Chase v The King
[2023] NZHC 2617
•28 September 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000346
[2023] NZHC 2617
RICHMOND CHASE
Appellant
v
THE KING
Respondent
Hearing: 18 September 2023 Appearances:
P Hamlin for Appellant
A McClintock, S Teppett for Respondent
Judgment:
28 September 2023
JUDGMENT OF WHATA
Appeal against sentence
Solicitors:
Hamlin Law, Auckland MC, Auckland
CHASE v R [2023] NZHC 2617 [28 September 2023]
[1] Mr Chase appeals his sentence of three and half years’ imprisonment on four charges of indecency with a female under 12. Mr Chase claims:
(a)the starting point of five years was excessive;
(b)the Court erred by referring to Mr Chase’s lack of remorse as an aggravating feature when setting the starting point; and
(c)the Court failed to have regard to the extended period of time that the appellant persisted from further similar offending.
Facts
[2] Mr Chase pleaded guilty on four charges of indecency with a female under 12. The offending occurred between 1980 and 1983. The complainant, F, was aged between seven and ten at the time. Mr Chase was a friend of the family and was entrusted to babysit her. He touched her clitoris while holding his hand over her mouth on multiple occasions. He would also force her to touch his penis. On one occasion he put his mouth on F’s vagina and another occasion he put his penis into her mouth.
District Court sentence
[3] Judge Kay Davenport KC adopted a five-year starting point for the offending.1 In fixing the starting point, she had particular regard for the decision of Hart v Police.2 She considered the offending in that case to be marginally more serious than Mr Chase’s conduct.3 The Judge then noted:
[6] The Crown submit that relying on this decision a starting point should be approximately four and half years imprisonment on all the charges, including the aggravating features of planning and premeditation, the vulnerability of [F] who was aged seven and 10, the 25 year age gap between the two of you, the extreme harm to [F] and the breach of trust, because you were trusted by her mother and her family to care for her. The extent of the ongoing sexual violation is all significant.
[7] In taking these matters into account I believe that the starting point of five years is in fact appropriate, because the aggravating features of these
1 R v Chase [2023] NZDC 13389 [Decision under appeal].
2 Hart v Police [2019] NZHC 2769.
3 Decision under appeal, above n 1, at [5].
crimes are significant. To the Crown’s list of aggravating features, I would add the aggravating features of your absolute lack of remorse and, despite your guilty pleas and what your counsel has said for you, your refusal to acknowledge the offending which prevents the victim from moving on. So, I determine, therefore, that a starting point of five years is the appropriate penalty.
[4] The Judge then examines Mr Chase’s background.4 She notes that he was exposed to traumatic domestic violence as a child and has a history of drug use and social isolation. She refers to his age (78 years) and his previous conviction for sexual offending on young children relating to a period after offending against F. For that reason, she did not give him a discount for good character.5
[5] In the result, from a starting point of five years, the Judge discounted 15 per cent for guilty plea and a further 15 per cent for personal circumstances to arrive at an end sentence of three and a half years’ imprisonment.
Appeal jurisdiction
[6] I must allow the appeal if satisfied that, for any reason there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.6 In deciding on whether to impose a different sentence, I do not simply substitute my own view for the sentencing Judge’s view. Rather, it must be shown the sentence is manifestly excessive or wrong in principle, or else that there are exceptional circumstances.7
Starting point
[7] Mr Vincent submits that the District Court was wrong to place emphasis on the sentence handed down in Hart because the offending in that case was worse; the relevant indecent assaults occurring three to five times a week over a four and a half year period.8 He submits the case is more comparable to Ashcroft v R9 and R v
4 At [9]–[11].
5 At [11].
6 Criminal Procedure Act 2011, s 250(2).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
8 Hart v Police, above n 2.
9 Ashcroft v R [2014] NZCA 551.
Goodwin.10 In Ashcroft the Court adopted a starting point of four and a half years’ imprisonment in relation to regular offending over a period of four years. In Goodwin, a starting point is not specified, but an end sentence of two years was handed down for offending spanning approximately eight years and involving two victims. Mr Vincent submits that a starting point of three and a half years was appropriate for Mr Chase.
