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Senior v R [2016] NZCA 389 (10 August 2016)

Last Updated: 18 August 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
19 July 2016
Court:
Randerson, Venning and Fogarty JJ
Counsel:
R A Harrison for Appellant P D Marshall and E J Riddell for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. An extension of time to appeal is granted.
  2. The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents
Para No
Introduction
Background
Reliability warning
RB
AP
SN
Conclusions on the s 122 issue
Should severance have been ordered?
The severance issue – analysis
Inconsistent and/or unreasonable verdicts
RB (counts 1 and 2)
JT
NM
TB
The prosecutor’s closing remarks to the jury
Sentence appeal
Discount for electronically monitored bail
The MPI
Result

Introduction

[1] In December 2014 the appellant was convicted after a jury trial before MacKenzie J on a total of 35 counts of sexual offending and other offences relating to nine teenage girls. He was sentenced on 20 February 2015 to 15 years imprisonment and ordered to serve a minimum period of seven and a half years.[1]
[2] He now appeals against both conviction and sentence. The conviction appeal is advanced on four grounds:
[3] In support of the sentence appeal, two grounds are relied upon:
[4] The appeal was filed out of time but the Crown does not oppose an extension of time. An extension of time is granted accordingly.

Background

[5] We draw the following summary from the facts found at sentencing. The Judge began by recording the details of the counts upon which the appellant was convicted:
[6] The appellant was originally charged with a total of 46 counts involving 10 complainants. However, he was acquitted on 11 counts. These acquittals included all counts relating to one of the complainants.
[7] The appellant’s offending spanned a period of 25 years but was not continuous. The Judge identified three time periods:

Three counts related to the second complainant (SN) in this period, a childhood friend of AP. SN gave evidence that the appellant had sexually abused her on two occasions while staying with AP at the appellant’s house between January 1996 and January 1998. The Crown case was the appellant indecently assaulted her and sexually violated her by unlawful sexual connection (digital penetration of her genitalia).

(c) 2010–2012: The third and most significant period involved seven complainants who were aged between 14 and 16 years when the offending was said to have occurred.
[8] In respect of the third group of complainants, the Judge described what had happened to them in these terms:[2]

[5] ... They have somewhat similar backgrounds. They are from broken homes, without a close supportive relationship with parents or other adult role models. You targeted and preyed on victims with these characteristics. You groomed them by befriending them, giving them gifts and money, letting them drive your vehicles, intended to make them feel they owed you something in return. You took them to stay at your house. You supplied some of them with alcohol and cannabis and BZP. You then engaged in the sexual activities with them which have resulted in your convictions. The offending includes rape and other sexual violations. Some of those offences were committed at your house when the girls were staying there. Sometimes, you took them away in your campervan to a remote location and offended against them there.

[9] The eight counts of making an indecent publication related to two of the complainants in the third group. The Judge said:

[6] With two of the girls, you took sexually explicit photographs of them. You claimed that the girls consented to those photographs being taken. The verdicts do not necessarily indicate the jury’s view on that. I am satisfied on the evidence that both girls were unaware that the most explicit photographs were being taken and did not consent to them. They are not photographs which indicate that the subject was a willing participant. Some of the photographs show you sexually interfering with them. One of the counts of unlawful sexual connection was based upon an act of digital penetration depicted in one of the photographs. ...

[10] Issues regarding the credibility and reliability of the complainants’ accounts loomed large in the trial. The Crown relied strongly on identified similarities in the evidence given by the complainants as demonstrating a propensity on the part of the appellant to take advantage of, and sexually exploit, vulnerable younger females. The appellant did not give evidence himself but called one witness, a dermatologist, as to whether the appellant had tattoos. In cross-examination, defence counsel strongly challenged the credibility and reliability of the key Crown witnesses. This theme was also emphasised in counsel’s closing address to which we refer again shortly.

Reliability warning

[11] In his summing-up, MacKenzie J gave standard directions to the jury concerning credibility and reliability. Then, with specific reference to the three complainants in the first two time periods, the Judge said:

[26] The complaints made by the first three complainants relate to events which they alleged happened many years ago; about 30 years ago and 20 years ago. The delay may present difficulty to the accused in conducting his defence. This may arise in two ways. One is that the case on each of those counts will largely turn on the oral evidence of the complainant. Their memory may have faded or been unconsciously altered over time such that she is not a reliable witness. The second is that the passage of time may mean that the accused has lost the opportunity to locate witnesses or other evidence that may have been useful to him. You need to consider those possibilities when you consider counts 1 to 9.

[12] Relying on the decision of the Supreme Court in CT (SC 88/2013) v R and the subsequent decision of this Court in T v R, Mr Harrison submitted that the Judge’s direction to the jury, particularly in respect of the first two groups of complaints, was inadequate.[3] He submitted in particular the Judge did not sufficiently “own” the warning given, in the sense that he ought to have added the imprimatur of the bench to the need for caution.[4] Counsel also submitted that the Judge had not actually given a caution by, for example, emphasising the need for the jury to be careful, having regard to the lengthy delays since the events described by the first two groups of complainants had been made.
[13] Mr Harrison submitted there was a particular need for a caution since there were substantial grounds to attack the credibility and reliability of the three complainants from the two earlier groups of offending.
[14] We outline the points counsel made about the credibility and reliability of the evidence of the first three complainants since it is relevant to the first three grounds of appeal.

