King v Police [2012] NZHC 1922 (2 August 2012)

Last Updated: 17 August 2012

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE COMPLAINANT PROHIBITED BY SECTION 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-45 [2012] NZHC 1922

BETWEEN LESLEY KING Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 31 July 2012

Counsel: S J Gill for appellant

M J Ferrier for respondent

Judgment: 2 August 2012

_{RESERVED JUDGMENT OF DOBSON J}

[1] After a defended hearing before Judge T J Broadmore in the Lower Hutt

District Court on 16 November 2011, the Judge delivered a judgment on 2 December

2011 finding four charges of indecent assault proven against Mr King. The Judge sentenced Mr King on 27 April 2012 to four months’ community detention, with a curfew to the residential address between 7pm and 6am, together with 18 months’ intensive supervision. Special conditions included counselling and non-association with the complainant and people under the age of 16 years.

_{[2] Mr King now appeals against both his convictions and the sentence imposed.}

KING v NEW ZEALAND POLICE HC WN CRI 2012-485-45 [2 August 2012]

[3] The complainant in the four charges was a young woman who turned 16 during the period to which the charges relate. She is the daughter of Mr King’s current partner so that he stands in a stepfather-type relationship with her.

[4] The first charge related to an incident between the beginning of 2011 and mid March that year. The complainant described Mr King approaching her from behind in the kitchen of their home. She complained that he placed his hands on her hips and moved them up to her stomach towards her breasts over her clothes. She pulled his hands away and the touching stopped at that point.

[5] The second charge relates to an alleged touching between mid March and the end of April 2011. On this occasion, the complainant was in her bedroom and Mr King came in, with the complainant asking him to leave. While they were facing each other, Mr King hugged the complainant and as he did so he touched her legs on the back of her thighs, moving his hands up to touch her buttocks over her clothes.

[6] The third charge related to an alleged incident on 2 May 2011. On that occasion, the complainant left her bedroom to get a drink of water and returned there. Mr King followed her into her bedroom uninvited, and when she turned around to face Mr King he hugged her, placing one hand on her bottom and moved his other hand up her chest towards her breasts. Believing that he was going to touch her breasts, the complainant pushed his hand away.

[7] The final charge related to an incident on 24 May 2011. Mr King was lying on a mattress in the lounge of their home and asked the victim to lie down with him. The complainant refused and started to walk away when Mr King grabbed her by the back of her clothes and pulled her towards him. He then gave her a kiss on the cheek.

[8] In all cases, the alleged touching was described as occurring over the complainant’s clothes. On all occasions, Mr King had been drinking and was treated, at least by the complainant, as being adversely affected by alcohol. The last charge described is the one where the complainant had turned 16, so that the

prospect of consent, or the appellant’s honest belief in consent, were potentially in issue.

[9] Counsel were agreed as to the elements required to be proven by the prosecution on the first three charges. They were:

that Mr King assaulted the complainant;

that the assault was indecent; and

that Mr King intended to commit an assault that in its nature or because of its circumstances was indecent.

[10] For the purposes of the second element, the Judge had to be satisfied that the assault was indecent in the sense that it was capable of being, and which the Judge found would be, considered by right-minded persons in the community as indecent.

[11] Mr Gill submitted that in the factual context of this case, it was necessary for the Judge to explicitly analyse whether the evidence established this requisite intention for Mr King to intentionally touch the complainant in respects that rendered the assault it constituted indecent. In the context of a household that apparently was basically harmonious, and where a line was required to be drawn between acceptable and unacceptable physical contact, Mr Gill’s analysis suggested a requirement that the Judge make an explicit finding that Mr King’s touching of the complainant on the relevant occasions was intentional in respect of circumstances that rendered it indecent. He argued that was a necessary step in the reasoning because it was apparent from Mr King’s evidence that he did not contemplate the circumstances of the touching as coming within what right-minded members of the community would consider to be indecent.

[12] There was potentially a difference between the parties as to the form in which the third element was required to be proven by the prosecution. In the course of argument, Mr Gill accepted that there was no aspect of subjectivity in the intention required to be attributed to Mr King. This absence of any subjective aspect was

confirmed by the Court of Appeal in R v Aylwin.1 The Court’s comment on the point

in that case included:2

... we see no justification either in the authorities or as a matter of principle for the mens rea requirement to extend to an awareness (or consciousness) at the time of the offence that the assault would be regarded as indecent by right-minded members of the community.

