Hastie v R

JurisdictionNew Zealand
JudgeGlazebrook J
Judgment Date30 September 2011
Neutral Citation[2011] NZCA 498
Docket NumberCA153/2011
CourtCourt of Appeal
Date30 September 2011
BETWEEN
Michael Andrew Keith Hastie
Appellant
and
The Queen
Respondent

[2011] NZCA 498

Court:

Glazebrook, MacKenzie and Asher JJ

CA153/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction and sentence — conviction followed trial on one charge of sexual conduct with a young person and five charges relating to underage prostitution — sentenced to four years and six months imprisonment — majority verdict by jury — jury asked questions about reasonable doubt and what to do if they couldn’ t agree during jury deliberations — appeal against conviction on basis judge failed to give a Papadopoulos direction — appeal against sentence on basis sentence was manifestly excessive as it did not sufficiently allow for the appellant's ill health — whether grounds of appeals were made out.

Counsel:

S Hughes for Appellant

K A Bicknell for Respondent

  • A The appeal against conviction is dismissed.

  • B The appeal against sentence is dismissed.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Glazebrook J)

Introduction
1

Mr Hastie was convicted on 18 August 2010, following a trial in the New Plymouth District Court before Judge Roberts, of six offences against two 15 to 16 year old victims, C and L. The offences included one count of sexual conduct with a young person under s 134(1) of the Crimes Act 1961 and five counts relating to underage prostitution under the Prostitution Law Reform Act 2003. 1 The maximum sentences are ten and seven years imprisonment respectively. Mr Hastie was sentenced on 9 March 2011 to a term of four years and six months imprisonment. 2

2

Mr Hastie appeals against his convictions on the basis of the Judge's failure to give a Papadopoulos direction, or alternatively, the Judge's failure to discharge the jury on those counts in which a unanimous verdict could not be given. He also claims that his sentence is manifestly excessive because the starting point was too high and there was insufficient discount given for his medical conditions.

Background
3

The offending commenced in May 2005 after Mr Hastie lured 15 year old school girl, C, away from her grandparents in Wellington to live with him. 3 Mr Hastie had obtained C's cellphone number from a friend of C and contacted C through phonecalls and text messages. He posed as a 22 year old surfer who owned his own house.

4

In early May 2005, Mr Hastie booked and paid for C's bus ticket from Wellington to New Plymouth. She arrived with no money. She stayed with him despite her surprise at finding that he was an “old man”. 4 Her grandparents reported her missing. The police were able to locate her from Mr Hastie's telephone number. When the police first called at the house Mr Hastie refused to answer the door and told C to hide from sight.

5

Eventually, Mr Hastie contacted C's family, the police, WINZ and CYFS. He then presented himself to the authorities as a caring father figure concerned with C's welfare. He began a guardianship application in the Family Court. C told the police, social workers and her grandparents that she did not want to leave.

6

While at Mr Hastie's house C consumed alcohol and cannabis, and within a month they had consensual sexual intercourse. C observed other young women working as prostitutes from the house and the money they made. After several more months C was also working as a prostitute from Mr Hastie's house after he placed advertisements and made bookings for her. She gave him a share of her earnings.

7

C said she did not complain to anyone at the time because to her it was the “perfect life, I could go and do anything I wanted, drink whenever I had cash, all the time, yeah it was just freedom really”. She did not complete her schooling. When her 16 year old friend, L, came to stay, Mr Hastie also made a booking for her to provide commercial sexual services. After L lost her nerve, C took her place.

8

In her victim impact statement, C concludes that Mr Hastie simply wished to make money from prostituting her, and that she had no choice but to work as a prostitute because she “owed him”. Since leaving his brothel, she has suffered from depression and has had difficulties with substance abuse.

9

A first trial which commenced in June 2009 was aborted after Mr Hastie became unwell. After a second trial Mr Hastie was convicted by majority verdict on 18 August 2010 of six charges:

  • (a) one count of sexual connection with a person under the age of 16 years pursuant to s 134(1) of the Crimes Act (count one);

  • (b) one count of assisting a person under the age of 18 years to provide commercial sexual services pursuant to ss 20 and 23(1) of the Prostitution Reform Act 2003 (the Act) (count three);

  • (c) one count of receiving earnings from commercial sexual services provided by a person under the age of 18 years pursuant to ss 21 and 23(1) of the Act (count four);

  • (d) two counts of contracting for the commercial sexual services of a person under the age of 18 years pursuant to ss 22(1) and 23(1) of the Act (counts five and seven); and

  • (e) one count of attempting to assist a person under the age of 18 years to provide commercial sexual services pursuant to ss 20 and 23(1) of the Act and s 72 of the Crimes Act (count eight).

10

Mr Hastie was found not guilty (unanimously) on two cannabis supply charges (counts two and six).

Failure to give Papadopoulos direction
Jury deliberations
11

The jury deliberated for a total of approximately ten hours and 15 minutes over two half days. 5

12

At 8.09 pm on the Tuesday the jury asked the Judge a question about reasonable doubt:

What is the definition of reasonable doubt and is an element of doubt exceptable [sic] to arrive at a unanimous decision?

