Marcus Shane Solomon v R

• Jurisdiction: New Zealand
• Judge: Miller,Simon France,Hinton JJ
• Judgment Date: 04 December 2019
• Neutral Citation: [2019] NZCA 616
• Date: 04 December 2019
• Court: Court of Appeal
• Docket Number: CA444/2018

[2019] NZCA 616

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

Miller, Simon France and Hinton JJ

CA444/2018

Between

Marcus Shane Solomon

Appellant

and

The Queen

Respondent

Counsel:

A J McKenzie for Appellant

M N Zarifeh and S J Mallett for Respondent

Criminal Procedure — historical sexual offending — offender aged between 14 years and 24 years at time of offending — application for charges to be dismissed on the basis of delay for youth offenders — whether youth justice principles were applicable when offenders were charged as adults — Oranga Tamariki Act 1989

The appeal was dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Simon France J)

1 Mr Solomon was convicted following a jury trial of historical sexual offending involving three complainants. 1 At the time of the offending Mr Solomon was aged between 14 and 24 years of age. He was around 45 years of age when first questioned in 2015 about the alleged offending.

2 Prior to trial Mr Solomon applied for the charges to be dismissed under s 322 of the Oranga Tamariki Act 1989. 2 That section provides:

322 Time for instituting proceedings

A Youth Court Judge may dismiss any charge charging a young person with the commission of an offence if the Judge is satisfied that the time that has elapsed between the date of the commission of the alleged offence and the hearing has been unnecessarily or unduly protracted.

3 Judge Hastings queried the applicability of s 322 to the situation where the defendant is an adult when charged. 3 In any event, his Honour did not consider there to be delay that was undue or unnecessary and considered the concerns about the “disproportionate anxiety” of young persons that underlie s 322 did not apply in Mr Solomon's case. 4 The application was declined.

4 Subsequent to Judge Hastings' decision, the Supreme Court issued its decision in H (SC 97/2018) v R (“ H v R”), which confirmed that s 322 and the youth justice principles do apply to a situation such as Mr Solomon's. 5 The present appeal is advanced on the basis that consistent with the decision in H v R, the charges against Mr Solomon should have been dismissed before trial. There are secondary grounds of appeal concerning whether a witness should have been recalled, and whether the prosecution breached the obligation to put its case to a witness.

5 The decision in H v R is pivotal to the appeal. It will be helpful first to consider that in some detail before detailing the relevant features of the present case.

H v R

6 The defendant in H v R was 78 years of age when convicted of sexual offending against his sister and daughter. The relevant timeframes were:

• (a) A charge of rape against his sister occurring about 60 years previously, when she was aged between five and nine. Depending on the exact date, H was aged between 16.5 years and 20 years;

• (b) Subsequent indecencies against his sister when she was aged between 12 and 16. These were representative charges. H would have been a young adult and outside the Youth Court jurisdiction;

• (c) A representative charge of indecently assaulting his very young daughter;

• (d) A single indecent assault on his daughter some six years later when she was aged between 12 and 13.

7 What can therefore be noted at this stage is that the Youth Court jurisdiction attached only at the very beginning of a protracted course of offending, and at the time it applied H was 16 years of age. Obviously also relevant is the period of delay. Complaints were first laid in 2014, so 60 years after the earliest date in the charges.

8 The Supreme Court held that s 322 of the Oranga Tamariki Act applied regardless of the age of the defendant when charged: s 2(2) of the Act had that effect. 6 The more difficult issue was how the youth justice principles are to be applied in circumstances where some of the concerns that underlie them do not directly apply because of the maturity of the defendant.

9 Section 5(1)(b)(v) of the Act identifies the following principle: 7

decisions should be made and implemented promptly and in a time frame appropriate to the age and development of the child or young person.

10 Of this, the Court observed:

[32] In the case of a person charged as an adult for an offence committed as a young person, this principle will usually have no direct application. When the person is charged when an adult, he or she will usually no longer have the sense of time of a child or young person. We recognise that

the principle may still, however, have direct application to persons charged in their late teens and early twenties for offences committed as children or young persons.