[13] Consistently with that observation, the Court in that appeal characterised the third element required to be proven as:3

The accused intended or appreciated those aspects of the assault, and the surrounding circumstances, which render it indecent.

[14] Accordingly, the prosecution had to establish that Mr King intended to touch the complainant in respects which were indecent by application of an objective test, attributed to right-minded members of the community.

[15] The nature of that third element of the first three offences assumed relevance here because the household in which Mr King and the complainant lived was evidently one where cuddling, and other physical demonstrations of familial affection, were normal. However, the complainant drew a distinction between unobjectionable contact from Mr King when he was sober, and what she treated as sexual overtones of the unacceptable touching when he had been drinking alcohol.

The distinction was reflected in the Judge’s analysis:4

It is necessary for me to be satisfied beyond reasonable doubt that the charges are made out. I am satisfied that Mr King’s actions were clearly sexual in nature. I am satisfied that there was no consent to the conduct described by [the complainant] and it follows that I am satisfied that all the charges are made out.

[16] The closest Mr King came to acknowledging the character of his touching of the complainant was in the questioning, reproduced in the judgment, as follows:5

17. I put it to you Mr King that you had a 15 year old young woman there in the house, you had been drinking on those four instances,
    

1 _{R v Aylwin [2007] NZCA 458.}

2 _{At [34].}

3 _{At [35].}

4 _{Police v King DC Lower Hutt CRI 2011-032-1904, 2 December 2011 at [24].}

5 At [21].

you weren’t thinking straight and you got a bit over amorous with her and you touched her on the bottom and towards her breasts, and that’s what happened wasn’t it?

A. I said I might of, I’m not 100 per cent sure I might of.

[17] Once it is accepted that there is no element of subjectivity in the mens rea required to be proven, then the relevant question is whether the Police had proven that Mr King intended to touch the complainant as he did, rather than, for example, only touching her body in the places he did by accident because he had, say, slipped. It is clearly implicit from the Judge’s review of the evidence that he considered the touching complained of had occurred intentionally. It is not relevant to the third element that whilst Mr King intended to touch the complainant as he did, he did not think that he was acting indecently in doing so.

[18] Accordingly, I am not satisfied that there was any deficiency in the Judge’s reasoning by which he found the requisite elements of the first three offences to be made out.

[19] In relation to the fourth charge of indecent assault under s 135 of the Crimes Act 1961, Mr Gill criticised the Judge for not explicitly dealing with the prosecution’s obligation to negative a belief on Mr King’s part that the complainant consented to being kissed on the relevant occasion. It is accepted that a belief in consent was not raised on behalf of Mr King, but it was argued that the Court is obliged to consider this element, regardless of the matters raised on behalf of the defence. Mr Gill cited R v S for Court of Appeal guidance to the effect that a Judge must direct a jury on this element of an indecent assault charge, regardless of

whether the defence raised it or relied on it.6

[20] There was a conflict between the evidence of the complainant as to the circumstances in which the kiss complained of occurred, and the description of it given by Mr King in his own evidence. The complainant in her DVD interview described Mr King as asking her for a kiss as he was about to leave the house, he being affected by alcohol at the time. The complainant’s evidence was that she told

_{him she did not want to kiss him and that he was “disgusting”. She also referred to}

6 R v S [2007] NZCA 243 at [60].

her mother commenting to Mr King that the complainant “... doesn’t kiss alcohol ...” (in circumstances where he smelt of alcohol).7 On the complainant’s evidence, notwithstanding these statements, Mr King suddenly kissed her on the cheek.

[21] From Mr King’s perspective, the complainant’s mother had been out and he was waiting for her to return to enable him to go off fishing. He recalls the complainant’s mother coming into the house and his commenting that he could now leave the address, and bent down and kissed the complainant on the cheek, and then kissed her mother as he left.8

[22] The Judge dealt with the conflict between the competing versions of the various incidents at a general level, concluding that he accepted the version of the complainant.9 Acceptance of the complainant’s version means that the kiss was preceded by Mr King issuing an invitation to the complainant for a kiss, and the invitation being emphatically rejected. On the complainant’s version, there could be no basis for Mr King to harbour a belief that she consented to being kissed.

