic stupor was, as the judge rightly said a mean and despicable act, but we consider the criminality of that conduct is encompassed by the Parliamentary direction to add an extra penalty for committing the offence in the course of home invasion. It follows that the three years extra imprisonment involved a double counting of aggravating facts. We consider the correct sentence was one of 11 years imprisonment.
[23] A feature of special concern in this case is the prisoner’s mental health and the danger he will inevitably present to society on his release from prison unless this is addressed while he is serving his sentence. The psychiatric reports indicate that the Mason Clinic is willing to endeavour to follow him up through its prison liaison clinic, possibly transferring him at some point to hospital for future treatment. Further inpatient psychiatric care may be required before his release. With these suggestions in mind we direct that the Department of Corrections take such steps in relation to treatment of the appellant’s mental condition during his period of imprisonment as are necessary to give the public protection on his release.

Conclusion

[24] The appeal against conviction is dismissed. The appeal against sentence is allowed and a sentence of 11 years imprisonment substituted for that of 14 years imposed by the District Court.

Solicitors
Crown Law Office, Wellington