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Court of Appeal of New Zealand |
Last Updated: 25 April 2018
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA 253/03
THE QUEEN
v
DONALD LYALL TROTTER
Hearing: 29 September 2004 Coram: McGrath J
Wild J France J
Appearances: M A Kennedy for Appellant
G Burston for Crown Judgment: 14 October 2004
JUDGMENT OF THE COURT DELIVERED BY FRANCE J
[1] The appellant was convicted by a jury in the High Court in October 2002, on a retrial of four counts of indecent assault of a boy under 12. The counts involve four complainants. The appellant was subsequently sentenced in March 2003 in respect of this offending to preventive detention with a minimum period of imprisonment of five years. He appeals against his conviction and against the sentence of preventive detention.
R V DONALD LYALL TROTTER CA CA 253/03 [14 October 2004]
[2] The appeal is out of time and leave to extend the time for filing an appeal under s 388 of the Crimes Act 1961 is also sought.
Background facts
[3] The offending took place over the period 2000 to 2001. The appellant had set up two computer rooms in his house. One room was more of a storage room. The other room was more useable and there were a number of computers in this room and many children’s games installed on the computers. Children from the surrounding neighbourhood would come and play on the computers. The appellant built up a rapport with children and engaged in physical contact such as hugging or pressing against them. While the children were using the computers, the appellant would stand behind them or sit the boys on his lap in an attempt to feel them in their groin and genital area. Three of the four charges of indecent assault related to ongoing conduct.
Appeal against conviction
[4] The notice of appeal against conviction included two grounds but only one of these is pursued, namely, that a miscarriage of justice within the meaning of s 385(1)(c) of the Crimes Act 1961 occurred because the appellant was persuaded not to give evidence contrary to his own judgment.
[5] The appellant does not argue that counsel, in not calling the appellant to give evidence, acted contrary to instructions. The appellant waived legal privilege and both the appellant and senior counsel at trial filed affidavits in this Court. There is no suggestion at all in that material that counsel acted contrary to instructions.
[6] Rather, the appellant accepts he ultimately agreed with his counsel’s advice not to give evidence although not initially of that view. The matter accordingly falls to be decided by determining whether counsel has made a “radical error” such that there has been a miscarriage of justice: R v Pointon [1984] NZCA 72; [1985] 1 NZLR 109 (CA).
[7] Ms Kennedy, for the appellant, contended that the decision not to call the appellant resulted in the evidence of the four complainants going to the jury uncontradicted by any other evidence, except for the evidence of the denial of some offending by the appellant when interviewed by the Police. Although defence counsel may consider as a matter of trial strategy that he or she can achieve more by an address to the jury than having to tailor that to defence evidence, that strategy was not a sound one here in the face of four complainants who had maintained their stance throughout the trial.
[8] Ms Kennedy accepted she could not say that not calling evidence in this case amounted to a radical error although still pressing the point there had been a miscarriage. She referred in this regard to the fact that the jury returned a verdict fairly shortly after retiring and suggested there may have been “some impression” created by the fact that the four remaining complainants’ evidence was uncontradicted. (The counts against two other complainants were discharged under s 347 of the Crimes Act 1961 in the course of the trial.)
[9] The relevant principles about the, rare, cases in which tactical decisions in the conduct of a defence may give rise to a miscarriage are discussed in R v Pointon, above, at p 114 and Taylor Appeals (2000) at 8-073. We are satisfied there has been no radical error by counsel in this case and nothing to found a miscarriage of justice.
[10] This is not a case in which there was no evidence at all to support the defence. As both counsel observed, the defence had a strategy. There were two aspects to this. First, that the jury would be able to conclude there was a reasonable doubt as to whether any touching occurred. That was because of the evidence the complainants had been talking amongst themselves about what had occurred in a way which the defence argued suggested collaboration and/or fabrication in their accounts. Mr Burston, for the Crown, pointed to the cross-examination and re- examination of one of the complainants as illustrative of the potential for this defence. For example, in re-examination the complainant said he put an X on the body diagram in the course of his video interview because he had heard one of his friends talking about it. As Mr Burston put it, there was much material with which the defence could work on the evidence before the jury.
[11] Second, the defence did call one witness, the mother of two boys who were not complainants in this trial. This evidence was in support of the other defence theory that there was little opportunity for the alleged offending to have occurred and therefore the offending could not have happened in the way the complainants alleged. The jury did have evidence that there was often more than one boy at a time in the computer room and that adults were coming and going from the house and indeed from the computer room itself, delivering or picking up children.