[23] It may have been preferable for the Judge to have separately addressed the facts as he found them to be in relation to this fourth charge, given the additional ingredient involved. Nonetheless, an analysis of his findings, in light of the version of events he preferred, means that the prospect of a basis for Mr King to believe that the complainant consented to being kissed is effectively rejected.

[24] I accordingly dismiss the appeal against all of the convictions.

Appeal against sentence

[25] The essence of the Judge’s approach on sentencing was that convictions for indecent assault warranted starting points of short sentences of imprisonment where the offending was at the lower end of the spectrum of gravity. Each conviction here

_{was seen as justifying a sentence of three months, so that overall the Judge identified}

7 _{Transcript of DVD interview at 36.}

8 _{Notes of Evidence at 4/30-5/5.}

9 Police v King at [22], [23].

a starting point of six months’ imprisonment. He also identified as aggravating factors that a breach of trust was involved, the substantial age difference between Mr King and the complainant, that the offending occurred within the family home where the complainant ought to have been entitled to feel safe, and that the offending occurred when Mr King was affected by alcohol. Those were treated as justifying an uplift of the starting point to nine months’ imprisonment. There were no relevant mitigating factors, but the Judge considered an appropriate alternative to be an electronically monitored sentence of community detention. He therefore imposed a sentence of four months’ community detention, together with 18 months’ intensive supervision.

[26] The latter aspect of the sentence is not challenged.

[27] However, Mr King criticises the starting point including the uplift as being too high when this was relatively low seriousness of offending with non-genital touching, no skin to skin contact, and an absence of any violence or threats. It was argued that this could sufficiently be dealt with by a sentence of community work.

[28] Mr Ferrier disputed the argument on starting point, suggesting that the available range for indecent assault is somewhere between six months and two years’ imprisonment, citing the Court of Appeal decision in R v Hohaia.10 The Court there recognised the impossibility of providing any tariff for sentencing on indecent assaults, but broadly agreed with a range between six months and two years’ imprisonment. A number of previous Court of Appeal decisions cited as examples

included one where the indecent assault comprised of “transitory kissing” resulting

in an eight month starting point.11

[29] In light of these appellate indications, I am not persuaded that the Judge’s

approach to fixing the starting point, and the additional period attributed to the aggravating factors, was in error.

10 _{R v Hohaia CA221/05, 17 October 2005.}

11 At [13].

[30] A distinct criticism of the sentencing was that no account was taken of Mr King having been remanded in custody for a period of some eight weeks. Mr Gill acknowledged that the remand occurred in circumstances where there had been a breach of bail, but Mr King was not charged in relation to the breach and the remand was in relation to the charges of indecent assault. He argued that the Judge should have had regard to that period already spent in custody. Mr King would have been given credit in terms of entitlement for parole if the end sentence was imprisonment, but it has gone unacknowledged when transforming the proposed period of imprisonment in this case into a period of community detention.

[31] There is nothing in the Judge’s sentencing notes that suggests he turned his mind to this aspect. The sentencing process of transforming a proposed sentence of imprisonment into home detention or community detention cannot simply be an arithmetic exercise, and a range of factors may influence the relativity between a proposed length of imprisonment and that imposed for a non-custodial form of sentence. In the end, the Judge has to impose a sentence that fits as best as possible all the considerations relevant to the sentencing.

[32] Here, I am left sufficiently uneasy that the time spent in custody was not taken into account by the Judge, when it should at least have been evaluated, to re-assess the sentence. I do so with some reluctance given the experience of the Judge and the obvious care he took, both in determining whether the charges had been proven, and then in reflecting on the factors he considered relevant to the sentencing.

[33] However, in the end, a proposed sentence of nine months’ imprisonment when commuted to four months’ community detention appears more or less appropriate without regard to the period spent in custody on remand. When account is taken of virtually two months in custody in those circumstances, I am satisfied that they justify a reduction to the length of time to be served in community detention.

[34] I accordingly allow the appeal against sentence and substitute a period of two months and two weeks’ community detention on each of the convictions, to be

served concurrently. In all other respects, the terms and conditions of the sentence

(including intensive supervision), as imposed by the sentencing Judge, remain.

Dobson J

Solicitors:

Gill & McAsey, Lower Hutt for appellant

Crown Solicitor, Wellington for respondent