Gonzales v Police
[2013] NZHC 1691
•4 July 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2013-419-000020 [2013] NZHC 1691
BETWEEN JONH GONZALES Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 4 July 2013
Appearances: N P Chisnall and M James for Appellant
S N Cameron for Respondent
Judgment: 4 July 2013
JUDGMENT OF LANG J [on appeal against sentence]
This judgment was delivered by me on 4 July 2013 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
JONH GONZALES v NEW ZEALAND POLICE [2013] NZHC 1691 [4 July 2013]
[1] Mr Gonzales pleaded guilty in the District Court to a charge of sexual violation by unlawful sexual connection. On 24 April 2013, Judge Burnett sentenced him to 21 months imprisonment. In doing so, the Judge rejected a submission for Mr Gonzales that a sentence of home detention was appropriate.1
[2] Mr Gonzales appeals to this Court against the sentence of imprisonment the Judge imposed. He contends that in fixing the sentence the Judge gave insufficient recognition to his previous good character. He also maintains that the Judge ought to have imposed a sentence of home detention rather than imprisonment.
The facts
[3] The events giving rise to the charge occurred after Mr Gonzales attended a party at the victim’s home address on the evening of 6 January 2013. He worked with both the victim and her partner, and was obviously on friendly terms with them at that time. At the end of the party, Mr Gonzales was in an intoxicated state. This prompted the victim and her mother to invite him to sleep overnight on a sofa in the lounge of their address. After Mr Gonzales had gone to sleep, the victim and her partner left the lounge, and went to the victim’s bedroom.
[4] At about 4 am the next morning, Mr Gonzales entered the victim’s bedroom. He found the victim and her partner sleeping on a double bed in that room. The victim was lying on her back wearing only a bra. The bra was unclasped, and her breasts were exposed. Mr Gonzales then lay down on the bed next to the victim, and began rubbing her breasts with his hand. As he was doing so, Mr Gonzales was using his other hand to rub his own penis. After a short time Mr Gonzales began rubbing the victim in the area of her vagina. As he did so, he continued to rub his own penis.
[5] Mr Gonzales then used his tongue to lick the victim’s vagina. This caused the victim to wake up, at which point Mr Gonzales stopped licking her vagina and began to kiss her on the lips. At that point the victim realised that the person kissing
her was Mr Gonzales, and not her partner. She immediately told Mr Gonzales to
1 R v Gonzales DC Hamilton CRI-2013-019-000148, 24 April 2013.
stop touching her. The victim’s partner also awoke at this point. Mr Gonzales then
got off the bed and left the house immediately.
[6] When interviewed by the police, Mr Gonzales said he had been intoxicated at the time of the offending and that he had been tempted by seeing the victim naked on her bed. He accepted that his actions were wrong.
The sentence
[7] Both counsel agreed that the starting point for the sentence to be imposed upon Mr Gonzales was to be determined having regard to the guideline judgment of the Court of Appeal in R v AM.2 After reviewing comparable authorities, the Judge held that the offending sat at the lower end of Band One identified in respect of the charge of unlawful sexual connection in R v AM. This requires a starting point of between two and five years imprisonment.
[8] The Judge took a starting point of 32 months imprisonment to reflect Mr Gonzales’ overall culpability. She applied a discount of eight months, or 25 per cent, to reduce the sentence to 24 months imprisonment. She then reduced the sentence by a further three months to reflect other mitigating factors. Although the Judge did not expressly articulate the precise basis for this discount, I take it (for reasons I shall shortly set out)3 to reflect remorse and previous good character.
[9] This produced the end sentence of 21 months imprisonment.
[10] The Judge then acknowledged the presumption contained in s 128B of the
Crimes Act 1961 (“the Act”), which provides as follows:
128B Sexual violation
(1) Every one who commits sexual violation is liable to imprisonment for a term not exceeding 20 years.
