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THE QUEEN v RAYMOND PETER PETERSON [2000] NZCA 19 (22 February 2000)

[1] Following trial in the District Court the appellant was found guilty on one count of abduction, three counts of sexual violation by rape and one count of indecent assault.All charges concerned the same complainant and arose out of an incident on 20 September 1998.The trial Judge declined to sentence the appellant, taking the view that preventive detention was called for in the public interest.On committal to the High Court, the appellant was sentenced to preventive detention.He now appeals against conviction and against the sentence of preventive detention.

Background Facts

[2] Both the appellant and the complainant gave evidence at trial.The appellant's version of the essential facts differed markedly from that of the complainant and amounted to a flat denial that any sexual contact had occurred. It is implicit in the jury's verdicts, however, that they accepted the essence of the complainant's account of events as true.On her account, she met the appellant on 20 September 1998 outside a tavern in Manurewa.He had driven the complainant's cousin to the tavern and the cousin introduced them.The three of them then spent the afternoon drinking and socialising; at one point travelling to another tavern in Otahuhu.At about 9:00pm the complainant's cousin was involved in an altercation and was asked to leave by security staff. The complainant remained, however, and continued to socialise with people at the tavern, including the accused.

[3] Later in the evening the appellant offered to take her home in his van, and she accepted.However, he drove off in the wrong direction contrary to her instructions and when questioned, told the complainant he was taking her to another tavern.He then drove out past Maraetai and turned down a gravel side road, despite the complainant's protests and her requests to be driven home. The appellant stopped the van on the side of the road and overpowered the complainant.Holding a knife against her throat he raped her twice.He then demanded that she masturbate him and raped her again.During the attack, the complainant tried to pacify the appellant, fearing for her life.She convinced him that she would like to continue a relationship with him, and he then allowed her to drive the van back to her home.When they arrived, the complainant grabbed her belongings out of the van, shouting at the accused "you raped me!".She then ran inside, woke her parents and collapsed onto the floor, telling her father she had been raped.

[4] The Police were called and the complainant subsequently examined by a doctor.Samples were taken from stains on the front seat of the van, from the complainants knickers, her vagina and breasts.Semen present in one of the swabs taken from the complainant's breasts indicated that it was 8,000 million times more likely to have come from the appellant than from any other unrelated man selected at random from the population.Two of the samples taken from the seat of the van were also shown to be likely to have come from the appellant and one contained an epithelial component from the complainant.

[5] Similar fact evidence was also called at trial, relating to previous convictions for violent sexual offending by the appellant against four different women in 1971, 1973, 1979 and 1983.

Appeal Against Conviction

[6] Mr Peterson filed written submissions in support of his appeal against conviction and Mrs Smith spoke to those in Court.The ground advanced in support is that of error by the trial Judge in refusing leave to cross-examine the complainant about sexual conduct she had engaged in earlier the same night with another person.That person was called as a witness by the Crown but the trial Judge limited the witnesses evidence in chief to a version short of actual sexual connection, and refused leave to cross-examine the complainant on that issue.Leave was also sought to cross-examine the complainant about sexual intercourse with her boyfriend some 5-7 days earlier, and in relation to an alleged recent assault by her boyfriend.

[7] As noted, the DNA analysis of a sample of semen staining from the front seat of the appellant's van indicated that it came from the appellant.Coupled with that, DNA analysis of a swab taken from the complainant's breast indicated that the semen in that swab was 8,000 million times more likely to have come from the appellant than from another unrelated man selected at random from the population.Further DNA analysis excluded either the Crown witness (with whom the complainant had engaged in sexual conduct earlier in the evening) or her boyfriend as the source of either of those DNA samples.

[8] Reference was made, by the appellant, to the decision of R v Phillips (1989) 5 CRNZ 405 in support of his submission that the trial Judge had erred in refusing leave to cross-examine as requested.Criticism was also levelled at the safety of the DNA results in cross-examination at trial, based on controversy which had arisen earlier in an unrelated situation involving unexplained contamination in samples at the ESR, which resulted in a chance match in three separate cases.

[9] Leave to cross-examine a witness or complainant as to the complainant's previous sexual experience is provided for under s 23A of the Evidence Amendment Act 1989, the relevant parts of which provide:

(2) In any case of a sexual nature, no evidence shall be given, and no question shall be put to a witness, relating directly or indirectly to-

(a) The sexual experience of the complainant with any person other than the accused; or

(b) The reputation of the complainant in sexual matters,-

except by leave of the Judge.

(3) The Judge shall not grant leave under subsection (2) of this section unless the Judge is satisfied that the evidence to be given or the question to be put is of such direct relevance to--

(a) Facts in issue in the proceeding; or

(b) The issue of the appropriate sentence,-

as the case may require, that to exclude it would be contrary to the interests of justice:

Provided that any such evidence or question shall not be regarded as being of such direct relevance by reason only of any inference it may raise as to the general disposition or propensity of the complainant in sexual matters.

