THE QUEEN v COLIN WILLIAM STEEDMAN [2002] NZCA 9 (27 February 2002)

IN THE court of appeal of new zealand

ca307/01

THE QUEEN

V

COLIN WILLIAM STEEDMAN

Hearing:	27 February 2002
Coram:	Blanchard J McGrath J Durie J
Appearances:	A R Laurenson for Appellant D J Boldt and A Puata for Crown
Judgment:	27 February 2002

judgment of the court delivered by mcgrath j

Introduction

[1] The appellant, who is aged 77 years, was found guilty by a jury in the District Court of three charges of indecent assault on a girl under 12, two charges of performing an indecent act on a girl under 12 and two charges of inducing a girl under 12 to perform an indecent act on him. The charges concerned two complainants and related to two different time periods.The appellant was sentenced to preventive detention by a High Court Judge.

[2] The appellant appeals his convictions on three grounds. First, he contends that the District Court Judge erred in law and fact in refusing to order severance of the counts so that there would be separate trials in relation to each complainant.Secondly, and to an extent correlatively to the first ground, he argues that the trial Judge was wrong to allow the Crown to call similar fact evidence from other alleged victims of the appellant's sexual offending. Thirdly, the appellant submits that the trial Judge erred in admitting into evidence a statement of a deceased person.

[3] The appeal against sentence is based on the ground that the imposition of preventive detention was wrong in law and manifestly excessive.

Background facts

[4] The offending alleged at the trial in relation to the first complainant occurred between 1 January 1980 and 31 December 1982.At this time the appellant was around 56 years old. The complainant was the daughter of a friend of the appellant. In 1980, when she was 5 years old, the complainant had been to a children's party at the appellant's home. In the course of giving her a lift home, the appellant took the complainant to his workplace where he put her on a couch and removed her pants.He then performed oral sex and digitally penetrated her. He told her not to tell anyone or her family would be taken away and hurt.

[5] The second instance of alleged offending in relation to the first victim occurred at the appellant's house.The appellant entered the lounge where the victim and other children were playing.He sat beside the victim and inserted his fingers in and around her vagina.This type of offending occurred on a number of occasions.

[6] The second complainant at the trial gave evidence of offending fifteen years later on 3 occasions between 7 November 1997 and 19 January 1998, when she was approximately 7 years old.The appellant, who was 73 at the time, was working at an Auto Spares business which was owned by the complainant's grandfather. The complainant had been taken to the premises by her mother. While the complainant was alone with the appellant he took her up to the attic on the premises where he touched her vagina and forced her to touch his penis. On a separate occasion, while her mother was outside, the appellant took her back up to the attic and placed her hand on his penis.

Pre-trial rulings

Application for severance

[7] The appellant applied prior to his trial for the counts in relation to each complainant to be severed, on the basis that the alleged offending in relation to the first and second complainants was 15 years apart.The appellant also argued that the evidence of each complainant in relation to the counts concerning the other showed no more than a propensity to sexual offending and that the charges should therefore be tried separately.The Crown argued that the evidence of each complainant was admissible as similar fact evidence in respect of the case involving the other complainant. The District Court Judge recognised that the question of severance in this sort of case was best approached by reference to the principles applying to admissibility of similar fact evidence. The Judge held that the prejudicial effect did not outweigh its probative value. The application for severance was accordingly refused.

Admissibility of similar fact evidence

[8] The Crown also applied for an order to have the evidence of four further witnesses admitted as similar fact evidence to prove a long-term pattern of offending by the appellant. The Crown wished to call only certain passages highlighted in their briefs.The evidence of one of the witnesses was held to be inadmissible.In relation to the other three witnesses the Judge observed that they each referred to being sexually abused at the appellant's place of work, and at the time of abuse they were all young female children.Their evidence was that they had also been abused in a similar way to the complainants.The Judge found that the distinctive feature of the evidence of those three witnesses was that the various indecent acts were performed on them at the appellant's workplace. This evidence he concluded, reflected on the credibility of the two complainants.It followed that its probative value outweighed any prejudicial effect of the evidence to the appellant. The evidence was accordingly admissible as similar fact evidence.The trial proceeded accordingly.