[8] Mr Teppett responds that the starting point was within range. Mr Chase’s offending is reasonably comparable to that in Hart while more serious than both Goodwin and Ashcroft, neither of which involved acts of penetration. The lower starting point in Ashcroft is also explicable on the basis of Mr Goodwin’s relative youth at the time of the offending.11
[9] Mr Teppett further refers to the decision of B (CA214/04) v R.12 In that case B was found guilty of two representative charges of indecent assault of his step daughter over a five-year period, at a time when the maximum penalty was only seven years. The indecencies included digital penetration and occurred approximately three times per week. A starting point was not identified but the end sentence of three years, six months’ imprisonment was upheld on appeal.
Assessment
[10] In assessing the appropriate starting point, I am assisted by the outcome of Fitzgerald J’s review of the authorities in Hart.13 The offending in that case involved indecencies progressing from indecent touching to digital penetration of the vagina and ejaculating on a victim aged between five and ten.14 It took place between three and five times a week. Fitzgerald J held:
[33] … Indeed, having regard to the various authorities, I agree with the Judge’s comment the start point [of 5 years] is at the lower end of the available range.
10 R v Goodwin [2008] NZCA 357.
11 Mr Goodwin was aged between 14 and 22 at the time of offending. Mr Chase was in his mid-to- late thirties.
12 B (CA214/04) v R, 4 October 2004.
13 Hart v Police, above n 2.
14 At [2].
[11] I accept that Mr Chase’s offending appears less serious in terms of frequency and length than Hart, but it is still broadly of a similar kind and severity — the penetration of the penis to mouth of a child being particularly serious. A starting point of five years while harsh, therefore does not appear manifestly excessive.
[12] I am fortified in this view by the approach taken by the Court of Appeal in Ashcroft.15 In that case Mr Ashcroft faced sentence for offending against two victims aged between seven and 12. In relation to the first, a starting point of four and a half years was adopted on appeal for offending spanning 1978 to 1983. This included regular indecent assaults, attempts at digital penetration and an attempted rape. In relation to the second victim, the appellate Court adopted a starting point of four years for a single incident of unlawful sexual connection (oral penetration) in 2002. The global starting point of eight years, six months was unchanged. In my view Mr Chase’s offending, involving two penetrative acts as it did, was more serious than the offending against the first victim in Ashcroft, even accounting for the attempted rape. Had it occurred in 2002, it would also have been more serious than the offending against the second victim.
[13] Overall, while the particulars of Mr Chase’s offending may not be as serious as Mr Hart’s, it remains very serious offending and a starting point at about 50% of the maximum is not out of range.
Treatment of lack of remorse as an aggravating feature
[14] Both Mr Vincent and Mr Teppett accept that the Judge erred by referring to Mr Chase’s “absolute lack of remorse” as an aggravating feature.16 Mr Teppett advances the proposition that this did not materially affect sentence. I am unable to accept that. It was clearly a matter of sufficient importance to the Judge to include it in her sentencing remarks when fixing starting point. The Crown had recommended a starting point of four years, six months’ imprisonment. It seems to me the starting point adopted by the Judge was uplifted to five years to account for the lack of remorse and refusal to acknowledge the offending. It follows that the error was material.
15 Ashcroft v R, above n 9.
16 Decision under appeal, above n 1, at [7].
[15] I note for completeness that I tested the issue of remorse with counsel, noting that the s 27 report stated Mr Chase was very remorseful and wanted to undertake a restorative justice process to apologise. It transpires however, that at a subsequent restorative justice meeting no such apology was given, with Mr Chase effectively denying he had offended in the way claimed.
