THE QUEEN v GRAHAM ASHLEY ROBERT PALMER [2001] NZCA 84 (8 March 2001)

PUBLICATION OF NAMES AND IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE court of appeal of new zealand

ca80/00

THE QUEEN

V

GRAHAM ASHLEY ROBERT PALMER

Hearing:	19 February 2001
Coram:	Gault J Robertson J Potter J
Appearances:	J L Cagney for Appellant P K Hamlin and E Barrett for Crown
Judgment:	8 March 2001

judgment of the court DELIVERED BY GAULT j

[1] After trial before Judge and jury in the High Court at Auckland the appellant was convicted on one representative charge of inducing an indecent act by a girl between the age of 12 and 16 years, two charges of sexual violation by unlawful sexual connection and one charge of doing an indecent act with intent to offend.He was acquitted on six further charges.

[2] The first three offences of which he was convicted involved the same complainant, a girl whom the Crown claimed the appellant befriended, supplied with alcohol and drugs and induced to stroke his penis until he ejaculated. The sexual violation offences involved the same complainant and were said to have been committed on the one occasion on 22 January 1999.He took her to a house in which he had been living until a short time before and there required her to suck his penis before subsequently penetrating her vagina with his finger.

[3] The fourth offence related to another girl or girls in whose presence the appellant was said to have masturbated and to have asked one of them to participate.

[4] Although convicted on 7 October 1999, the appellant was not sentenced until 7 April 2000.His appeal was filed promptly but there has been further delay in bringing it on for hearing.The sentence was preventive detention under s75 Criminal Justice Act 1985 and an order for reparation of $5,000.

[5] The appeal is against both conviction and sentence.

[6] Four grounds of appeal against conviction were advanced originally.At the hearing none of those grounds were pursued.Instead six different grounds were put forward which were said cumulatively to warrant concern for the safety of the verdicts.

The Background Facts

[7] The evidence at the trial was extensive but that directed to events on the evening of 22 January 1999 is most relevant to the appeal.The complainant originally told the police that she had been raped that evening by four men in a white car.She was not believed, and then complained of the events which she described in her evidence at the trial.She said that the appellant, whom she had known for some months by then, came to her home at about 8.30 to 8.45pm on the evening in question, a Friday.She said he came to uplift a battery re-charger for a cell phone he had earlier allowed her to use but had taken back.She said he took her to 52 Churchill Avenue, Manurewa where he had lived and worked and where she had visited him.There she said the acts of sexual violation occurred.In the course of this she said the appellant ejaculated on her "top".

[8] The complainant, in the presence of a police officer, made a telephone call to the appellant on 2 February 1999.The conversation was recorded.During the course of that conversation the appellant denied having even seen the complainant for eight months and, with respect to the suggestion of misconduct on "Friday week ago", after verifying which Friday she was referring to, asserted he had a "rock-solid alibi", though he did not say where he had been. The recording of this telephone discussion was admitted in evidence without objection from defence counsel (not Mr Cagney).

[9] The appellant was interviewed by the police some three weeks after the telephone call.When it was put to him that he had offended against the complainant on 22 January, he claimed that on that day he had been in police custody at Rotorua in the course of a trial.Later in the interview, when confronted with the fact that early in the evening of 22 January he had reported to the police at Takapuna as a condition of bail, he claimed to have been mistaken about the date of the trial in Rotorua and put forward another explanation that on 22 January he had worked until about 1.30am in the morning laying concrete at Albany.

[10] Later, after it became apparent that the deliveries of ready-mixed concrete to the site would not support the claim to have been still working in the evening, the appellant gave notice of another alibi.In the notice he claimed to have spent the night of 22-23 January at the home of a friend named Jim Parker at Mangere.

[11] The appellant's movements were the subject of a good deal of evidence at the trial and in particular there was evidence of his use of an eftpos card at various locations and of telephone call records during the critical period.

[12] Witnesses gave evidence of their observations of the appellant at material times.Others gave evidence of the appellant's access to, and the presence or absence of furnishings in, the Churchill Avenue house which the complainant described.

[13] A number of Crown witnesses gave evidence of having received letters written by the appellant from prison prior to trial.Some of these were capable of being construed as attempts to deter the witnesses from giving evidence, others as seeking to influence them to give in their evidence a version of events more favourable to the appellant.