RB

[15] Counts 1 and 2 alleged that the appellant indecently assaulted RB when she was aged 13 years. At the time RB was staying with her parents on their boat. The appellant and his girlfriend had tied up their boat next to the one on which RB was staying. At some point during the evening, at the appellant’s suggestion, RB went on to the appellant’s boat to retrieve some snacks. When she could not find them, the appellant followed her and, in the cabin, placed his hand between her legs, touching her genitalia over her clothing. The jury convicted the appellant on this count. These actions formed the basis for count 1. However, the jury acquitted the appellant on the second indecent assault charge (count 2) relating to an incident when RB said the appellant had touched her bottom with his hand while assisting her to climb back on board the boat on which she was staying.
[16] Mr Harrison challenged RB’s credibility on a number of grounds: although she had complained to her parents at the time or the next day, she had never told anyone exactly what occurred other than to describe it as “bad touching”; she maintained she had not discussed the issue with her parents but it emerged this was not so; and she had mentioned the appellant had a tattoo but this was contradicted by other witnesses. Counsel also challenged the evidence of RB’s father including alleged inconsistencies between his statement to the police and his evidence in court.
[17] Prior to trial, the appellant sought a stay of proceedings due to delay since the allegations made by RB and since the allegations by AP and SN. Simon France J dismissed the application in a judgment given on 7 November 2014.[5] Simon France J accepted there had been substantial delay and that RB’s allegations were a one-off event of brief duration occurring about 30 years before. However, the evidence was that RB’s father had contacted the appellant soon after RB complained. The father accused the appellant of touching his daughter. The appellant denied the allegation but RB’s father warned him to stay away from his daughter. In those circumstances, the Judge considered that the appellant was likely to recall the event. It was reasonable to conclude that the appellant would remember the event. The Judge noted that the suggestion the complainant’s memory of events was more of a product of discussion with others than an independent memory could be explored at trial.
[18] At the conclusion of the Crown case at trial, the appellant renewed the application for a stay in respect of the counts relating to RB. The grounds for that application were much the same as those argued before Simon France J before trial. In a ruling given on 3 December 2014 MacKenzie J dismissed the application.[6] He did not consider the case should be removed from the jury. The evidence did not indicate that RB’s evidence as to what occurred (as distinct from when and where it occurred) was affected by any recent discussion between RB and her father. The Judge also considered that the differences between the father’s statement made to the police and his evidence at trial were a matter for the jury’s assessment. Whether the father went on to the appellant’s boat or not was essentially a peripheral point that did not suggest the reliability of his evidence was so affected by delay that a stay should be granted.
[19] Importantly, Mr Harrison’s lengthy closing address at trial on behalf of the appellant covered in detail all the challenges to the credibility and reliability of RB and her father to which our attention has been drawn on appeal. As well, Mr Harrison went to the trouble of preparing for the jury brief notes summarising his submissions as to the credibility and reliability of each of the complainants. These notes were prepared in typed form and were before the jury when Mr Harrison gave his closing address. In the question trail the Judge prepared for the jury, the Judge noted briefly the main points of the Crown and defence cases. These notes prominently featured the defence submission that the complainants were not credible or reliable, drawing the jury’s attention to Mr Harrison’s submissions on this topic.
[20] Mr Harrison was unable to point to any specific prejudice through delay other than the fact that another person present on the boat had been located but was unable to recall the events RB described. Whether the witness could have done so if approached closer to the event is not known.

AP

[21] Counts 3 to 6 related to AP. Her evidence was that between 1993 and 1998 she and her mother lived with the appellant at his then residence. At the time of the events alleged, AP was aged between eight or nine and 11 or 12 years. She and her mother occupied a small flat on the appellant’s property. AP described the appellant frequently entering her bedroom at night, abusing her, perhaps on more than 20 occasions. This offending continued even after AP complained to her mother.
[22] Three representative counts were laid:
[23] In early 1998, after disclosing the appellant’s sexual abuse, AP was removed from her mother’s care and placed in a foster home and later with other relatives. Apparently under pressure from her mother, AP retracted her allegations in April 1998.
[24] The appellant was convicted of the three representative counts but was acquitted of a specific charge of indecent assault (count 6) which AP said occurred after returning to her mother’s care, when riding on the back of the appellant’s motorcycle.
[25] In his pre-trial ruling on the appellant’s stay application, Simon France J dealt with submissions made on the appellant’s behalf about AP’s complaint. He recorded that counsel had acknowledged at the outset that the nature of her allegations made a claim of prejudice much harder to sustain. Simon France J noted that in 1998 an allegation of abuse was brought to the attention of the authorities but AP had denied the allegations. The Judge did not consider this supported a stay since AP accepted she had once denied the offending and she could be crossexamined about it.
[26] These issues were explored at trial in cross-examination and again in defence counsel’s closing address. Concerns about AP’s evidence were not relied upon in the stay application made during trial at the close of the Crown case.

SN

[27] Counts 7 to 9 related to SN, a childhood friend of AP. SN gave evidence the appellant had sexually abused her on two occasions while staying with AP at the appellant’s residence between January 1996 and January 1998.
[28] On the first occasion, SN said she and AP were sleeping in the same bedroom. She was woken during the night by the appellant touching her on the vagina and inserting his fingers (counts 7 and 8).
[29] SN described a second incident occurring inside a campervan on the appellant’s property in which she and AP were sleeping. Again, she said the appellant entered the campervan at night and inserted his fingers into her vagina (count 9). Although SN did not see the face of the person touching her, she had no doubt that, for reasons she described, it was the appellant.
[30] Concerns about SN’s evidence were raised in the pre-trial stay application heard by Simon France J. Complaints were made about a claimed lack of memory by the appellant and the inability to now obtain assistance from others who might have been able to support his denials. The Judge did not consider the period of delay (about 20 years) was extreme; there was nothing in the narrative to indicate the identity of the alleged victim was particularly significant to a potential defence; the alleged events were memorable in themselves if they occurred; and, significantly, the alleged offending was reported to the police soon after it occurred in 1998 but not acted upon.
[31] The officer in charge (who had since died), had sworn an affidavit noting he considered it very difficult to successfully prosecute a case of sexual abuse involving a teenage girl. He noted that during the interview of the complainant, he considered her to be “dramatically traumatised”.
[32] When renewing the appellant’s stay application at the close of the Crown case at trial, Mr Harrison did not rely on concerns about the evidence of SN and, in his closing address, counsel challenged the credibility and reliability of SN in detailed submissions as he did with all of the complainants.