[12] The defence strategy was consistent with that adopted at the first trial of these matters, in which the appellant also did not give evidence. At the first trial, the appellant was convicted of one count of indecent assault on a young boy and acquitted on another. The jury were unable to agree on the other 12 counts.
[13] That the defence approach had some credibility is indicated by the outcome of the first trial, a point Mr Burston emphasised. Further, in the retrial, two of the complainants did not maintain their position as had been set out in their videotaped interviews. The counts in relation to those two complainants were discharged under s 347 of the Crimes Act 1961 in the course of the retrial. All of this tells strongly against radical error.
[14] The question also has to be considered against what might have been said had the appellant given evidence on his own behalf. The appellant’s affidavit suggests that his evidence in chief would have covered two broad topics. The first aspect would seek to rebut the submission Crown counsel made, in addressing the jury, that the computer rooms had been set up to lure children into the appellant’s home. The appellant maintains he was operating a small business which involved repairing and upgrading old computers he had obtained when installing new computers into various businesses. He says he would install a server with new computers and take the old computers as a form of trade-in. The old computers were sold to schools, kindergartens, and families.
[15] The second aspect relates to matters of timing, in particular, as to when two of the complainants first came to the appellant’s home. It appears that the purpose of this evidence would be directed towards showing that one of the complainants, at
least, did not have the “good memory” which he told the videotape interviewer he had.
[16] Neither of these aspects raise matters which are so compelling as to amount to any radical error or miscarriage.
[17] In any event, the matter has to be considered against what was apparently firm advice to the appellant as to the difficulties he might experience on cross- examination. Counsel quite properly made it clear to the appellant that there were serious risks in exposing him to cross-examination. As this Court said, at para [22], in R v Francis (CA 186/03, 7 July 2004), “It is the duty of defence counsel to give such advice where appropriate (R v Le CA208/00, 14 September 2000).”
[18] As was also the case in Francis, we are satisfied that the risks were such that competent counsel, who had had the chance to assess the appellant’s personality and consider how he might fare under cross-examination, might reasonably decide not to press on the accused the desirability of his giving evidence. There was no radical error of counsel here.
[19] For these reasons the appeal against conviction is dismissed. We turn to the question of the appeal against sentence.
Appeal against sentence
[20] After conviction on the one count of indecent assault at the first trial, the appellant was sentenced to preventive detention which at that time required a minimum non-parole period of 10 years. The Court of Appeal allowed an appeal from that decision on 19 July 2002 (CA 125/02). The sentence of preventive detention was set aside, and a finite sentence of seven years imprisonment was substituted. The appellant’s case on appeal is that the circumstances are unchanged from those which made preventive detention unduly punitive in July 2002.
Appellant’s previous offending
[21] The appellant’s previous offending is set out in the earlier decision of this Court. Briefly, the appellant is aged 58. In 1967 he was convicted of indecent assault of a boy under 16 years and of two charges of indecent assault of a male over
16 years. The appellant was sentenced to three months imprisonment on each charge. In 1970 he was convicted on three charges of indecently assaulting a boy under 16 years and was sentenced to probation.
[22] In 1974 the appellant was convicted again of indecent assault of a boy under 16 years. He was sentenced to imprisonment for six months. In 1992, the appellant was convicted on one charge of having anal intercourse with a boy under 16 years, and three charges of an indecent act with a boy aged between 12 and 16 years. He was sentenced for this offending to four years six months imprisonment. He completed serving his sentence in December 1994 having been released on parole after completing the Kia Marama Programme for child sexual offenders. He was not then apprehended for offending until the incident considered by this Court earlier and the present offending.
Sentencing reasons
[23] After discussing the nature of the offending and the history of the matter, the sentencing Judge turned to the two reports obtained under s 88 of the Sentencing Act 2002. The Judge concluded that “at heart” the views of the report writers came to this:
[The appellant] is at a high risk of reoffending; the pattern of offending continues ‘unchanged’, despite the treatment [the appellant] has had; and despite the assistance he has had to identify and deal with high risk situations, he does not, or cannot, act on that advice.
