C v R
[2022] NZHC 1807
•26 July 2022
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-443-38
[2022] NZHC 1807
BETWEEN MATTHEW WILLIAM CAVANEY
Appellant
AND
THE QUEEN
Respondent
Hearing (by VMR): 26 July 2022 Counsel:
J C Hannam for the Appellant J E Bourke for the Respondent
Judgment:
26 July 2022
Reissued:
3 August 2022
JUDGMENT OF GWYN J
Solicitors:
Crown Solicitor, New Plymouth
Cavaney v R [2022] NZHC 1807 [26 July 2022]
Summary
[1] On 10 May 2022, Mr Cavaney was sentenced to a period of imprisonment of two years and two months after pleading guilty to one charge of sexual violation1 in the Hawera District Court.2
[2] On 25 May 2022, Mr Cavaney filed a notice of appeal against the sentence imposed by Judge Greig.
[3]Mr Cavaney is currently serving the sentence in Whanganui Prison.
Facts
[4] On Friday 6 March 2020, the victim was at the appellant’s house for birthday celebrations. The social gathering started at approximately 8.30 pm and involved alcohol as well as cannabis.
[5] It was arranged that the victim and her partner would sleep on a double mattress in the spare bedroom, where there would also be two other people sleeping. At about midnight, when the victim was planning to go to bed, she told her partner that she considered the appellant was being “a creep” towards her.
[6] The victim went to bed and was joined by her partner. At one point during the night, the appellant entered the bedroom, pulled the blanket off the victim, got close to the victim and moved her underwear aside. He then proceeded to touch her and digitally penetrate the victim’s vagina. The victim woke. The victim’s partner woke. The appellant stopped touching the victim and left the bedroom.
[7] The next day, when confronted with the above facts, the appellant denied having any recollection of what had happened. When interviewed by the Police the
1 Crimes Act 1961, ss 128(1)(b) and 128B. The crime of sexual violation carries a maximum penalty of 20 years’ imprisonment. Section 128B provides that a person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the circumstances of the offence and the circumstances of the offender, the court thinks that the person should not be sentenced to imprisonment.
2 R v C [2022] NZDC 8428.
appellant admitted the offending and, in explanation, stated that he had gone “into dirty mode”.
[8] The appellant is 34 years old, has two young children and worked on a farm before being imprisoned.
District Court’s decision
[9] On 10 May 2022, Judge Greig, in the Hawera District Court, sentenced the appellant to a term of imprisonment of two years and two months.
[10] Judge Greig first canvassed the facts. The Judge then noted that the appellant had no previous convictions, except for a driving with excess breath alcohol conviction in 2013. The Judge also referred to the victim impact statement read out in court which described the significant and continuing adverse effects of the offending on the victim.
[11] In sentencing the appellant, the Judge considered relevant the victim’s vulnerability at the time of the offending: she was asleep in the appellant’s house among people she trusted and felt comfortable with. The Judge accepted the appellant’s submission that his judgement was severely affected by alcohol which led to a compromised reasoning process. However, the Judge found there was an element of premeditation in the offending.
[12] The Judge took a starting point of three years’ imprisonment. He noted that the appellant was remorseful and had pleaded guilty at the very earliest opportunity, some two to three weeks after being charged. However the Judge did not give a discount for that remorse. The District Court also acknowledged the appellant’s efforts to engage with the probation officer, treatment programmes, counselling and efforts to abstain from alcohol and drug use. In addition, the judgment notes the appellant’s willingness to accept responsibility for his actions and the consequences the offending has had on the victim, as well as others in his life.
[13] The Judge considered the recommendation in the pre-sentence report of community detention and intensive supervision to be wholly unrealistic. The Judge
considered a term of imprisonment was the appropriate sentence, rather than home detention, because of the principles of denunciation and deterrence, as well as the need for the victim to not feel that the impact of the offending was being minimised. A guilty plea discount of 25 per cent (nine months) on the starting point of three years was allowed, to come to an end sentence of two years and two months’ imprisonment.
