A v R

• Jurisdiction: New Zealand
• Judge: Glazebrook J
• Judgment Date: 23 March 2016
• Neutral Citation: [2016] NZSC 31
• Docket Number: SC 106/2015
• Court: Supreme Court
• Date: 23 March 2016

Between

A (SC 106/2015)

Applicant

and

The Queen

Respondent

[2016] NZSC 31

Court:

Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ

SC 106/2015

IN THE SUPREME COURT OF NEW ZEALAND

Application for a recall of judgment dismissing an application for leave to appeal on the basis that two of the three-member Supreme Court panel had also sat on the decision of the Court of Appeal (CA) that the applicant wished to challenge — the applicant said that he wished to challenge the sentencing guidelines in R v AM insofar as they related to the treatment of intra-familial sexual abuse — applicant had been convicted of multiple offences against family members and sentenced to 18 years — whether a recusal application should have been made at the time the application for leave to appeal was filed — whether the intention to challenge a sentencing guideline decision should have been raised in the CA — whether the sentencing guidelines in R v AM for intra-familial sexual offending were too rigid.

Counsel:

R M Lithgow QC for Applicant

M J Lillico for Respondent

JUDGMENT OF THE COURT

The application for recall is dismissed.

REASONS

(Given by Glazebrook J)

1 On 17 December 2015 this Court (William Young, Glazebrook and O'Regan JJ) dismissed Mr A's application for leave to appeal to this Court against his conviction and sentence on a series of sexual offences against members of his family. 1

2 Mr A applies for a recall of the judgment on the basis that two of the three-member panel who dismissed the leave decision also sat on the Court of Appeal's decision in R v AM. 2 Mr A says that his application challenged the sentencing guidelines in that judgment insofar as they relate to the treatment of intra-familial sexual abuse. Mr A also says that he wishes this Court to consider issues relating to the underlying process behind R v AM, including reliance on the work for the proposed Sentencing Council.

3 Before dealing with the issue of whether the judges should have recused themselves, we will set out the nature and extent of Mr A's offending and summarise the main features of R v AM. Then we deal with some process issues.

The offending

4 Mr A's most serious offending was against his daughter, including a representative count of indecent assault, a representative rape count and various other counts of sexual violation. This offending started when she was five years old, with the first rape occurring when she was eight years old. There were convictions on further charges when she was 19, including one count of rape.

5 Mr A was also convicted on a count of penetrative anal sex against his younger brother, who was 14 at the time of the offending. The third victim was his 17 year old niece. In that case, there were convictions on two separate counts of indecent assault and one of attempted sexual connection.

6 Mr A was sentenced to 18 years imprisonment. The sentencing judge identified, 3 among the aggravating features of the offending, violence and threat of violence, vulnerability of the victims and breach of trust, particularly in relation to his daughter “who was entitled to look to [Mr A] for love and support and safety rather than being a victim of [Mr A's] sexual violence”. 4 He also outlined the profound effect the offending had on the daughter and younger brother. 5

The approach in R v AM

7 The judgment in R v AM is designed to provide guidance for judges in sentencing for sexual violation. The approach taken is to set out overlapping sentencing “bands” which identify ranges of starting points reflecting the intrinsic seriousness of the offending. Any sentence is then adjusted up or down to reflect circumstances personal to the offender. 6 The Court of Appeal noted that this structured sentencing approach is now embedded in New Zealand's sentencing practice and that it promotes consistency and transparency in sentencing in conformity with s 8(e) (consistency) and s 31 (the duty to give reasons) of the Sentencing Act 2002. 7

8 Two sets of bands are contained in R v AM: the first set applies where the lead offence is rape, penile penetration of the mouth or anus or violation involving objects (called the “rape” guidelines for convenience) and the second set deals with sexual violation involving other forms of unlawful sexual connection. 8

9 The rape guidelines have four bands: 9

• (a) rape band one: 6–8 years;

• (b) rape band two: 7–13 years;

• (c) rape band three: 12–18 years;

• (d) rape band four: 16–20 years.

