R V MALCOLM GEORGE CHASTON [2003] NZCA 79 (3 June 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 10/03

THE QUEEN

v

MALCOLM GEORGE CHASTON

Hearing: 29 May 2003

Coram: McGrath J

Doogue J

Panckhurst J

Appearances: D C Ruth for Appellant

B M Stanaway for Crown

Judgment: 3 June 2003

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Introduction

[1]

At trial the appellant was found guilty of unlawful sexual connection, rendering unconscious and injuring with intent in relation to the same complainant woman.He was sentenced to an effective term of six years imprisonment.The appeal against conviction was presented on the sole ground that the guilty verdict upon the unlawful sexual connection charge was incompatible or inconsistent with several acquittals returned by the jury at the same time.The sentence of six years imprisonment was structured around the penalty appropriate for the unlawful sexual connection.The appellant contended that the sentence imposed was beyond the available range.

Background

[2]	The complainant, aged in her late thirties, and the appellant, aged in his early thirties, entered into a relationship in mid 2001.It was turbulent throughout.On the night of 24/25 September 2001 the complainant stayed at the address of a male friend.The appellant found her there.He was angry and, according to the complainant’s account, rendered her unconscious by manual strangulation.This allegation formed the basis of the first count in the indictment.
[3]	The complainant further alleged that she was removed by the appellant to another address at which she was detained from 25 September until 1 October 2001.Hence unlawful detention was alleged in count two.
[4]	Upon arrival at the other address the appellant said she was digitally penetrated by the appellant.He did this in order to establish whether the complainant had engaged in intercourse with anyone during the previous night.This act gave rise to the charge of unlawful sexual connection upon which the jury found the accused guilty.That same day and a short time later in a bed at the address the complainant said she was again strangled to the point where she lost consciousness.This gave rise to the fourth count a further allegation of rendering unconscious upon which a guilty verdict resulted.
[5]	From about the beginning of October the appellant was in prison (albeit the jury were told he was “out of town”).Following his release the relationship resumed.On the night of 10/11 December 2001 the complainant stayed at the appellant’s address.In evidence she said that after he had taken drugs the appellant’s attitude towards her changed and she was subjected to a prolonged assault throughout the night.These events gave rise to the fifth count in the indictment of injuring with intent to injure which produced a guilty verdict.Also to the sixth count of disfiguring with intent to injure which was based upon evidence that the appellant inflicted cigarette burns to the complainant’s hands.In relation to this count and all others (save for counts 3, 4 and 5) the appellant was acquitted.
[6]	The Crown case continued that from 12 December until 28 December the complainant was held by the appellant at two further addresses during which period there was more abuse.Accordingly the final five counts in the indictment charged unlawful detention at two addresses (two counts), indecent assault, rape, and unlawful sexual connection by sodomy.As noted above none of these allegations were accepted by the jury.

Inconsistent verdicts?

[7]	Mr Ruth in a short but effective argument focused upon count 3, being unlawful sexual connection by digital penetration of the vagina.He submitted that this count stood alone in that it was the only instance where the jury accepted the evidence of the complainant in relation to a sexual offence.Hence, this verdict was irrational or at least inconsistent with the pattern of not guilty verdicts returned in relation to six of the counts in the indictment.These were variously charges of a sexual nature or of detaining, supported by violence.
[8]	Counsel pointed out that the verdicts in relation to counts 4 and 5 could not be criticised for inconsistency, because in relation to the charge of rendering the complainant unconscious (count 4) there was an admission from the appellant at interview and likewise a partial admission in relation to the injuring with intent.This was illustrated by reference to an issues sheet which was given by the trial Judge to the jury.In relation to the run of counts in the indictment, including count 3 of digital penetration, the defence case was characterised as one of denial.
[9]	By contrast, because of the appellant’s admission of having rendered the complainant unconscious on one occasion, the Judge noted there was “no contest” in relation to count 4.Likewise with reference to count 5, injuring with intent to injure, the Judge pointed out to the jury that on the basis of a partial admission their decision turned on “the level of the violence and its consequences”. Mr Ruth accepted that the issues sheet accurately captured the position at trial.The guilty verdicts in relation to counts 4 and 5 were therefore explicable.The evidence of the complainant was accepted in light of the appellant’s admissions, whether full or partial.
[10]	Mr Stanaway made three essential points against the argument for inconsistency:

(a)	that there was a connection in time, place and circumstance between counts 3 and 4, in that the admitted act of rendering the complainant unconscious occurred quite soon after the alleged digital penetration,
(b)	that in any event count 3 was distinguishable from all of the other sexual charges because it was not an act undertaken for sexual gratification but rather for other purposes, and
(c)	that at one point in the interview of the appellant by the police he seemingly admitted the act which formed the basis of the charge.

The substance of these submissions will become more apparent shortly.

Discussion

[11]	The relevant principles are well-settled and familiar.The established test is that laid down in R v Irvine [1976] 1 NZLR 96 (CA) in which the Court adopted the observations of Devlin J in R v Stone (unreported, Court of Criminal Appeal (UK), 13 December 1954):

When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him.He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.But the burden is upon the defence to establish that.