Conclusions on the s 122 issue

[33] In terms of s 122(2) of the Evidence Act, a judge is obliged to consider whether to give a warning under subs (1) in identified situations including where the conduct of the defendant is alleged to have occurred more than 10 years previously.[7] Here, the conduct alleged by the first three complainants had occurred between 20 and 30 years before trial. In terms of s 122(1), if the trial judge is of the opinion that any evidence in the proceeding may be unreliable, the judge may warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to the evidence.
[34] As William Young J pointed out when delivering the decision of the majority of the Supreme Court in CT (SC 88/2013) v R:[8]

[51] The reality, as recognised in R v O, is that in cases of long-delayed prosecution there will almost always be a risk of prejudice. That this is so will be more apparent to the trial judge than to the jury. Unless the judge takes personal responsibility for pointing out that risk and adds the imprimatur of the bench to the need for caution, the jury will be left with competing contentions from counsel and without any real assistance in addressing them.

[35] And, in T v R, this Court stated when discussing CT (SC 88/2013) v R:[9]

[19] It is apparent that what is required when s 122(2)(e) is engaged, as it was in Mr T’s case, is a warning of the “need for caution”, an explanation as to why such “caution” is necessary and thus identification of the relevant risks. As the use of the word “thus” recognises, the latter consideration – “identification of the relevant risks” – will be part of the explanation why caution is necessary.

[20] A trial Judge, in explaining why caution is necessary, may need to cover the effect of the effluxion of time on memory, including an acknowledgement that the defendant’s own memory, and thus his or her ability to mount an effective defence, may have been compromised. Reference may also need to be made to other specific respects in which there may have been prejudice to the defendant relating to matters such as changed physical characteristics and dead witnesses. What is important is that what the Judge says must reflect the circumstances of the particular case.

[21] The trial Judge should also take personal responsibility for the warning and should be careful to avoid giving an impression that he or she is distancing himself or herself from the substance of the warning.

[36] In the present case, the Judge was alert to the need to direct the jury in relation to the reliability of the complainants, particularly the first three complainants. He directed the jury in the terms we have set out at [11] above. He drew attention to the length of the delay; identified that delay might present difficulty to an accused person in conducting a defence; pointed out that the case relating to the first three complainants would largely turn on their oral evidence; noted that their memory may have faded or have been unconsciously altered over time thereby affecting their reliability; and pointed to the possibility that the passage of time might mean the appellant had lost the ability to locate witnesses or other evidence that might have been useful to him.
[37] We acknowledge the Judge did not specifically caution the jury in the sense of warning them to be careful before relying on the evidence of the complainants. However, we accept the Crown’s submission that this warning was implicit in the Judge’s direction highlighting the effects of long delay both on the reliability of the complainants and potential prejudice to the appellant in his defence. We do not accept Mr Harrison’s submission that the Judge was not “owning” the reliability warning. There is nothing to suggest the Judge was doing anything other than giving the jury clear directions on the issue or to suggest that he was approaching the issue in a formulaic way. For the reasons we have already set out, there was little, if anything, that had been advanced as to specific prejudice to the appellant that might have required further detail by the Judge.
[38] The jury could not have failed to appreciate that the credibility and reliability of each of the complainants was in question. This conclusion follows from the very detailed submissions made to them by both the prosecution and defence in closing addresses; the written notes on that subject made available to them by the defence; and the attention drawn to that issue by the Judge in summing up and in the question trail. The jury were plainly conscious of their responsibilities carefully to assess the evidence since they acquitted the appellant on one of the two counts relating to RB and one of the four counts relating to AP.
[39] We are satisfied this ground of appeal must fail.

Should severance have been ordered?