[14] On 13 July 1999, the appellant had undergone a coronary artery by-pass graft operation.Because of this the trial originally scheduled to commence on 30 August 1999 was deferred until 27 September 1999.Before empanelling the jury the Judge saw counsel and directed that the appellant be informed that if, because of his health, he should need a break at any time that would be arranged immediately.We were told no request was made during the trial.

Ground One

[15] The first ground of appeal is that trial counsel for the appellant was wrongly refused leave to cross-examine the first complainant on her sexual experience with a person other than the accused.Application for leave under s23A Crimes Act 1961 was made with reference to material disclosed to the appellant prior to trial.This was:

...a statement from one [A] to the effect that he had a sexual relationship with the Complainant and that late on the evening of 22 January 1999, he and some of his friends had gone in his white Honda car to this Complainant's address and taken her out for some hours, during which there had been sexual activity between him and the Complainant.Also disclosed was the material at pp.VIII to XV of the appeal Bundle which disclosed that forensic examination of the clothing the Complainant had been wearing at the time of the alleged offences by the Appellant on 22 January 1999 disclosed no seminal staining attributable to the Appellant, though seminal staining was found on the crotch of her jeans, the front, crotch and back of her panties and on her upper top singlet, all of which was consistent with coming from [A] (mixed with DNA from the Complainant).

[16] The complainant had told the police that after the appellant took her home she went out with her boyfriend and others.

[17] The Judge ruled on the application in these terms.

Mr Hogan applies to cross-examine the complainant concerning consensual sexual activity between her and her boyfriend [A].It is his contention that it is possible that in her mind she has confused this incident with the alleged non-consensual sexual incidents with the accused.I have ruled in brief that I am not prepared to permit this cross-examination.The possibility of transference should be supported by more concrete submissions or evidence than has been put to me.It is difficult to accept that a 15 year old girl could confuse consenting sexual relations with her boyfriend with unwanted sexual activities by a 50 year old man.That application is declined.

The Crown will, however, call evidence of an initial incorrect complaint to her mother and the police of rape by the first complainant [C].I will permit counsel for the accused to put to [C] the assertion that she was raped by her boyfriend [A] rather than the accused.

[18] Counsel cross-examined the complainant on her movements after she said the appellant had taken her home.She said she went into town with her boyfriend and others leaving about midnight.She was also cross-examined on her initial claim to the police that she had been raped by four men in a white car and it was put to her that having been caught out in her false story she knew she would be in further trouble and so fabricated her allegations against the appellant to get herself out of a difficult situation.Counsel did not put to her (as the Judge had allowed) that she had in fact been raped by her boyfriend and not the appellant, though that was asserted by the appellant in the course of his evidence.

[19] Apparently by arrangement between counsel, the police officer in charge of the case told the jury that testing by ESR scientists of the complainant's clothing did not reveal any body samples, for example semen, which might have come from the appellant.

[20] Mr Cagney's argument was that the Judge was wrong to refuse leave to cross-examine the complainant on her sexual conduct with her boyfriend in the early hours of 23 January.When asked to identify the issue to which that evidence would be directly relevant, so as to meet the statutory requirement, he did not adopt the reason trial counsel advanced to the Judge, (the possibility of transference in the mind of the complainant of the conduct of her boyfriend to the appellant), but instead contended that it was directly relevant to the "respective credibility" of the complainant and appellant as to the events of the night.He relied on an answer given by the complainant when asked how she was feeling about what happened when the appellant took her home, that she "wanted to die".He submitted that it would have been to the advantage of the appellant for his counsel to have been able to confront the complainant claiming to have been of that state of mind with the fact that she soon after went out with her boyfriend and engaged in sexual activity.

[21] But trial counsel did seek to establish by cross-examination before the jury that shortly before going out with her boyfriend for several hours the complainant had made two calls to a telephone "chat line".We do not consider the foundation for a submission to the jury on the contrast between the complainant's claimed mental state and her actions was significantly reduced because he could not also refer to sexual activity some time later.

[22] Further, the evidence of the police officer provided all the foundation that was necessary for a submission that the claimed ejaculation on the complainant's top was not verified by scientific tests.

[23] The defence was that the appellant was not with the complainant at any time that evening.We do not see as directly relevant to whether or not that was so evidence that the complainant was later with someone else with whom she had sex.

[24] We are not persuaded that there was any proper basis for leave to cross-examine on this point, nor do we consider any real prejudice resulted for the appellant.

