BETWEEN H Appellant AND THE KING Respondent

[2023] NZHC 3500

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF

APPELLANT/COMPLAINANTS PURSUANT TO SS 201 AND 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-000080

[2023] NZHC 3500

BETWEEN

H

Appellant

AND

THE KING

Respondent

Hearing:	4 December 2023
Appearances:	K W Burroughs for Appellant L K McMaster for Respondent
Judgment:	4 December 2023

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 4 December 2023 at 4:45 pm

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors:

Crown Solicitor, Hamilton K W Burroughs, Hamilton

H v R [2023] NZHC 3500 [4 December 2023]

[1]                 Ms H appeals her sentence of four years and six months’ imprisonment imposed in the Hamilton District Court by Judge N D Cocurullo after pleading guilty to historic sexual offending comprising seven charges of sexual violation by unlawful sexual connection and two charges of indecency with a girl under 12.1

[2]                 Ms H appeals on the grounds that the Judge gave an insufficient discount for her documented history of sexual abuse and the subsequent post-traumatic stress disorder (PTSD) she suffered, and for her inability to thrive in life because of those two factors. In support of her appeal, Ms H seeks leave to admit a report from a forensic psychiatrist clarifying the impact PTSD has had on her.

The offending

[3]                 Ms H’s offending took place between the mid-1980s through to the mid-1990s, from when she was 13 years old through to when she was 21 years old.

[4]                 Between 1986 and 1990, when Ms H was aged between 13 and 16 years old, she shared a bedroom with her brother, A, while they were living with their father in Hamilton. On several occasions over the course of this period, Ms H induced A to perform oral sex on her, performed oral sex on him and later induced him into having sexual intercourse with her by placing his penis into her vagina. Ms H would cover A’s mouth to prevent him making any sounds and told him not to say anything otherwise their father would assault them both. Given the frequency and duration of the offending, A believed that this was normal behaviour. He was aged between eight and 11 years old at the time.

[5]                 Similar offending against A occurred between 1990 and 1994 when Ms H and A lived with their mother in Hamilton, at multiple addresses. By this stage Ms H was aged between 16 to 20 years old, while A was aged between 12 to 15 years old. Ms H carried out this offending while other members of the household were intoxicated or under the influence of drugs, and when she was both sober or under the influence of

1      R v H [2023] NZDC 18748 [Sentencing notes]. The Judge made an order permanently suppressing the appellant’s name and other identifying facts in order to protect the statutory suppression of the complainants.

drugs and alcohol herself. Ms H would frequently instruct A by saying “remember what you did last time”.

[6]                 Between 1991 and 1993, Ms H babysat two young children, B and C, at addresses in Huntly and Hamilton while their parents were out. Ms H was B and C’s stepfather’s adopted sister. On three different occasions while looking after them,  Ms H made B touch and rub her vagina over the top of her clothing; instructed B and C to touch each other’s bodies in a sexual manner and to kiss each other; touched, rubbed and penetrated B’s vagina with her hand and instructed B and C to rub their bodies against teddy bears as though they were having sexual intercourse with them. Each time this happened Ms H told B and C not to tell the truth of what was happening to them, to blame their father if someone ever asked what was happening and that devils would come to get them if they shared what Ms H had done to them.

[7]                 After these three incidents occurred, B’s mother observed an unusual discharge in B’s underwear when undressing her to give her a shower. When asked whether someone had sexually abused her, B said that her father had been abusing her, as she had been instructed to say by Ms H. However, after observing her father’s upset and anger at these allegations, B later disclosed that Ms H had been sexually abusing her and that Ms H had told her to blame her father. B was between four and six years old and C was between two and four years old at the time.

[8]                 On one occasion between April 1994 and April 1995, three young children – D, E and F –were dropped off at Ms H’s home address by their father for her and her then partner, Mr M, to babysit for the night. Ms H was D, E and F’s father’s adopted sister. As D, E and F were on the couch watching television in the lounge, Ms H and Mr M walked out of their bedroom naked and proceeded to lie down in front of D, E and F to have sexual intercourse. As they did so, Ms H demanded that they watch, slapping them across the face when they failed to do so. After a while, Ms H grabbed D’s hand, placed it on Mr M’s penis and gave D instructions on how to touch Mr M’s penis while using her own hand to ensure D did so.