PAC Report
[14] The PAC Report for Mr Cavaney recommends community detention, with intensive supervision, as the preferred sentence. Alternatively, it recommends a sentence of home detention. Both recommended sentences would be served at the appellant’s mother’s address where the appellant was residing before he started serving his sentence in Whanganui Prison. Conditions to attend counselling and alcohol and drug treatment programmes are recommended for both options.
[15] In coming to these recommendations, the author of the report assessed Mr Cavaney’s risk of re-offending as low and his risk of harm to others as moderate. The report writer notes the remorse Mr Cavaney has shown as well as his acceptance of responsibility for the consequences of his offending. Mr Cavaney has stopped using drugs and alcohol, has attended counselling and had continued his work on the dairy farm before he started serving his prison sentence.
Grounds of appeal
[16]Mr Cavaney appeals on the grounds that:
(a)the sentence imposed was excessive in the circumstances;
(b)no discount was applied for remorse; and
(c)home detention was available and should have been imposed as the appropriate sentence.
Submissions
For the appellant
[17] Mr Hannam, for the appellant, submits that the sentence imposed was manifestly excessive.
[18] First, the appellant submits that a discount should have been given for remorse, citing Hessell v R.3 Counsel says that the appellant has shown genuine remorse which stands up to a proper and robust evaluation of all the circumstances. This is demonstrated through his exceptionally early guilty plea, the probation officer’s recognition of the appellant’s remorse, the offer of an emotional harm payment (which remains available), willingness to attend Restorative Justice and the apology the appellant made to the victim at the time of sentencing.
[19] Counsel for the appellant submits that an eight per cent discount should be applied to acknowledge the appellant’s remorse. That would bring the end sentence to two years’ imprisonment, making home detention an available sentence.
[20] Mr Hannam’s second submission is that home detention is the appropriate sentence, despite the presumption of imprisonment. Counsel submits that the offending was directly related to intoxication combined with an opportunistic sexual tendency demonstrated by the appellant—these factors are unlikely to be repeated. Additionally, the remorse shown and rehabilitative efforts made by the appellant are sufficient to overcome the presumption in favour of imprisonment.
[21] The appellant submits that the District Court Judge incorrectly factored into his decision to deny home detention the effect that might have on the victim. The appellant submits that the victim’s views could only be considered when assessing the seriousness of the offending, and not when determining whether the presumption in favour of imprisonment had been displaced.
[22] The appellant submits that a sentence of home detention can sufficiently achieve the purposes of deterrence and denunciation in this case while also supporting
3 Hessell v R [2010] NZSC 135 at [63]-[64].
the appellant’s rehabilitative efforts. The appellant’s low risk of reoffending, well as the rehabilitative efforts he has made, support home detention as the appropriate sentence.
[23] Finally, the appellant submits that the offending was at a low level of seriousness, which also supports the case for the appropriateness of home detention.
[24] The appellant attaches a number of letters of support, from his employers, his half-brother, his uncle and the uncle’s wife and his godmother.
For the respondent
[25] Mr Bourke, for the respondent, submits on the first point of the availability of a discount for remorse, that the assessment determining the sincerity of remorse is best left to the sentencing Judge, who has the opportunity to hear all of the evidence. Here, the sentencing Judge noted the unaccepted emotional harm payment as well as the apology made by the appellant to the victim during sentencing. Mr Bourke acknowledged that it is unusual, in a situation where the Court recognises the defendant is genuinely remorseful, not to give a discount for that remorse because of the impact of the offending on the victim.
[26] Second, on the appropriateness of home detention, the respondent submits that even if a sentence of home detention were to become available, it should not be imposed because the presumption in favour of imprisonment is not displaced in this case. In support, the respondent cites the aggravating factors of the offending. These include the significant breach of trust by the appellant in sexually assaulting a guest at his house in the family context and the vulnerability of the victim who was asleep at the time of the offending. As well, the respondent points to the appellant’s explanation to police of having gone into “dirty mode” as showing that the offending was targeted and deliberate. The seriousness of the offending is demonstrated by the lasting adverse effects it has had on the victim, as reflected in her victim impact statement.
[27] The respondent submits that the principles of denunciation, deterrence and accountability require imposition of a sentence of imprisonment.
