THE QUEEN v JASON JOHN MATHIESON [2002] NZCA 237 (26 September 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca209/02

THE QUEEN

V

JASON JOHN MATHIESON

Hearing:	18 September 2002
Coram:	McGrath J Chisholm J Chambers J
Appearances:	E Lorimer for the Appellant A Markham for the Crown
Judgment:	26 September 2002

judgment of the court delivered by mcgrath j

Introduction

[1] The appellant was convicted, following a jury trial in the District Court, on a count of unlawful sexual intercourse with a girl over the age of 12 years but under the age of 16 years.He was acquitted on an alternative count of rape.During the trial he pleaded guilty to a third count of offering to administer to the girl a Class B controlled drug, namely cannabis oil.The offending took place on 21 October 2001.

[2] The appellant was sentenced on 19 June 2002to an effective term of 5 years imprisonment for this offending which included a concurrent sentence of 12 months imprisonment for offering the girl cannabis.He appeals against that sentence which the Judge made cumulative on a 9 year term of imprisonment that had been imposed on the appellant in 1994 for the rape of a 76 year old woman in her home.At the time he committed the offences the subject of this sentence appeal the appellant had been conditionally released prior to the expiry of that term of imprisonment.

Background

[3] The complainant, 14 years old at the time of the offending, was walking home from town, at approximately 1am on a Sunday morning, when she was approached by the appellant whom she did not know.After riding his bike alongside and conversing with the complainant for some 500 metres the appellant suggested that they go into nearby school grounds for a smoke.The appellant, who was 25 years of age, gave her a cigarette and also proposed smoking cannabis oil which he did.The complainant refused.The appellant then made advances to the complainant, which the sentencing Judge concluded she resisted, but ultimately felt trapped into accepting.At the trial the complainant gave evidence that the appellant had threatened her with a knife when she refused to kiss him.The complainant also said she felt that sexual intercourse was inevitable and she asked the appellant to wear a condom.He appeared to look for one but did not have one.The complainant said that he then pulled out his knife again, held the blade in front of her face and threatened to hurt her. Sexual intercourse followed which the complainant said she did not consent to. The complainant then immediately left the scene and appeared crying and in a distressed state at a nearby service station where she said she had been raped. She was given the phone to call the police.

Sentencing remarks

[4] In his remarks on sentencing the appellant the Judge considered the evidence given at the trial, and the implications of the jury's verdict in order to make findings as to what had happened.He concluded that, despite the acquittal of the appellant on the rape charge, the complainant had not consented to the sexual intercourse.Rather, he found the jury had acquitted the appellant because in all the circumstanceshe had a reasonable belief that she had consented in all the circumstances.

[5] The Judge then observed that there were several aggravating features in the offending.First the appellant had obviously been on the look-out for a sexual encounter.He was aware that the complainant was still at school which should have raised warning signals as to her age.Secondly, at the time of his offending, the appellant was on parole from the nine-year sentence imposed on him for the rape of a 76 year old woman in 1994.The Judge said that the present offending was accordingly deliberate risk-taking by the appellant. Thirdly, the appellant had intended to affect the complainant's judgment by offering her a class B controlled drug.Drug ingestion had also been a factor in his 1994 offending.

[6] The Judge then observed that the appellant was eligible for preventive detention and referred to Crown submissions that this should be taken into account in fixing the finite term sentence.He referred to the pre-sentence report which described the appellant as being at a high risk of re-offending. No mitigating features in his conduct could be found by the Judge.Having regard to the primary consideration in the circumstances of protecting the public, and the serious aggravating features of the offending, the Judge imposed a sentence of five years imprisonment and made it cumulative on the sentence imposed in 1994 which the appellant had been recalled to serve.

Grounds of appeal

[7] Counsel for the appellant advanced three grounds on appeal.These were:

[a] That the Judge's finding the sexual intercourse took place without the complainant's consent is inconsistent with the jury's verdict;

[b] The Judge erred in law in applying the principle that a longer than usual finite sentence could be imposed as an alternative to preventive detention where there is a need to impose a sentence that protects the public;

[c] The Judge had incorrectly identified a number of features as aggravating; and that the sentence was manifestly excessive having regard to comparable cases.

The effect of the Judge's sentence

[8] Before we consider those grounds of appeal, we need to resolve certain differences between counsel as to the effect of the Judge's sentence.There was considerable debate before us as to when the appellant would become eligible for parole on the new sentence, as to his statutory final release date and as to the expiry date of the new 5 year term of imprisonment.