[9]                 As this happened, Ms H and Mr M laughed about what they were getting D to do. Ms H then instructed D to return to the couch, slapped D, E and F across the face

and proceeded to continue having sexual intercourse with Mr M. As D tried to shield E and F from what they were seeing, Ms H slapped her across the face telling her that they had to watch. The following morning, D, E and F were picked up by their parents where D told her mother what had happened. At the time of the offending, D was eight years old, E was between four and five years old and F was four years old at the time. Ms H was aged between 20 and 21.

Sentencing decision

[10]              In his earlier sentencing indication,2 which the Judge said should be read alongside his sentencing notes,3 the Judge took Ms H’s offending against her brother, A, as the lead charges, and applied totality uplifts for Ms H’s offending against the children she babysat.4 Given its historic nature, the Judge acknowledged that his starting point needed to reflect that the then maximum sentence for such offending was 14 – rather than 20 – years’ imprisonment.5 The Judge also noted that the offending clearly involved vulnerable complainants by virtue of their age and circumstances, and that Ms H had breached both her duties of care and trust, especially in respect of the young children she was responsible for looking after.6

[11]              Standing back, the Judge considered that Ms H’s offending against A warranted a starting point of eight years’ imprisonment, and that uplifts of seven months and five months were justified for the two instances of babysitting offending.7 The Judge also indicated that any discount for pleading guilty could not be larger than 10 per cent.8 As for Ms H’s youth at the time, the Judge acknowledged that the offending occurred when she was “very youthful”, but equally considered that it was necessary to look at the scale of the offending, and that the age gap between Ms H and her complainants had expanded as the offending progressed. In those circumstances, the Judge considered a 20 per cent discount for youth to be appropriate.9

2      R v H DC Hamilton CRI-2021-019-3229, 9 May 2023 [Sentencing indication].

3      Sentencing notes, above n 1, at [2].

4      Sentencing indication, above n 2, at [34].

5 At [33].

6 At [29].

7 At [44].

8 At [45].

9      At [46] – [47] and [49].

[12]              Given Ms H’s acceptance of the sentencing indication, the Judge said that the primary issue at sentencing was what further discounts should be afforded to Ms H in light of the psychological and s 27 reports.10 He noted that the appropriate discount for Ms H’s youth at the time was “tricky” but considered the 20 per cent he had indicated to be appropriate.11

[13]              Summarising the contents of those reports, the Judge said that Ms H was a young and vulnerable individual who had been seriously let down by adults who had moral and legal obligations to look after and care for her, but who had failed. It was that failure which the Judge considered was one of the direct and pivotal reasons as to why this offending had come about.12

[14]              However, the Judge did not consider that these further mitigating factors warranted a further 40 per cent reduction such that a sentence of home detention could be considered, as Ms H’s counsel had sought. The Judge said that the offending was far too serious, notwithstanding the mitigating factors raised, and the statutory presumption of imprisonment applied. In the circumstances, the Judge considered that a further discount of 20 per cent was warranted.13

[15]              Accordingly, the Judge sentenced Ms H to concurrent sentences of four years and six months’ imprisonment on the sexual violation charges with concurrent sentences of two years’ imprisonment on the two indecency charges. The Judge discharged Ms H in respect of a charge of indecently assaulting B under s 147 of the Criminal Procedure Act 2011.14

Approach on appeal

[16]              Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow an appeal against sentence if it is satisfied that, for any reason, there was an error in the

10     Sentencing notes, above n 1, at [6].

11 At [6].

12 At [8].

13     At [9]–[10].

14     At [11]–[13].

sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.15

[17]              It is well-established that an appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the judge’s reasoning, or as a result of materials submitted on the appeal, that is material to the exercise of the lower court’s sentencing discretion.16 Unless there is a material error in the end sentence, the court will not intervene.17 The focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.18 Mere tinkering is not permitted.19

Submissions

[18]              Mr Burroughs, counsel for Ms H, submits that the Judge should have considered the personal issues set out in the s 27 report as distinct from the causal issues set out in the psychologist’s report. He says that the Judge should have given discrete discounts in recognition of the separate matters raised in them. Mr Burroughs says that the evidence of the psychiatrist that he seeks leave to adduce explains that Ms H was so socialised by her environment and intrafamilial sexual experiences that she had little understanding of what she was doing. Mr Burroughs accepts that the report could have been obtained prior to the initial sentencing and says this was an error on his part.