13

After discussion with counsel, Judge Roberts repeated his earlier directions about reasonable doubt. He concluded with the warning:

You must be sure before you convict. If you are not sure you have a responsibility to find Mr Hastie not guilty.

14

The jury returned at 9.52 pm, noting its progress and effectively seeking to retire for the evening:

Jury status, we have come to crossroads. Collectively we are consistant [sic], but not unanimous. We don't expect to change anyone's stance

tonight. We have a couple of jurors that would like some quiet time to consider their positions. This may bring us closer to resolution.
15

The Judge discussed the jury communication with counsel and then sent the jury home for the night. The following day the jury resumed deliberating at 10 am. At 2.02 pm the jury returned with the question:

We are unanimous on two counts but are unable to come to a concenus [sic] decision on the other six counts and are stalemate [sic] at 9 to 3. We are unsure where to proceed from here. We have made progress to get to this point from last night. Can we have some direction please?

16

Upon receiving this note the Judge discussed the matter with counsel. Counsel for Mr Hastie sought the discharge of the jury on the counts where unanimous verdicts had not been reached. This was refused. Instead, the Judge directed the jury on majority verdicts as follows:

You have told me that you are unanimous on two counts, and essentially that you are unable to come to a consensus on the other charges and you have nominated for me the divisions you have at the moment. I gather the bottom comments are a plea - we've made progress to get this far, can we have some direction please. But what you've left unsaid is, you want out.

It's not unreasonable and I'm grateful to you all for applying yourself so diligently to this task. Regrettably there's a process we have to work through.

Now I indicated to you when I commenced speaking to you that there had been a change in the law which now authorised Judges to seek, if it was possible, majority decisions. While I alerted you to that prospect I haven't yet directed you, and while in anticipation you have probably spelt out your division for me, I need to go through the process with you.

I gather that you realise that by this stage we're getting near the end of it, but we've reached a point where I must tell you now it is possible for you to deliver a verdict that 11 of you agree to. In other words, if only one of your number is in disagreement then you may proceed to verdict. If you don't have 11 people agreeing you won't be in a position to render a verdict, and if you get to that stage no doubt I'll be alerted.

I must, however, tell you before you render verdicts on a majority basis, that is 11 to 1, as a group you must be agreed that it is not probable you can reach a unanimous verdict, that is, 12 of you. The requirement is so important that your foreperson will be asked in Court to confirm that as a group it is unlikely you will achieve a unanimous verdict.

Now with the knowledge that I am telling you I will accept verdicts of 11 to 1, I will ask you to retire. Now I qualify this by telling you that I will not keep you for any great period. I expect, however, in the time that I allow, that you will address that one outstanding issue for me. I will call you back into Court at a time in the not too distant future so that if you are truly locked, with no possibility of rendering the majority verdict, I will discharge you.

17

We note that Judge Roberts had made passing reference to the change in the law allowing majority verdicts in his summing up:

You may be aware that over recent times the issue of unanimous verdicts has been changed slightly. I am asking you, though, for the moment notwithstanding the change in the law on that aspect, to strive initially for a unanimous verdict. That is a verdict on which each and every one of you agree on all counts. … Whatever the verdict might be it must be, for the moment, the unanimous verdict of you all. We will address the...

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18 cases
  • Hastie v R Sc
    • New Zealand
    • Supreme Court
    • 23 July 2012
    ...[1988] 2 NZLR 46 (CA) at 59. The direction in its original form is set out in R v Papadopoulos [1979] 1 NZLR 621 (CA) at 623 and 626. 3 Hastie v R [2011] NZCA 4 Hastie v R [2012] NZSC 2. 5 Indeed, the Australians sometimes call their equivalent direction the “perseverance direction”: see I......
  • R v Rihari
    • New Zealand
    • High Court
    • 7 December 2021
    .... “Discounts given for ill health have ranged from approximately 14–33%, depending on the severity of the health conditions”: Hastie v R [2011] NZCA 498 at [40], citing R v P [2009] NZCA 10 (14 per cent discount for cardiac impairment), R v B (CA41/07) [2007] NZCA 292 (17 per cent discount ......
  • Steven Richard Paul Whiteford v R
    • New Zealand
    • Court of Appeal
    • 30 April 2020
    ...family. The Judge pointed out that the reality was that Mr Whiteford had been alienated from his family for some time 22 Hastie v R [2011] NZCA 498 at before sentencing and a term of imprisonment would not change this. She did, however, give limited credit for what she described as the insi......
  • R v Lata
    • New Zealand
    • High Court
    • 17 April 2018
    ...the bottom of the range. But where delivery up is of a young person for sexual 10 In support of this, they cite the case Hastie v R [2011] NZCA 498. services, that must always, in my view, be a seriously aggravating factor which the offending to at least the middle level of the range. When,......
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