[40] Prior to trial, the appellant applied for severance of the counts relating to the first three complainants (the historic sexual offending) and the remaining counts relating to the other seven complainants (the recent sexual offending). In a judgment delivered on 12 November 2013, Collins J refused to sever the historic and recent sexual offending, ruling that all those charges were to be heard together.[10] However, he severed five separate charges against the appellant alleging the supply of drugs to persons other than the complainants. That ruling is not in question but, on appeal, Mr Harrison submits that the historic and recent sexual offending charges should not have been heard together. In consequence, he submitted there had been a miscarriage of justice.
[41] The principles relating to applications for severance are well settled and have been recently summarised in this Court in Churchis v R.[11] An important consideration in cases such as this is whether evidence relevant to one count is also relevant to one or more other counts. Here, the Crown argued that the evidence of the complainants in both the historic and recent sexual offending demonstrated the appellant’s propensity to sexually offend against adolescent girls aged between nine and 16 years, especially those staying under his own roof. As such, the Crown submitted that the evidence of each of the complainants was cross-admissible against that of the others and that it would be conducive to the interests of justice for both the historic and recent sexual offending charges to be heard together in a single trial.
[42] The arguments canvassed in this Court were essentially the same as those put to Collins J when the pre-trial argument was heard. It is therefore convenient to refer to the judgment of Collins J in dealing with this ground of appeal.
[43] In essence, the Judge accepted the Crown’s submission that the evidence in relation to each of the charges of sexual offending was relevant as propensity evidence in relation to each of the other sexual charges because it showed the appellant’s propensity to sexually offend against young girls. In the main, the issue for trial was whether the alleged sexual acts occurred. In some of the recent sexual offending, an issue of consent arose.
[44] In dealing with the non-exhaustive list of factors in s 43(3) of the Evidence Act, the Judge accepted that the frequency with which the acts are alleged to have occurred was particularly relevant where it was denied that the acts took place at all; the considerable time gap between the historic and recent sexual charges was a factor weighing against a joint trial; the key similarities were that the complainants were all adolescent girls aged 16 or under and that the indecent assault charges in respect of both sets of offences involved the appellant touching the complainants’ genitals or breasts with his hands; the historic sexual offending involved digital penetration and other forms of unlawful sexual connection; and four complainants in the recent sexual offending also alleged digital penetration.
[45] Collins J agreed that the main difference between the historic and recent sexual offending was that the recent offending contained allegations of more serious forms of sexual violation including rape. However, in reliance on this Court’s decision in Hetherington v R, he did not accept the escalation in seriousness of the appellant’s offending was particularly persuasive.[12]
[46] The Judge noted there were some differences between other elements of the evidence in relation to the historic and recent charges. In particular, there were three aspects of the evidence relating to the recent charges that did not feature in the historic charges. There were allegations that the appellant had supplied drugs and alcohol to the complainants before he sexually offended against him; the recent offending had involved grooming of some of the victims; and two complainants in the recent sexual offending alleged the appellant took objectionable photographs of them.
[47] In respect of the remaining matters in s 43(3), the Judge found that the existence of multiple complainants tended to give their evidence greater probative value; although there was some suggestion of collusion amongst some of the complainants in the recent offending, there was no suggestion of collusion between the complainants in the historic sexual offending and the recent offending; and the Judge accepted that sexual offending by an adult against young girls is unusual in itself,[13] a feature common to both the historic and recent sexual offending.
[48] Before us, Mr Harrison repeated the arguments he had raised unsuccessfully before Collins J and also emphasised what he submitted were other important differences between the complainants in the historic sexual offending and the recent offending. In respect of the former, he submitted all three had reasonably stable backgrounds. In contrast, the complainants in the recent sexual charges were young women from disadvantaged and troubled backgrounds. Further, the allegations involving the supply of drugs to the more recent complainants, combined with the particularly graphic objectionable photographs, were likely to be seriously prejudicial to the appellant and unfairly predisposed the jury against the appellant in respect of the complainants involved in the historic sexual offending.
[49] Collins J acknowledged these were legitimate concerns but was not persuaded that hearing the historic and recent charges together would unfairly predispose the jury against the appellant when considering the historic sexual offending. Nor did he accept the jury was likely to give disproportionate weight to the evidence relating to the recent sexual charges.

The severance issue — analysis

[50] We agree with the reasoning of Collins J in his pre-trial ruling. Despite the gap of about 12 and a half years between the last of the historic sexual offending and the beginning of the recent sexual offending, there were three compelling factors supporting the decision to have a joint trial of all the charges. These were the sheer number of complainants alleging that the appellant had offended sexually against them while they were adolescent girls aged between 9 and 16 years. Second, as this Court has said on a number of occasions, it is very unusual for adult men to engage in sexual activity with children in this age range.[14] Third, there were material similarities in the type of offending even if the earlier offending was less serious.
[51] We agree with Collins J that there were some differences between the features of the historic and recent offending as he identified. However, as this Court explained in R v P:[15]

[18] It is common to find distinctions between the allegations made by a number of complainants. However, the focus of propensity evidence is on the similarity of the allegations, rather than the differences. Of course, substantial differences are not to be ignored. ...

[52] This point was made in the recent decision of this Court in Sanders v R.[16] Although the 13 complainants in that case ranged in age from six to 15 years, the offending alleged had occurred in more than one location and ranged from indecencies to rape. The Court considered that the alleged offending, taken as a whole, was strongly probative of the Crown case. As this Court said, the appellant’s case relied on the implausible coincidence that all of the complainants had chosen to make false allegations of a similar nature against him. In the absence of collusion, the Court in Sanders considered this was a most unlikely conclusion.[17]
[53] Mr Marshall submitted for the respondent there were other common features between the evidence of the complainants in the historic and recent sexual charges. For example, both AP and SN described the appellant entering their bedroom at night while they were sleeping. Similar allegations were made by at least four of the complainants in respect of the recent offending. Another similarity in the evidence was that SN described the appellant sexually assaulting her while another teenage girl was asleep in the same room. Similar evidence was given by three of the complainants in respect of the recent offending. As to the issue of prejudice, Mr Marshall submitted that evidence such as the photographs in relation to two of the recent complainants established both a sexual interest in teenage girls, and, on the Crown case, his willingness to sexually offend against sleeping complainants.
[54] We are satisfied severance was properly refused. The evidence of all of the complainants was strongly probative of the Crown case to the extent it supported the propensity of the appellant to interfere sexually with adolescent girls. The probative value of that evidence clearly outweighed any prejudice to the appellant or any tendency to unfairly predispose the jury against the appellant in respect of the historic charges. The Judge gave conventional directions to the jury on prejudice and sympathy and, as we note in [96] below, the appellant’s acquittal on 11 charges shows the jury carefully addressed the evidence uninfluenced by any unfair prejudice. The evidence of each complainant was crossadmissible accordingly. There is no challenge to the directions the Judge gave in respect of the propensity evidence.
[55] This ground of appeal fails.

Inconsistent and/or unreasonable verdicts

[56] Under this ground of appeal, the appellant submitted:
[57] Section 385(1)(a) of the Crimes Act 1961 provides that this Court must allow an appeal against conviction if it is of the opinion that the jury’s verdict is “unreasonable or cannot be supported having regard to the evidence”.[18] As the Supreme Court said in Owen v R, a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.[19] The Court endorsed the following principles:[20]

(d) Reasonable minds may disagree on matters of fact.