Ground Two

[25] The second ground of appeal was that the evidence of the telephone discussion between the complainant and the appellant on 2 February 1999 should not have been admitted.It was submitted that, because of the presence of the police officer, the complainant was an agent of the State and the appellant was not cautioned before being questioned.The consequence of the admission of the evidence of the conversation was said to be that, having claimed a rock solid alibi in the course of the conversation, the appellant was obliged to maintain it in the subsequent police interview which meant that there came to be disclosed to the jury information about his prior contacts with the police (bail) and criminal proceedings (the Rotorua trial) all of which was seriously prejudicial.

[26] Further, it was said that the evidence of the interview should have been edited to avoid the prejudicial references since the appellant had obviously made a simple mistake as to the date of the Rotorua trial.In that respect Mr Cagney argued that only a person who was not with the complainant on the evening of 22 January could have made the mistake of claiming to have been in police custody.We do not accept this last point.The appellant did not claim in the telephone discussion that he had been in police custody on 22 January. Therefore, he was not constrained by that conversation in his subsequent police interview.In that interview he could have claimed to have been in custody at Rotorua on the critical day whether or not he was in fact with the complainant that evening.He could have done so either because he was not thinking carefully enough or because he was deliberately trying to mislead.

[27] Evidence that the appellant had earlier given two different explanations of his whereabouts from that he was giving at trial was relevant and admissible.It was inevitable that references to his bail and subsequent trial would come out once those earlier explanations came to be addressed.

[28] In any event, of much greater significance is the fact that no objection was taken at trial to the admission of the evidence of the telephone conversation.Far from being attributable to some radical error on the part of trial counsel, it is perfectly understandable.The conversation could be relied upon by the defence as showing that when confronted with her allegations by the complainant the appellant completely rejected them and expressed bewilderment at what she was talking about.Counsel quite reasonably could have judged this evidence to be exculpatory and more helpful than prejudicial.

[29] It was submitted that the evidence of the appellant's prior encounters with the legal processes having been disclosed, the direction given to the jury was insufficient to avoid illegitimate prejudice.The Judge said:

Now the next matter I want to refer to is this.In this trial you have heard references to the accused's bail report card and, indeed, you have a copy of that that was produced during the course of the trial.You will recall it was one of the documents enclosed by the accused in a letter to Mariana Tanei.You have also heard evidence confirming his attendance at trial in Rotorua, that he did not report to the Police Station as required and nor did he attend a meeting at the SFO.There was also a comment made by a Mr Rendall concerning a letter that he said the accused had sent him from jail.It is necessary for me to direct you concerning this evidence.Previous appearances in Court are irrelevant to the decisions that you must make in this trial as to the guilt or innocence of the accused.Any previous history that he might or might not have had is not relevant.So it follows that you must not assume that he is guilty or not telling the truth because he might previously have appeared in Court, have been obliged to report on bail or have been remanded in custody.Those factors are not relevant at all to the likelihood of his having committed the offences set out in the Indictment.They are all part of the background evidence in this trial but they are otherwise irrelevant to the decisions that you must make on the 10 separate charges against him.

[30] We are satisfied that was quite adequate in the circumstances.

Ground Three

[31] The third ground related to the letters written by the appellant to certain Crown witnesses before the trial.No objection was made to the admissibility of these letters and Mr Cagney did not contend they were not admissible.It was for the jury to give them such significance as they thought appropriate.

[32] The submission was that:

Taken as a whole, all of these exhibits called for a direction to the jury of a type similar to that generally referred to as a "lies direction" and including a direction that the Appellant might have had a number of motives for writing them, and that if they found that he did, it did not necessarily follow that he was guilty of any of the offences charged.In the absence of such a direction, it is not now possible to be sure that the jury has used the evidence correctly.

[33] We do not see it as a responsibility of trial Judges to direct the jury on how each part of the Crown evidence might be regarded as consistent with scenarios other than the guilt of an accused.In circumstantial evidence cases that would be altogether too cumbersome.In this case the appellant gave evidence and gave his explanations for writing the letters.This was before the jury to accept or reject.There was no reason for the Judge to invite the jury to speculate on other innocent explanations for the letters.We see no misdirection in not doing so.