Evidence of Mr A Van Beers

[9] During the trial it was in issue whether at the relevant time there had been a couch in the `smoko room' at the appellant's workplace, where the first complainant's abuse was said to have taken place. The Crown wished to have admitted in evidence a statement taken from a Mr Van Beers before he died.Mr Van Beers had told the police that there was a couch in the office area adjoining the smoko room.Although there appears to have been some confusion in Mr Van Beers mind at the time he made the statement as to the location of the couch, the Judge concluded this was of little significance. The significant question was whether there was a couch at the workplace. Given that the appellant's credibility was going to be the critical issue during the trial, the Judge held that the more information which the jury could have to assist them the better. The statement was therefore admissible.

Submissions on appeal

Application for severance / similar fact

[10] Mr Laurenson, for the appellant, submitted that there was not sufficient similarity in the two complainants' evidence of offending for the charges to be heard together and that there had been a miscarriage of justice as a result of allowing that evidence to be called.

[11] He submitted that the only similarities between the two sets of offending were that the complainants were of similar age and that the appellant had pulled their pants down. The dissimilarities in relation to the second complainant involved opportunistic offending at the location where the chance arose. It was submitted that it was more planned in relation to the first complainant, in that it occurred at the complainant's house rather than his workplace. Furthermore that the offending involving the second complainant occurred when others were present, whereas with the first complainant no one else was there. In addition in one case the appellant showed his genitals, whereas this did not occur in the other case.

[12] He also argued that the offending itself was quite different, in that one of the complainants spoke of the appellant placing his hands on her vagina, whereas the other gave evidence of different more serious conduct, including oral sex and vaginal penetration. Mr Laurenson relying on R v Accused (1998) 15 CRNZ 674, 682 submitted each complainant in relation to the other had given evidence of nothing more than a mere propensity to commit sexual offences.

[13] In relation to the similar fact evidence of the other witnesses, Mr Laurenson submitted that, in highlighting portions of the witnesses' evidence which the Crown sought to lead, its editing made the circumstances concerned appear more similar to the present case than they were. The witnesses' statements included acts of anal intercourse, and the viewing of pornographic material.

[14] Mr Boldt, for the Crown, submitted that decisions concerning admissibility of similar fact evidence and severance of counts in the indictment, pursuant to s340 of the Crimes Act 1961, had involved the exercise of a judicial discretion.It was submitted that the arguments of the appellant did not go to whether the Judge had interpreted the law correctly, and did not therefore put in issue whether it was open to the Judge to admit the evidence.During the trial counsel for the appellant advanced a defence that insinuated that the complainants had either lied or were mistaken.The Crown says that the relevance of the evidence went to the credibility of each of the complainants. If there was severance the complainants would be denied invaluable corroboration.

[15] The Crown also argued that the evidence in issue was strongly probative, in that it was unusual for a adult man to abuse a five year old child, and that the abuse, which consisted of indecent touching, had the feature that the complainants had been taken to a secluded part of his workplace.He submitted this answered almost conclusively the defence case that the two complainants had independently fabricated cases against the appellant.Both complainants' evidence supported that of each other as did the similar fact witnesses.

Evidence of Mr Van Beers

[16] The appellant submitted that the Judge erred in allowing the statement of the late Mr Van Beers to be admitted into evidence, mainly because it was ambiguous as to whether or not there had been a single room containing smoko and office areas, or whether there were two different rooms. Furthermore, the statement was contrary to evidence of a witness who actually gave evidence at the trial. Accordingly Mr Laurenson submitted the evidence had no probative value and was highly prejudicial.

[17] Mr Boldt on the other hand, argued that the Judge had a wide discretion in deciding whether or not to admit the evidence. The Crown contention is that the evidence became relevant as one of the complainants said the abuse took place on the couch in the smoko room at the appellant's workplace. Mr Boldt submitted that the Judge was correct when he said that the layout was irrelevant and the issue was whether a couch was present or not. In any event the jury was given adequate instructions regarding the statement.