(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.

(f) An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.

[58] More recently, the Supreme Court has considered the topic of inconsistent verdicts in B (SC12/2013) v R.[21] The majority judgment[22] described inconsistency of verdicts as a particular way in which unreasonable verdicts may be demonstrated.[23] It is well established that appellate intervention is only required where there is no rational or logical explanation for different verdicts.[24]
[59] We accept the Crown’s submission that it is important to recognise that juries are entitled to conclude that a complainant’s account establishes certain offences to the criminal standard but not others. This principle is also well established.[25] It was confirmed in B (SC12/2013) v R, the majority of the Supreme Court stating:[26]

In sex cases where sexual incidents are alleged to have occurred on separate occasions, inconsistency will not arise simply because the jury accepted part of a complainant's evidence but was not sure about other parts.

[60] In summary, to succeed on appeal, the appellant must show his acquittals necessarily and logically impugned the guilty verdicts.[27] Such a result follows only where the difference in the verdicts requires that the jury must have accepted certain evidence in relation to one count but rejected the same evidence in relation to another count so that the verdicts are not susceptible of rational explanation.[28]
[61] Against these principles, we now deal with the specific issues raised by the appellant.

RB (counts 1 and 2)

[62] As already noted, the appellant was convicted of the indecent assault charge in count 1 but acquitted of indecent assault on count 2. Although these offences were alleged to have occurred on the same occasion, they arose in different circumstances. Count 1 occurred on the appellant’s boat. Count 2 arose when RB was being assisted back on to her family’s vessel. If the jury accepted RB’s evidence on count 1, there was a sufficient basis to sustain a conviction. The acquittal on count 2 does not give rise to the type of factual inconsistency that might support the unreasonable verdict ground of appeal.
[63] We accept the Crown’s submission that the jury may not have been satisfied to the required standard on this count because the circumstances in which the second count occurred could have given rise to a doubt about whether the touching was intentional and whether it was indecent. Mr Harrison also raised a point about identity of the appellant in relation to these incidents. We are satisfied there was sufficient evidence to identify the appellant. He was known to RB’s father who contacted the appellant shortly after the event.

JT

[64] Counts 17 to 28 related to JT and covered events in September and October 2011 when she was aged 16 years. The appellant was convicted on all charges relating to JT except count 17 (rape) and counts 23 and 26 (supplying her with LSD). The charges on which the appellant was convicted were counts 18, 19, 20, 21 and 22 (making objectionable publications of images of JT), count 24 (sexual violation by unlawful sexual connection — introducing his penis into her mouth), count 25 (attempted rape), count 27 (sexual violation by unlawful sexual connection – penetration of her genitalia with his fingers), and count 28 (indecent assault by touching her genitalia with his hand).
[65] The rape charge on which the appellant was acquitted was said to have occurred on 30 September 2011 in the appellant’s campervan at Kaikoura. JT’s account was that she drank a considerable amount of alcohol that evening. Upon returning with the appellant to his campervan, she was “coma’d out”. During the night she said she woke to find the appellant having sex with her and taking photographs of her body. The objectionable publication counts related to photographs depicting the appellant’s fingers touching her genitalia and his penis inside her vagina. JT said she did not consent to the appellant taking these photographs. The following day, JT attempted, unsuccessfully, to drown herself in the sea. She slept with the appellant in his campervan that evening.
[66] On the next day, JT asked the appellant for “some acid”, which he gave to her. Later that day, they returned to the appellant’s home in another town. That evening, while she was lying on her bed, the appellant put his penis in her mouth and then tried to put his penis inside her vagina.
[67] The next day JT asked the appellant for some “acid”. The appellant agreed to this but performed oral sex on her. She consented because she said she wanted drugs. Afterwards, the appellant gave acid to her and another complainant (MB). She and MB eventually went to sleep in the appellant’s spare room. Then, JT woke to find the appellant touching her inside her vagina. He continued despite her protest.
[68] On the final day of the alleged offending JT had fallen asleep and awoke to find the appellant touching her genitals. According to her account, the appellant only desisted when MB woke up and became angry.
[69] Mr Harrison submitted that the supply of LSD was central to the allegations JT made and the acquittals on those charges called into question the convictions on the other charges. Further, the sequence of photographs relied upon by the Crown to support the sexual violation charges contradicted JT’s account.
[70] We accept the Crown submission that the different verdicts in JT’s case are susceptible to rational explanation. The Crown accepted that JT’s evidence in relation to the campervan trip, particularly as to the sequence of events, lacked precision and was difficult to reconcile with the photographs taken. She had admitted having consensual sex with the appellant on the evening before leaving for Kaikoura and had also accepted sleeping in his bed in the campervan. When asked in reexamination whether she had ever had consensual sex with the appellant at Kaikoura she was unable to remember. We are satisfied those matters were sufficient to create a reasonable doubt as to whether JT had consented to having sex with the appellant on that occasion. Consent was not however a defence to the objectionable publication charges which were all said to have arisen on the occasion of the campervan trip to Kaikoura.
[71] There was also a rational explanation for the acquittals on the two counts of supplying LSD. No trace of the drug was found in JT’s blood or urine and LSD was not found at the appellant’s property when searched. The fact the jury convicted the appellant on other counts of supplying cannabis and BZP, which were found at his address, suggests the absence of any LSD at the address may have caused the jury to entertain reasonable doubt on those charges. The acquittals on those two counts could not therefore call into question JT’s evidence as a whole.