10 The Court of Appeal set out a series of factors relevant to assessing culpability and therefore the proper placement in the bands. 10 It noted, however, that the first point of reference for sentencing judges is the Sentencing Act and that, given the wide variety of circumstances, it is not possible to give an exhaustive list of relevant factors. 11 Factors relating to culpability that are identified in the judgment and that are of relevance in Mr A's case include violence (including threats of

violence), 12 harm to the victim, 13 scale of offending, 14 breach of trust 15 and degree of violation. 16

11 The Court emphasised that, in considering the culpability of offending in a particular case, what is required is an evaluative exercise of judgment. Judges have a degree of latitude in this exercise, which must be fact specific. 17

Process issues

12 The first process point is that a recusal application should have been made at the time the application for leave to appeal was filed. Counsel knew that Mr A wished to challenge R v AM and knew (it being a matter of public record) that three of the five Supreme Court judges had sat on that case. The application should have asked that those judges not be assigned to decide the leave application and set out the reasons why that request was being made. Had this been done, the matter would have been dealt with in accordance with the Supreme Court's Conflict of Interest Protocol. 18

13 The matter, however, proceeded to judgment without a recusal application. The Protocol does not deal with this situation. Recall applications would normally be dealt with by the panel which decided the application. Where the recall application is made on the basis that a judge who decided the application should have recused him or herself, this may not always be appropriate.

14 In this case, however, the matters raised relate to the ordinary court work of the relevant judges while they were on the Court of Appeal. 19 There would therefore have been no issue with the recall application being dealt with by the original panel.

As this application raises issues relating to recusal that may arise in other cases, however, the whole Court has dealt with the recall application

15 There is another process issue. In this case, Mr A wishes to challenge R v AM. Where an appellant wishes to challenge a sentencing guideline judgment or aspects of it (rather than its application in the individual circumstances), we would normally expect that to be signalled in the Court of Appeal so that, when an application for leave is made, this Court would have the benefit of the Court of Appeal's view on the matters sought to be raised.

Should William Young and O'Regan JJ have recused themselves?

Test for apparent bias

16 A judge should disqualify him or herself from hearing a case 20 “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. 21 The fair minded lay observer is presumed to view matters objectively and be reasonably informed about the legal system and the issues in the case. 22 The observer must be taken to understand that a judge is expected to be independent in decision-making and has taken the judicial oath and that judges are also expected to sit on cases allocated to them unless grounds for disqualification exist. 23 Judges should not recuse themselves without sufficient cause. 24

Was the test met in this case?

17 It is asserted on behalf of Mr A that a fair-minded observer may consider that, because of their involvement in R v AM, William Young and O'Regan JJ may not have been able to bring an impartial mind to the question of whether leave should be

granted so that this Court could consider whether R v AM deals properly with intra-familial violence. This effectively suggests that a fair-minded observer would apprehend that they would have prejudged the application for leave

18 There is no doubt that it would not be appropriate for a judge to sit on an appeal from one of his or her own decisions. Here, however, what is being asserted is that William Young and O'Regan JJ should not have been on the panel which decided Mr A's application because of their earlier involvement in a different case involving different parties.

19 We do not accept the submission that a judge's involvement in a case involving different parties but similar issues to those arising in another case precludes that judge sitting on the basis of a reasonable apprehension of prejudgment. This applies even where the court is being asked to depart from the principles or approach outlined in the previous case.

20 The first point is that the doctrine of precedent means that judges are required to be influenced by earlier decisions, including their own. This, by itself, does not constitute grounds for alleging the appearance of prejudgment. 25 Even where a court is not bound by a decision, 26 judges would expect to give due consideration to cases that have been decided on similar points and at all court levels. Again, these may be earlier decisions of...