FLESHER v R [2005] NZCA 217 (25 August 2005)

Last Updated: 6 September 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA12/05

THE QUEEN



v



MARK DAVID FLESHER

Hearing: 17 August 2005

Court: Anderson P, Randerson and Williams JJ

Counsel: R Wade for Appellant
M D Downs for Crown

Judgment: 25 August 2005

JUDGMENT OF THE COURT

Appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS

(Given by Anderson P)

Factual background

[1]	In May 2004 the appellant was convicted on his trial before District Court Judge Epati and a jury on three representative counts of indecently assaulting young girls and four representative counts of wilfully ill-treating children. The indecent assaults related to two sisters and the charges of wilfully ill-treating related to those girls and two of their brothers. The District Court Judge declined sentencing jurisdiction. The appellant was sent to the High Court where, in December 2004, Frater J imposed preventive detention with a minimum non-parole period of five years. This appeal is against both conviction and sentence.
[2]	The indecent assaults consisted of the appellant rubbing his body against buttocks and genitals. This occurred when he and the girls were clothed so that there was no skin to skin contact. At relevant times one girl, whom we will call A, was about 12 years of age and the other girl, B, was about 9 or 10.
[3]	The offences of wilfully ill-treating children consisted of him striking them with his fists, a belt, a bamboo stick and kicking them with his boots on.

Grounds of appeal against conviction

[4]	The grounds of appeal against conviction are that the trial Judge wrongly declined leave to the appellant’s trial counsel (not Mr Wade) to cross-examine A about her previous sexual experience, and that the trial Judge misdirected the jury in respect of the onus of proof on the charges of wilful ill-treatment.
[5]	On the morning of the trial the Judge heard and determined an application on behalf of the appellant for leave to cross-examine pursuant to s 23A of the Evidence Act 1908. The purpose of the intended cross-examination was to elicit that A had been sexually abused at about the age of four. The defence wished to submit that A’s knowledge of sexual activity was not based on what the appellant was accused of but on the early childhood experience. Further, the defence wished to submit that A’s attitude to the appellant was the product of a transference of anger from the early malefactor.
[6]	The Judge held that the statutory test for the grant of leave had not been met. That test is stipulated by s 23A(3) of the Evidence Act 1908 in the following terms:

(3) The Judge shall not grant leave under subsection (2) of this section unless the Judge is satisfied that the evidence to be given or the question to be put is of such direct relevance to--

(a) Facts in issue in the proceeding; or
(b) The issue of the appropriate sentence,--

as the case may require, that to exclude it would be contrary to the interests of justice:
Provided that any such evidence or question shall not be regarded as being of such direct relevance by reason only of any inference it may raise as to the general disposition or propensity of the complainant in sexual matters.

[7]

In this Court, counsel has submitted that leave should have been granted because, without knowledge of the prior abuse, the jury may well have concluded that familiarity with sexual behaviour was instilled by conduct of the appellant rather than in consequence of the earlier abuse. Second, the intended submission relating to transference could have been developed.

[8]	Mr Wade referred to three decisions of this Court where cross-examination as to sexual history was found to have been wrongly excluded by trial Judges. Those authorities are R v M CA268/93 9 July 2003, R v G CA62/98 23 April 1998 and R v M [2000] 18 CRNZ 368.

[9]

Mr Wade also referred this Court to Regina v A (No 2) [2002] 1 AC 45, where Lord Hope observed that one example of where it would be appropriate to grant leave to cross-examine would be where there were young complainants, the detail of whose accounts may be explicable on the basis of prior sexual activity.

[10]	The ground of appeal relating to misdirection rests on the following extract from the summing up:

[26] It is very important to bear in mind that if the issue of parental discipline is raised, and it has been here, it is not for the defence to prove that the accused was acting within the terms of that section. Rather it is still for the Crown to prove beyond reasonable doubt that he, the accused, was not acting within its terms.