NM

[72] Counts 29 to 35 related to the complainant NM. The appellant was discharged by MacKenzie J on count 29 (sexual grooming) and count 30 (supplying cannabis). He was convicted on the remaining counts.
[73] The Crown case was that NM was 14 when she met the appellant. By the time she was 15 she was in a relationship with the appellant. During the course of this relationship she said the appellant supplied her with marijuana on a daily basis (count 34). In return, she allowed the appellant to digitally penetrate her (count 35).
[74] Counts 31 to 33 related to a single incident on 12 or 13 February 2012. NM and the appellant had been together during the day. When they returned home, the appellant told her she looked “really, really sexy” and invited her to watch a movie in his bedroom. She got into his bed fully clothed. However, the appellant then removed his clothes and touched NM’s breasts with both hands. Despite her protests, she said the appellant held her down, removed her pants, touched her vagina with his finger for about a minute and then raped her. These events gave rise to charges of indecent assault, sexual violation by digital penetration and rape.
[75] At trial, Mr Harrison strongly challenged NM’s credibility and reliability. On appeal, these criticisms of NM’s evidence were repeated. Counsel submitted NM’s evidence was inherently unreliable and there was insufficient evidence to sustain the jury’s verdict. Mr Harrison relied on three main points: NM said she was with the appellant in Grovetown on 30 September (the subject of counts 29 and 30) while JT’s evidence was that she (JT) had travelled with the appellant to Kaikoura that day. Second, text messages sent by NM to the appellant after the rape she alleged (count 33) together with her acknowledgement that she was angry with the appellant because he had “dumped her”, meant the jury could not reasonably have accepted her evidence as credible and reliable. Third, although she denied ever having consensual sex with the appellant, the police had laid 14 charges of unlawful sexual connection against the appellant. These had not in the end proceeded.
[76] We deal first with the discharge of the appellant in respect of counts 29 and 30. The record of MacKenzie J’s fifth ruling when discharging the appellant on these counts makes the reasons clear.[29] In respect of count 29 (sexual grooming) the Judge noted the Crown must prove that the appellant intentionally met with the complainant and, at that time, intended to commit a sexual offence against her. The Judge was not satisfied the evidence disclosed any clearly identified meeting to which the charge related. Nor did it allege any specific intention to take an action that would constitute a sexual offence. The Judge considered it would be unfair to the appellant in these circumstances to allow the charge to go to the jury.
[77] In respect of the allegation of supplying cannabis to NM (count 30) the Judge noted that her evidence was specific as to the date this occurred. It was on her 15th birthday. The Crown had adduced evidence from JT that, on the same day, the appellant was in Kaikoura with her (JT). MacKenzie J did not consider it would be safe to leave this count to the jury. If JT’s evidence was correct, the appellant could not have supplied cannabis to NM on the same day.
[78] We accept the Crown’s submission that it does not follow NM was lying in relation to the supply of cannabis. As the Crown submitted, she may well have been mistaken.
[79] As to the second point raised by Mr Harrison, the text messages sent by NM to the appellant were the subject of extensive cross-examination. Whether they had the effect of undermining NM’s credibility was a matter for the jury. If her evidence was accepted, there was a sufficient basis for a properly directed jury to find the appellant guilty on the charges on which he was convicted.
[80] As to the 14 charges of sexual connection with a young person laid in relation to NM, this matter was explored in cross-examination at trial. The proposition put on behalf of the appellant was that NM had made a statement to the police inconsistent with her evidence at trial to the effect that she had not had consensual sexual intercourse with the appellant. The circumstances in which these informations were laid is unclear. The police relied at trial on two interviews with NM recorded on video to support the allegations in the indictment as it then stood. The evidence was that there was no written record of any statement or conversation with NM that had led to the laying of the 14 charges of sexual connection with a young person. The final form of the indictment did not include any charges of that nature and the 14 charges of sexual connection with a young person did not proceed. Whether NM had told the police she had consensual sexual intercourse with the appellant is wholly speculative.
[81] It is clear that all the issues raised by Mr Harrison on appeal were fully explored at trial. It was plainly open for the jury to accept NM’s evidence to support the convictions sustained in respect of her allegations.

TB

[82] The appellant was convicted on counts 46 to 48 relating to TB. These were the only three counts in relation to her allegations. No question of inconsistency of verdicts arises. However, the appellant seeks to challenge the convictions on these charges on the grounds that the verdicts could not reasonably be sustained on the evidence.
[83] The Crown case was that TB was 15 years of age in 2012 when the offending is alleged to have occurred. She said she went to the appellant’s home after becoming upset on an occasion when she had gone out with some friends. On arriving at the appellant’s home, he showed her around the house and then took her into his bedroom. He removed her clothes and pulled her onto the bed. Despite her protest, the appellant removed her clothes, digitally penetrated her (count 46) and raped her (count 47). Despite this, TB remained living at the appellant’s home and later engaged in consensual sexual activity. The last of the three counts (count 48) alleged that the appellant supplied her with marijuana.
[84] Mr Harrison submitted that a properly directed jury would have “great difficulty” in accepting TB’s evidence in terms of credibility and reliability. He pointed to the fact that TB had continued to have consensual sexual activity with the appellant after the alleged offending and to text messages that he submitted were at odds with the evidence she gave.
[85] However, Mr Harrison qualified this submission by confining it to “an ordinary case without propensity evidence”. As the Crown pointed out, this is a vital qualification because, on the Crown case, the complainant’s evidence did not stand alone. The jury was entitled to give considerable weight to the probative value of the evidence given by each of the complainants on a propensity basis. On the Crown’s case, their evidence was mutually supportive as we have already canvassed. This submission holds true not only for the evidence of TB but for the evidence of all the complainants. The jury was entitled to take this evidence into account when assessing the credibility and reliability of individual complainants. Finally, as with the other complainants, the issues raised by Mr Harrison were strongly put to the jury. It was open to the jury to accept TB’s evidence.
[86] For the reasons given, this ground of appeal must fail.