Relevant law
[28] An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.4
[29] It is not for the appeal court to “tinker” with an end sentence if it is within range.5 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.6 The Court of Appeal has accepted, however, that there may be cases where “what has gone wrong was such as to require correction albeit the sentence imposed is within range”.7
Analysis
Remorse
[30] The first question is whether a discount for remorse should be applied to the appellant’s sentence. Remorse is a discrete mitigating factor that may justify a separate discount from a guilty plea discount. The discount given for a guilty plea does not incorporate the credit for remorse.8
[31] However, claims of remorse should not be accepted at face value; the appellant’s claim must withstand a proper and robust scrutiny of all relevant factors. Here, I am satisfied the remorse shown by the appellant is genuine and warrants a discount. While the impact on the victim is of course relevant to the assessment of the seriousness of the offending and whether the presumption of imprisonment is displaced, it is not relevant to the question whether a discount should be given for acknowledged remorse.
[32] This is not a case like Williams v Police where the sentencing Judge balanced the offender’s expressions of remorse in a letter to the Court and his statement to the
4 Criminal Procedure Act 2011, s 250; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
5 Ripia v R [2011] NZCA 101, at [15].
6 At [15].
7 Tutakangahau v R, above n 4, at [36].
8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
pre-sentence report writer that he now had an appreciation of the danger of methamphetamine against the assessment of the offender’s low motivation to change, his contesting factual aspects of his sustained offending, and his reluctance to accept full responsibility to decline a discount for remorse.9 In contrast, here, the actions of the appellant have been congruent with his expressions of remorse: he has admitted the offending; he has made tangible changes to his lifestyle, including by ceasing the use of intoxicating substances; has engaged with counselling; has offered to participate in Restorative Justice; has apologised to the victim and offered an emotional harm payment.
[33] In R v A, a discount of seven and a half months was given on a starting point of four years’ imprisonment for remorse (equating to 16 per cent).10 The offending was similar to the present case but more serious in that it involved violence. The offender had expressed remorse through an “utmost effort” to participate in restorative justice, acceptance of offending, engagement with counselling, early guilty plea and efforts to combat alcohol use.
[34] In Hawkins v R, a five per cent discount was given by the District Court and accepted on appeal by the High Court for remorse expressed in a letter accepting “full responsibility” for the offending. A further discount of five per cent was accepted for a $2,500 emotional harm payment offer, despite a “relatively late” guilty plea.11
[35] In Sherratt v R, the High Court upheld a discount of 20 per cent for the appellant’s reparation offer of $5,000, remorse and previous good character.12
[36] Based on these authorities, I consider a discount for remorse of eight per cent is appropriate.
9 Williams v Police [2012] NZCA 176.
10 A v R [2018] NZHC 543.
11 Hawkins v R [2022] NZHC 283 at [6].
12 R v Sherratt [2021] NZHC 1901.
Presumption of imprisonment
[37] The second question is whether the presumption of imprisonment has been displaced. To answer this question, I must consider the circumstances of the offending, including the nature of the offence, and, the circumstances of the offender.
[38] I first consider the circumstances of the offending. I acknowledge that, as reflected in the victim impact statement, the offending has had a serious effect on the victim, both psychologically and physically. It appears the impact has been exacerbated by the fact that she had been a victim of sexual offending earlier in her life. As discussed in Matamaki-Omao v R, in cases of sexual offending, it is the victim who is best placed to indicate the severity of the offending.13
[39] The aggravating factors of the offending include the vulnerability of the victim at the time of offending: she was a guest at the appellant’s house, she was asleep, she was among family and friends with whom she shared a high degree of trust, and the events took place after a night of drinking.
[40] The seriousness of the offending, under the guideline judgment of R v AM, would be considered low. I consider the offending to fall within Unlawful Sexual Connection band one because of the relative brevity of the offending and lack of violence.14 While I acknowledge that the offending has had a severe impact on the victim, the culpability of the offender is assessed by reference to the factors of the offending. Band one for unlawful sexual connection provides for a starting point between two and five years’ imprisonment.15 Here, although the offending is at the lower end of the band one spectrum, a starting point of three years was appropriate to account for the serious impact it has had on the victim, consistent with Matamaki- Omao v R.16 I emphasise that the categorisation of the offending as of “low seriousness” does not diminish the effect of the offending on the victim.