Desisting from offending
[16] Turning to the final ground of appeal, Mr Chase seeks a ten per cent discount to account for the fact he has not offended in a sexual manner since 1985.17 Mr Vincent cites the following statement by the Court of Appeal in R v Goodwin in support of this proposition:18
[27] … where an offender has, over a substantial period of time, shown by his conduct that he has turned his back on offending of a kind which he has historically committed, proper recognition should be given to that in the sentencing process. The reason for that approach was explained by Hardie Boys J in R v Carruthers when, immediately after the passage already quoted above, he observed (at 4–5):
For events have shown that one of the objectives of sentencing, deterrence of the specific offender, is unnecessary. The man to be sentenced today is not the same man who committed the offences. Moreover, the interests of a new family unit, of other children, may need to be considered.
[28] This consideration is particularly important where there has been a very lengthy period during which the offender has shown by his conduct that he has put offending of the kind in question behind him.
[17] Mr Vincent submits the Judge was wrong therefore to decline a discount for this factor. Mr Teppett responds that, including the present offending, Mr Chase offended against two victims over a five-year period. On that basis it was open to the Judge to refuse any discount for the time that had elapsed since the offending. Mr Teppett further submits that a total discount of 30 per cent for guilty pleas and personal circumstances was generous, given the factors raised in the s 27 report and the fact that the pleas were entered on the eve of trial.
17 Mr Chase has two convictions that post-date the offending against F. These are for indecently assaulting a female under 12 on 1 December 1985. He was sentenced for these offences in 1988.
18 R v Goodwin, above n 10.
Assessment
[18] As the Court of Appeal held in Goodwin, proper recognition should be given in the sentencing process to the fact that an offender has turned their back on offending of the kind which they have committed historically.19 This drives from the idea that deterrence of the specific offending is unnecessary. A recent relevant application of that principle can be found in Hart, where the Court applied a 15 per cent discount to reflect 35 years without such offending.20 This is comparable to the present case where there has been no offending of the present kind for 37 years.
[19] The Judge did not apply a discount for this factor, noting that she did not apply an uplift for the second set of offending by Mr Chase, either. But that second set of offending occurred just two years after the present offending and is not a reason, by itself, to deprive Mr Chase of recognition for his desistance from offending over a very lengthy period.
[20] There is, however, a strong countervailing factor. Mr Chase does not accept he offended in the way claimed by the complainant. That ongoing denial is not consistent with the proposition that he has changed, or that ongoing deterrence is unnecessary. Indeed, the absence of acceptance of culpability is a strong reason not to apply a “good character” discount as other sentencing objectives such as the need to denounce the behaviour and acknowledge the harm remain relevant.
[21]On that basis I apply no discount for desisting from sexual offending.
Other matters
[22] During the course of argument, I identified the issue of Mr Chase’s age. He is 78 and a lengthy prison sentence is likely to have a disproportionate effect on him.21 The Judge focused on his health,22 but that factor alone does not diminish the
19 R v Goodwin, above n 10, at [27]–[28].
20 Hart v Police, above n 2, at [41].
21 Sentencing Act 2002, s 8(h).
22 Decision under appeal, above n 1, at [11].
disproportionate significance of a prison sentence for an elderly person. For my part, a five to ten per cent discount for this factor was mandated.23
[23] In terms of a response, I do not agree with Mr Teppett that a discount of 15 per cent was unduly generous for personal circumstances. On the information before the Court, Mr Chase was himself the childhood victim of sexual abuse and familial dysfunction. I am satisfied this would likely have causally contributed to the offending. The background information also notes that Mr Chase has since his offending focused on having a productive life and committed to his long-term partner. With these personal factors present, together with Mr Chase’s age, a 15 per cent discount is not generous. A total discount in the order of 20 to 25 per cent was available overall in my view for personal circumstances.
Outcome
[24] Stepping back from the individual merits of each ground, I am left with what is one clear error, namely the taking into account of remorse as an aggravating factor. I am also of the view that Mr Chase’s age should have been recognised. Overall, I consider a discount of six months on the sentence handed down is warranted to do justice here. On that basis, the sentence of three years six months’ imprisonment is quashed, and a sentence of three years imposed in its place.
Whata J
23 M (CA91/12) v R [2013] NZCA 325 at [52]–[54].
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