[33] The reasons behind the s 5(f) principle will still need to be considered in relation to those charged as adults. One important reason for the s 5(f) principle is to enable rehabilitation to occur in line with the general object in s 4(f)(ii). It is also recognised that there are particular factors related to the stage of development that may have contributed to the offending of children and young persons and that may be seen as reducing or explaining culpability and also as meaning rehabilitation is more likely. …

[34] The above factors may mean that it is inappropriate to try a person for an offence allegedly committed as a child or young person after unnecessary or undue delay. This would particularly be the case where the offence was committed when the person was very young or if the alleged offending was not serious. Even where the alleged offending was serious, however, youth justice principles may still mean that the discretion to dismiss a charge under s 322 should be exercised. This would especially be the case where there is good reason to consider the person has been rehabilitated (for example where there has been a long period without any serious offending). ³⁰

30. Other youth justice principles may be relevant in other cases, particularly if the person offended as a child or young person but is charged in their late teens or early twenties.

11 Turning next to the s 322 concepts of “unduly protracted” and “unnecessarily protracted”, the Court held that the concept of “unnecessary” imported a notion of fault, with the focus normally on the conduct of the authorities. 8 Unduly protracted, however, does not involve fault. 9 It was a concept to be considered from the viewpoint of the accused. It was noted, however, that the more mature the defendant, the different the assessment may be —“depending on the circumstances, even long delays may not be considered unduly protracted”. 10

12 In in H v R itself, the prospect of a complaint seems to have first emerged in the early 2000s when discussions between aunt and niece exposed that both were victims. Another sister of H also then indicated she had experienced abuse. However, a decision was made not to complain while the sisters' parents were alive. This was to add a further 10 years to the delay period before formal complaint was made. The process from complaint to charge, which included evidential interviewing of at least two complainants, seems to have been about 18 months.

13 The Supreme Court concluded there was no fault in the delay, so the matter was not unnecessarily delayed for the purposes of s 322. 11 In relation to “unduly protracted”, however, the Court accepted the delay was so long that it would be considered unduly protracted, even for a defendant of H's age. 12 That meant the discretion under s 322 was engaged.

14 The Court next assessed whether the charges should be dismissed because of the unduly protracted delay. Its assessment is summarised in the following paragraph:

[48] Applying these principles to this case, the rape charge was very serious, particularly given Dianna's age at the time. Mr H was not very young, at least 16 years old, at the time he committed the offence. Most importantly, the other convictions for offences against Dianna and Emily show that he has not led a blameless life since the rape. Indeed, it is particularly concerning that the later offending was a similar type to the rape, albeit not as serious. Mr H offended against Dianna long after he became fully adult and he added another very young victim in a gross breach of trust and in a manner that was totally inconsistent with his proper role as Emily's father.

The present case

15 There are three complainants, A, B and C, and 13 charges. It is necessary to identify the allegations concerning each.

16 The alleged offending against A involved five charges over two time periods. The first period consisted primarily of charges of indecent assault on a girl under the age of 12. 13 During this period Mr Solomon was a young person, aged between 14 years and 16 years eight months. The charged offending was touching A's genitalia, having her touch his penis, touching her genitalia with his foot and touching her genitalia with objects. All were representative charges. Mr Solomon was convicted of four and acquitted on the touching with objects charge.

17 In the second period, there was a single sexual violation with an object charge when A was aged between 12–16. 14 The charge consisted of sexual violation by penetrating her with a pen. It was a representative charge and Mr Solomon was

convicted. For the period of this offending Mr Solomon was 16 years six months to 22 years six months

18 The second complainant, B, involved five charges. The first three were alleged indecencies on a girl under 12. 15 All were representative. Mr Solomon was convicted on one of the charges, being an allegation of inducing her to touch his penis. The complainant was less than 10 years old; Mr Solomon was aged 14 to 19 through the charge period. There were also two convictions on representative charges of sexual violation, being digital penetration and oral sex with her mouth and Mr Solomon's genitalia. 16 She...