Cumming v The King

[2023] NZHC 3299

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-000054

[2023] NZHC 3299

BETWEEN

DEAN ROBERT CUMMING

Appellant

AND

THE KING

Respondent

Hearing:

20 November 2023

Counsel:

MJ James for Appellant

PK Noorland and LSP Glaser for Respondent

Judgment:

22 November 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 22 November 2023 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Hamilton. MJ James, Hamilton.

CUMMING v R [2023] NZHC 3299 [22 November 2023]

The appeal

[1]    Dean Cumming was sentenced to a term of four-and-a-half-years’ imprisonment for serious offending.1 The term was made cumulative on an existing five-and-a-half-year sentence.2 Mr Cumming appeals.

[2]    The appeal must be allowed if the sentence is marred by error and a different sentence should be imposed.3 Or, expressed another way, if the sentence is manifestly excessive.4

Background

[3]    Mr Cumming knew the victim’s mother. In early April 2018, he contacted her and offered to take the  victim to Rainbow’s End with his two sons.  She agreed.  The victim was nine years old. Mr Cumming collected the victim but did not take her to Rainbow’s End. Instead, he took her shopping and bought her some items, including a mobile phone. Mr Cumming told the victim not to tell her mother.

[4]    A day or more later, Mr Cumming again collected the victim. He took her to a motel, which he had booked. His sons were not there. Mr Cumming gave the victim a soft drink and a muffin. One or both had something in it, so that the victim lost consciousness at the motel.

[5]At some point, Mr Cumming rubbed the victim’s thigh.5

[6]    The charges went to trial. Mr Cumming was found guilty of kidnapping the victim,6 stupefying her,7 and sexual conduct with a child under the age of 12.8

[7]    The pre-sentence report described Mr Cumming as presenting a high risk of re-offending, with a high risk of harm toward others. The report writer thought it

1      R v Cumming [2023] NZDC 4690.

2 At [26].

3      Criminal Procedure Act 2011, s 250.

4      Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

5      The presence sequence of events is unclear.

6      Crimes Act 1961, s 209(b); maximum penalty, 14 years’ imprisonment.

7      Crimes Act, s 197; maximum penalty, five years’ imprisonment.

8      Crimes Act, s 132(3); maximum penalty, 10 years’ imprisonment.

“questionable” Mr Cumming would participate  in any rehabilitative programmes.   A cultural report identified a troubled upbringing.

[8]    Judge B A Crowley adopted a global starting of six years. The Judge considered a reduction of approximately 10 percent appropriate for Mr Cumming’s upbringing. This produced “an end point of between five-and-a-quarter or five-and- a-half years”.9

[9]    The Judge noted Mr Cumming was already serving a five-and-a-half-year sentence for an offence of wounding with intent to cause grievous bodily harm. The Judge said, “it would not be appropriate to simply add that together”.10 So, he reduced the sentence to four and a half years, which he made cumulative.

Argument and analysis

[10]   On behalf of Mr Cumming, Ms James advances two arguments. First, that the global starting point was too high. Second, that greater allowance should have been made for totality.

[11]   The Judge acknowledged he found it “very difficult” to identify the starting point because no decided case is that similar.11

[12]   Ms James and Ms Noorland, who appeared for the respondent, each referred to R v Muavae.12 Mr Muavae was found guilty of kidnapping, sexual violation, and indecent assault in relation to a 15-year-old victim, with a developmental age of only eight or nine years. The victim asked Mr Muavae for a lift home. He agreed, but instead of taking her home, drove her around Auckland. He ultimately stopped at a public reserve, told the victim to remove her clothes, and when she refused, removed them himself. Mr Muavae then climbed atop the victim, kissed and sucked her breasts, and inserted his fingers to her genitalia. Mr Muavae defended the charges. The trial Judge imposed a sentence of three years’ imprisonment.

9      R v Cumming, above n 1, at [23].

10 At [24].

11 At [9].

12     R v Muavae [2000] 3 NZLR 483.

[13]   The Solicitor General appealed. The Court of Appeal allowed the appeal and increased the sentence to four and a half years’ imprisonment. Notably, the Court said:13

Viewed in totality, the offending could well have justified a sentence of up to six years’ imprisonment, the charge of kidnapping itself attracting a sentence of around the two-to-three-year mark. The kidnapping was not a mere incident of the sexual offending but constituted a prolonged and enforced detention which must have been disturbing for the victim.

[14]   Ms James contends the  offending in Muavae is  more serious than that here.  I accept Mr Muavae’s sexual offending is more serious than Mr Cumming’s. However, overall, the two cases sit at or about the same level. I say this for two reasons.

[15]   First, Mr Muavae’s offending was not premeditated, whereas Mr Cumming’s was, and to a significant degree. Mr Cumming asked to look after the victim on the pretence he would take her to Rainbow’s End, with his sons. He instead took her, alone, to a motel he had booked.  Second, Mr Muavae did not stupefy his victim;   Mr Cumming did, by placing a substance in her food, drink, or both. The seriousness of stupefying a nine-year old child is self-evident.

[16]   It follows the Judge did not err in adopting a global starting point of six years’ imprisonment. Indeed, I consider that starting point about right.

[17]   In relation to totality,  Ms  James  contends  a  notional  single  sentence  of 10 years’ imprisonment for all of the offending is out of proportion to  its  gravity. Ms James argues a sentence of eight-and-a-half-years’ imprisonment is appropriate.

Before addressing this submission, I briefly describe the other offending.14

[18]   Mr Cumming and the victim had been in a relationship. On 29 December 2018, he waited for her at her home. When she arrived, Mr Cumming attacked the victim with a baseball bat. Mr Cumming struck the victim repeatedly, including at least once to the left forearm, and to the head. The blow to the forearm broke it. The head-blow

13     R v Muavae, above n 12, at [18].

14     Based on the sentencing notes (R v Cumming [2020] NZDC 10023); I do not have the summary of facts.

rendered the victim unconscious. She awoke to find Mr Cumming putting his hand over her mouth, with his  other hand on her throat.  The victim was  able to escape.  A scene examination identified a violent struggle throughout various parts of the home, and the Judge referred to the offending as having lasted 15 minutes. The Judge considered it premeditated.

[19]   An effective sentence of 10 years’ imprisonment is, obviously, a significant sentence. However, the sentence is not out of proportion to the gravity of the offending. Mr Cumming committed two sets of very serious offences within only nine months. Judge Crowley significantly mitigated the second sentence in recognition of the totality principle. A three-year sentence for the April offending, which is what Ms James essentially advocates, would fail to capture the gravity of that offending. Finally, Mr Cumming presents a danger to others, and this required sentencing expression.

Result

[20]The appeal is dismissed.

……………………………..

Downs J