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The Queen v Woodhouse [2006] NZCA 285 (12 October 2006)

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The Queen v Woodhouse [2006] NZCA 285 (12 October 2006)

Last Updated: 30 October 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA117/06

THE QUEEN

v

BARRY RONALD WOODHOUSE

Hearing: 30 August 2006

Court: William Young P, Panckhurst and Ronald Young JJ

Counsel J Rapley for Appellant
P J Shamy for Respondent

Judgment: 12 October 2006 at 3 pm

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

B The appeal against sentence is allowed, by imposing the sentences concurrently instead of cumulatively.

REASONS OF THE COURT

(Given by Ronald Young J)

[1] This is an appeal against conviction and sentence, the appellant having been found guilty by a jury on one count of indecent assault on a girl between 12 and 16 years of age. The appellant says the guilty verdict cannot be supported having regard to the evidence and there was a miscarriage of justice when Judge Erber (the trial Judge) commented adversely on the failure of the appellant to give evidence. As to sentence, the appellant submits the sentence of five years imprisonment, cumulative on a sentence of two years imprisonment for supplying temazepam, a Class C controlled drug, was manifestly excessive.

Background

[2] The appellant originally faced an indictment with four counts, one of supplying a Class C controlled drug to a person under 18 years of age, one of indecent assault on a girl then aged between 12 and 16 years of age on 10 April 2005 and alternative counts of sexual violation and indecent assault on the same complainant on 13 April 2005.
[3] At the first trial the appellant was convicted of the supply of temazepam, but the jury were unable to reach verdicts on the other charges. At the re-trial the appellant was acquitted on the 10 April 2005 indecent assault count and the sexual violation count, and convicted on the alternative count of indecent assault on 13 April 2005.
[4] At the time of the offending the complainant was 15 years and seven months old and working as a prostitute. The appellant and complainant knew each other. On 13 April the complainant and her girlfriend ("Ms A") agreed with the appellant that he would supply them with alcohol in exchange for sex. The appellant supplied the girls with alcohol and temazepam at his lockup which was set up as a bedroom. The appellant had sexual intercourse at least with Ms A and possibly with the complainant. There was evidence of some conduct in the nature of a threesome. Both girls have uneven memories of the day.
[5] Later that day all three left the lockup and went to Ms A’s home and then the appellant took both girls to the hospital. Both were grossly intoxicated. Ms A stayed at the hospital for treatment and the appellant and the complainant returned to his lockup. The complainant recalls waking in bed in the lockup with her trousers and underwear pulled down around her thighs. She then lost consciousness. The next day she was woken by the appellant who drove her back to her friend’s house. When she subsequently passed a bowel motion she experienced pain. A later examination by a medical practitioner revealed a 1.5cm laceration in the anal canal of the complainant consistent with a blunt instrument penetrating her anus. The complainant said she had not consented to and would not consent to anal violation.
[6] The Crown case at trial was that the sexual violation/indecent assault on 13 April occurred when the appellant took the complainant back to his lockup after Ms A had been admitted to the hospital. It alleged that while the complainant was intoxicated and asleep the appellant either had anal intercourse with her or anally violated her in some other way. A dildo was found in the lockup. The Crown had to establish lack of consent by the complainant and lack of reasonable belief in consent by the appellant on the sexual violation count, but was not required to do so on the alternative count of indecent assault, given the complainant’s age.
[7] The appellant’s case was that there was no proof the complainant was penetrated, or if she was then Ms A was just as likely as the appellant to have done so during the earlier sexual encounter. Or, if the jury were satisfied that he did penetrate her, it was with her consent or he believed on reasonable grounds that she was consenting.