(2) A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks that the person should not be sentenced to imprisonment.
2 R v AM [2010] 2 NZLR 750.
3 At [14].
(3) The matters are—
(a) the particular circumstances of the person convicted; and
(b) the particular circumstances of the offence, including the nature of the conduct constituting it.
[11] Although the Judge acknowledged the positive aspects of Mr Gonzales’ personal circumstances, including the fact that this was his first appearance before the court, she did not consider those factors displaced the presumption of imprisonment contained within s 128B. She concluded that she was therefore unable to impose a sentence of home detention.
The discount for previous good character
[12] Counsel for Mr Gonzales points out that the Judge’s sentencing remarks recorded that, because Mr Gonzales did not arrive in New Zealand from the Philippines until 2009, there was no way of knowing whether he had previous convictions in his country of origin. Counsel for Mr Gonzales submits that this remark suggests that the Judge may have reduced the weight to be accorded to the fact that Mr Gonzales has no previous convictions.
[13] In order to place the matter beyond doubt, counsel provided this Court with a certificate from the Philippines Government confirming that Mr Gonzales has no previous convictions in that country.
[14] As I have already indicated, I consider the Judge reduced the starting point by three months to reflect both remorse, as contained in a letter of apology, and previous good character. I draw this conclusion from the fact that the Judge applied the discount in the following passage from her sentencing remarks:
[11] ... I do accept that there is no prior conviction so I can take into account previous good character. I say no prior convictions. I accept that is the position. There is no way of knowing whether in the country from where you have come whether you have convictions or not. As I say, I accept that you have none.
[12] There was an offer for restorative justice, quite rightly that was not accepted by the victim. It is entirely her prerogative to do so. There is also the letter of apology. So I allow a further discount of three months for that down to 21 months. ...
[15] A sentencing judge is not required to apply any particular formula when reducing a sentence to reflect factors such as remorse and prior good character. Those issues fall very much within the sentencing Judge’s discretion. A reduction of three months was approximately nine per cent of the starting point that the Judge adopted. When added to the discount for the guilty plea, it amounted to an overall reduction of approximately 34 per cent. I do not consider this to be inadequate having regard to the nature of the mitigating factors present in this case. I therefore decline to interfere with the level of discount the Judge provided in respect of remorse and prior good character.
Home detention
[16] Counsel for Mr Gonzales contends that, taken together, several factors ought to have persuaded the Judge that the presumption in s 128B of the Act was displaced so as to permit a sentence of home detention to be imposed. First, he pointed to the fact that Mr Gonzales entered a guilty plea at an early opportunity, and accepted full responsibility for the offending. Secondly, he emphasised Mr Gonzales’ prior good record. Thirdly, he pointed out that Mr Gonzales is in full time employment, and that he has a wife and two young children to support. Finally, he contended that the offending can properly be described as “brief”, or “transitory”, in terms of duration. Furthermore, it did not involve any violence to the victim other than that inherent in the offending itself. Mr Gonzales also desisted as soon as the victim woke up and told him to stop.
[17] Counsel for Mr Gonzales also points out that this Court has accepted in other cases that the presumption in s 128B can be displaced in appropriate circumstances. By way of example, he referred me to R v Symons,4 in which Dobson J imposed a sentence of 12 months home detention after the offender had pleaded guilty to a charge of unlawful sexual connection. In that case the offending had occurred in
1989, but did not come to light for approximately 18 years. At the time of the offending the complainant was nine of ten years old, whilst the offender was 35 years of age. The offender lived in a house across the street from the complainant,
and had struck up a friendship with him. On the date of the offending, the offender
4 R v Symons HC Wellington CRI-2007-019-424, 11 April 2008.
and the victim played a game of “strip poker,” which resulted in them both removing their clothes. A short time later, whilst the complainant was lying on a bed, the offender inserted a biro pen into the complainant’s anus. This caused the complainant to kick back with his feet, accidentally causing the pen to be inserted further. This, in turn, caused a slight tear in the complainant’s anus. When the complainant asked what had happened, the offender removed the biro pen and showed it to the complainant. Not surprisingly, the friendship between the complainant and the offender came to an end at that point.
