NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985 AND S 203 OF THE CRIMINAL PROCEDURE ACT 2011. IN THE COURT OF APPEAL OF NEW ZEALAND CA671/2015 [2017] NZCA 45 BETWEEN AND DAVID STANLEY TRANTER Appellant THE QUEEN Respondent Hearing: Court: Counsel: Judgment: 16 November 2016 (further submissions received 20 December 2016) Kós P, French and Venning JJ A J McKenzie for the Appellant M J Lillico for the Respondent 7 March 2017 at 10.00am JUDGMENT OF THE COURT The appeal against conviction and sentence is dismissed. REASONS OF THE COURT (Given by Kós P) [1] The appellant was convicted in the High Court at Christchurch on five counts of historical sexual offending against three minors. The convictions include two of sexual violation by rape and, as against complainant A, sodomy and performance of TRANTER v R [2017] NZCA 45 [7 March 2017]
an indecent act. He was sentenced by Gendall J to preventive detention. 1 appeals conviction and sentence. He Conviction appeal [2] The sole ground of conviction appeal is that a miscarriage of justice has arisen because fresh evidence is now available that has a material effect on the safety of the convictions in respect of complainant A. [3] Complainant A was asked in cross-examination whether he had made physical or sexual abuse allegations against the appellant. He said that he had made complaints of physical abuse, and had gone to the police. This was in the early 1980s. He was asked whether charges against the appellant had been dismissed. He could not recall. [4] The appellant then gave evidence in his own defence that physical and sexual abuse charges relating to complainant A had been brought against him. But he asserted they had been dismissed by a Judge without trial. His then-solicitor gave evidence. She no longer had her file but she had a record of a file in the appellant s name: Children s Court Police Charge. She could not recall what it was about. She accepted it might have been about a child charged with an offence. But she said that would just be speculation. [5] In closing the prosecutor made some mention of this aspect of the appellant s evidence. The prosecutor suggested his credibility was impaired because the appellant could never have faced sexual abuse charges in a Children and Young Persons Court (as the Youth Court then was called). Therefore such charges could never have been dismissed, as he claimed. The Judge referred to it also, simply noting the prosecutor s submission. [6] The fresh evidence is a file note from August 1983 obtained from the Ministry of Social Development. The note was redacted in part. It appeared to 1 R v Tranter [2016] NZHC 111.
relate to a complaint of physical abuse that complainant A had made against the appellant. [7] The appellant submitted this evidence was important and relevant to the contest at trial. In particular it was relevant to assist the jury assess the veracity of complainant A. It also supported the appellant s evidence that he had been charged with physical abuse at least, but that those charges were withdrawn because the underlying complaint was false. [8] Following the hearing we directed the Ministry to produce the full file note, unredacted. The Ministry did so on 28 November. We called for further submissions, which we received from both counsel. [9] Having considered those submissions we consider the fresh evidence does not materially assist. It does not have a material effect on the safety of the convictions entered. [10] The unredacted document provides no support for the suggestion that complainant A had made a prior complaint of sexual abuse against the appellant. Indeed, quite the contrary. It undermines the evidence given by the appellant that he had been charged in the District Court with both physical and sexual abuse of complainant A in the early 1980s. It was the latter aspect he was emphasising in his evidence to the jury: that similar charges had been tested and found wanting because complainant A was unreliable. An attachment to the document produced by the Ministry instead makes clear that a charge of ill-treatment against a child had been laid against the appellant. And that it had been withdrawn by consent by the prosecution. That charge had been laid under s 27(2) of the Children & Young Persons Act 1974. That required determination in the Children and Young Persons Court, not the District Court. [11] The most relevant aspects of the document are two. First, that a social worker in 1983 assessed that complainant A, then a young boy, had a propensity to lie. Secondly, that there had indeed been a charge brought against the appellant. As to the former, we do not consider evidence of that antiquity is substantially helpful to