[9] As indicated, the appellant was sentenced to 9 years imprisonment on 3 June 1994 for the rape of a 76 year old woman and was on conditional release at the time of his offending.Because he had been convicted of a serious violent offence, and had been sentenced to a term of imprisonment of less than 15 years, he was not eligible for parole as such under s89(7) of the Criminal Justice Act 1985. He had however been released, under s90(1)(d)(i), on 17 May 2000 after the expiry of two thirds of his sentence.

[10] Following release he was subject to both the possibility of recall under s107I of the Act and statutory conditions.An application for his recall was made to the Parole Board after his arrest and was granted on 18 January 2002. From that point he ceased to be on remand and resumed serving his 1994 sentence.His final release date on the 1994 sentence became 2 March 2003.

[11] The new term of imprisonment will not expire until early in 2008.That in our view is the consequence of principal concern which arises from the cumulative nature of the sentence.We are less concerned at the effect on the final release date.We bear both in mind in considering the grounds of appeal.

Decision

[12] Ms Lorimer, for the appellant, took issue with the Judge's finding that the complainant did not consent to sexual intercourse.She argued that the jury's verdict on the rape charge indicated its rejection of the complainant's evidence that the appellant had threatened her with a knife. Ms Lorimer said that as a result it was not possible to determine whether the jury took the view that the complainant had not consented.That is true, but it was nevertheless the responsibility of the sentencing Judge, who had presided at the trial, to determine the facts of the offending within the limits set by the jury's verdict,and to sentence the appellant on the basis of them.In reaching his own conclusions on the evidence the Judge was not required to accept the view more favourable to the appellant.R v Accused [1988] 1 NZLR 422, 426.As the appellant was acquitted on the graver charge and convicted only on the lesser that determination had to be accepted as the starting point for consideration of the appropriate sentence.We must consider whether the Judge acted in accordance with this approach.

[13] The Judge concluded that the appellant had not threatened the complainant with a knife because that part of her evidence was contrary to the jury's acquittal of the appellant on the rape charge.He then referred to the two pronged nature of the appellant's defence as put to the jury, which was first that the complainant actually consented to sexual intercourse but secondly, if that were rejected, then the circumstances had given the appellant reasonable grounds to believe and he did believe she was consenting.The Judge's conclusion that she did not consent was influenced by the evidence of the complainant's subsequent actions and demeanour, as recorded in a service station video, as well as by her earlier very naïve behaviour.His conclusion was consistent with the view that the jury had accepted the second prong of the appellant's defence.He was entitled in this way to conclude that on the evidence the complainant had not consented.This ground of appeal accordingly must fail.

[14] Ms Lorimer's second ground was that the Judge in sentencing the appellant gave weight to a Crown submission seeking a lengthier finite sentence than would normally be imposed for the appellant's offending because he qualified for the sentence of preventive detention under s75 of the Criminal Justice Act. Ms Lorimer's submission was that this approach was not open to the Judge.She said that as the District Court did not have jurisdiction to impose the sentence of preventive detention it lacked the High Court's power to impose a higher finite term of imprisonment than it would usually impose in order to avoid imposing preventive detention.

[15] The passage in the Judge's sentencing remarks is as follows:

You are a person to whom the provisions of the Criminal Justice Act apply so far as preventive detention is concerned.The Crown says, and the Crown is right here, that you are eligible for, but the Crown does not in the light of the verdict of not guilty on the first count seek, a sentence of preventive detention but the Crown contends that the fact that this is an option is a factor pointing to the seriousness with which sentencing must be viewed.Here, for counsel's benefit, I am referring to the case of R v K (1990) 6 CRNZ 210.The effect of this case is this, that preventive detention is a last resort to be avoided but the corollary is where the court decides to avoid it the finite sentence must reflect the fact that preventive detention was a prospect.I am alert to that proposition, on the other hand I am very much alert to the proposition that you must not appear to be being sentenced for an offence for which you were not convicted.

[16] The Judge's reference to R v K is to a passage at p212 in that decision which has since been affirmed by a Full Court of this Court in R v Leitch [1998] 1 NZLR 420.The sentencing principle concerned is that where a finite sentence arrived at in accordance with normal sentencing principles would not be adequate for protection of the public a finite sentence of greater severity than usual might be imposed for the purposes of public protection. The integrity of general sentencing principles, however, limits the room to go above what would otherwise be the upper level of a sentence (Leitch p422).

[17] The extract quoted from the Judge's sentencing remarks may suggest that the Judge saw merit in the proposition that the term of the finite sentence that be imposed should reflect the fact that the appellant qualified for preventive detention. He was however cautious about applying it as he was clearly concerned that it shouldnot appear that the appellant was being doubly punished for his previous offending.We are in any event satisfied that, reading the sentencing notes as a whole, the Judge was not influenced by the eligibility of the appellant for preventive detention to impose the sentence he did.He was rather influenced by the need for the sentence he imposed to protect the public, a correctprinciple in light of the appellant's prior sexual offending and the factthat he had re-offended while on conditional release from the sentence of imprisonment imposed for that offending.Seen in this light the Judge's approach simply reflects the well established sentencing principle of the need to protect the public, a principle which it was entirely appropriate for him to apply.