Ground Four

[34] The fourth ground of appeal rested on a report of a consultant psychiatrist (Dr Heed) prepared subsequent to sentencing.He had earlier provided a report available to the Judge on sentencing along with two reports from another consultant psychiatrist (Dr Simpson).This was supplemented by an affidavit from a cognitive psychologist (Dr Garry) consulted by counsel more recently.

[35] The submission from Mr Cagney was as follows:

Subject to this evidence being admitted, I would submit that if there is room for the view that the Appellant was or might have been significantly cognitively or mentally impaired at the time of his trial, then the trial may have proceeded at a time when, in hindsight, it was unfair to him for it to have proceeded, and that the interests of justice require that Counts on the indictment of which he was convicted, should be the subject of a new trial.

[36] Dr Heed's conclusion in his later report (27 May 2000) reads:

Even though it is now impossible to conclusively know whether or not Mr Palmer was severely mentally/cognitively impaired at the time of his trial to the degree that he was unable to e.g. adequately instruct his counsellor, Mr Palmer's statements clearly indicate this.Research shows that this would be the case at that time for a high percentage of patients having undergone a coronary by-pass operation and I note that Mr Palmer's cardiologist found it "incredible" that Mr Palmer was subjected to a trial so soon after the operation.

[37] It must be noted that the reported view of Mr Palmer's cardiologist inaccurately refers to the time lapse between the surgery and the trial as five weeks when in fact it was 11 weeks.

[38] In his report, after referring to relevant research, Dr Heed said:

As can be seen e.g. in the above mentioned article 73% of patients who have undergone a coronary artery bypass operation were found to have moderate or severe neuro-psychological defects at 8 days post-operation and 37% still at 8 weeks post-surgery.

[39] Apart from this his conclusion is based on statements made to him by the appellant.

[40] In his extensive report given for sentencing Dr Heed again referred to the statement from the cardiologist, but he neither made nor reported from the appellant any comment directed to inability to participate in the trial.The same comments apply to the two pre-sentence reports of Dr Simpson.

[41] Dr Garry had not interviewed Mr Palmer but expressed opinions based on literature and information provided.She too referred to the comment of Mr Palmer's cardiologist incorrectly stating the period after surgery until the trial.Dr Garry expressed the view that the trial took place during the time in which research suggests Mr Palmer might have been experiencing cognitive dysfunction such as memory impairments and attentional abilities as a result of his surgery as well as psychological distress, emotional instability, anxiety and depression.It was her opinion that it would have been prudent for Mr Palmer to have stood trial at a later date after being assessed or after research suggests he would have recovered from the post-surgery effects described.

[42] An affidavit sworn by counsel who represented Mr Palmer at his trial is telling.In that he states:

During the course of the trial I did not observe Mr Palmer to be in any way compromised by his relatively recent heart surgery.While I sat at counsel's table in front of him at the dock and was not able to observe him constantly I am able to say that Mr Palmer appeared alert throughout the trial.He frequently communicated with me concerning matters of evidence.Those communications were either giving me verbal instructions from the dock or passing numerous written notes to me.

To the best of my recollection I consulted with Mr Palmer in the High Court cells every morning prior to the trial commencing.We would discuss fully the evidence that was likely to be called that day.I would frequently meet with him during the luncheon adjournment and often again at the end of the day's court proceedings.I would have communications with him also at each of the morning and afternoon tea adjournments.

I never found Mr Palmer to be either drowsy or sedated.To the contrary he was able to provide a lively commentary on the adequacy, or not, of the evidence being adduced.I made it my practice to consult with him before concluding my cross examination to see if there were any other matters that he would wish me to put to a witness.I never found him to be other than completely alert and aware of the proceedings.

[43] An affidavit from the police officer in charge of the case, who was present throughout the trial, contains similar observations.

[44] Mr Cagney, when asked whether he was contending for physical and psychological competence for an accused above that conventionally encompassed by fitness to plead (see R v Duval (1995) 13 CRNZ 215), was not able to offer any other standard supported by authority.

[45] In any event, we are not persuaded that there is anything in this ground. It has the hallmarks of a post facto complaint and is supported by expert opinion that rests on incorrect information and is unconvincingly vague.

Ground Five

[46] Ground five involves the application for leave to adduce further evidence on appeal directed to three matters.The first is a somewhat peripheral matter of whether the bedroom door at 52 Churchill Avenue could be locked and if so by a lock of the kind described by the complainant.There was a good deal of attention to the point in the course of evidence at the trial although there was no dispute that the complainant had been in that room on at least one earlier occasion.It was a point going to the credibility of the complainant.