[10] In refusing leave to cross-examine the complainant on her prior sexual experience with the witness or with her boyfriend, the trial Judge found that no issue of relevance arose and nor did any question relating to the complainant's credibility arise.In this regard, there was no substantial difference between the statements made by the complainant and the witness when each was interviewed by the Police.In addition, there was no evidence that either the witness or the complainant's boyfriend were the source of the DNA in the samples or swabs submitted for analysis.Given those matters, the trial Judge was correct to decline leave to cross-examine.He did permit cross-examination of the complainant relating to the termination of her relationship with her boyfriend and as to whether she had been recently assaulted by him.He also permitted cross-examination of the complainant about certain intimate activities with the Crown witness earlier that night.

[11] In the case of Phillips, leave was granted to adduce evidence that other sexual intercourse had occurred within 24 hours of the complainant being medically examined.However, the fact situation in Phillips differed markedly from the facts and issues in this appeal.In Phillips, the fact of intercourse was not denied:rather, belief in consent was the issue and motive for false complaint was alleged.A further significant difference is the fact that no DNA analysis was carried out in Phillips.

[12] Potential relevance under s 23A requires that proposed cross-examination about a complainant's previous sexual experience or reputation must go to affect credibility to a degree that directly bears upon the issue at trial.No such relevant nexus arose in this case.

[13] We are satisfied that the convictions are safe and are soundly based on cogent and compelling evidence.When the similar fact evidence adduced by the Crown in relation to the appellant's previous convictions in 1971, 1973, 1979 and 1983 for serious violent sexual offending against women is added to the complainant's evidence and the DNA evidence, the Crown's case must be regarded as overwhelming.

[14] There is no substance in this ground of appeal and the appeal against conviction fails.

Appeal Against Sentence

[15] There is no dispute that the appellant was eligible for a sentence of preventive detention pursuant to s 75(1)(a) Criminal Justice Act 1985, having been convicted of an offence under s 128(1) Crimes Act 1961 and being not less than 21 years of age (48 years at the time of the offending).

[16] He was also eligible for preventive detention pursuant to s 75(1)(b) Criminal Justice Act 1985, being:not less than 21 years of age, and having appeared for sentence on 3 counts of sexual violation by rape pursuant to s 128(1)(a) Crimes Act 1961 (being "specified offences" within the meaning of s 75(4) of the Act), and having been previously convicted since he attained the age of 17 years of a specified offence, namely assault with intent to rape (s 129 Crimes Act 1961).

[17] The principles relating to preventive detention are well established and set out in full in R v Leitch [1998] 1 NZLR 420.The essential question for the Court is whether it is "satisfied that it is expedient for the protection of the public that the offender should be detained in custody for a substantial period".

[18] The need to be "satisfied" calls for an exercise of discretion by the sentencing Judge.The factors which require to be taken into account in exercising that discretion include: the nature of the offending; its gravity and time span; the category of victims and the effect on them; the offender's past response to rehabilitation; the time lapse between offences; the attitude of the offender towards his offending and victims; and the risk assessment by experts of the likelihood of further offending.

[19] Where s 75(1)(b) applies, as in this case, a psychiatric report is not a statutory pre-requisite to the imposition of a sentence of preventive detention nor is there a requirement that there be "substantial risk" that the offender will commit a specified offence on release.However, and notwithstanding this, a psychiatric report was obtained in the appellant's case.Reference will be made to that report shortly.

[20] We accept the Crown's submission that the following aggravating features are present in the appellant's case:the offending was deliberate and pre-mediated.The complainant was detained for a significant period of time and driven to an isolated location where the sexual violations took place.She was raped three times by the appellant who used a knife to overcome resistance from her and, in particular, threatened to slit her throat; the complainant feared for her life throughout her ordeal.She suffered injuries including bruising to the back of her neck and her breasts - also tenderness to her abdomen and knees and bruising to her lower neck and back.She has also suffered considerable psychological and emotional impact as a result of the attack.Finally, the appellant has shown no remorse for his actions.

[21] In addition, there are the appellant's numerous convictions for relevant previous offending, incurred over a considerable period - 1967 to 1988 - and commencing at a relatively young age.These are:

* 1967 - sexual intercourse with a girl aged 12-16

* 1968 - burglary x2

* 1970 - indecently assaulting a female aged 12-16

* 1971 - assaulting a female

* 1973 - assaulting a female

* 1979 - assault with intent to rape

* 1983 - assault with intent to rape and abducting a female for sex

* 1988 - assaulting a female

[22] The 1971, 1973, 1979 and 1983 convictions all involved a compellingly similar modus operandi.In each case the appellant took a young woman, barely known to him, in his vehicle, usually on the pretext of driving her home, but deliberately deviated from the agreed route and drove instead to a remote or quiet area.There he made sexual advances and became violent or threatened violence in the face of resistance.In each case his victim was terrified. Two of them managed to escape by jumping from his moving vehicle, one was fortunate that he could not achieve an erection and two (including the present complainant) survived their ordeal by pretending to humour him.