[18] The final ground of appeal was that features of the appellant's conduct were wrongly regarded as aggravating and the sentence imposed on him of 5 years imprisonment was manifestly excessive.

[19] The maximum sentence for the offence of unlawful sexual intercourse with a girl between 12 and 14 years is 7 years imprisonment (s134(1) Crimes Act 1961). The offence itself encompasses a broad range of culpability and the appropriate sentence in a particular case must have regard to the circumstances of the offending, and the history and personal attributes of the offender.

[20] The Judge saw aggravating factors in the circumstances of the offending for which the appellant was convicted.He said the appellant was on the lookout for sex and that he knew the complainant was a schoolgirl and should have been alert to her actual age of 14 years.He also saw the use of drugs as an aggravating factor.Issue was taken with these findings.

[21] Whether or not the appellant was on the look-out for sex it is absolutely clear that he seized the opportunity of accompanying a 14 year old girl walking home alone in the early hours of a Sunday morning for that purpose.She had consumed alcohol although she was not intoxicated.In those circumstances the Judge was entitled to conclude that there was a predatory element in the appellant's conduct immediately prior to the offending.He was also entitled to conclude the offer of cannabis was made to influence the complainant's response to his advances, even though her evidence was that she did not accept it.

[22] Nor is there any substance in the submission that the age of the complainant, being an element of the offence, should not have been treated as an aggravating factor.She is eleven years younger than the appellant and that factor, as well as her youth, coupled with her state at the time, and when and where the appellant first accosted the complainant made her highly vulnerable to his exploitation of her.In this context her age was an aggravating element.

[23] Ms Lorimer accepted that the fact that the appellant was on conditional release and subject to recall to prison at the time of his offending was an aggravating factor.We would add, as the Judge rightly recognised, that it pointed to the importance of protection of the public in sentencing the appellant.It was that factor which led the Judge to the conclusion that he should impose a sentence towards the higher end of the available range and make it cumulative on the existing sentence which the appellant had been recalled to serve.Subject only to totality questions that approach was an entirely appropriate one.

[24] We accept the applicability in these circumstances of the principle of sentencing that where a consecutive sentence is imposed the sentencing Judge must make sure that the totality of the consecutive sentences is not excessive. The totality principle is routinely applied when consecutive sentences are imposed, at the same time, for separate offending.Recently it was applied in this Court where an appellant was sentenced to a cumulative term of imprisonment for drug dealing offences, committed while on bail on charges of similar offending, for which the appellant was later convicted and imprisoned: R v Wu (CA65/02 18 June 2002).In the present case the issue to be decided is whether the sentence to 5 years imprisonment, which will only commence at the expiry of the existing sentence of 9 years imprisonment, is excessive for the totality of the offending, bearing in mind the aggravating factors mentioned and the need to protect the public from further sexual offending by the appellant.

[25] The totality question arises as a result of the recall of the appellant to prison which was occasioned by his current offending.The sentence he was recalled to serve was however the original sentence and as such part of the punishment for his 1994 offending not that committed in 2001.It is inappropriate therefore to describe the period of imprisonment from recall through to completion of the 1994 sentence on 2 March 2003 as a double punishment.The totality issue is rather whether, looking at the totality of the criminal behaviour in 1994 and 2001, the aggregate term is out of proportion to the gravity of the offending viewed as a whole:R v Bradley [1979] 2 NZLR 262, 263.

[26] The totality issue in the present case is concerned with the impact of the sentence on the sentence expiry date, rather than the eligibility of the appellant for conditional release, or on his final release date under the Act. The impact on the expiry date is a consequence of the need to complete the punishment for his previous offending and to protect the public in the future. The offending in 2001 was a serious case of its kind, having regard to the fact that as the Judge saw it the appellant had sexual intercourse with a 14 year old girl who did not consent and who was in a vulnerable state.His belief that she did consent does not remove that element of culpability.The culpabilityis enhanced by the fact that the unlawful sexual intercoursetook place at a time when he remained under a form of supervised release and was subject to recall.Having regard to these factors we conclude that the effect of the expiry of the cumulative sentence in 2008 will be to provide a valuable mechanism for protection of the public from future offending.We consider this was appreciated by the Judge. Within the legislative framework applicable at the time this factor warranted the imposition of the severe cumulative sentence that was imposed.Accordingly we dismiss the appeal.

Solicitors

Crown Law Office, Wellington