[27] So relating to the evidence you have to be satisfied that the force, i.e the bamboo stakes, the dog leash, the rope, whatever it was, and the slapping, you need to be satisfied from each of those circumstances alleged that the accused was acting with the intention of disciplining the child. If you are satisfied he was not on any or each of those occasions, then parental discipline does not apply. If you are satisfied that he was acting on all of those occasions in order to discipline the child, then you need to consider whether in the circumstances of the offence for which the child is being penalised, that the force used is in the circumstances reasonable.

[11]

Counsel’s argument is that although in para 26 the Judge correctly described the onus of proof, nevertheless in the next paragraph, particularly the first sentence thereof, he inadvertently reversed the onus of proof. In that first sentence the Judge should have said "...that the accused was not acting...".

Crown submissions on conviction appeal

[12]

The Crown submitted that the Judge’s refusal to grant leave was correct because the statutory test was not satisfied and that no application was made to cross-examine anyone other than A. Also, that transference was not raised as a ground in support of the application. (We think, however, that it was, although that particular term was not used.)

[13]

As to alleged misdirection, the Crown emphasised the contextual relevance of directions made in the course of a summing up. When the summing up is considered as a whole, it discloses that the Judge explained the standard of proof and burden of proof, identified the ingredients of the cruelty charge and emphasised it was incumbent upon the Crown to prove each beyond reasonable doubt, explained the onus of proof in [16] referred to above and later directed the jury as follows:

If you think that it is at least reasonably possible that the accused was acting within the terms of that section then his actions would be justified and your verdict should be not guilty on cruelty to a child. Remember, you must separate each of the charges as you consider them.

Discussion – appeal against conviction

[14]	The application for leave pursuant to s 23A was made improvidently close to trial. The Judge’s response was not absolutely to decline leave. He ruled that he was not satisfied at that time that the cross-examination would have any direct relevance and noted that counsel had based her argument on what might or might not eventuate as the evidence unfolded. He remarked that perhaps the application had been made prematurely and he reserved leave for her to reapply once the relevant evidence should have been given. He considered he would then be in a better position to deal with the application and left the matter with counsel to deal with later as she saw fit. No further application was made nor was any evidential basis elicited for justifying leave.
[15]	The proposition that the fact of knowledge of sexual conduct by A might be prejudicial to the appellant is unpersuasive. At the time of trial A was 141/2 years old. The relatively low level of sexual conduct alleged against the appellant was plainly something that could reasonably be within the knowledge of a girl that age without there having been any relevant sexual experience. There was no real issue about the reasonable possibility of any such prejudice and the statutory test in s 23A(3) was simply not met. Nor was the test met by a mere assertion of a possibility of transference without the least evidential basis to support it. It is simply not enough to float theoretical possibilities as a justification for the grant of leave.
[16]	We are also unpersuaded that the omission of "not" in the first sentence of [27] of the summing up, has occasioned any miscarriage of justice. Counsel who appeared at trial is very experienced in practice at the criminal bar. If the point now exposed by dissection post mortem had had any impact on the life of the trial, one would expect that to have been brought to the Judge’s attention. The reality must be that the impact of the summing up as a whole left the jury in no doubt at all where the onus of proof lay. That had been emphasised at the outset of the trial and was iterated and reiterated throughout the summing up. The passage cited in [13] made the position abundantly and accurately clear. The Crown’s submission to us, emphasising the relevance of context, is entirely apt.
[17]	The appeal against conviction must be dismissed.

Appeal against sentence

[18]

There is no dispute that the appellant is eligible for preventive detention, although that was in issue before Frater J. The offending in question occurred both before and after the commencement of the Sentencing Act 2002 and because of the earlier offences s 153 was invoked. That section provides as follows:

153 Offender convicted of specified offence committed before commencement date
(1) This section applies if--

(a) an offender is sentenced on or after the commencement date for an offence committed before that date that is a specified offence as defined in section 75(4) of the Criminal Justice Act 1985; and
(b) had the court been dealing with the offender immediately before the commencement date, the court would have sentenced the offender to preventive detention under section 75 of the Criminal Justice Act 1985 or committed the offender to the High Court in accordance with section 75(3) of that Act.