[23] The Probation Officer who prepared the pre-sentence report was of the view that the appellant's risk of re-offending was high, based on his demonstrated propensity for anger, aggression, violence (including sexual violence) towards women, and his alcohol abuse.The Probation Officer assessed the appellant's motivation to address those issues and his ability to change in relation to them as low.

[24] In his risk assessment report, the psychiatrist described the appellant as an "opportunist rapist".He referred to his previous convictions for sexual and violent offending, his previous incarcerations for offending, his negative relationship with his mother, his history suggestive of antisocial personality disorder, his selection of strangers as victims and the early onset of his sexual offending as negative factors.On the positive side, however, he noted that the appellant had previously been able to deal with his alcohol and drug abuse, noted his positive history of employment and his successful relationship with his de facto partner and her children for a period of 11 years.In concluding whether the appellant posed a substantial risk, he said:

If as the jury indicated, Mr Peterson is guilty of the charged crimes, then I would suggest that there remains a risk that he would re-offend in a similar pattern currently.This will depend on circumstantial factors that may come to bear, which are unpredictable, and his response to any rehabilitation experiences.Whether this risk meets the legaltest for substantialremains for the wisdom of the Court to decide.

[25] At sentencing, Robertson J found the clear pattern of similarity of offending, the serious nature of the present offending, and the clear failure of rehabilitative steps taken hitherto, led in combination to the unavoidable conclusion that the appellant was "either unable or unwilling to conduct himself in the community in a way in which other people are safe from him and his sexual desires".Considering all factors, Robertson J found no option but to impose a sentence of preventive detention.

[26] The first question for this Court on appeal is whether it is expedient for the protection of the public that the appellant should be detained in custody for a substantial period.As discussed in Leitch "expedient" provides a lower threshold than "necessary":the standard required being that it is appropriate for the protection of the public to detain the offender in custody for such a period.The second question for the Court is whether a long finite sentence is a feasible alternative to preventive detention in the appellant's case.

[27] In regard to the second question, we have paid careful regard to two matters.First, that for a considerable period of time, namely, from 1988-mid 1997, the appellant remained out of trouble and thus appeared to be risk free. That period of time coincided with his stable de facto relationship.The second aspect is that the appellant has been able to demonstrate an ability and willingness to deal with his sexual and alcohol abuse problems.Unfortunately, however, he has relapsed, such relapse appearing to have coincided with the cooling off of his de facto relationship.The psychiatrist recommends that the appellant abstain from alcohol use in the future, because of its disinhibiting effect.However, the appellant's current offending and his lack of remorse does not lead to any feeling of confidence that he would so abstain or that he can be trusted not to offend further against female members of the community.

[28] Although it might be said that the psychiatric report is equivocal on the issue of recidivism, that equivocality is not determinative of expediency in terms of s 75(2) Criminal Justice Act 1985.In R v M (CA 165/99, 28 July 1999), an equivocal psychiatric report indicating a low to moderate risk of re-offending did not persuade the Court that the public could or should be left at further risk of M re-offending.The difficulty of predicting recidivism upon release and the safety factor of life-time recall can appropriately be taken into account when deciding if preventive detention should be imposed rather than a lengthy finite sentence.This was discussed in The Solicitor-General v Seu (CA 15/98, 6 May 1998); and in M's case.

[29] The relevant factors in the appellant's case, when drawn together, in our view favour the imposition of preventive detention rather than a lengthy finite sentence in the public interest.These factors are: the appellants history of offending, as reflected in his conviction list between 1967 and 1988; the early age at which he commenced sexual offending against women; his resumption of violent sexual offending against women, following the cooling off of his long-term de facto relationship and his resumption of alcohol abuse; the predatory nature of his offending and the degree of premeditation involved in the `setting up' of his victims; and the disturbingly increased degree of violence in his present offending and carrying with it the heightened risk that must pose to female members of the public.

[30] Despite equivocality on the psychiatrist's part and notwithstanding the fact that the appellant had demonstrated himself capable of reform for a substantial period of time, the gravity of his most recent offending takes this out of the category of a `border-line' case.Preventive detention is a sentence which is specifically designed for the protection of the public with the detainee not eligible for release on parole until after 10 years of his sentence and then only at the direction of the Parole Board, which is specifically required to consider "the need to protect the public or any persons who may be affected by the release of the offender" and, among other things, the likelihood of the offender committing further offences on his release

(s 104).Following release, the detainee remains liable to recall and is subject to standard conditions providing for his supervision.

[31] We are satisfied that the sentence of preventive detention is the only appropriate sentence in the appellant's case and the appeal against sentence is accordingly dismissed.

Solicitors:

Meredith Connell, Auckland, for the Crown

Lorraine Smith, Auckland, for the Appellant