R v Falaoa CA96/03 [2003] NZCA 408 (15 July 2003)

Last Updated: 23 January 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA96/03

THE QUEEN

v

_{HENARE FALAOA}

Hearing: 14 July 2003

Coram: Keith J Hammond J Paterson J

Appearances: R Stone for the Appellant

J C Pike for the Crown

Judgment: 15 July 2003

_{JUDGMENT OF THE COURT DELIVERED BY KEITH J}

[1] The appellant was convicted following a jury trial in the District Court of attempted rape and sentenced to four years imprisonment. He appeals against both conviction and sentence. The appeal was filed late but the Crown makes no point about that and we grant leave to appeal out of time.

Appeal against conviction

[2] The conviction appeal relates to the Judge’s summing up to the jury and in particular to the intent to commit the offence of attempted sexual violation.

R V HENARE FALAOA CA CA96/03 [15 July 2003]

[3] The appellant, at the end of an evening of socialising and drinking at bars in Napier with a number of people including the complainant, returned with them to a flat where the complainant was spending a few days. He had come to that flat before they drove to Napier. The complainant’s evidence was that she had tried to keep him at a distance all evening.

[4] On their return, the complainant went to bed in the spare room which she was using during her stay. She testified that she woke up finding the appellant kneeling on top of her. He had pulled her legs apart and pulled down her sweat pants so that she was bare from the waist down; he had his pants down and was, she said, getting ready to have sex with her. She punched him in the face and kicked out with her feet. He then left the bedroom. He remained at the flat for the rest of the evening and she confronted him the next morning. The appellant did not give evidence but in a video interview with the police he said that he did lie down right next to her, that she knew he was in the room, that he took her pants down and took his own pants down if not all the way. “I was currently not in her but I was going to go on top of her but then she woke up.” The defence was essentially that the appellant saw this “a romantic one night stand” in which there was no intention to do anything without the complainant’s consent. He had gone into the room, the appellant said in his interview, after one of the others in the flat had said to him “go on man, go in there, what are you waiting for”.

[5] The critical passage in the summing up is as follows:

1. A male rapes a female if he penetrates her genitalia with his penis without her consent and without believing on reasonable grounds that she is consenting. The Crown must prove an intention to do this without the woman’s consent. Consent means a true consent given by a person who is in a position to make a conscious decision and choice.

2. The issue in such a case as this is whether the complainant was able to act in a conscious and deliberate way. Obviously, as the Crown has submitted, an unconscious woman can give no consent and without something more being involved you may think that the same applies to a sleeping woman.

3. The law now deals specifically with consent in some particular circumstances and it states that the fact a person does not protest or offer physical resistance to sexual connection, does not by itself amount to consent. Rape after all is not sexual intercourse using force, it is simply

sexual intercourse without consent and without a belief held on reasonable grounds that the woman is consenting.

4. If the Crown satisfies you beyond reasonable doubt that at the time of this attempt the accused did not believe that the complainant was consenting, or if the Crown satisfied you beyond reasonable doubt that even if he believed she was consenting, there were no reasonable grounds for that belief, then the Crown has proved its case.

5. Right that is the definition of the offence of rape. I repeat, this is a charge of attempted rape, and sensibly you may think, our law deals not only with completed crimes but also with attempts to commit crimes which are not in fact completed.

6. In order to prove that a criminal attempt has occurred the prosecution have to prove two essential matters. First, that the accused intended to commit rape. That is to say, to have non-consensual intercourse with this complainant – and it is for that reason that I have given you the full definition of rape. So first the Crown has to prove that the accused intended to have non-consensual intercourse with the complainant. Second, to prove an attempt the Crown has to show that he did or omitted some act for the purpose of accomplishing his object. So before a person is guilty of an offence of an attempt to commit a crime, it has to be shown that the necessary intent existed and that that intent was accompanied by some act or omission for the purpose of accomplishing the object. And that act or omission has to be immediately or proximately connected with the intended offence; activity which is merely preparatory is not sufficient to constitute an offence.

7. Now here the acts relied on are a series of acts involving the removal first of her clothing in part, then the defendant’s clothing and then positioning himself between the girls legs. And the Crown says that if you accept these things happened, they are so proximate to the act of rape itself that they go beyond mere preparation. And if the intent was also there at the same time to have non-consensual intercourse then the Crown has proved a criminal attempt of the kind alleged. [The paragraph numbers have added for ease of reference.]

[6] In his written submissions, counsel for the appellant contended that the summing up should have distinguished between the intent to assault without consent and intent to have sexual intercourse without consent. That does not however appear to us to have been a live issue in the circumstances of this trial where the prosecution’s case was that the complainant had not consented to any intimacy at all with the appellant. This point does not assist the appellant.

[7] The next matter of concern related to paragraph 2 and in particular to its opening phrase “[t]he issue in a case such as this”. That phrase, it was said, may have distracted the jury from their real task and made it appear that their task was

simply to assess whether the complainant had consented. This argument too must fail since in paragraph 1 the Judge had made it clear that the Crown had to establish that the appellant did not have belief on reasonable grounds that the complainant had consented. He repeated the point in paragraph 3.