Conviction appeal: decision

[18] The ground of appeal concerned with the refusal by the District Court Judge to sever counts, so that there would be separate trials of the two complainants, raised the same issues as the ground of appeal concerning admission of similar fact evidence from other witnesses.There was no disagreement before us as to the principles to be applied.The essential question is whether the similarities between the accounts of each complainant, or supporting similar fact witness, in relation to offending against her, had sufficient particularity in the features tending to support the evidence of the complainant concerned.The law does not permit the Crown to present before a jury general evidence concerning the bad character of an accused, such as that he has on previous occasions been a sex offender.There is nothing probative of the commission of the particular offence in such evidence and it is highly prejudicial.There must accordingly be a degree of particularity in what is said by the person giving the supporting evidence that makes it so truly distinctive in its similarity to the evidence of a complainant in relation to a charge that it is supportive of the complainant's evidence.In a case such as the present where the two complainants each give evidence, which is said to be relevant to the complaints of each other the degree of detail or pattern which emerges must be of sufficient particularity to make the accounts given by each of the complainants inherently more probable.The same applies to the supporting evidence of other witnesses.

[19] Starting with the evidence said to warrant severance of trials of allegations by the two complainants, the first feature of that evidence relied on by the District Court Judge who refused the severance application was the similar ages of each complainant at the time of the alleged abuse.They were girls aged 5 years and 7 years respectively.One similar fact witness was aged 5, the second aged 7 or 8. It is relatively unusual in our society for children of that age to be the subject of sexual offending.

[20] The second element concerned the location of offending.Each of the complainants and the similar fact witnesses gave evidence of offending which took place at the appellant's workplace.In the case of one complainant that was the location of the offending in relation to only one of the two counts. For the other it was related to all three.Mr Laurenson suggested there were differences between the circumstances in which the appellant was said in 1997 and 1998 to have taken a complainant up to an attic on the premises at a time when she and the appellant had been left alone at the place of work, and in relation to the complaint in 1980 where the appellant was said to have driven the complainant to his workplace after a party, when he was driving children home.In that case the allegation was that he assaulted her inside a smoko room.While the circumstances differed, in that in the latter instance there were no other persons apart from the appellant and the complainant who were in the vicinity of the premises, we are satisfied that(other than that where it took place in a lounge at home) it was a distinctive feature of the offending that the appellant used his place of work as the location for abuse of young victims.This plainly presented opportunities for him to act in an environment with which he was closely familiar, felt safe, could isolate such victims, and could confidently expect to offend without being discovered.Again this is not such a common aspect of sexual offending as to indicate no more than general bad character.It is rather suggestive of a pattern or method of predatory conduct.

[21] Seen in this light we are satisfied that these two features, common to each of the complainants and the similar fact witnesses (subject to the qualification in respect of the 12 year old) were together properly regarded as being mutually supportive to the extent that the law requires.We are not concerned that in one particular case the evidence indicated that the appellant was prepared to indecently assault a child in front of other children at a different location than his workplace.Nor are we concerned that there was a period of 15 years between the offending against the two complainants.Neither factor, in the circumstances, warranted severance.There is a pattern which emerges from this evidence which plainly indicated that the appellant abuses positions of trust in relation to young girls by getting them into situations in which they are with him by themselves, and then sexually assaults them. This is especially in the case of locations around his places of work.The important feature is the evidence shows that there is a particular pattern to his predatory conduct.