(2) The court may deal with the offender under sections 87 to 90.

[19]	Sections 87-90 of the Sentencing Act are concerned with the sentence of preventive detention.
[20]	Frater J’s analysis of the matters justifying the sentence of preventive detention is detailed and systematic. Mr Wade, with his usual candour, acknowledges:

...it is plain that the learned sentencing Judge considered all available reports and authorities and thought long and hard before coming to her decision...

[21]	Nevertheless, submitted Mr Wade, the Judge was unduly influenced in her determination that preventive detention was the appropriate sentence, by the refusal of the appellant to acknowledge guilt.
[22]	It is the case that the appellant, far from expressing remorse, insisted that he had been wrongly convicted.
[23]	One of the factors to be considered in deciding the appropriateness of preventive detention, as identified by this Court in R v Leitch [1998] 1 NZLR 420, is acceptance of responsibility and remorse for victims. Frater J referred to Leitch and that principle in the course of her sentencing notes. She observed that the appellant displayed no remorse or acceptance of responsibility for the sexual abuse and she noted the Crown submission that the appellant’s lack of insight into his offending and lack of empathy for his victims are factors the Court can take into account when assessing ongoing risk to the community.
[24]	The Judge also observed that until the appellant should accept responsibility for this recent sexual offending he would be ineligible to enter the Te Piriti Programme, and that until he should complete that programme he would be unlikely to effect sufficient changes in his cognitive thinking to bring an end to his offending.
[25]	We think it appropriate to set out the succinct written submission of Mr Wade on this point:

The sentence of preventive detention was imposed by Frater J on 15 December 2004, the Sentencing Notes commencing on page 175 of the Case Book. It is plain that one of the most significant factors in her decision and in the conclusions reached by Drs. Moskowitz and Simpson was the Appellant’s refusal to acknowledge any culpability in respect of the current convictions; this is in contrast to the remorse he expressed in respect of earlier offending. However, it is noted that even well before sentence, the Appellant was complaining in strong terms that he had been wrongly convicted and he also expressed his intention to appeal those convictions. In those circumstances, it is submitted that the refusal to acknowledge culpability has been unduly magnified and has also made it impossible for the Appellant to enter the Te Piriti Programme. In effect, the Appellant has found himself in what is commonly called a "Catch 22" predicament during the period between trial and sentence. If he continues to deny culpability he is by far the more likely to receive a sentence of preventive detention, having failed to acknowledge his wrong-doing. If he does acknowledge the wrong-doing, he jeopardises, if not destroys, any prospect of an appeal against conviction and also risks criticism for putting the children through the ordeal of giving evidence and trying to defeat justice.

[26]	A further argument developed by Mr Wade was based on Frater J’s omission to consider the relevance and effect of the regime of extended supervision orders provided in Part 1A, Parole Act 2002.
[27]	In R v Mist (2005) 21 CRNZ 490, [100] this Court made it plain that the possibility of an extended supervision order must be taken into account when assessing the extent to which a lengthy determinate term will provide adequate protection for the public. That view was repeated in R v Parahi CA446/04, 29 June 2005.
[28]	In Parahi, the offender had been sentenced to preventive detention following a plea of guilty to sexually interfering with a six year old girl. He had been convicted four years previously for similar conduct. The case raised the question of the appropriateness of preventive detention for repetitive but relatively low level sexual offending, as well as the issue of the relevance of extended supervision orders. The outcome of the appeal in Parahi was that the sentence of preventive detention was quashed. A finite sentence of five years, with a minimum non parole period of three years, was substituted. This Court considered Mr Parahi to be on the cusp of preventive detention and it was significantly influenced by the distinct possibility of an extended supervision order.
[29]	Not unnaturally, Mr Wade urged this Court to take a similar approach to the sentencing of the present appellant. We remark, however, that Mr Parahi acknowledged fault on the spot and pleaded guilty the day following arrest. The present appellant cannot claim such insight.