The prosecutor’s closing remarks to the jury

[87] The final ground of the appellant’s conviction appeal relates to remarks made by the prosecutor near the end of his closing address to the jury. Particular reliance is placed on the prosecutor’s reference to the appellant as “the beast”. It was submitted this remark was particularly prejudicial because it invited a comparison with the so-called “Beast of Blenheim”, a case that had received national prominence.
[88] We agree this remark was unfortunate and that the prosecutor should have been aware of the sensitivity over the term “the beast” since it had been raised by Mr Harrison at callovers prior to trial. However, the context in which the remark was made is important. We set out the relevant passage:

I now want to move and talk about Mr Senior and his DVD interview. But let me start off by drawing to your attention, first of all, just the nature of the beast you are dealing with. He was pulled over on the 21st of April 2012 by Sergeant Cross with [NM] driving his car, and he told the policeman that she was his daughter, and that she was too young to drive, page 289 of the notes of evidence. When the policeman said, “Why is her last name different?” he said, oh, her mother’s no longer with him, so quick as a flash lies to the police.

[89] It is significant that this remark came at the end of a very long closing address in which the prosecution took the jury in great detail through the evidence relating to each of the charges.
[90] After the completion of closing addresses, Mr Harrison raised the issue of the prosecutor’s remark with the Judge. He submitted the appellant’s fair trial rights had been compromised to the extent the jury should be discharged. The Judge was not satisfied there was a sufficiently serious risk to a fair trial to justify discharging the jury. He concluded:

[5] It is unfortunate that Mr O’Donoghue used the word “beast” given this particular sensitivity of that word in this case. However, it is clear that he was using the word in a quite different context. I think it unlikely that the jury would have taken particular note of the term, or that the jury would have attributed to it the connotations about which Mr Harrison is concerned.

[6] I record that I agreed with Mr Harrison’s submission that mention of the matter to the jury would draw undue attention to it. I accordingly did not make any reference to the point in my summing up.

[91] It is regrettable that the prosecutor also saw fit to variously describe the appellant as “a Jekyll and Hyde” character, a “wolf dressed in sheep’s clothing”, and a hypocrite. As well, he described the appellant’s statement to the police in his DVD interview as “a mixture of self-serving lies and twisted, distorted half-truths” and the appellant as a person of “zero credibility”. He also invited the jury to consider whether they would trust their daughter with the appellant.
[92] Personal attacks of this kind on a defendant in a criminal trial have no place in a prosecutor’s address to a jury. As Tipping J stated in R v Hodges, a prosecutor is entitled to be firm, even forceful.[30] But counsel is not entitled to be emotive or inflammatory. As Tipping J said, prosecutors are important participants in the dispassionate administration of criminal justice.[31] We would add that remarks of this kind invite the jury to reach their verdicts based on emotion and prejudice rather than a careful objective assessment of the facts.
[93] Mr Marshall accepted that some of the remarks made by the prosecutor were unfortunate and overstepped the mark. However, we accept his submission that, in context, the remarks were unlikely to have improperly influenced the jury or led to a risk of a miscarriage of justice for these reasons. First, we accept Mr Marshall’s submission that the reference to “the nature of the beast” would not have been understood to be comparing the appellant to another offender. As counsel submitted, the phrase would have been understood as a reference to the inherent or essential character of a person or thing. Second, the matter was raised with the Judge who was best placed to assess the significance of the remark at the time. Counsel were agreed it was best not to highlight the matter in the Judge’s summing-up.
[94] Third, defence counsel responded immediately to the relevant remarks when he began his closing address shortly after the prosecutor’s address. He did so with these words:

Mr Foreman, ladies and gentlemen of the jury, my task now to close the case for the defence. Some preliminary matters first. It may be a tired and hackneyed phrase but we start all trials with a presumption of innocence and I think that’s particularly important here given the sort of cluster bomb if you like of my learned friend at the end of his closing where he was saying words to the effect of “Well Mr Senior’s a nasty person, you’ve got to find him guilty of something.” Cluster bomb. It’s a presumption of innocence. You start sitting there each and every one of you as a judge of fact that this man is innocent and only until the Crown have proved their case beyond reasonable doubt does that status change and it’s significant and it’s important in this case. The reason it’s important is because the burden of proof always rests with the Crown.

[95] Later in his closing address, Mr Harrison said this in relation to the prosecutor’s remarks about daughters:

My learned friend says well you know if you’ve got daughters or that would you want them going out or being around this person? Well I have daughters, ladies and gentlemen of the jury, and I would hope that they have the nous and the wit and the common sense to know what is the right decision and the wrong decision and not find themselves some time later trying to rewrite history to make up for the bad decisions that they have made when they were younger. That’s all you can hope for in terms of your daughters and your sons really. It’s not so much a targeting issue but it's just the world that they inhabit and the fact that there are seven of them inhabiting that world in a very short space of time suggests to you that it's not uncommon unfortunately but if we had the right charges here, ladies and gentlemen, we would be arguing a whole different raft of things. The important thing is, and I would trust that any daughter of mine or any daughter of anyone, if they got into that witness box under oath they would tell the truth and if they were interviewed by a police officer they would also tell the truth and not try and rewrite history and not try and rewrite what they’ve texted in the past.

[96] Fourth, the jury’s verdicts do not suggest they did not faithfully carry out their obligation to carefully assess the evidence, charge by charge, in an objective manner. That they did so is demonstrated by the fact that the jury acquitted the appellant on a total of 11 charges, including all those relating to the tenth complainant.
[97] Fifth, having regard to the large number of complainants making similar allegations against the appellant, the Crown case as a whole was overwhelming.
[98] For the reasons given, this ground of appeal must fail.