[22] As indicated, a separate feature of the evidence, which gave rise to a ground of appeal, was a complaint that the Crown had unfairly edited the evidence of the similar fact witnesses by excluding from briefs a wide range of other abuse of the witnesses in which he regularly engaged.Mr Laurenson accepted that in editing out conduct reflective of abuse in different contexts the Crown was endeavouring to be fair to the appellant.His argument was however that by reducing more comprehensive statements to those particular components, having the similar fact features concerned, the Crown was providing an unfair focus on similar conduct which was prejudicial.We do not accept that there was any unfairness.While it is the case that evidence of particular features of the appellant's offending against witnesses was part of a narrative of offending with wider features, that does not remove or impair the probative force of the particular edited evidence nor create any unfairness because it was separated out and presented in the way it was.The edited evidence was, in reality, directly relevant to the unusual pattern of offending which the Crown sought to prove the appellant had engaged in.It added in an important way to the overall picture the jury had concerning the issue of the credibility of the two complainants which the defence had put in issue.By editing out features which only went to the more general propensity of the appellant towards sexual offending the Crown acted fairly and in accordance with principle.The resulting picture that the evidence presented was in no way misleading or unfairly prejudicial to the accused.

[23] For these reasons we are satisfied both that the decision of the District Court Judge to refuse the application for severance and to admit the similar fact evidence was the correct one.No complaint is made in this case of the manner of direction of the trial Judge to the jury as to how it should assess the evidence concerned.

[24] Mr Laurenson also took issue with the decision of the trial Judge to admit evidence in the form of a statement taken from Mr Antonius Van Beers who had died before the trial.The statement was relevant to the question of whether the complainant who had alleged she was abused on a couch in the smoko room at the appellant's place of work was correct in her statement that there was a couch there.The statement indicated that was the case.We are satisfied that there was nothing in the Judge's discretionary ruling to admit this evidence that indicates there was any error of principle.Another witness had said he could not recall the presence of a couch in the smoko room.The appellant had contended there was some confusion on the question.The Judge did however make plain that the relevant question was whether there was a couch present at the workplace at all and the jury was particularly warned to take care with the evidence of Mr Van Beers as he was not able to be the subject of cross-examination.We are satisfied that there is nothing of concern raised by this point.

Sentence appeal

[25] The sentence appeal is brought on the basis that the imposition of a sentence of preventive detention was wrong in law and manifestly excessive. The High Court Judge considered the factors set out in R v Leitch (1997) CRNZ 321 when considering whether preventive detention should be imposed. These include the following factors:

*The nature of the offending;

*The gravity and time span;

*The category of victims and the impact on them;

*The response to previous rehabilitation efforts;

*The time lapse since the previous relevant offending and steps taken

to avoid re-offending.

*Acceptance, responsibility, and remorse;

*The predilection or proclivity for offending; and

*The prognosis / outcome of available rehabilitative treatment.

[26] In the appellant's case the sentencing Judge observed that, whilst the offending was not of the very worst kind its nature was serious involving as it did very young victims.The appellant's record of convictions indicated he had been offending for over 40 years.Most of his victims had been very young and the impact of the offending on them had been horrific. With regard to rehabilitation, the appellant had failed completely to respond to any such efforts. The appellant accepted no responsibility at all and showed no remorse. The Judge accepted there had been a significant gap between the 1982 offending and the 1997 offending, even taking into account the appellant serving a substantial prison term during that period. However, a psychiatrist had categorised the appellant's risk of re-offending as very bad.Reports to the Court further indicated that the appellant had refused to participate in rehabilitation and so his prognosis was very poor.

[27] The aggravating factors identified by the sentencing Judge were first the very young age of the two victims and the disparity in age between the victims and the appellant.Secondly, the appellant was also in a position of trust, which he had substantially breached.The third factor was the appellant's history of similar offending and the fact that this spanned over a period of 40 years. There was finally the lack of remorse and continual denial of offending. The appellant showed no insight into the consequences of his actions and did not recognise the impact of his behaviour on his victims.Furthermore, the appellant made threats to the victims if they told anyone.Little could be said in mitigation.There was no guilty plea and the victims were forced to testify.The Judge was especially concerned that the appellant is at high risk of re-offending.The mitigating factors that were identified by the Judge included the appellant's age of 77 years, the fact that he suffers from emphysema, a skin condition, and raised blood pressure.

