Anand v R

[2015] NZHC 397

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-93 [2015] NZHC 397

BETWEEN

AROKIADASS ANAND

Appellant

AND

THE QUEEN Respondent

Hearing:	3 March 2015
Appearances:	S Gill for appellant M L Wong for respondent
Judgment:	9 March 2015

JUDGMENT OF CLIFFORD J

Introduction

[1]      The appellant, Arokiadass Anand, pleaded guilty shortly before trial to one representative charge of sexual connection with a young person and two representative charges of doing an indecent act on a young person.   On 1 October

2014 Judge Tompkins sentenced Mr Anand to four years’ imprisonment.1

[2]      Mr Anand now appeals his sentence.  The single ground of appeal advanced by Mr Anand is that the four and a half year starting point adopted by the Judge was too high because his offending did not involve sexual intercourse.   The correct starting point range was three to three and a half years.  He says his sentence was, therefore, manifestly excessive.

Facts

[3]      Mr Anand’s offending occurred over a period of some two years, from 2011

to 2013.

1      R v Anand DC Lower Hutt CRI-2014-096-002641, 1 October 2014.

[4]      The  first  instance  of  offending  occurred  at  Mr Anand’s  home,  when  his victim  was  around  13  years old.    His  victim,  her  younger brother,  Mr Anand’s children and Mr Anand had been at the beach.  They returned to Mr Anand’s home where he encouraged his victim to lay down with him.  He stroked his victim’s body and then squeezed her breasts.  He told her not to tell anyone.

[5]      From then, Mr Anand and his victim regularly sent text messages to each other and spoke on  the phone.  The conversations quickly became sexually explicit. Mr Anand  encouraged  his victim to participate in phone sex.   The two met on multiple occasions during his period.  When they were together Mr Anand touched his victim around her genital area and touched and sucked her breasts.

[6]      Mr Anand’s offending against his victim escalated to oral sexual connection on two occasions, where he put his penis into his victim’s mouth and moved her head back and forth until he ejaculated.

[7]      The final  incident  of offending occurred  at  a  party held  by the victim’s family.  By that time she was 14 years old.  During the festivities Mr Anand followed his victim out of the sight of her family, pulled her top down and began kissing and biting her breasts.  Mr Anand removed his penis from his pants and guided his victim to masturbate him.

The sentencing decision

[8]      The Judge set a four and a half year starting point for the offending overall on the basis of the Court of Appeal’s decision in R v H2  and the various aggravating factors present.  The Judge identified those factors as premeditation and grooming, the two year period of the offending, the age disparity between Mr Anand and his victim, the breach of trust inherent in the offending and the traumatic and devastating effect that Mr Anand’s offending had on his young victim.

[9]      The Judge allowed a 10 per cent discount for Mr Anand’s late guilty plea, reducing Mr Anand’s sentence to four years.  The Judge imposed that sentence on

2      R v H [2008] NZCA 237.

the lead charge of sexual connection, and sentenced Mr Anand to serve concurrent sentences of two years on the other two charges.

Submissions

[10]     For Mr Anand, Mr Gill argued that, rather than the case fitting squarely within the situation referred to by the Court of Appeal in R v H, as the Judge had observed, here there was a crucial distinction.  Full sexual intercourse had not taken place.   Moreover, in R v H that had occurred on 12 to 15 occasions, considerably more than the two instances of oral sex here.  Mr Gill submitted that in R v H the Court of Appeal had observed that, on the facts of that case, there could have been a starting  point  on  the  sexual  connection  charge  of  four  years’  imprisonment. Therefore, he argued, on the facts of this case the starting point should have been in the range of three to three and a half years, resulting in an end sentence in the range of two years nine months to three years three months.

[11]     For the Crown, Ms Wong acknowledged that, if viewed in isolation, a lesser starting point may have been warranted in respect of the lead offence of sexual connection.  However, taking into account the totality of the offending, the starting point selected by the Judge properly reflected the seriousness of the appellant’s admitted conduct.  The starting point and end sentences were consistent with Court

of Appeal authority in R v H and R v Johnson.3   In concentrating on the absence of

sexual intercourse in terms of the sexual connection offending, Mr Gill had failed to

take account of the rest of Mr Anand’s offending.