[47] Three affidavits are tendered.One is from a building contractor concerning his examination of the door on 17 October 1999.He directed his investigation to whether there was or had been a sliding bolt lock on the exterior of the door.Plainly then it is irrelevant to the events of 22 January when the complainant said the door was locked on the inside.It is relevant then only to the claims that the complainant had on earlier occasions been locked in the room by the appellant.In view of the acquittals on other charges the cogency of this evidence is very limited.Other affidavits by the property owner and a former employee of the appellant also include evidence of the absence of any lock on the door (side unspecified) in August 1998.Its cogency is limited but, in any event, this evidence could have been given at the trial so it fails to meet the requirement for freshness for admission on appeal.

[48] The second matter to which further evidence is directed is the fourth offence - masturbating in a van in the presence of one (or perhaps two) girls. One of those girls swore an affidavit on 4 October 2000 in which she said she did not personally see the appellant in a van doing an indecent or illegal act. However, the Crown has tendered a further affidavit from this deponent.In that affidavit she sets out the circumstances in which she swore the 4 October affidavit.

Approximately one year after the trial, on 4 October 2000, I was approached by two people I had never seen before;a man and a woman ...

...

They told me they were from Auckland and that they had some things I might be interested in.

The man talked to me about the court case and about Ashley.He told me the whole thing was a grudge and that Ashley could not have done it.The man showed me about five affidavits I had not seen before.

He had an affidavit already typed up and told me if I signed it the whole thing would probably be over and that I would not have to go to court or anything. He had a word processor in the car and he made some changes to the affidavit while at my address.

The affidavit was worded the way they wanted it and not the way I wanted it.I just wanted them to get out of my house and to stop hounding me.

They took me to a lawyers' office.After I signed the affidavit, they dropped me home.

[49] She said that immediately after making the affidavit she went to the police and explained what had happened.Her evidence is confirmed by police officers and she has confirmed her trial evidence.There has been no challenge to her account of how the 4 October affidavit was obtained.That affidavit cannot be accepted as credible and is rejected.

[50] The third matter to which the further evidence is directed is the appellant's alibi for 22 January 1999.Ten affidavits are tendered on aspects of this.All are from persons who were associated with or known to the appellant.It is not suggested that this evidence was not reasonably available to the defence at trial.Indeed three of the deponents gave evidence at the trial.Two others were expressly named in the appellant's alibi notice but not called.Three others had given statements to the police or to defence counsel prior to trial.

[51] The affidavits going most directly to the alibi that the appellant was at 2 Bedlow Place, Mangere from about 9.30pm on 22 January 1999 are those of three members of the same extended family including John James Parker.Two of them were named in the alibi notice but not called at the trial.The third had told defence counsel prior to trial that she was unable to give positive evidence that the appellant stayed at her home on 22 January 1999.Her claim now to do so lacks credibility.

[52] John James Parker gave evidence at the preliminary hearing, but, because he did not come up to brief and because of inconsistency in statements he made, Crown counsel indicated that he would not be called by the Crown at the trial. He was made available to the defence.Before trial defence counsel applied to the Judge for a direction that the Crown call him.That application was refused.He was available to the defence to call.

[53] An affidavit from the appellant's trial counsel exhibits a written instruction given to him by the appellant in the course of the trial.That instructed counsel to call three named witnesses but adds "Do not call Jimmy Parker, Graeme Cann or any others".Two of the deponents whose evidence now is tendered are Graeme Lyall Cann and John James Parker.

[54] It is difficult to see this part of the appeal as anything other than an attempt to now present the defence differently, the defence run at the trial having proved unsuccessful.

[55] The remaining affidavits in this group are directed to matters going to the accuracy of aspects of the complainant's evidence (often adding nothing to the trial evidence) to matters peripheral to the alibi and to criticisms of police.We have considered these along with affidavits in response from police officers.We are satisfied that even if accepted as credible, the evidence of the deponents certainly is not "fresh" in the relevant sense and lacks the cogency necessary to warrant admission on appeal.