assess complainant A s veracity at the time of the trial some 30 years later. The document would be inadmissible under s 37(1) of the Evidence Act 2006. As to the latter, while the Ministry documents support the proposition that the appellant had indeed faced a charge in 1983, the gravamen of the submission made by the prosecutor (and repeated by the Judge) remains correct: that (contrary to his own evidence) he had not been charged with sexual abuse in 1983, and that such a charge had not been dismissed. [12] Taken as a whole, the fresh evidence is adverse to the appellant s position. It does not call into question the safety of the convictions. It does not therefore meet the threshold for admission and the conviction appeal must be dismissed. Sentence appeal [13] Gendall J first considered the appropriate finite sentence. He took a starting point of 10 years imprisonment, and allowed a 10 per cent discount for the appellant s age (65 years): a finite sentence of 9 years. The Judge then considered preventive detention, the sentence sought by the Crown. That is governed by s 87 of the Sentencing Act 2002. The appellant qualified for that sentence in terms of s 87(2)(a) and (b). The other pre-condition in s 87(2)(c) is that the Court be satisfied that the person was likely to commit another qualifying sexual or violent offence if released at the sentence expiry date. In considering that pre-condition, and the mandatory considerations in s 87(4), the Judge found that there was a discernible pattern of sexual offending (with the appellant having eight previous offences for sexual offending against children in 1986, 2000, 2002 and 2004). That offending had caused serious harm to the community given where it had occurred and that it involved breaches of trust and threatened violence. Evidence from a psychologist and psychiatrist indicated the appellant had at least a moderate to high chance of reoffending against young children. He failed to complete treatment for sexual offending in the Kia Marama Special Unit on two occasions. He consistently denied his offending. The Judge concluded a lengthy determinate sentence would not adequately protect the community because of his denials of the offending and his high risk of reoffending. On that basis the Judge imposed a sentence of preventive detention, with a minimum period of five years.
[14] Mr McKenzie, Mr Tranter s counsel, submitted that the Judge was wrong to do so. A finite sentence with an extended supervision order (ESO) at its conclusion would have provided adequate protection. Mr Tranter had no sexual offending since 2003, and had not reoffended in a manner requiring the protection of society. The present offending for which he was sentenced pre-dated that offending, all occurring in the 1980s. The later offending was less serious. The Judge misdirected himself by referring to a pattern of sexual offending when the criterion is serious offending. [15] We are not convinced that the sentence of preventive detention is manifestly excessive. It is correct that Mr Tranter has not been convicted of sexual offences since 2003. Likewise that the later offences were less serious than those for which he was sentenced by Gendall J. However, both report writers considered that fact in their risk assessments. There was no basis on which to infer that the Judge misunderstood that consideration. Given the experts adverse propensity assessments, the Judge was right to find the appellant likely to commit another qualifying sexual offence if released at the substitute finite prison term. The appellant himself accepts that at least an ESO would need to be imposed. [16] We are not satisfied that the protection of the community would be adequately met by the imposition of an ESO. In 2007 the appellant was released subject to an ESO for his last sexual offending committed in 2003. Shortly after his release he fraudulently obtained a passport and absconded to the Philippines. That was in breach of the ESO and release conditions. He was convicted of those breaches and passport offences in 2007, and was sentenced to three years imprisonment. The appellant has compiled a lamentable list of sexual offences against children, continues to deny that offending despite all evidence to the contrary, has twice failed to complete treatment for sexual offending in the Kia Marama Special Unit and breached immediately the ESO imposed in 2007. [17] Given those considerations and the likelihood of reoffending, we are satisfied that the appropriate sentence imposed was one of preventive detention. The minimum period of imprisonment, set at five years, was appropriate and offered the
necessary incentive to the appellant to complete the treatment which might mitigate the perceived risk of reoffending. Result [18] The appeal is dismissed. Solicitors: Crown Law Office, Wellington for Respondent