13 Matamaki-Omao v R [2021] NZHC 1399 at [7].
14 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [114]-[115].
15 At [114].
16 See [38] above.
[41] Turning now to the circumstances of the offender, I consider the presumption of imprisonment is displaced. The appellant has no previous criminal history to speak of. I accept the risk of reoffending is low. The appellant has exhibited genuine remorse, including by pleading guilty at the earliest stage, thereby avoiding the victim having to endure the significant additional stress of a trial. The appellant has accepted responsibility for his offending. He has made considerable changes to his lifestyle, including stopping the use of alcohol and drugs completely.
[42] The appellant is showing promising rehabilitative prospects17 and I am not satisfied imprisonment is the best sentencing option to encourage that rehabilitation.18 A sentence of electronically monitored home detention will sufficiently provide for deterrence and denunciation through the very real constraints it places on liberty. I acknowledge the victim’s wish that the appellant be sentenced to the maximum penalty possible, However, the sentencing exercise requires me to consider the degree of culpability of the appellant and his particular circumstances 19 in coming to a sentence which adequately reflects the purposes of promoting in him a sense of responsibility for the harm he has caused,20 denunciation,21 deterrence,22 community protection,23 and, assisting the appellant’s rehabilitation,24 among others. In the present case, I am satisfied a sentence of home detention strikes the right balance between the purposes of sentencing.
[43] In reaching this view, I am guided by the overarching principle of protection of society being the general purpose of sentencing, as embodied in the observations of Herron CJ in R v Cuthbert:25
The function of the criminal law and the purpose of punishment cannot be found in any single explanation, for it depends both upon the nature and type of offence and the offender. But all purposes may be reduced under the single heading of the protection of society, the protection of the community from crime. The sentence should be such as, having regard to all proved circumstances, seems at the same time to accord with the general moral sense
17 See for example, A v R, above n 10.
18 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [39].
19 Sentencing Act 2002, s 8.
20 Section 7(1)(b).
21 Section 7(1)(e).
22 Section 7(1)(f).
23 Section 7(1)(g).
24 Section 7(1)(h).
25 R v Cuthbert [1967] 2 NSWR 329 at 330.
of the community and to be likely to be a sufficient deterrent both to the prisoner and others: per Jordan CJ in R v Geddes (1936) 36 SR (NSW) 454 document for this case. Courts have not infrequently attempted further analysis of the several aspects of punishment, R v Goodrich (1952), 70 WN (NSW) 42, where retribution, deterrence and reformation are said to be its three-fold purposes. In reality they are but means employed by the Courts for the attainment of the single purpose of the protection of the society.
[44] The risk of reoffending here is low by all accounts. The threat to society from the appellant is, accordingly, minimal. The appellant is holding himself accountable and has accepted responsibility for his offending. While that in itself is not punishment enough, I conclude that, in addition to a sentence of home detention, it will be. Protection of society, generally, will be furthered by encouraging the appellant’s rehabilitation. This will be better achieved in the community than in prison. Accordingly, I commute the appellant’s sentence to one of electronically monitored home detention.
Conclusion
[45] The appeal is allowed. A discount of eight per cent (three months) for remorse is applied, the discount of 25 per cent (nine months) for guilty plea is upheld on the starting point of three years, to arrive at a substituted end sentence of two years’ imprisonment. The sentence is commuted to electronically-monitored home detention for a period of 11 months, reflecting the two months already served.
[46] The sentence is to be served at the home detention residence where Mr Cavaney’s mother resides.
[47]The following special conditions apply:
(a)Mr Cavaney is to attend an assessment for any treatment, counselling or programme as directed by a Probation Officer. He is to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(b)Mr Cavaney is to attend an assessment for an Alcohol and Other Drug programme as directed by a Probation Officer. He is to attend and
complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
Name suppression
[48] I did not hear from counsel on the question of name suppression but in the interim I have imposed a suppression order under s 200 of the Criminal Procedure Act 2011 to protect the identity of the victim. I have also anonymised the judgment. Either party can make further submissions on this question if necessary.
Addendum
[49] I have subsequently received submissions from counsel and they are agreed that there is no proper basis for suppression of the defendant’s name.
Gwyn J
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