[56] There is a real question over the reliability of the evidence.We have not been informed of the manner in which it has been obtained, especially that which is inconsistent with earlier statements.That weighs heavily in light of the evidence as to the manner of obtaining the post-trial affidavit of the second complainant.There is also in the statement of the first complainant's former boyfriend a disturbing account of attempts to obtain evidence from him. When this is put together with the evidence at the trial of attempts by the appellant to influence Crown witnesses and his pre-sentence attempt to "buy off" the first complainant, there is good cause to weigh the absence of explanation of how this affidavit evidence was obtained.

[57] Mr Cagney submitted that even though the further evidence might not satisfy the conventional requirements for admission on appeal of freshness, cogency and inherent credibility, taken overall it raises sufficient questions that it is in the interests of justice to order a new trial where the evidence can be taken into account.We are not persuaded.The whole history of the appellant's claims of alibi, his attempts to influence witnesses, his clear instructions to his counsel at trial and the absence of explanations of how these new affidavits were obtained provide clear justification for adhering to the established approach to the admission of evidence on appeal.We accordingly decline to admit the evidence and reject this ground of appeal.

Ground Six

[58] The final ground of appeal against conviction is that there should be concern that the trial was unfair because of the possible impact on the jury of an article published in "The Daily News", a North Shore paper on 4 March 1999. The article was published under a very bold and sensationalist headline, apparently on the front page of the publication.The circulation was not provided.It refers to the appellant, of whose face there is a small photograph inset into a larger photograph of a property the principal subject of the article - a police enquiry into the theft of machinery from a property leased by the appellant.There is also reference to a complaint laid by the landowner with the Serious Fraud Office.The article described (not inaccurately) the appellant's recent arrest and court appearance on the sex charges for which he was eventually tried in September 1999.That cannot have given rise to any prejudice.

[59] We were invited to consider whether this prior publicity referring to the appellant in the context of a serious fraud investigation and linking in the sexual offence charges might have been brought back to the mind of jurors by a comment by a police officer in the course of cross-examination at the trial, that he had been told when trying to contact the appellant in the course of enquiries that he had "gone to see the SFO in the city".

[60] This publicity occurred six months before the trial.It related only to complaint and investigations of unrelated conduct.The paper is of unknown circulation but presumably is local to the North Shore.The likelihood of it being still in the mind of a juror and influencing his or her approach to the present charges is remote indeed.The members of the jury were directed in conventional terms:

You must come to your verdict solely upon the evidence that has been put before you in this Court.If by chance any of you have heard anything about the case or anyone involved in it before you took your place on the Jury, then please dismiss what you heard from your mind.The law requires that the accused is to be judged only upon the evidence sworn to in this Court.

[61] Recent research indicates that juries take note of directions such as this and we see no reason why the jury in the present case would not also have done so.

[62] We have no concern on this ground.

[63] Even taken cumulatively these six grounds of appeal, painstakingly pressed by Mr Cagney, do not give us concern for the safety of the verdicts.The appeal against conviction is dismissed.

The Sentence Appeal

[64] The appeal against sentence challenges both the appropriateness of preventive detention and the reparation.

[65] There was no dispute that the appellant was eligible for preventive detention under both s75(1)(a) and (b) of the Criminal Justice Act 1985. However, by itself the sexual violation offending on 22 January 1999 would not warrant that sentence.Nevertheless, having been provided, though not a necessary requirement for the sentence under para (b), the extensive psychiatric reports provide assistance.

[66] The background of offending is extensive.The appellant's first convictions were in 1969.In that year, when the appellant was 21 years old, he was convicted of an indecent act with a girl and of indecent exposure. Since then he has accumulated more than 60 convictions in New Zealand, Great Britain and Australia excluding traffic offences.Many of the offences were for dishonesty.They are not irrelevant, but it is the pattern of sexual offending that is most material.Up to 1999 there were eight instances of indecent exposure in addition to the initial indecent act with a girl.The conduct followed a similar pattern, urinating in front of teenage girls after attracting their attention.On 11 March 1999 he was sentenced for offending at Turangi in December 1997.This involved exposing himself and masturbating in front of young girls.But it went further and led to conviction for indecent assaults on two girls under the age of 12.In one instance he barged into a toilet that two of the girls were using and stood behind one of them pressing his body against her bottom.In the other, he walked past the group, grabbed a 10-year-old in the vaginal area and rubbed her there for a few seconds.At the time of sentencing for those offences the appellant was informed that further sexual offending would likely lead to preventive detention.What that sentencing Judge did not know was that between conviction and sentencing for those offences the appellant, on 22 January 1999, while on bail, committed the two sexual violations on the first complainant with which we are now concerned.