[24] The approach taken by Hammond J, the sentencing Judge, was to consider both the earlier charge the subject of this Court’s previous decision and the four present charges when determining the sentence so as to arrive at a sentence that reflected the overall totality of the offending. Hammond J, who was also the trial
judge, discussed in this context the observations made by Tipping J in delivering the judgment of this Court in R v C (CA 249/02, 17 October 2002).
[25] The Judge concluded:
For the reasons I have already stated, I am not satisfied, in this instance, that a determinate sentence of imprisonment would achieve the required level of protection for the community, even if (say) the present sentence were to be doubled. The sad fact is that [the appellant] is in that awful category where his future – for the foreseeable future – needs close regulation in the public interest, and it would be quite unwise to see him released simpliciter from prison, at the conclusion of any finite term.
Submissions on appeal
[26] The appellant makes two primary submissions. First, that the sentence of preventive detention was considered punitive by this Court when imposed after the first trial. There has been no change to that position although it is accepted there is a lesser minimum term (five years rather than ten). Ms Kennedy emphasises that although there are now four further complainants, the offending took place over the same timeframe and, she submits, in the same manner. Further, the appellant’s previous convictions are for offending almost ten years earlier. Finally, under this head, the appellant submits that the report of the consultant forensic psychiatrist (Dr John Crawshaw) obtained under s 88 of the Sentencing Act 2002 was largely unchanged from the report he gave for sentencing after the first trial.
[27] Second, it is submitted that preventive detention is not appropriate where the charges involve indecent assaults only, especially where those are more or less the same as the charge considered earlier although it is accepted there is a degree of greater seriousness in this offending.
[28] Accordingly, it is submitted that a finite sentence is adequate protection for the community especially given the appellant’s age and his health issues.
[29] For the Crown, it is submitted that the sentence imposed is neither manifestly excessive, nor wrong in principle, and Mr Burston submits that the sentencing Judge was correct. The only point can be, he suggests, that the Court of Appeal quashed
the sentence on the first occasion and that it is still unduly punitive. The Crown submits this is not so for three reasons:
Decision on sentence appeal
[30] The purpose of the sentence of preventive detention is, as set out in the earlier decision of this Court in relation to the present appellant, to protect the community. The Court does still have to consider the punitive effect in light of the seriousness of the offending in issue.
[31] We accept the submission for the Crown that matters have moved on considerably from the position extant at the time of the earlier decision of this Court.
[32] The Court at that point was considering one charge against one complainant described as at the lower end of the scale of indecent assault. Now, the matter is being considered against a difference in scale, with four more victims involved. This must be relevant in terms of the public risk that the appellant now presents.
[33] Further, the touching is more serious. At the time this Court previously reviewed the matter, there was one count involving the appellant putting his hand down the complainant’s pants and squeezing his bottom some five times. The Court considered then it was relevant that the touching did not extend to the child’s genitalia. Now, the complaints in relation to two of the boys involved genital
touching one of which involved skin on skin contact. In relation to the third complainant, although there was no genital touching, the appellant put his hands into the complainant’s underpants on his skin. The fourth complainant involved touching up the leg of the boy’s shorts although not reaching as far as his genitals.
[34] The effects of this offending are seen in the victim impact statements.
[35] The seriousness of the offending has escalated in other ways. In particular, in the setting up of the computer rooms which formed a ready magnet for young children in the area, the appellant created opportunities to offend in an organised way. The offending can be seen as involving a plan to create a very large number of opportunities for offending, some of which proved good ones. Moreover, this was carried out in light of the appellant’s attendance at the Kia Marama Programme for child sexual offenders in 1994.
[36] Accordingly, while Ms Kennedy for the appellant appropriately emphasises that the offending occurred over the same timeframe, there are differences in both the scale and manner of the present offending.
[37] In addition to the escalation apparent in the offending, we consider the two reports on which the Judge in sentencing relied, together with the oral evidence given by both Dr Crawshaw and Mr Anstiss at sentencing, show that the position has shifted in terms of the prospect of change on the part of this appellant from that at the time the Court previously considered the matter.
[38] Although Dr Crawshaw says in his report that his opinion “really remains substantively unchanged” from his previous report, his conclusion is that the appellant remains “a very vulnerable individual” and there are ongoing issues if he were to have any ongoing contact with children. Further, in evidence, he said the appellant was “likely to be always vulnerable” and when he is in a vulnerable position in life, Dr Crawshaw’s opinion was that he was likely then to get himself into situations of difficulty. He will always be left with this vulnerability. Dr Crawshaw said he did not have confidence that, by himself, the appellant would not re-offend. This seems to us to represent a firming of his view as to future risks.