[28] Having considered all of the above factors, especially that there was a substantial risk of re-offending and negligible hope of rehabilitation, a term of preventive detention was imposed in respect of the second complainant and a term of five-year imprisonment for each count in relation to the first complainant where preventive detention was not an available sentence. Only the preventive detention sentence is subject to this appeal.

Submissions on appeal:Sentence

[29] In this Court Mr Laurenson argued that is not necessary or expedient in the interests of justice that the appellant serve a sentence of preventive detention and that mitigating factors pointed against that sentence.They are, as the Judge recognised, the fact that the appellant is 77 years old and is suffering from emphysema and high blood pressure.His condition was likely to slow him down and to decrease the likelihood or ability that the appellant would re-offend.Secondly, the appellant is no longer in a place of work, thus decreasing his opportunity to access young children.Finally, a sentence of preventive detention might well mean he would never be released. Instead it was submitted that a lengthy finite term of imprisonment would be sufficient.

[30] It was Mr Laurenson's contention that the public interest would be protected if the appellant were given a lengthy finite term of imprisonment. By the time he emerged from prison he would be well into his eighties. Conditions could be set that would ensure that he was not put in the circumstances associated with his offending.It would of course be unlikely that he would engage in work and the infirmities of age, it was suggested, would minimise his proclivities.

[31] In response the Crown submitted that the appellant is a serial abuser of children who had been engaged in systematic abuse of children since at least the late 1950s. The impact reports of the victims show the devastating effects that his offending has had on them.The appellant had shown no insight into his offending or motivation to change. He has refused to undertake any treatment or counselling and continues to deny his guilt even in cases where he has entered a guilty plea.With regard to his age the Crown argued that this has not recently proved to be an obstacle and there is no evidence or indication that his age will in any way minimise the likelihood of re-offending.Also previous lengthy prison sentences had failed to prevent the appellant from re-offending in the past.In light of the appellant's offending, together with his history and extremely poor prognosis, sentence of preventive detention was well within the sentencing Judge's discretion.

Sentence appeal: decision

[32] We appreciate the force of the submission that preventive detention is a very severe sentence for a person of the appellant's age.We are satisfied that it was imposed by the Judge having regard to the gravity and timespan of sexual offending against young victims by the accused.This has taken place over a period of 40 years and even though the Judge accepted there was no offending between 1983 and 1997 he was constrained to point out that for a substantial part of this time the appellant was in prison.The particular problem is of course the question of ongoing danger to the community.The type of offending in which the appellant has been involved for so much of his adult life will by no means necessarily diminish with his advancing years.Young people are seriously vulnerable to sexual offending by old men.These features point towards the safety of the community as being an essential consideration for the indefinite future.

[33] We have nevertheless given careful consideration to the severe impact of the sentence of preventive detention on a person of the appellant's years.The factor principally moving the Judge to impose the sentence, and convincing us that it is necessary, is the appellant's failure to accept any responsibility for the consequences to the victims of his offending, or to demonstrate any remorse at all.A psychiatrist has categorised the risk of his reoffending as being very bad, indeed as bad as it can be.Over the years the appellant has refused to participate in available rehabilitative treatment and there is nothing in his present attitude that indicates that will change.The high risk of reoffending is the factor that unfortunately requires us to reject the submission that we should impose a finite term sentence in place of that of preventive detention.

[34] We do so in the knowledge that under s97(5) of the Criminal Justice Act there is a residual power in the Parole Board, which may be exercised by a member, to refer a case to the full board for consideration.If the appellant at last shows himself ready to take steps to address his offending, or if he otherwise reaches a situation in which he poses no continuing risk to the community, it may be the Parole Board will be prepared to address his situation in terms of that power.It would in our view be appropriate for the Board to review his case under this head within a reasonable time. Unless and until his circumstances change in that way, however, public safety requires that the sentence of preventive detention be served.

[35] The appeal against conviction and sentence is accordingly dismissed.

Solicitors

Govett Quilliam, New Plymouth, for Appellant

Crown Law Office, Wellington