[67] The offending for which the appellant's sentence is now under review involved not only the two acts of sexual violation but also the acts of having the same complainant masturbate him (a representative charge) and the exposure and masturbation in the van in the present of the second complainant(s).

[68] The appellant is assessed as a man with a narcissistic personality disturbance whose sexual offending has taken two patterns;an arousal and stress related exhibitionism with increasingly intrusive behaviour and the more serious sexual behaviour to which three of the convictions relate.

[69] The sentencing Judge reviewed the psychiatric reports to which reference already has been made. She noted particularly the comment of Dr Simpson that people with a history of criminal dishonesty such as the appellant "tend to not do as well in treatment".The Judge said:

After considering all three reports I am satisfied that Palmer presents a real risk of reoffending at the expiration of any term of imprisonment that I impose.His willingness to participate in prison based therapeutic programmes may well reduce the risk.The fact that he has not previously had such treatment is a factor that I take into account.

[70] She went on to address "other risk factors",She referred to the target group at risk from the appellant (young girls) and to the indications of attempts to control and manipulate others evident in the offending and prior to during and after the trial.She referred expressly to the evidence that the appellant befriended the first complainant, supplied her with drugs, alcohol and money and isolated her from her usual support systems.She referred also to his post conviction attempt to have that complainant retract her allegations and agree to terms including the provision by him of $5,000.She could also have added reference to evidence in the trial of the letters written to Crown witnesses.We also have in the further evidence tendered in this Court the other disturbing indications of manipulative conduct reviewed earlier in this judgment.

[71] The Judge drew upon the pre-sentence reports and the victim impact statements.She then considered the factual situation with which she was presented against factors relevant to the sentence of preventive detention which were identified in R v Leitch [1998] 1 NZLR 420,428 and R v P CA86/95 judgment 10 August 1995.Her conclusion was that preventive detention was the only course she could adopt to protect the community.

[72] The order for reparation was made in these terms:

I am also aware that Mr Palmer considers himself sufficiently financially stable to offer $5,000 as part of his without prejudice offer in return for which C was required to retract her allegations.I have therefore determined that it is appropriate to order reparation.Reparation will be in a total sum of $5,000:$4,000 for C and $1,000 for F.That sum is to be paid forthwith to their mother to be used at her discretion to assist in the rehabilitation of both young girls.

[73] In support of the appeal Mr Cagney submitted that the Judge gave insufficient weight to the reports indicating that the appellant has not previously had the benefit of more improved treatment programmes and is motivated to take them.He referred also to the age and ill health of the appellant as indications of a lower risk to the community at the end of an appropriate fixed term of imprisonment.We assume that, had he had it available to him, Mr Cagney would also have relied on the decision of this Court delivered after the hearing of this appeal in R v Burkett CA416/00, judgment 21 February 2001.

[74] Like the Judge, we are concerned by the apparent progression in the appellant's offending.Greater intrusiveness, seemingly to create the craved excitement in his exhibitionism, is apparent.But more serious is the offending which has attracted the sentence with which we are concerned.That cannot be dismissed as exhibitionism and is of a kind that requires the risk of repetition to be carefully guarded against.

[75] The claims to be willing to undertake treatment programmes are not easy to reconcile with the appellant's personality and history.Previous interventions have not modified his behaviour.They include his withdrawal from the SAFE programme he had been ordered to complete when, as a result of an appeal, that no longer was mandatory.We consider the Judge was right not to give this appellant's reported assurances significant weight.

[76] We have reviewed all of the reports.We are not persuaded the assessment made by the Judge, who had had the opportunity of seeing and hearing the appellant through his trial, was wrong.

[77] A submission by Mr Cagney that we should take into account that the evidence against the appellant was not strong is rejected.The jury was satisfied beyond reasonable doubt on the counts on which he was found guilty and we will not go behind that.

[78] Finally, we see no error in the order for reparation.It was argued that it was contrary to s76 Criminal Justice Act 1985 which precludes the imposition of another sentence cumulative upon preventive detention.We do not accept that.The sentence was not cumulative but concurrent and is clearly contemplated by s13(1) when read with the definition of "full-time custodial sentence" in s2 as including preventive detention.

[79] The appeal against sentence also is dismissed.

Solicitors

Crown Solicitor, Auckland