Counsel’s submissions

[8] The appellant submits that the verdict of the jury was unreasonable and not supported by the evidence. The appellant submits that there was insufficient evidence upon which a jury could infer the Crown had proved beyond reasonable doubt that it was the appellant who had sexually assaulted the complainant. Mr Rapley suggested that the jury’s guilty verdict must have been based on a finding the indecent assault occurred before the hospital visit. This submission was based on the proposition that after the visit to the hospital the complainant was too comatose for it to be credibly suggested she consented or the appellant could have believed on reasonable grounds she was consenting. The appellant submitted that the facts were therefore just as consistent with Ms A having committed the act. The appellant claimed there was evidence of some sexual contact between the two girls, of mutual kissing, on the first occasion when all three were together and therefore it was just as likely that any sexual assault occurred then rather than later in the day, as the Crown alleged, when the complainant and the appellant were alone together.
[9] The second ground of appeal against conviction is that the Judge unfairly commented on the defence case when he made reference to the appellant’s failure to give evidence. The appellant submitted that the Judge’s direction weighed unfairly against the defence submission that the facts equally supported the conclusion that the anal penetration could equally have been by Ms A. Thus the appellant said the Judge by his direction effectively invited the jury to bolster a weak Crown case by inferences to be drawn from his failure to give evidence.
[10] The Crown submitted there was evidence which established that the anal assault occurred when the appellant and the complainant were alone, after Ms A had been left at the hospital. It submitted the evidence established a sexual assault and the only person present other than the complainant was the appellant. The Crown said there was sufficient evidence upon which a jury could conclude the appellant sexually assaulted the complainant.
[11] As to the Judge’s comment on the failure of the appellant to give evidence, the Crown said given this was a case where counsel for the appellant had accused another person of the crime without evidence to support the proposition, a comment from the Judge could be expected.

Discussion

Verdict unreasonable and not supported by the evidence

[12] Section 385(1) of the Crimes Act 1961 provides the jurisdiction for an appellate Court to allow an appeal where it is satisfied that a verdict is unreasonable or cannot be supported having regard to the evidence. The well known test was set out by this Court in R v Ramage [1985] 1 NZLR 392 at 393 where the Court said that an appeal should be allowed:

. . . if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict of the jury.

[13] We are satisfied the verdict of the jury was properly open to it. The complainant’s evidence was that prior to waking at the appellant’s lockup after leaving her friend at the hospital, her "lower regions" felt "normal". We are satisfied she would have been aware if she had been anally penetrated prior to leaving for the hospital. However, after she woke at the lockup and shortly after she left the lockup she was in considerable pain.
[14] Dr Healy said in evidence that he examined the complainant and:

The perianal and rectal injuries indicate recent trauma and suggest recent penetration by a blunt object. The position and pattern of these injuries is, in my opinion, consistent with this being external force into the anus.

[15] The complainant’s evidence was that the only other person with her at the lockup on the second occasion was the appellant. The jury were entitled to accept this evidence and infer that it was the appellant who had penetrated the complainant’s anus. Clearly the jury had a reasonable doubt regarding consent and accordingly acquitted the appellant of the sexual violation charge. However, there were ample facts upon which the jury were entitled to infer it was the appellant who had penetrated the complainant. The verdict of the jury therefore cannot be described as unreasonable or as unable to be supported having regard to the evidence.

Comment by the Judge on the failure of the appellant to give evidence

[16] The Judge in his summing up said:

[58] Now, before turning to Mr Rapley’s submissions to you, I want to say this. In his speech to you, Mr Rapley said in relation to count two, when suggesting that any penetration might have been done by [A], that as he put it, the difficulty, and that was his word, is who knows what happened and when things happened. As I said, he suggested that if anal intercourse did happen and the perpetrator was Mr Woodhouse, that you cannot be sure that [the complainant] did not consent or be sure that Mr Woodhouse did not reasonably believe she consented.
[59] It will have occurred to you that there was one sober person there who could have told you what happened, and when it happened, and that person is Mr Woodhouse. I will repeat to you and emphasise what I said earlier and that is that Mr Woodhouse is not obliged to give or to call evidence and you may not reason that therefore or that because he did not give or call evidence, therefore he is guilty, that is the start point. The defence here claims firstly, that [A] may have anally penetrated [the complainant] in the three in a bed triple sex exercise on the first instance in the lockup. Secondly, that anal penetration may have occurred, if it did occur with Mr Woodhouse, when they were in the lockup in the three in a bed occasion and on that occasion the defence suggests to you that your conclusion will be that the girl consented and/or that Mr Woodhouse reasonably believed in the consent.
[60] The last claim of the defence is that if Mr Woodhouse anally penetrated [the complainant], he may reasonably have believed that she was consenting. Well now, when considering these claims, you are entitled to consider that Mr Woodhouse was in a position to help you by giving evidence on those matters and has decided not to give evidence, that is his right to do so. You are entitled to ask, is there any evidence that a third person anally penetrated [the complainant], was this just a suggestion based on no evidence at all. What evidence is there of Mr Woodhouse’s belief at the time, he anally penetrated [the complainant], if you were to conclude that he did that. What evidence is there that anal intercourse took place on the first occasion rather than the second occasion.
[61] Now, it will occur to you that such evidence might have come from Mr Woodhouse but he has not given it. Therefore the exercise of his right to silence may have an adverse effect on whether you think it reasonably possible that the defence contentions are right, which is to say it may affect the weight that you give to the defence’s suggestion. But I emphasise, you must not reason that because Mr Woodhouse gave no evidence, therefore he is guilty but his exercise of his right to silence may weigh against your accepting all or part of the defence submissions.