[39] Mr Anstiss in his report concluded that the appellant was not suitable for further rehabilitation programmes and that he posed a very high risk of re-offending in a similar way.
[40] In evidence before the sentencing Judge, Mr Anstiss was asked about the effect of the appellant repeating the Kia Marama Programme. His response was that this would not reduce the risk of re-offending. That was because psychological treatment is not effective unless the participant acknowledges that he or she has a problem. The appellant does not have that recognition.
[41] Accordingly, on the basis of the material before the Judge on sentencing, Hammond J was correct to conclude that there was nothing before him to suggest that the appellant has, or is likely to, change his behaviour.
[42] The other relevant change is that the minimum term of imprisonment now in issue is one of five years, not the ten years applicable at the time the Court considered the matter on the previous occasion. The fact the appellant will be eligible for consideration by the Parole Board after five years is pertinent in considering the punitive effect of the sentence. Further, as Ms Kennedy acknowledged, any issues arising from the appellant’s age and his health can be met by consideration by the Parole Board after the expiry of the minimum term.
[43] For all these reasons, there is an escalation in the offending of a nature and a hardening of the evidence about the lack of prospect of change, such that the need for public protection has reached the point where the appellant must serve a sentence of preventive detention. In these circumstances, the imposition of that sentence is not unduly punitive.
[44] The appeal against sentence is accordingly dismissed.
Extension of time for appeal
[45] The appeal period in relation to the appellant expired on 1 April 2003. Although dated 26 March 2003, the notice of appeal was not filed until 10 July 2003. An extension of time to appeal is therefore required.
[46] The principles for such an extension are set out in R v Knight (1997) 15 CRNZ 332 (CA) and recent illustrations include R v Jury (CA 277/02, 278/02, 26 February 2004), R v Lory (CA 472/03, 19 August 2004), and R v Whakatau (CA 136/04, 30 September 2004).
[47] The background to this aspect is that, in early February 2002, the appellant had been committed to the High Court for trial on three counts of sexual offending involving a female complainant. It appears that the charge was not set down for trial on the basis that if the jury returned a verdict of guilty on the indecent charges on the retrial, a sentence of preventive detention was an available outcome. The Crown position was that if preventive detention was imposed, it was not necessary to put the female complainant through the trauma of giving evidence at trial.
[48] After the expiry of the appeal period, and consequent upon the sentence of preventive detention imposed by Hammond J, at a criminal callover in the High Court at Wellington on 26 May 2003 the Crown indicated that it had ascertained the views of the female complainant and of her mother. The High Court was advised that the complainant did not wish to proceed further. The Crown said that, accordingly, it would consent to the appellant being discharged under s 347 of the Crimes Act 1961 on the charges arising with respect to that complainant. Although the appellant was represented at that callover, he was not present. The application for a s 347 discharge was adjourned and an order to produce made, in relation to a subsequent callover on 9 June 2003, so the appellant could be present when the discharges were made effective.
[49] The appellant was present on 9 June 2003 when the Crown offered no evidence on the three charges involving the female complainant. The appellant was consequently discharged under s 347. The Crown’s position as to the s 347
discharge on those charges was reached after trial counsel for the appellant confirmed that no instructions had been received to lodge an appeal against conviction or sentence.
[50] In those circumstances, the Crown opposed the application for an extension of time on the basis that the way in which the matter had developed meant there was real prejudice to the Crown in the Court proceeding to deal with the appeal on its merits.
[51] Ms Kennedy was not really in a position to deal with this without taking further instructions and possibly the need for some affidavit evidence. Although the matter had been raised earlier with the Court by the Crown in a memorandum dated 17 May 2004, Ms Kennedy was not counsel for the appellant at that point and the various matters raised in the memorandum do not appear to have been pursued until reiterated in the Crown submissions filed prior to the hearing of the appeal.
[52] In these circumstances, the Court proceeded to hear the appeal on the merits. The outcome of that means it is not necessary to resolve the application for extension of time. However, we believe that the circumstances that occurred in this case make it a situation where it would have been appropriate to have determined the application for extension of time as a prior question.
[53] For the reasons set out above, the appeals against conviction and sentence are dismissed.
Solicitors:
Crown Solicitors, Wellington
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