[19]              On the basis of the information in the three reports, Mr Burroughs submits discrete discounts in respect of the psychologist/psychiatric reports and the s 27 report would be appropriate. Mr Burroughs submits that these discounts should total more than 40 per cent. However, he accepts that the end sentence will still be one of imprisonment. In the alternative, Mr Burroughs says that, even if separate discounts are not allowed in respect of the psychologist/psychiatric reports and the s 27 report,

15     Criminal Procedure Act 2011, s 250(3).

16     R v Shipton  [2007] 2 NZLR 218 (CA) at [138]; Tutakangahau v R  [2014] NZCA 279, [2014] 3 NZLR 482 at [30]; and Tamihana v R [2015] NZCA 169 at [14].

17     Tamihana v R, above n 16, at [14], citing Te Aho v R [2013] NZCA 47 at [30].

18     Tamihana v R, above n 16, at [14], citing Tutakangahau v R, above n 16, at [36].

19     See for example, Cao v Police [2022] NZHC 2034 at [19]; and Maihi v R [2013] NZCA 69 at [21].

an overall discount of 40 per cent in addition to the discounts for youth and guilty plea are appropriate.

[20]              Ms McMaster, counsel for the Crown, submits that the psychiatric report is not fresh and does not add any new information and should not be admitted in evidence. In any event, Ms McMaster submits that there is no material distinction between the subject matter of the three reports, which she says identify the same issues arising from Ms H’s upbringing and personal circumstances. For that reason, Ms McMaster submits that there was no basis for the Judge to have afforded discrete discounts.

[21]              In response to questions from the Bench, Ms McMaster acknowledges that a discount of 20 per cent for Ms H’s background factors is at the lower end of the range, having regard to other decisions. Ms McMaster submits, however, that the Judge’s 20 per cent discount was well within the range available to him given the nexus with  Ms H’s offending.

The reports

The psychologist’s report

[22]              The psychologist’s report was prepared by Mr Nick Lascelles, a forensic psychologist. It was prepared principally for the purpose of assessing Ms H’s fitness to stand trial. However, its ancillary purpose was to assist the Court in the event of Ms H’s sentencing.

[23]              The report describes Ms H’s childhood as tumultuous and unsettled. The report states that, from approximately 10 years of age until between 14 to 16 years old, Ms H was the victim of sexual abuse perpetrated by her father. The nature of the abuse is not described but it is said that the acts were intrusive and regularly violent and occurred frequently over that time period. It is said that, as a way to cope, Ms H resorted to cutting herself in her younger years, although she has not self-harmed as an adult. The report also states that Ms H’s education was not a positive experience and that she struggled as a result of her home life.

[24]              The report states that Ms H’s first relationship was with the father of her eldest son. That relationship lasted on and off for three years but ended when he was imprisoned for his role in a bank robbery committed before their relationship began. Ms H has been with her current partner for 28 years. According to Ms H, this relationship has involved a lot of violence and abuse. However, Ms H says she has not left her current partner because he is the father of two of her children and she has not wanted her children to be without a father figure. The report states that Ms H said sexual relations had never been an important feature in her life and that she had never had a sexual interest in women or viewed a child in a sexual way.

[25]              The report says that Ms H began drinking alcohol at 14 to 15 years old, that this increased in her twenties and that she began smoking cannabis when she experienced homelessness as an adolescent. Ms H also used methamphetamine in her mid-twenties to thirties, and abused prescription medication for a period of time after the birth of her second child in 1995.

[26]              The report notes that Ms H’s reported symptoms – auditory and visual hallucinations in particular – are consistent with a diagnosis of PTSD but says that there is no indication of Ms H being distracted by hallucinations or other symptoms of psychosis, except for her use of word approximations despite being otherwise organised and coherent in her expression of ideas. The report also notes that Ms H had attempted to present an unrealistically negative picture of her cognitive abilities and that the report writer did not have a strong level of confidence that Ms H was experiencing psychotic illness. The report also states that the very low scores Ms H obtained on tests administered to assess her cognitive functioning indicated the likelihood that Ms H had deliberately tried to exaggerate impairment.