Analysis

[12]     Sections 131, 133 and 134 of the Crimes Act 1961 provide the offences of sexual connection with a dependent family member, a child under the age of 12 and a young person under the age of 16 respectively.  Consent is not a defence to charges under ss 131 and 133.  There is a limited consent defence available to a charge under s 134.  That is not at issue here.  There is no tariff judgment for these offences.  In R v H the Court of Appeal expressed the view that that is because such cases reach

the courts relatively rarely.   The Court of Appeal has, however, in R v H and a

3      R v Johnson [2010] NZCA 168.

number of other judgments, provided guidance for sentences for this type of offending.

[13]     In R v H the Court of Appeal, having considered the earlier authority of R v V4 and the then recent increase in the maximum penalty under s 134 from seven to 10 years’ imprisonment, observed:5

[17]      In combination these legislative changes form part of a prophylactic regime designed to increase protection for young persons in positions of vulnerability: R v Boyd (2004) 21 CRNZ 169 at [40]. Parliament’s intention was clearly expressed in 2005 to treat the crime of sexual connection with a young person more seriously than when R v V was decided and to extend the age of protection. By following the R v V approach and re-calibrating the starting  point  of  eight  years  for  rape  to  the  new  maximum  penalty  of

10 years’  imprisonment,   the   starting   point   on   conviction   for   sexual connection under s 134 could be fixed at four years’ imprisonment; similarly

the starting point on conviction for  sexual connection with a  dependent

would be two-and-a-half years. In our judgment starting points of these lengths   are   independently   sustainable   by   reference   to   the   orthodox sentencing purposes of deterrence, denunciation, accountability and community protection.

[14]     R  v  H  was  an  appeal  against  a  sentence  of  three  and  a  half  years’ imprisonment  imposed  for  sexual  connection  (sexual  intercourse)  with  a  young person (a girl) on some 15 to 20 occasions before the girl turned 16, and for a short time after that.  The Court, observing that a starting point (after taking account of totality) of at least five years’ imprisonment was available (not four years as Mr Gill submitted) and that the adoption of three and a half years was most generous to the appellant, dismissed the appeal.

[15]     In R v Johnson the Court of Appeal noted that the R v H indication of a starting point had been followed in a number of Court of Appeal decisions: R v Brunie, R v Burdett, R v Davidson and R v Misileki and that, in R v Burdett it had been described as a guide rather than a fetter.6   The Court of Appeal then went on to

say:7

[17]     We consider that the four year starting point in R v H is still a useful reference point in relation to sentencing for sexual connection with young

4      R v V CA180/01, 30 August 2001.

5      R v H, above n 2.

6      R v Brunie [2009] NZCA 300; R v Burdett [2009] NZCA 366 at [24]; R v Davidson [2008] NZCA 484; R v Misileki [2008] NZCA 513.

7      R v Johnson, above n 3.

persons, where the offending shares features present in that case. Particular aggravating features  in  R v  H  were  abuse  of  trust,  a  significant  age  gap between the offender and the victim, full penetrative sex on a number of occasions, and significant adverse effects on the victim. Where aggravating features in R v H are present, a starting point of four years may be appropriate. Other aggravating factors not present in R v H may be seen as increasing culpability. Such features could include grooming, or abusive and demeaning behaviour. Where there has been no breach of trust as in R v H but the same aggravating features are present, a lower starting point will be appropriate. A different combination of aggravating and mitigating factors might produce yet another result. It follows that the starting point of four years should be seen as no more than a mid-point in the range of offending where there is moderate culpability.

[16]     Whilst, in terms of those remarks, Mr Anand’s offending did not involve full penetrative sex, it was nevertheless serious s 134 offending.  As the Judge correctly recognised, in addition to the two instances of sexual connection and the many instances of indecent assault, there was almost the full range of other aggravating factors that the Court of Appeal has, over time, recognised.  Further, and as the Court of Appeal said in Faapuea v R,8 a case involving digital penetration of a young girl, such offending was not necessarily less serious than that involving full intercourse.  I acknowledge that, in Faapuea, the Court assessed the offending involved as being

very close to sexual violation.  That is not the case here.  Nevertheless, the fact that sexual intercourse did not occur here does not mean that the combined starting point sentence of four and a half years adopted by the Judge was too high.

[17]     As Ms Wong submitted, that starting point is well justified in terms of a three and a half year starting point for the sexual connection offending, and a one year uplift for the indecency offending.

[18]     Mr Anand’s appeal against his sentence is therefore dismissed.

“Clifford J”

Solicitors:

Gill & McAsey, Lower Hutt for appellant.

Crown Law Office, Wellington for respondent.

8      Faapuea v R [2010] NZCA 20 at [9].