[17] Section 366(1) of the Crimes Act entitles a Judge to comment on the fact an accused has refrained from giving evidence.
[18] It is well established that a Judge may properly comment on an accused’s failure to give evidence where, without supporting evidence, counsel accuses another of committing the crime (see R v Accused (CA78/88) [1988] 2 NZLR 385 (CA)).
[19] We note the appellant’s case, as far as the anal penetration charges were concerned, was based on three propositions:

(a) The complainant had not been anally penetrated at all. Given the evidence of Dr Healy, as the Judge remarked, this hardly seemed a credible possibility;

(b) the anal penetration was by Ms A;

(c) if the appellant had penetrated her then the Crown had not established absence of consent or absence of belief on reasonable grounds of consent.

[20] Counsel for the appellant in his final address put to the jury that if the sexual assault occurred it could have been Ms A who anally penetrated the complainant during the sexual activity between the two girls and the appellant. No such allegation was put to either Ms A, or to the complainant, in cross-examination by counsel for the appellant. The assertion, therefore, by counsel in his final address that Ms A could have been responsible for any anal penetration had no factual foundation. In those circumstances, the appellant could have expected the Judge to comment on the appellant’s failure to give evidence. We consider the Judge’s comment on the decision of the appellant not to give evidence was entirely appropriate on the facts of this case and orthodox.
[21] We are satisfied that no miscarriage of justice has occurred. The appeal against conviction will, therefore, be dismissed.

Appeal against sentence

[22] The appellant was sentenced to five years imprisonment on the indecent assault charge cumulative on a sentence of two years imprisonment for the supply of the temazepam making a total of seven years imprisonment.
[23] The Judge in considering the aggravating features identified: the nature of the indecency as gross; the age of the complainant at 14 years (an error, the complainant was 15 years and seven months); the vulnerability of the complainant given the appellant had plied her with liquor and drugs; and the appellant’s previous conviction for sexual violation in 1998 for which he received a sentence of six years imprisonment. The Judge identified no mitigating features. He considered that although the jury were not satisfied the Crown had negatived consent, or that the Crown had not disproved that the appellant reasonably believed in her consent, this did not significantly reduce the appellant’s culpability. However, he accepted that he could not entirely ignore the jury’s conclusion.
[24] The Judge said that in terms of s 8(d) of the Sentencing Act 2002 this type of offending was "about as bad as it can be". He considered that the indecent assault was seriously aggravated by the supply of drink and drugs given, he concluded, in order to "induce sexual compliance". He considered that in total a sentence of seven years imprisonment was the appropriate sentence and that the appropriate way to reflect that was cumulative sentences of five years on the charge of indecent assault and two years on the charge of supplying a Class C Controlled Drug.
[25] The appellant submits that the Judge was wrong to conclude that this was at the very top end of indecent assaults. The appellant says that the Judge’s sentence was at a level appropriately imposed for a non consensual sexual violation. The decision to impose a cumulative sentence of two years imprisonment on the supply of drugs charge and to identify this as an aggravating feature of the sexual act involved a degree of double counting. The appellant stressed that the drugs were taken voluntarily by the two young women.
[26] The Crown submits that, while stern, the sentence of seven years imprisonment was within the range available to the sentencing Judge.

Discussion – Sentence

[27] We are satisfied that the sentence is manifestly excessive. We consider the appropriate course was for the Judge to take into account on the sentence of indecent assault the fact that the appellant had supplied drugs to these young women.
[28] We agree with the Judge that this was a serious indecent assault. The victim was physically injured in the course of the assault which involved a gross invasion of her body. The assault occurred in the context of a 48 year old man supplying drugs to a 151/2 year old girl in part, as the Judge said, to facilitate his sexual intent.
[29] On the other hand the jury’s conclusion that they could not be satisfied that the assault occurred without her consent, or without his reasonably based belief in consent, reduces the seriousness of the offending somewhat.
[30] We are satisfied, therefore, the proper approach to sentencing in this case is to leave the length of the sentences the same, but to make them concurrent. The appeal against sentence is therefore allowed. The sentence of seven years imprisonment is quashed. The two sentences imposed remain the same. However, the two sentences will be concurrent making a total sentence of five years imprisonment.

Solicitors:
Crown Law Office, Wellington

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[2]	The appellant originally faced an indictment with four counts, one of supplying a Class C controlled drug to a person under 18 years of age, one of indecent assault on a girl then aged between 12 and 16 years of age on 10 April 2005 and alternative counts of sexual violation and indecent assault on the same complainant on 13 April 2005.
[3]	At the first trial the appellant was convicted of the supply of temazepam, but the jury were unable to reach verdicts on the other charges. At the re-trial the appellant was acquitted on the 10 April 2005 indecent assault count and the sexual violation count, and convicted on the alternative count of indecent assault on 13 April 2005.
[4]	At the time of the offending the complainant was 15 years and seven months old and working as a prostitute. The appellant and complainant knew each other. On 13 April the complainant and her girlfriend ("Ms A") agreed with the appellant that he would supply them with alcohol in exchange for sex. The appellant supplied the girls with alcohol and temazepam at his lockup which was set up as a bedroom. The appellant had sexual intercourse at least with Ms A and possibly with the complainant. There was evidence of some conduct in the nature of a threesome. Both girls have uneven memories of the day.
[5]	Later that day all three left the lockup and went to Ms A’s home and then the appellant took both girls to the hospital. Both were grossly intoxicated. Ms A stayed at the hospital for treatment and the appellant and the complainant returned to his lockup. The complainant recalls waking in bed in the lockup with her trousers and underwear pulled down around her thighs. She then lost consciousness. The next day she was woken by the appellant who drove her back to her friend’s house. When she subsequently passed a bowel motion she experienced pain. A later examination by a medical practitioner revealed a 1.5cm laceration in the anal canal of the complainant consistent with a blunt instrument penetrating her anus. The complainant said she had not consented to and would not consent to anal violation.
[6]	The Crown case at trial was that the sexual violation/indecent assault on 13 April occurred when the appellant took the complainant back to his lockup after Ms A had been admitted to the hospital. It alleged that while the complainant was intoxicated and asleep the appellant either had anal intercourse with her or anally violated her in some other way. A dildo was found in the lockup. The Crown had to establish lack of consent by the complainant and lack of reasonable belief in consent by the appellant on the sexual violation count, but was not required to do so on the alternative count of indecent assault, given the complainant’s age.
[7]	The appellant’s case was that there was no proof the complainant was penetrated, or if she was then Ms A was just as likely as the appellant to have done so during the earlier sexual encounter. Or, if the jury were satisfied that he did penetrate her, it was with her consent or he believed on reasonable grounds that she was consenting.

[8]	The appellant submits that the verdict of the jury was unreasonable and not supported by the evidence. The appellant submits that there was insufficient evidence upon which a jury could infer the Crown had proved beyond reasonable doubt that it was the appellant who had sexually assaulted the complainant. Mr Rapley suggested that the jury’s guilty verdict must have been based on a finding the indecent assault occurred before the hospital visit. This submission was based on the proposition that after the visit to the hospital the complainant was too comatose for it to be credibly suggested she consented or the appellant could have believed on reasonable grounds she was consenting. The appellant submitted that the facts were therefore just as consistent with Ms A having committed the act. The appellant claimed there was evidence of some sexual contact between the two girls, of mutual kissing, on the first occasion when all three were together and therefore it was just as likely that any sexual assault occurred then rather than later in the day, as the Crown alleged, when the complainant and the appellant were alone together.
[9]	The second ground of appeal against conviction is that the Judge unfairly commented on the defence case when he made reference to the appellant’s failure to give evidence. The appellant submitted that the Judge’s direction weighed unfairly against the defence submission that the facts equally supported the conclusion that the anal penetration could equally have been by Ms A. Thus the appellant said the Judge by his direction effectively invited the jury to bolster a weak Crown case by inferences to be drawn from his failure to give evidence.
[10]	The Crown submitted there was evidence which established that the anal assault occurred when the appellant and the complainant were alone, after Ms A had been left at the hospital. It submitted the evidence established a sexual assault and the only person present other than the complainant was the appellant. The Crown said there was sufficient evidence upon which a jury could conclude the appellant sexually assaulted the complainant.
[11]	As to the Judge’s comment on the failure of the appellant to give evidence, the Crown said given this was a case where counsel for the appellant had accused another person of the crime without evidence to support the proposition, a comment from the Judge could be expected.

[17]	Section 366(1) of the Crimes Act entitles a Judge to comment on the fact an accused has refrained from giving evidence.
[18]	It is well established that a Judge may properly comment on an accused’s failure to give evidence where, without supporting evidence, counsel accuses another of committing the crime (see R v Accused (CA78/88) [1988] 2 NZLR 385 (CA)).
[19]	We note the appellant’s case, as far as the anal penetration charges were concerned, was based on three propositions:

[22]	The appellant was sentenced to five years imprisonment on the indecent assault charge cumulative on a sentence of two years imprisonment for the supply of the temazepam making a total of seven years imprisonment.
[23]	The Judge in considering the aggravating features identified: the nature of the indecency as gross; the age of the complainant at 14 years (an error, the complainant was 15 years and seven months); the vulnerability of the complainant given the appellant had plied her with liquor and drugs; and the appellant’s previous conviction for sexual violation in 1998 for which he received a sentence of six years imprisonment. The Judge identified no mitigating features. He considered that although the jury were not satisfied the Crown had negatived consent, or that the Crown had not disproved that the appellant reasonably believed in her consent, this did not significantly reduce the appellant’s culpability. However, he accepted that he could not entirely ignore the jury’s conclusion.
[24]	The Judge said that in terms of s 8(d) of the Sentencing Act 2002 this type of offending was "about as bad as it can be". He considered that the indecent assault was seriously aggravated by the supply of drink and drugs given, he concluded, in order to "induce sexual compliance". He considered that in total a sentence of seven years imprisonment was the appropriate sentence and that the appropriate way to reflect that was cumulative sentences of five years on the charge of indecent assault and two years on the charge of supplying a Class C Controlled Drug.
[25]	The appellant submits that the Judge was wrong to conclude that this was at the very top end of indecent assaults. The appellant says that the Judge’s sentence was at a level appropriately imposed for a non consensual sexual violation. The decision to impose a cumulative sentence of two years imprisonment on the supply of drugs charge and to identify this as an aggravating feature of the sexual act involved a degree of double counting. The appellant stressed that the drugs were taken voluntarily by the two young women.
[26]	The Crown submits that, while stern, the sentence of seven years imprisonment was within the range available to the sentencing Judge.

[27]	We are satisfied that the sentence is manifestly excessive. We consider the appropriate course was for the Judge to take into account on the sentence of indecent assault the fact that the appellant had supplied drugs to these young women.
[28]	We agree with the Judge that this was a serious indecent assault. The victim was physically injured in the course of the assault which involved a gross invasion of her body. The assault occurred in the context of a 48 year old man supplying drugs to a 151/2 year old girl in part, as the Judge said, to facilitate his sexual intent.
[29]	On the other hand the jury’s conclusion that they could not be satisfied that the assault occurred without her consent, or without his reasonably based belief in consent, reduces the seriousness of the offending somewhat.
[30]	We are satisfied, therefore, the proper approach to sentencing in this case is to leave the length of the sentences the same, but to make them concurrent. The appeal against sentence is therefore allowed. The sentence of seven years imprisonment is quashed. The two sentences imposed remain the same. However, the two sentences will be concurrent making a total sentence of five years imprisonment.