[27]              In its recommendations section, the report noted that Ms H was a person with a history of severe and intrusive sexual abuse as a child and that she presented with symptoms of PTSD and a need to address these with interventions in the future. The report noted that if Ms H wished to address her past experience of sexual abuse, she was able to apply for ACC-funded counselling.

The s 27 report

[28]              The s 27 report was prepared by Ms Delwyne Woodmass, who worked for the Ministry of Justice for 17 and a half years, including as a Criminal/Youth Court Registrar based in the Taumarunui District Court. The s 27 report describes Ms H’s early childhood as involving a controlling and abusive father and a mother who was a very heavy drinker and was often absent, especially after being beaten by Ms H’s father. The report states that Ms H was sexually assaulted at a very young age, first by her mother’s cousin and later by her father, who also sexually assaulted Ms H’s brother. Ms H was only eight years old at the time her father’s abuse started.

[29]              The report states that, at 13 years old, Ms H was found comatose on a bridge and in a malnourished state before being taken in by people who became her foster parents for five years. The reports states that, despite a brief period of happiness with that family, Ms H left the foster family and lived on the streets, consuming drugs and alcohol and committing shoplifting and other crimes to finance her addictions.

[30]              The report says that Ms H has four children and was in a long and abusive relationship of 28 years with the father of her youngest two children. The report records that Ms H’s eldest son says that Ms H relocated repeatedly to get her children away from the violence.

[31]              The report concludes that sexual abuse is clearly a causal link to Ms H’s offending. It states that Ms H will benefit from counselling to help her understand the effects of sexual abuse, the way in which she was made to feel as a victim and the effect her offending has had on her victims.

Evidence on appeal

[32]              In support of her appeal, Ms H seeks leave to admit into evidence a report by Dr Peter Dean, a consultant psychiatrist, who was asked to review Mr Lascelles’ report and comment on matters the Court may need to take into consideration.

[33]              Dr Dean notes that he has not assessed Ms H for the purposes of his report and has relied on Mr Lascelles’ report. Dr Dean says he considers Mr Lascelles’ report to be thorough and Mr Lascelles’ conclusions to be justified by the body of the report.

[34]              In his report, Dr Deans states that Mr Lascelles has concluded that Ms H has PTSD because of childhood sexual abuse perpetrated by her father. The report states that Dr Dean believes that Mr Lascelles has justified this diagnosis, which is consistent with a history of intrafamilial sexual abuse in childhood.

[35]Dr Dean notes that Ms H:

… was raised in an environment where intrafamilial sexual behaviour was condoned and normalised. Her offending first began when she was still a minor and subject to continuing abuse from her father. It is likely that not only the complainant [Ms H’s brother], but [Ms H] herself, had come to believe that such behaviour was normal. Her environment and intrafamilial experiences likely resulted in cognitive distortions around the nature of sexual relationships and sexual boundaries within families.

[36]              In his report, Dr Dean states that he concurs that Ms H may benefit from engagement in ACC counselling for sexual abuse.

Should the psychiatric report be admitted?

[37]              The principles for the admission of evidence on a sentence appeal are the same as for appeals against conviction, as the Court of Appeal explained in Mark v R:20

Thus, if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.

[38]              Dr Dean’s report confirms what is set out in Mr Lascelles’ report. In that respect, it is not fresh evidence. It could have been adduced prior to Ms H’s sentencing, as Mr Burroughs acknowledges. However, it is evidence from a medically

20     Mark v R [2019] NZCA 121 at [16].

trained specialist and is directly relevant to Ms H’s grounds of appeal. It also provides a clear clinical assessment of the effect that intrafamilial sexual behaviour had on  Ms H and her offending. For these reasons, I am satisfied it should be admitted.

Analysis of appeal

[39]              The primary question raised in Ms H’s appeal is whether separate discounts should have been made for the matters discussed in the reports of Mr Lascelles (and Dr Dean) and those raised in the s 27 report. No issue has been raised regarding the starting point adopted by the Judge or the discounts given for youth and guilty pleas.

