R v H CA287/03 [2003] NZCA 421 (18 November 2003)

Last Updated: 25 April 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT IS PROHIBITED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA287/03

THE QUEEN

v

H

Hearing: 18 November 2003

Coram: Elias CJ Blanchard J Panckhurst J

Appearances: T Sutcliffe for Appellant
M A Woolford for Crown Judgment: 18 November 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] Mr H appeals against his conviction in the High Court at Hamilton on
one count of sexual violation by rape. He appeals also against his sentence of seven and a half years imprisonment imposed after a jury also found him guilty on three other representative charges of rape and sexual violation by rape. The first and second counts related to offending that occurred in Hamilton between 1981-86 and 1986-88 respectively. The third and fourth counts related to offending that occurred in Porirua between 1981-86 and 1986-88 respectively. The second count is the one under challenge.

R V H CA CA287/03 [18 November 2003]

[2] The appellant was convicted of sexually abusing the complainant, a relative of his de facto partner, over a period of seven years from 1981 to 1988. The abuse began when the complainant was 10 years old and did not cease until she was 17. The appellant was approximately 20 years old when the offending began. A significant period of time has elapsed since the dates recorded in the indictment. The complainant was 31 years of age when she gave evidence at trial. She told the jury that this was because she waited for the relationship between the appellant and her relative to end, which it did in 2001.

[3] The offending began in Hamilton at H Road, where the complainant
lived with her mother. The residence was described as having a “party atmosphere”. The appellant and his partner stayed at the H Road address for around four months in 1982, and often stayed for brief periods after that. Towards the end of 1982 they moved to Wellington and then to Porirua in 1984, where they resided until 1989. The complainant said that when the appellant stayed at H Road he would rape her in the morning, at night, and during the day if she was not at school. The complainant described the number of times that intercourse occurred as being “more than the toes and the fingers I’ve got”. The complainant also said that the appellant raped her when she stayed in Porirua with her aunt and her cousin, although she could not say how many times. The complainant often stayed in Porirua during the school holidays, and the appellant at that time was living close by.

[4] The Judge described the offending in his sentencing notes as having “substantial aggravating factors”. He began with a starting point of five years, giving the appellant the benefit of a lower starting point for contested rape after noting it had since increased to about eight years. The Judge said that he would treat the charges as having occurred before the time of that increase and as if there were one continuous period of offending in the same way over the seven year time span. The starting point was then increased by two and half years to reflect the aggravating factors: the vulnerability of the complainant who was a child at that time; the breach of trust; the substantial period of time over which the offending occurred; and the lack of remorse and failure to acknowledge the effects on the complainant. The Judge noted counsel for the appellant’s acknowledgement that there was little in the way of mitigation that could be put forward.
[5] The sole ground now put forward in support of the conviction appeal is that there was a miscarriage of justice in relation to the second count, which charged the appellant with sexual violation by rape in Hamilton between 1986-88. It was submitted that the jury’s verdict on this count was unsupported by the evidence. The appellant pointed to the following passage of the complainant’s evidence in support:

Can you say when the last incident of this nature occurred at H Road? No I wouldn’t be able to tell you that.

Can you make an estimate of how old you were? Oh, might have been High School.

So how old would that put you, approximately? Oh I dunno. 13 perhaps. What happened after 13? What do you mean?

Did any other incident happen after you were 13? Oh yes, many. Not at H Road, in Porirua.

[6] The appellant said that, as the complainant would have been aged 14 or more during the period covered by the second count, a conviction on that charge could not be sustained. The sentence appeal was consequential. It was submitted that the sentence was manifestly excessive because the appellant was properly convicted only on three counts but had been sentenced on four.

[7] For the Crown, Mr Woolford accepted that it was open to the Court to find that the second count was unsupported by evidence, but submitted that this did not make the sentence manifestly excessive. Mr Woolford said that the period of offending remained the same even without the second count, and that a sentence of seven and a half years imprisonment was appropriate for the remaining three convictions given the aggravating factors and absence of any mitigating circumstances.

[8] It is plain that the conviction on the second count is unsupported by the evidence and must be quashed. The charge covered the period 1986 to 1988 and alleged violation occurring in Hamilton. The appellant’s evidence was however that after she was 13 (in 1984) violation occurred only at Porirua.
[9] Nevertheless, we are unpersuaded that any adjustment in the sentence is required. The remaining three representative counts involved repetitive acts of rape beginning when the victim was 10 and continuing for seven years. Counts three and four relating to Porirua covered the period 1981 to 1988. It can make no difference to penalty that after 1984 there were not incidents at Hamilton.

[10] There is some uncertainty about exactly when the family moved to Porirua. It is possible that there was a cessation in the offending for a period although the general tenor of the complainant’s evidence suggests that is unlikely. In any event it can make no real difference to the appellant’s culpability on the three remaining representative counts.

[11] The appeal against conviction is allowed. The conviction on count two is quashed. The appeal against sentence is dismissed.

Solicitors:

Till Henderson King, Hamilton for Appellant Meredith Connell, Crown Solicitor