Bell v The King

[2024] NZHC 472

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-000148

[2024] NZHC 472

MARK WILLIAM BELL

v

THE KING

Hearing:	27 February 2024
Appearances:	S Green for the Appellant T Afoa for the Crown
Judgment:	7 March 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 7 March 2024 at 3 pm Registrar/Deputy Registrar

Counsel:

S Green, Barrister, Auckland
T Afoa, Gordon Pilditch, Crown Solicitor Rotorua

BELL v R [2024] NZHC 472 [7 March 2024]

[1]                 The appellant, Mark Bell, appeals the sentence imposed on him by Judge E P Paul of one year and 11 months’ imprisonment in respect of four charges of indecent assault on a young person.1

[2]                 Mr Bell argues that the Judge erred by failing to give him a sufficient discount for his guilty plea, however the principal focus of the appeal is the Judge’s refusal to commute the sentence to one of home detention at a rehabilitative facility. He argues that the sentence was, by dint of that refusal, manifestly excessive.

[3]The Crown opposes the appeal.

The offending

[4]                 The offending occurred while Mr Bell was caring for the complainant [REDACTED]. The 13-year-old complainant was sleeping in Mr Bell’s bed. She woke to hear him moaning. He then put his hands into her pants and touched her bottom. She tried to move away. He grabbed her and pushed his penis against her for approximately 10 minutes. He tried to pull her on top of him and asked her if she would sleep with him. He also touched her breasts under her shirt and rubbed her genitalia inside her underwear for a brief period.

[5]                 The four charges therefore relate to one incident rather than multiple incidents over time.

District Court sentencing

[6]                 The Judge adopted a starting point of two years and six months’ imprisonment for the lead charge. Notably, counsel for the appellant and Crown agreed the starting point was appropriate. He then identified several aggravating features, namely:

(a)The age of the victim.

1      R v Bell [2023] NZDC 26291.

(b)Breach of trust from [REDACTED].

(c)Vulnerability of the victim.

(d)Intrusiveness and intensity of the offending acts.

[7]                 The Judge applied an uplift of three months for breach of a sentence of community work and failure to answer bail. The community work sentence related to a separate conviction for receiving, for which Mr Bell had been sentenced on 17 March 2022. In November 2022, Mr Bell had breached his bail terms by absconding from the Red Door facility, the rehabilitation centre to which he now seeks to serve his sentence. He only returned to the centre in February 2023. That led to an adjusted starting point of two years and nine months’ imprisonment.

[8]                 In terms of the mitigating matters, the Judge’s views are encapsulated in the following paragraphs:

[20]      You may have already gleaned from me, Mr Bell, that I will not be giving you a 20 per cent discount for your guilty plea. You have been well aware of the nature of the charges you face and certainly the four charges you face since November 2022. It is some nine to 10 months on before you have even been prepared to accept guilt to that.

[21]      I am a little concerned that you retreat to a position where you cannot remember the offending that you have admitted to. That gives me concern about really the level of insight you have or the remorse that you really have for something you now say you do not remember. That behaviour is unlikely to be forgettable in my view, the behaviour that I have described this afternoon.

[22]      So, on that basis, I would only extend a 10 per cent discount for your guilty plea because ultimately, at least it avoided […] having to give her evidence in a courtroom.

[23]      Your counsel has made much of your childhood past which is, if true, regrettable, and your counsel has suggested that has led to your addictions which has caused your offending. I accept you have addictions. I reject the suggestion it was causative of your offending for your deprived upbringing, if I could call it that. I would only extend a five per cent discount.

[24]      I do acknowledge your efforts at rehabilitation. It is obvious you have made progress in terms of your substance use, but again, that must be tempered and so I will only extend a 10 per cent discount for that.

[25]      What that means is from a two year, nine month starting point, I would reduce your sentence by eight months to one of two years, one month’s imprisonment.

[26]      I have not overlooked the time you have spent on electronically monitored bail to the Red Door facility, but again, that must be tempered by your initial absconding and also you have benefited by remaining there the second time round, so I would only reduce the sentence by two months. That would take it to a 23-month sentence or one year, 11 months. In the law, that is termed a short term of imprisonment.

[9]                 At the conclusion of his sentence, the Judge turned to the question of commuting the sentence to one of home detention. He said:

[27] Your counsel has urged me to commute that to a sentence of home detention. I have reflected on that carefully. I have reflected on the purposes and principles of sentencing, the least restrictive outcome in all the circumstances, but here, where we have multiple occasions of skin on skin touching and given the significant impact on […] and the fact that you remain an untreated sex offender, I do not consider you a candidate for home detention.

Approach to appeal

[10]             Mr Bell’s appeal against sentence must be allowed if the Court is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should have been imposed. For Mr Bell to succeed, he must demonstrate that there was a material error that has resulted in a manifestly excessive sentence being imposed.2 The Court does not start afresh and substitute its own opinion for that of the original sentencer.3 Rather, the focus is on the end sentence imposed, and whether it was within range. It is not on the correctness of the process by which the sentence was reached.4

[11]             In respect of the approach where the issue is one of commuting a sentence to home detention, Crown counsel’s written submissions (not those of Ms Afoa who appeared at the hearing) referred to the standard of review in James v R.5 I will not repeat that standard because the Court of Appeal has said it is no longer to be followed.

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].

3 At [30].

4 At [36].

5      James v R [2010] NZCA 206, (2010) 24 NZTC 24, 271.

The standard of appellate review adopted in Tutakangahau v R applies in its place.6 The standard is that of material error.