[40]              In Berkland v R, the Supreme Court clarified that the question for sentencing Judges in assessing discounts for information provided under s 27 of the Sentencing Act is whether the matters identified have causatively contributed to the defendant’s offending.21 Although a less exacting standard than that of looking for an operative or proximate cause, a causative contribution must nevertheless be shown.22 The Supreme Court also explained that, while contributory factors are important because they provide rational explanations for a defendant’s offending,23 a causative contribution can, either in whole or in part, be displaced where the offending is particularly serious.24

[41]              The contents of the three reports by Mr Lascelles, Dr Deans and Ms Woodmass help to explain and contextualise Ms H’s offending. Mr Lascelles clearly links the sexual abuse Ms H suffered as a child to the symptoms that he says are consistent with a diagnosis of PTSD. Dr Deans describes the effect that intrafamilial sexual behaviour had on Ms H and her offending. Ms Woodmass says sexual abuse was the causal link with Ms H’s offending.

[42]              As the Judge rightly said in his sentencing notes, Mr Lascelles’ report reinforces what is set out in Ms Woodmass’s report. The same assessment applies to Dr Deans’ report. It confirms Mr Lascelles’ report and explains and reinforces what

21     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[109].

22 At [110].

23 At [109].

24 At [111].

is in Ms Woodmass’s report. In that respect, the psychologist/psychiatric reports on the one hand and the s 27 report on the other are effectively two sides of the same coin. They explain the same themes; namely that Ms H’s childhood was characterised by exposure to violence, drugs and alcohol and, in particular, that Ms H suffered egregious sexual abuse from a young age at the hands of her father and that abuse was causally linked to her own offending. The symptoms of PTSD reported by Ms H are one of the results of the abuse and are not separate from it.

[43]              I am satisfied, therefore, that the Judge was right to consider that a single discount in recognition of the contents of both reports was warranted. Separate discounts would not have been appropriate and would have risked double counting. Discounts are made by reference to the causative contribution that background factors may have to the offending and not by the number of reports that describe those factors.

[44]              Accordingly, I do not accept that the Judge made any error in giving a single discount for the factors discussed in the psychologist’s report and the s 27 report.   Dr Dean’s report does not alter that conclusion.

[45]              I have also considered whether the Judge’s discount for the matters discussed in the reports is sufficient, bearing in mind the guidance of the Supreme Court in Berkland that, where it can be established that background is an operative or proximate cause of the offending, it is likely to be a potent sentencing factor,25 and having regard to other decisions where significant discounts were given for factors causally linked to the offending.26

[46]              While 20 per cent is a significant discount and is within the range for discounts given for significantly causative background factors, I consider it does not adequately reflect the seriousness and impact of the factors that influenced Ms H’s offending. I refer, in particular, to the Judge’s acceptance that Ms H had been seriously let down by adults who failed in their duty to protect her, the dysfunctional and violent environment in which Ms H was raised, and the obvious and direct causal link between

25     Berkland v R, above n 21, at [108].

26     For example, Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241; Poi v R [2020] NZCA 312; Williams v R [2023] NZCA 156.

Ms H’s offending and the sexual abuse that Ms H suffered as a child and its distorting effect on her own appreciation of right and wrong. As Dr Deans describes it, Ms H was raised in an environment where intrafamilial sexual behaviour was condoned and normalised and it is likely that she came to believe such behaviour was normal.

[47]              In these circumstances, I am satisfied that a discount of 25 per cent is appropriate. I do not put it any higher than that, however, bearing in mind that the end sentence must reflect the overall gravity of the offending.

[48]              Accordingly, applying the adopted starting point of nine years’ imprisonment, the adopted discounts of 10 per cent for Ms H’s guilty plea and 20 per cent for Ms H’s youth and a 25 per cent discount for the matters discussed in the psychologist and psychiatric reports and the s 27 report, I consider the appropriate end sentence for  Ms H is one of four years’ imprisonment.

Result

[49]The appeal against sentence is allowed.

[50]              I quash the sentence of four years and six months’ imprisonment imposed on seven charges of sexual violation by unlawful sexual connection.

[51]              In respect of that offending (charges 1 to 6 and 8), I impose concurrent sentences of four years’ imprisonment on each charge.

[52]              The sentences of two years’ imprisonment for indecency with a girl under 12 (charges 7 and 10) remain and are to be served concurrently with the other sentences.

G J van Bohemen J