[8] The next objection was about the phrase “the Crown has proved its case” at the end of paragraph 4. The submission is that the jury may well have been left with the impression that nothing more was required. But they could not have been left with that impression since the Judge makes it explicit in the very next paragraph of the summing up that what he had finished dealing with was the definition of the offence of rape and that he was now turning to the requirements of an attempt charge.

[9] The final point in the written submission returned to the proposition that the Judge should have drawn a clear distinction between the intent to sexually violate and the attempt simply to touch without consent. We have already dealt with one aspect of the submission. So far as the requirements of proving intent in respect of the offence of rape are concerned, no objection can be taken to the statement of the law in paragraph 1.

[10] At the hearing before us, counsel emphasised that the real issue was the proof of the intention to have sexual intercourse without consent. The summing up did not, he submitted, stress that matter adequately. We cannot agree. The requirement that the Crown prove intent is mentioned by the Judge in paras 1, 6 (three times) and

7, the final sentence of the statement of law. The Judge then mentioned in standard terms the appellant’s interview and recorded that the Crown argument on this “single issue trial” was whether this accused intended non-consensual intercourse with the complaint. His trial counsel agreed, the Judge continued, that the fundamental issue was just what did this accused intend at this time. She asked whether it was possible that the accused saw this as “a romantic one night stand” in which there was no intention to do anything without the complainant’s consent. Intention was plainly before the jury. The appeal against conviction must fail.

^{Appeal against sentence}

[11] The sentencing Judge, who had been the trial Judge, having summarised the facts, said that the complainant appeared to have come through the case determined rather than damaged by her experiences. There could, he said, be no claims by the appellant to remorse or apology and unfortunately, if any impression had been created by the prisoner, it was a cavalier one indicating a high risk of reoffending in the perception of the Probation Service. The Probation Officer had also received an entirely adverse impression, both so far as the attitude to the particular offending was concerned and also the motivation to make changes. The appellant’s personal circumstances were unexceptional, including a sad lack of family support, a modest history of offending, both for violence and dishonesty, and any allowance on account of age (he is 25) had long since been expended. He must how, said the Judge, take full responsibility for his actions. The Judge’s firm view at trial was that a completed offence was only seconds away from occurring. Had that occurred a starting sentence of around eight years imprisonment would have applied and there would have been aggravating features arising from the time, place and circumstances of the offence. One element of aggravation was that the appellant, with some sort of welcome into private premises, proceeded to act entirely beyond any licence or permission which he might have enjoyed. Some of the aggravating features were not present. The appellant acted alone, there was no further violence than that implicit in the act itself. But there was a significant breach of trust, given the vulnerability of the position in which the complainant was placed. The Judge had formed the view at trial that the appellant was simply trying his luck and all that could be said to his credit was that when it became perfectly clear that he was not welcome he had the brains to desist. No discount could be claimed for any change of attitude or appreciation of the wrongfulness of what had been done. Looking at the least intrusive penalty that could be imposed, he fixed the sentence at four years imprisonment.

[12] The appellant contends that the sentence was manifestly excessive in all the circumstances. The offending was similar to an offence of indecent assault and was the lowest end of the scale for offences of this type. While there is no tariff structure for attempted rape the sentence, it is said, is manifestly excessive when compared

with sentences passed in other cases of attempted rape, such as R v Sewell

CA497/95, R v Alchin CA77/96, R v Andrews CA224/97 and R v Diggle [1994] 16

CrApp R(S) 163. The submission continues that there were no serious aggravating features in this case calling for the sentence imposed. The assault was significantly less than in Alchin where two and a half years was upheld. Counsel submitted that in all the circumstances a sentence of about two years imprisonment would have been appropriate.

[13] The Crown calls attention to the Judge’s assessment that the case was seconds away from rape. Further, the Probation Report discloses an individual who had no qualms about entering a woman’s room, knowing her to be asleep and significantly affect by alcohol and trying to rape her as she slept. He has no remorse and blames the victim. The submission refers us to R v Nohe CA122/01 18 June

2001 where the facts where not too far removed from this case and where the sentence was reduced on appeal from nine years to seven.

[14] We have no doubt that the sentence was an entirely appropriate one for the reasons given by the sentencing Judge. This was much more than simply an indecent assault. We have no basis for disagreeing with the Judge’s assessment that rape was only seconds away. We would also call attention to the judgment of a five- judge court, R v Hassan [1999] 1 NZLR 14, an appeal in respect of charges of assault with intent to commit sexual violation, where a sentence of six years and two months imprisonment was upheld. While the court did not consider it desirable to indicate a tariff for this offending which may be so diverse in its circumstances, it did accept that following the 1993 increases in penalties for sexual violation an increase in the level of sentences for this kind of offending was appropriate. That judgment was intended to assist in giving further guidance in sentencing for offending like this. We again repeat that we will rarely be helped by the recitation of the facts of different cases of this kind. We must make an assessment of the appropriate penalty against all the circumstances of the offence, the offender and the victim. In this case, as we have already indicated, a sentence of four years imprisonment is an entirely appropriate one.

^Result

[15] It follows that the appeal, both against conviction and sentence, is dismissed.

Solicitors:

Souness Stone, Hastings for the Appellant

Crown Law Office, Wellington