Sentence appeal

Discount for electronically monitored bail

[99] Mr Harrison submitted there should have been a discount for the period of 21 months the appellant spent on electronically monitored bail (EM bail) from March 2013 until December 2014. The Crown acknowledges that s 9(2)(h) of the Sentencing Act 2002 requires a sentencing judge to take into account, to the extent applicable, that an offender has spent time on EM bail. Any discount in that respect is discretionary, having regard to the matters in s 9(3A) of the Sentencing Act. A discrete discount will not always be required, particularly where the conditions are not the most restrictive.[32]
[100] The Crown submitted that the bail granted to the appellant was not particularly restrictive. The Crown informed the Court that in the first 10 months, the appellant was allowed a total of 60 agreed absences including a period of six days to spend Christmas in Napier with his mother. And, in the period from September 2013 onwards, he was permitted a number of other relaxations of the EM bail conditions. Mr Harrison did not dispute the accuracy of the Crown’s submissions in this respect.
[101] At sentencing, MacKenzie J allowed a one year discount from the starting point, taking into account all mitigating factors including the appellant’s age (66 at the time of sentencing) and his difficulty in comprehending the boundaries about entering into intimate relationships with young women. We are not persuaded that any further discount should have been allowed.
[102] We also accept the Crown’s submission that the total discount for personal mitigating factors of one year was generous in the circumstances. The Judge adopted a starting point of 16 years before the discount of one year. We are satisfied the sentence was not manifestly excessive.

The MPI

[103] The Judge imposed a minimum non-parole period of seven years and six months imprisonment. Mr Harrison accepted that a minimum period of imprisonment was required but contended that five and a half to six years would have been appropriate. He relied particularly on two matters. First, the appellant was born in 1948 and would be in his early seventies by the time he had served one-third of his sentence. Second, prison programmes for sexual offenders are not generally available until the time of the first hearing before the Parole Board. A shorter minimum period of imprisonment would, in counsel’s submission, enable the appellant to undertake such programmes at an earlier date.
[104] MacKenzie J was satisfied the normal minimum period of one-third of the sentence was insufficient for the purposes of accountability, denunciation, deterrence and protection. Having regard to the number of victims and the nature of the offending, he did not consider the usual minimum period would be adequate for the purpose of protecting the community.
[105] We are satisfied that a minimum period of imprisonment of seven and a half years (50 per cent of the finite sentence) was appropriate having regard to the relevant factors in s 86(2) of the Sentencing Act. At the level of 50 per cent it was in keeping with this Court’s guideline decision in R v AM (CA27/2009).[33] The appellant’s case involved serious sexual offending involving nine separate complainants all of whom were vulnerable either by reason of youth, their personal circumstances or both. Although there were significant gaps between the periods of the offending, the fact that the appellant was still offending up to 30 years after the first offending shows an ongoing and persistent sexual interest in young girls that was undiminished by his age. In the circumstances, a minimum period of imprisonment that recognised these factors was clearly appropriate.

Result

[106] An extension of time to appeal is granted.
[107] The appeal against conviction and sentence is dismissed.








Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Senior [2015] NZHC 236.

[2] R v Senior, above n 1.

[3] CT (SC 88/2013) v R [2014] NZSC 155, [2015] 1 NZLR 465; and T v R [2014] NZCA 602.

[4] CT v R, above n 3, at [51].

[5] R v X [2014] NZHC 2773.

[6] R v X HC Nelson CRI-2012-006-1383, 3 December 2014 (Ruling No 5 of MacKenzie J).

[7] Evidence Act 2006, s 122(2)(e).

[8] CT (SC 88/2013) v R, above n 3 (footnote omitted).

[9] T v R, above n 3 (footnotes omitted).

[10] R v S [2013] NZHC 2974.

[11] Churchis v R [2014] NZCA 281, (2014) 27 CRNZ 257 at [28].

[12] Hetherington v R [2012] NZCA 88 at [20].

[13] Solicitor-General v Rudd [2009] NZCA 401 at [34].

[14] Smith v R [2010] NZCA 361 at [17]; Hetherington v R, above n 12, at [20]; and M (CA387/2013) v R [2013] NZCA 448.

[15] R v P (CA135/2013) [2013] NZCA 424 (footnote omitted).

[16] Sanders v R [2015] NZCA 523.

[17] At [21].

[18] It is common ground that the Crimes Act 1961 rather than the Criminal Procedure Act 2011 applies to this appeal as charges were first laid against the appellant prior to 1 July 2013.

[19] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].

[20] At [13].

[21] B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261.

[22] McGrath, Glazebrook and Arnold JJ.

[23] At [66] per Arnold J.

[24] B (SC12/2013) v R, above n 21, at [24] per Elias CJ and at [68](c) and (f) per McGrath, Glazebrook and Arnold JJ.

[25] See, for example, R v Shipton [2007] 2 NZLR 218 (CA) at [76].

[26] B (SC12/2013) v R, above n 21, at [83].

[27] Nevin v R [2008] NZSC 40 at [2]; and R v F CA28/01, 7 August 2001 at [9].

[28] Maddox v R CA424/00, 1 March 2001 at [22]. See also Dempsey v R [2013] NZCA 297 at [18]; and B (CA862/11) v R [2012] NZCA 602 at [10(a)].

[29] R v X, above n 6.

[30] R v Hodges CA435/02, 19 August 2003 at [20]. See also Stewart v R [2009] NZSC 53, [2009] 3 NZLR 425 at [19]–[22].

[31] At [20].

[32] Hemopo v R [2016] NZCA 242 at [22]; Rangi v R [2014] NZCA 524 at [10]; and R v Nepe [2008] NZCA 98 at [33].

[33] R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [155].

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