The Crown response to sentence appeal

[30]

As a preamble to his submissions on the case in hand, Mr Downs expressed concern at a perception, reflected, he submitted, in certain recent decisions of this Court, that where sexual offending falls towards the lower end of a scale of seriousness, preventive detention would be appropriate only in exceptional cases. The decisions he referred to were R v Burkett CA416/00 21 February 2001, R v Bailey CA102/03 22 July 2003, and R v Parahi. Mr Downs emphasised the rejection by a Full Court, explicitly in Leitch and implicitly in R v Dean CA172/03 17 December 2004, that preventive detention is a sentence of last resort.

[31]

As to the sentence under appeal, the Crown acknowledged that Frater J did not consider the possibility of an extended supervision order being imposed upon the appellant in examining whether a determinate sentence might adequately protect the public. Notwithstanding, in counsel’s submission, the sentence was properly available in the circumstances. The offending was representative in nature and involved persistent and intrusive breaches of trust. The appellant’s criminal history contains a general pattern of serious sexual offending. His victims include a teenage stranger whom he abducted with intent to commit sexual violation, an adult woman, also a stranger to him, whose house he broke and entered and whom he repeatedly raped and otherwise sexually violated, and now young people for whom he had certain responsibilities. This indicates a risk of repetition warranting preventive detention, particularly when the offences have been committed in a relatively short period after release from prior imprisonment. In such circumstances, the Crown submitted, a finite sentence even with an extended supervision order would not adequately protect others from becoming future victims.

Discussion – sentence appeal

[32]	The submissions on behalf of the appellant face two difficulties. The first is that, as Frater J’s analysis shows, preventive detention was an available sentence in the circumstances. The second is that the appellant’s perceived dilemma is the logical consequence of the jury’s verdicts. As Frater J pointed out, and this Court reinforces, the sentence must respond to the verdicts. Leitch does not say that admission of guilt and expressions of remorse may be mitigating factors but their absence is a neutral factor. The nature of psychiatric and psychological reports, and general knowledge of human behaviour have informed the jurisprudence reflected in Leitch. A Court cannot sensibly sentence on the basis that a person has been wrongly convicted. This Court is not prepared to modify Leitch by treating absence of remorse and denials of guilt as having no implications in terms of risk of future offending.
[33]	The submissions concerning the availability of an extended supervision order carry more weight. Frater J’s omitting to have regard to that possibility means that this Court must take a hard look at the aptness of the sentence with the new provisions brought into account.
[34]	The extent to which those provisions may tend to ameliorate risk requires, of course, an evaluation of the nature of the risk. As to that, there are matters which cause us much concern in this case.
[35]	First, there is the context of violence in which all the appellant’s sexual offending has occurred. In the case of the teenage girl, the appellant offered her a lift in his car and then drove her to a secluded area where he forced her to remove clothing and then sexually assaulted her. She eventually managed to escape. He attacked the next victim in her home, threatened to slit her throat with a knife and lacerated her neck to force submission. After hours of violent degradation she also managed to escape. In the case presently before us, the appellant committed the sexual offences in a context of sustained violence against the children.
[36]	Next, the appellant has seriously offended shortly after serving sentences of imprisonment. He attacked the victim in her home little more than a month after being released from a prison sentence of three and a half years for the sexual abduction. The present offences began when he was still on parole from a sentence of ten years imprisonment for the sexual home invasion.
[37]	Finally, the present offending occurred notwithstanding that the appellant had been through rape therapy courses during his previous imprisonment.
[38]	These features persuade us that, notwithstanding the extended supervision regime, a sentence of preventive detention is appropriate. The protective and deterrent feature of amenability to recall to prison for any repetition is highly relevant in this case.

Conclusion

[39]	For the above reasons the appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington