Houpapa v R [2016] NZCA 273 (20 June 2016)

Last Updated: 8 July 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA99/2016 [2016] NZCA 273
BETWEEN	DYLAN MANU HOUPAPA Appellant
AND	THE QUEEN Respondent

Hearing:	1 June 2016
Court:	Randerson, Woodhouse and Wylie JJ
Counsel:	G N E Bradford for Appellant K S Grau for Respondent
Judgment:	20 June 2016 at 12.30 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are both dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

[1] The appellant, Mr Houpapa, was tried on 9 to 11 November 2015 before Judge McGuire and a jury in the Rotorua District Court. He was convicted of one charge of burglary, one charge of indecent assault and two charges of sexual violation by unlawful sexual connection. On 11 February 2016, Judge McGuire sentenced Mr Houpapa to 12 years and six months’ imprisonment, with a minimum term of imprisonment of six years and three months.^[1]
[2] Mr Houpapa appeals against conviction and sentence. The issues raised on the appeal are as follows:

• (a) Did disclosure, in evidence adduced by the Crown through a police officer, of the fact that Mr Houpapa had been in prison previously cause prejudice and result in a miscarriage of justice?
• (b) Did an acknowledgement by Mr Houpapa, when he was cross-examined, that he had been sentenced to imprisonment for previous offending undermine a direction which Judge McGuire had already given in relation to the earlier disclosure by the police officer?
• (c) Should Mr Houpapa have been given a discount for youth when he was sentenced?

Background

[3] In July 2014 the victim was sleeping in a sleepout at the rear of her parents’ property. She awoke to find Mr Houpapa standing over her. He got on top of her and put his hand over her mouth. He then sexually assaulted her by rubbing her genital area, then licking her genitalia, and finally by forcing her to perform oral sex on him. The sexual assault ended when he ejaculated into her mouth. She spat out the ejaculate. She persuaded Mr Houpapa to leave, and she called the police shortly thereafter.
[4] Mr Houpapa was apprehended by the police a short time later while he was walking back to his home address. The police found items of clothing nearby that Mr Houpapa had discarded. The clothing contained personal papers with Mr Houpapa’s name on them. The clothing was consistent with the description that the victim had given of the clothing that the offender was wearing at the time of the offending.
[5] The victim was unable to identify her attacker when a formal identification procedure was undertaken.
[6] Mr Houpapa initially told the police that he had never been to the victim’s address. However a mixture of semen and saliva taken from the mattress protector on the victim’s bed was analysed by Environmental Science and Research (ESR). The analysis of the semen and the saliva corresponded to Mr Houpapa and the victim’s DNA. As a result of this evidence, Mr Houpapa changed his stance. He accepted that he had been present at the relevant time. He alleged that the oral sex was consensual.
[7] During the Crown case, a Detective Senior Sergeant Warner was called by the prosecutor. He was the officer who had arrested Mr Houpapa. In the course of his evidence-in-chief he said as follows:

I subsequently advised there was sufficient evidence to arrest him for burglary. I then advised the accused that he was under arrest for burglary. He replied, “I can’t go back to prison again” and repeated this.

[8] Counsel had agreed prior to trial that the fact that Mr Houpapa had previously been in prison would not be mentioned.
[9] Mr Briscoe, who was Mr Houpapa’s trial counsel, sought to have the trial aborted.
[10] Judge McGuire refused to discharge the jury. After hearing from counsel in chambers, he issued a ruling. He recorded that he had proceeded on the basis that Detective Senior Sergeant Warner had given the evidence inadvertently. He observed that the central issue at trial was whether or not the sexual activity was consensual. He noted that the comment attributed to Mr Houpapa had been made after he had been cautioned under the New Zealand Bill of Rights Act 1990. He accepted that it was regrettable that the comment had been made, and noted that this breached an agreement made by counsel before the trial. He considered that it was relevant, but not decisive, that the victim would have to give evidence again in the event that the matter was re-tried. The Judge decided that the best solution was to give a firm direction to the jury.
[11] Judge McGuire then gave the following direction to the jury:

... Ladies and gentlemen, you will have heard this witness, Detective Senior Sergeant Warner, saying that when he arrested the accused, the defendant, the defendant said, “I can’t go back to prison again”, and repeated this.

I need to direct you that what the defendant said to the Detective Senior Sergeant then, “I can’t go back to prison again”, has nothing to do with this case. Nothing whatever. You’ve heard counsel address you that, and I emphasise it here, that it is a man walks into Court presumed innocent and it is for the Crown to prove the charges, the charge or charges, against him beyond reasonable doubt, and that feeds into you about judge this case only on the evidence that you hear in this courtroom. Okay? So Mr Houpapa is proved innocent until it is proven beyond reasonable doubt that he is guilty. What was said that I have referred to about “I can’t go back to prison” is not evidence of anything and it will not assist you in deciding the case, so I ask you to ignore it. Okay? Thank you.

[12] Following the closure of the Crown case, Mr Houpapa elected to give evidence. He said that the victim, who he had not previously met, had visited a property close to his, and invited him back to her sleepout where consensual activity took place. He said the victim became upset because he told her that he would not leave his girlfriend for her. When spoken to by the police early that morning he said he had been to town. In evidence Mr Houpapa said he had been for a run. He said that he was wearing jeans and boots in order to get a better workout. In cross-examination he admitted his statement about going to town was wrong and that he had not told the police about going for a run. He could not explain why the police had found his discarded clothes nearby.
[13] Mr Houpapa had convictions from 2012 for criminal harassment and being unlawfully in a building. These charges arose from an incident where he walked into a neighbour’s house and made advances to a woman who was alone in a bedroom. He asked her name and told her how beautiful she was. The woman repeatedly told him to leave. She held up her phone to show him she was dialling 111. He asked her for a cigarette, and then left.
[14] The Crown made a successful application to treat this prior offending as propensity evidence. The prosecutor then cross-examined Mr Houpapa about it. Mr Houpapa accepted that the earlier offending had occurred. The prosecutor then put it to him that he had been sentenced to imprisonment for the earlier offending. He accepted that he had been imprisoned for it.
[15] No issue was taken with this question at the time, no direction from the Judge was requested by trial counsel and no direction was given.

The appeal

[16] Mr Houpapa’s prosecution was commenced after the commencement of the second stage of the Criminal Procedure Act 2011 on 1 July 2013. The appeal falls to be determined under pt 6 of that Act. It is a first appeal against conviction and sentence under ss 229 and 244 of the Act respectively. This Court must allow the conviction appeal if it is satisfied that, having regard to the evidence, either the jury’s verdict was unreasonable or a miscarriage of justice has occurred. Otherwise this Court must dismiss the appeal. In relation to the sentence appeal, the appeal must be allowed if this Court is satisfied that there is an error in the sentence imposed and that a different sentence should be imposed. Otherwise it must dismiss the appeal.

Analysis

[17] Mr Bradford, for the appellant, submitted that Detective Senior Sergeant Warner should have known better, and that he had effectively taken matters into his own hands by disclosing Mr Houpapa’s imprisonment. He emphasised that the case turned on Mr Houpapa’s credibility.
[18] Ms Grau, for the Crown, accepted that Mr Houpapa’s statement should not have been put in evidence before the jury, particularly given the pre-trial arrangement between counsel. She submitted, however, that there was no foundation for Mr Bradford’s argument that Mr Houpapa’s statement had been put before the jury intentionally. She noted that the Judge had dealt with the matter by way of a firm direction.
[19] We accept that the case hinged on the credibility of the witnesses: the victim’s account against Mr Houpapa’s account. We also accept that, in such cases, evidence of the type complained of can be significant. However, in this case, we consider that Mr Houpapa’s credibility was already seriously compromised. He had originally denied being present at all. When the ESR evidence became available, he changed his version of events and said that he was present and that the sex had been consensual. However, he alleged that the victim swallowed his ejaculate. The victim said that she spat it out. The ESR evidence strongly supported the victim’s account. There was also evidence of bruising that was consistent with her account of a forced sexual encounter during which she was held down. There was evidence that Mr Houpapa was found in the general vicinity and that items of his discarded clothes were found nearby. Mr Houpapa’s version of events, namely that he was out for a run wearing jeans and boots, was inherently implausible. He was unable to explain why his discarded clothing was found nearby. In our judgment, Mr Houpapa’s credibility was already suspect. The evidence that Mr Houpapa had been in prison has to be seen in context and we do not consider that he would have been unduly prejudiced.
[20] The offending comment was towards the end of a long answer given to an innocuous question. The Judge did not consider that the disclosure was intentional. Nor do we. The Judge dealt with the matter in a timely fashion, and by way of a firm direction to the jury. This course was agreed on at the time by the Crown and by experienced defence counsel. The Judge was best placed to assess the context in which the inappropriate evidence was given, the impact its disclosure may have had and the required response.^[2] In our judgment, the direction given was appropriate.
[21] A decision whether or not to discharge a jury that has heard a witness disclose inappropriate prejudicial material is generally left to the discretion of the trial Judge, to be exercised on the particular facts before him or her. This Court will not lightly reconsider the exercise of that discretion, and we decline to do so.^[3]
[22] Turning to the second issue, Mr Bradford did not challenge Judge McGuire’s ruling that the propensity evidence was admissible. Rather, he submitted that the prosecutor should not have asked Mr Houpapa whether or not he was imprisoned for the earlier offending. He said that the answer given to this question undermined the Judge’s earlier firm ruling in relation to the initial disclosure by Detective Senior Sergeant Warner.
[23] We agree that the question should not have been asked. Clearly, it was Mr Houpapa’s prior conduct which was relevant and not the consequences of that conduct. We note, however, that no objection was taken at the time by experienced trial counsel. Nor did the Judge intervene.
[24] It is noteworthy that there was no further reference to the fact that Mr Houpapa had been in prison.
[25] In closing the Crown told the jury that the propensity evidence was relevant because it demonstrated Mr Houpapa’s tendency to behave in an inappropriate way to female neighbours by entering their homes uninvited. The Crown, however, also pointed out that the jury should not reason that because he was guilty of the earlier incident, he was guilty of the offending charged.
[26] Similarly, Judge McGuire, in summing up, gave the jury a direction as to the appropriate use to which the propensity evidence could be put. He told the jury that it had to accept the similarities alleged by the Crown before it could take the propensity evidence into account and that, even then, it was only one item of evidence. He also warned the jury not to find Mr Houpapa guilty because of any dislike arising from his earlier proved conduct. The Judge directed that Mr Houpapa was entitled to be judged in a manner that did not involve either sympathy or prejudice. The Judge stressed that the propensity evidence, if it was helpful at all, was only helpful in respect of one charge – the burglary – and not the sexual offending.
[27] We do not consider that there is any likelihood of a miscarriage of justice. Any right-minded jury would have assumed that Mr Houpapa had been punished for the earlier offending. The jury would have had in mind the firm direction they had earlier been given by the trial Judge. We do not consider that the later disclosure undermined that direction.
[28] We do not consider that Mr Houpapa was seriously prejudiced, and we are not persuaded that there is any material risk that there has been a miscarriage of justice.

Sentence appeal

[29] Mr Bradford made only one submission – namely that Judge McGuire should have allowed Mr Houpapa a discount because of his age. He argued that a sentence of 12 years and six months’ imprisonment is a crushing sentence on a relatively young man.
[30] Mr Bradford conceded that the starting point was within range.
[31] Mr Houpapa was 24 years old at the time of the alleged offending. He was about to turn 25.
[32] There is no presumption in favour of a discount for youth. Rather, an assessment must be made in the circumstances of any given case.^[4] Discounts for youth can be given because of age-related neurological differences between adults and young people, particularly where offending is impulsive and where it is necessary to avoid the crushing effect of long sentences on young people, given their greater capacity for rehabilitation.^[5]
[33] Here, Mr Houpapa had already accumulated a significant and varied criminal record over an eight-year period. He had a number of convictions for burglaries and assaults against women. The instant offending clearly marked a disturbing escalation in the seriousness of his offending.
[34] In our view, Mr Houpapa was not a youth, and he was not a first-time offender. The offending was not impulsive. It was grave and it raised justifiable concerns about future public safety. Mr Houpapa did not offer any significant prospects of rehabilitation. Rather, he had demonstrated that he poses a danger to women in the community. The rationale for a youth-related discount was not applicable.
[35] In our judgment, Judge McGuire was correct when he emphasised protection of the community in sentencing Mr Houpapa. The sentence arrived at by the Judge was within range and it was not manifestly excessive.

Result

[36] The appeal against conviction and the appeal against sentence are both dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Houpapa [2016] NZDC 2206.

^[2] Edmonds v R [2015] NZCA 152 at [24].

^[3] R v Thompson [2006] NZSC 3; [2006] 2 NZLR 577 (SC) at [16]; Prasad v R [2016] NZCA 163 at [24]–[27].

^[4] Huata v R [2013] NZCA 470 at [32].

^[5] Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].