[12]	Before a verdict is one to be characterised as not available to a reasonable jury there must be no proper basis for it to have been reached in the context of the pattern of the verdicts as a whole.Where, however, the subject-matter of the charge which has produced the guilty verdict is intrinsically different, or the evidence in support of it is in some way different or where there is corroborative evidence, then the particular verdict cannot be stigmatised as inconsistent.
[13]	In R v H [2000] 2 NZLR 581 (CA) this Court held that even in the absence of a basis in the evidence to distinguish between apparently disparate verdicts they may be explicable as an example of the exercise of the innate sense of fairness and justness of the jury.For example a jury may convict on one of two sexual allegations because it considers the single conviction is enough.
[14]	The present case however is not in the latter category.We are in no doubt that the verdict on count 3 is not to be characterised as inconsistent with the pattern of the verdicts generally.It may well be, as Mr Ruth argued, that the jury decided it was not prepared to act on the evidence of the complainant alone in the absence of support for her allegations from some other source.
[15]	But approaching the matter in that way we still think that the verdict in respect of count 3 is readily explicable.Our reasons are three-fold and generally reflect the submissions advanced by Mr Stanaway.
[16]	First, the admitted evidence of rendering the complainant unconscious shortly after the act of digital penetration which occurred in the shower does indicate that the two counts are mutually supportive.If the appellant was capable of an assault by strangulation taken to the point where the complainant was rendered unconscious a short while after the complainant completed showering, that circumstance must be supportive of the unlawful sexual connection allegation.The trial Judge certainly thought so.
[17]	When he sentenced the appellant he said this:

In effect you admitted your guilt on the rendering unconscious charge.As I have indicated this incident was closely related in time to the sexual violation incident and I suspect that this time linkage assisted the jury in reaching the conclusion that you were guilty on the charge of sexual violation.

We agree.

[18]	The second factor is that there is a distinction to be drawn between count 3 and those other counts which alleged sexual acts and which resulted in acquittals.The charges other than count 3 were in the nature of allegations that the appellant sought and obtained sexual gratification, whether by masturbation, intercourse or sodomy against the will of the complainant.By contrast the gist of the allegation in relation to count 3 was not one of sexual gratification.As the Judge put it in his sentencing remarks it was more a “forced genital examination”.The appellant was angry that the complainant had spent the previous night at the home of another man.He was intent on discovering whether there had been sexual activity.The intrinsic nature of the act alleged is therefore quite different to those which were the subject of the other charges.
[19]	The third point was one developed by Mr Stanaway with reference to the transcript of the interview with the appellant.When first asked whether he had inserted fingers into the complainant’s vagina and had said to her that he was checking for the presence of sperm, the appellant responded that the complainant would not have been so silly as to have intercourse with another person and that he had no recollection of doing this anyway.
[20]	At a later point in the interview the police officer returned to the topic:

Q There was another occasion, actually I’ve just remembered one other thing, when you were at Longfellow Street, remember the thing that we talked about before where it is alleged that you put your fingers insider her, her vagina and kept her there.

A Yeah (laughs),

Q She said that you strangled her unconscious there as well.Did you.

A. Yep.

The appellant’s response to the first question, although not unequivocal, was capable of being viewed by the jury as an acknowledgement of the act in question.Certainly the answer was in marked contrast to what the appellant said in response to the sexual gratification allegations.His stance with reference to them throughout the interview was that there were no acts committed by him of the kind alleged, since any contact he had with the complainant was purely consensual.

[21]	These three aspects of the evidence provide we think an ample foundation for the view that the verdict reached in respect of count 3 was reasonably open to the jury.It is not then an inconsistent verdict.

Sentence appeal

[22]	Mr Ruth argued that even if the conviction in relation to count 3 was upheld the sentence imposed on that charge, six years imprisonment, was excessive on a stand-alone basis.He accepted that for a sexual violation by unlawful sexual connection of this nature a sentence in the range two to five years imprisonment was appropriate.But six years, he contended, was beyond the sentencing range.
[23]	Mr Stanaway supported the sentencing outcome by reference to the sentencing remarks of the trial Judge.That is the six year term in relation to count 3 was a head sentence which brought to account as an aggravating circumstance the rendering unconscious and injuring charges which were part and parcel of a single course of conduct.In other words that this was a violation by digital penetration in the context of a violent abusive episode.
[24]	We think this is a correct characterisation of the sentencing approach adopted.In his remarks the Judge said this:

[10]... I propose to fix a lead sentence for the sexual violation charge reflecting the totality of the offending as a whole, that is as including the violence charges and impose concurrent sentences on those violence charges.

[11]Starting point sentences for sexual violation by digital penetration are usually in the range of 2-5 years.It is open to debate whether the offending in this case should be regarded as more or less serious than in cases where the motive is sexual gratification and I heard conflicting views from counsel on this point.I prefer the view that it was serious offending.What I propose to do is to impose a sentence of six years imprisonment to allow for the totality of the offending and your circumstances including particularly your previous conviction for rape.I impose concurrent sentences of three years and two years on the rendering unconscious and injuring with intent charges.

[25]

The Judge added that he did not regard the case as one for imposition of a minimum term of imprisonment.His concern was to “create an incentive” for the appellant to address the causes of his offending while in prison.That was best achieved if the opportunity for early release was preserved, albeit at the discretion of the Parole Board.We cannot fault the sentencing outcome, both in terms of the duration of the term of imprisonment imposed and with reference to its structure.

[26]

For these reasons the appeal against sentence is also dismissed.

Solicitors:

Crown Solicitor, Christchurch