[18] In concluding that a sentence of home detention was appropriate, Dobson J noted that the offender had not offended again during the 18 year period since the offending took place. He was also in gainful long-term employment, and in a stable long-term marriage. Dobson J considered that these factors displaced the presumption under s 128B.
[19] In R v CS,5 the offender had pleaded guilty to 12 counts of sexual violation by unlawful sexual connection. The offending had occurred when the offender was 14 years of age and his victim was about ten years of age. The offending comprised incidents in which the offender would have his victim kneel on the floor and suck his penis. The offender also sucked the victim’s penis and masturbated him. On occasions, the offender would force his penis into the victim’s anus.
[20] Venning J selected a starting point of four years imprisonment. He applied a discount of two years, or fifty per cent, to reflect the offender’s youth, his guilty pleas and his genuine remorse. The Judge then granted the offender leave to apply for home detention in the event that he could find a suitable residence.
[21] In R v Neroj,6 however, the Court of Appeal emphasised7 that relevant purposes of sentencing in this context are likely to include deterrence and denunciation, as well as the need to hold the offender accountable for the harm done to his or her victim and to promote in him or her a sense of responsibility for, and
acknowledgement of, that harm.
5 R v CS HC Auckland CRI-2006-244-000075, 25 July 2008.
6 R v Neroj [2008] NZCA 184.
7 At [16].
[22] As did the Judge, I acknowledge the existence of the mitigating factors Mr Gonzales relies upon. These include his previous good character, his work history and the support he provides to his wife and young family. I acknowledge also that he has accepted full responsibility for his offending, and has expressed remorse for it. All of those factors were recognised in the various discounts that the Judge applied, and they also remain relevant when considering whether or not the presumption in s 128B has been displaced.
[23] As against those factors, however, the Judge was entitled to take into account the fact that the offending had aggravating features. First, it involved the sexual violation of a victim who was fast asleep. Secondly, it occurred within the victim’s own home and in her own bed, where she could expect to feel safe from intrusion by others. Thirdly, it involved, if not a breach of trust, then certainly a breach of friendship and hospitality. The victim and her partner were considerate enough to permit Mr Gonzales to stay at their home in a state where he was too intoxicated to go home. He betrayed their hospitality in a very serious way.
[24] Furthermore, I do not accept that the offending can realistically be described as brief or transitory in nature or duration. It involved Mr Gonzales lying down on the bed, touching the victim’s breasts and then touching her genital area. The offending then graduated to sexual connection between Mr Gonzales’ tongue and the victim’s genitalia, before finishing with Mr Gonzales kissing the victim on the lips. I consider the offending was relatively serious in its own right, even putting to one side the other factors to which I have referred.
[25] Finally, the victim impact statements make it clear that the offending has had long-lasting effects on the victim, her partner and her family. As well as the psychological and emotional effects that such offending can be predicted to produce, the victim has also developed a skin condition that will require constant and long- term treatment. This was caused directly by the stress that the offending produced for the victim.
[26] When those factors are taken into account, I consider the Judge correctly concluded that the mitigating factors did not displace the presumption in favour of
imprisonment. In this case the sentencing purposes of deterrence, denunciation and the need to hold Mr Gonzales accountable and responsible for his actions, and the harm he caused to his victim, were firmly to the forefront. Any sentence short of imprisonment would not, in my view, have paid adequate heed to that presumption.
Result
[27] It follows that the Judge correctly concluded she was precluded from imposing a sentence of home detention. The appeal against sentence is dismissed.
Lang J
Solicitors:
Crown Solicitor, Hamilton
Counsel:
N Chisnall, Public Defence Service, Hamilton
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