Submissions

[12]             Ms Green, for Mr Bell, submitted that the sentence imposed (by failing to commute to a sentence of home detention) was manifestly excessive. She submitted that the outcome was contrary to the principles set out in the Sentencing Act 2002 (the Act). Further, that the rationale expressed by the Judge that Mr Bell was an untreated sex offender was in error because it did not take into account all the relevant factors associated with the offending and its connection to Mr Bell’s traumatic upbringing.

[13]             She submitted that the Judge failed to take into account factors directly relevant to the consideration of whether the principles in the Act were more appropriately met by commuting the sentence. She emphasised that the home detention option was not serving a sentence at his home but in a rehabilitation facility where Mr Bell had already spent a considerable time and made progress in respect of drug and alcohol addiction issues.

[14]             Ms Green contested the proposition that the guilty plea was not at the earliest opportunity and drew a link between that factor and its impact on the consideration of the home detention option. She further argued that while the Judge considered Mr Bell’s extreme childhood trauma by way of mitigation, it was inconsistent to omit those factors when exercising the discretion not to commute the sentence to home detention. She argues that this omission is inherent in the Judge’s decision that the offending was “too serious” not to impose a prison sentence.

[15]             Finally, she argued a nexus between the trauma and addiction which in turn led to the sexual offending, such that the least restrictive sentence was attendance at a rehabilitation programme for which ACC funding has already been made available.

6      Palmer v R [2016] NZCA 541 at [18].

[16]             The Crown submitted that the 10 per cent guilty plea discount adopted by the Judge was appropriate by reference to the timeline of significant dates in the proceeding. On the key issue of home detention, the Crown submitted that Mr Bell’s addiction and efforts at rehabilitation were already reflected in the adoption of a 15 per cent discount for a combination of those factors. The Crown submitted that Mr Bell’s explanation for the offending was at odds with his pleas and expressions of remorse wherein he does not recall the offending. The Crown supported the Judge’s conclusion that the seriousness of the offending and significant impact on the victim, along with the fact Mr Bell was an untreated sex offender, meant that substitution of a form of home detention for a custodial sentence was not appropriate.

Analysis

[17]             The appropriate focus in this appeal is on the issue of home detention as I find no material error in the application of a 10 per cent guilty plea discount in view of the timeline and narrative.

[18]             Whether to impose a sentence of imprisonment or home detention requires evaluation of all relevant purposes and principles of sentencing. There is no presumption that one or other type of sentence is more or less appropriate for any class of offending.7 There have been occasions when sentences of home detention have been imposed in the High Court, or substituted by the Court of Appeal, for sexual offending against children.8

[19]             In a case of historical offending, the Court of Appeal in Parkin v R held that the seriousness of the offending – because of “its aggravating features of premeditation, the vulnerability of and harm to the complainant, the fact that the offending had occurred twice, the abuse of trust and degree of violation”9 – did not call for a sentence of imprisonment.10 However, those factors were in the context of

7      R v Vhavha [2009] NZCA 588 at [29].

8      H (CA36/2012) v R [2012] NZCA 33; R v LTI [2014] NZHC 1125; Goose v Police [2017] NZHC

2453 and Metua v R [2018] NZHC 246.

9      Parker v R [2018] NZCA 404 at [38].

10 At [43].

a significant lapse in time since the offending during which time the defendant had not engaged in any behaviour of the type at issue.

[20]In Mr Bell’s case the offending was not of a historical nature.

[21]             It is also important to note that evaluation of the appropriateness of home detention is a case-by-case exercise of judgment. As the Court of Appeal in Palmer v R stated:11

Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing Judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending.

As the Court explained in R v D (CA253/2008) it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence the margin of appreciation extended to sentencing Judges is usually significant.

(Citations excluded)

[22]             The impact on this young person is deep. It is potentially very long-term. The offending, the courage it takes to come forward to inform the authorities about the offending and the resulting court process, has clearly had a serious toll.

[23]             On the other hand, I accept that the rehabilitation offered by the Red Door programme would be a step forward both in terms of healing past trauma of Mr Bell and ultimately facing up to the harm he has in turn caused. However, at this time, it remains concerning that Mr Bell says that he has no recollection of the circumstances of the offending. He has expressed remorse yet in other ways denies responsibility. The programme on which Mr Bell is engaged targets alcohol and drug addiction. Yet, Mr Bell denies that narcotic use explained his sexual offending. I apprehend that this was what the sentencing Judge was referring to when he used the term “untreated sex offender”.

11     Palmer v R, above n 6 at [19].

[24]            These matters are finely balanced. In the end, I conclude there is no material error in the Judge’s failure to commute the sentence. I can do no better than repeat the comments of Katz J in Threadgold v R:12

[39] Sexual crimes against children offend against the norms of civilised society. They are accordingly viewed most seriously by Parliament, the courts and the community generally. This kind of offending requires a strong need for deterrence, which accords with the legislative intention to protect young people…

[25]             I find that imprisonment is the only sentence that appropriately holds Mr Bell accountable for the harm to the victim, adequately denounces his conduct, and meets the purposes of general and specific deterrence.

[26]             There is no doubt a need for Mr Bell to continue his programme of treatment at the Red Door. It is suggested that there can be no guarantee of a place available at the Red Door at the projected time of release. That is understandable. However, there is also nothing to suggest that re-commencing with the therapeutic programme on release in a few months’ time or thereafter (once the mandatory half sentence is served) will so hamper rehabilitation that it is a factor which materially alters the analysis.

[27]It follows that I dismiss the appeal.

............................................................

Walker J

12     Threadgold v R [2021] NZHC 1539 at [39].