Hales v The King
[2023] NZHC 670
•29 March 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-4
[2023] NZHC 670
BETWEEN JONATHAN ROBERT HALES
Appellant
AND
THE KING
Respondent
Hearing: 22 March 2023 Appearances:
N Bourke for Appellant
R L Hicklin for Respondent
Judgment:
29 March 2023
JUDGMENT OF McQUEEN J
[1] On 15 February 2023, Jonathan Hales (the appellant) was sentenced by Judge Grieg in the New Plymouth District Court to three years’ imprisonment,1 on a single charge of sexual conduct with a person under 16 years of age, to which he pleaded guilty.2 Mr Hales now appeals that sentence, on the grounds that the Judge adopted a starting point outside of the available range and applied inadequate discounts for personal mitigating factors. He says that the sentence is manifestly excessive and that a sentence of two years imprisonment or less converted to home detention is the least restrictive sentence appropriate in the circumstances.
[2] The Crown opposes the appeal, and says that the starting point and discounts were appropriate, meaning that the sentence is not manifestly excessive.
1 R v Hales [2023] NZDC 2788.
2 Crimes Act 1961, s 134; maximum penalty ten years’ imprisonment.
HALES v R [2023] NZHC 670 [29 March 2023]
[3] For the reasons below, I consider that the appeal should be allowed. I consider the Judge erred in failing to award sufficient discounts for personal mitigating factors.
Background
Factual Background—offending
[4] The victim was 14 years old when she met the defendant at a church youth group. At that time Mr Hales was 33 years old. The victim told Mr Hales at that time that she was 15 years old. Soon after meeting, Mr Hales and the victim commenced a relationship. At that time the victim was suffering from depression and disclosed to Mr Hales that she had been sexually abused by another male. Eventually, Mr Hales asked the victim to be his girlfriend. On his return to New Plymouth after a period away in the South Island, the relationship continued, developing into a sexual relationship around the time the victim turned 15, being 9 September 2016.
[5] The sexual connection initially started by Mr Hales asking the victim to perform oral sex on him, which occurred in a park, in his car, or at a friend’s house. Mr Hales would also perform oral sex on the victim. They had full sexual intercourse for the first time on or around 14 October 2016, after which, it became a regular occurrence, meaning one or more times a day. During this time, Mr Hales also introduced the victim to drugs, and they would smoke cannabis together regularly. Mr Hales then encouraged the victim to leave school, and she moved in with him when she turned 16 years old. He attempted to control her and isolated her from her family and friends. She later became pregnant and gave birth to a daughter on 2 October 2018, having just turned 17 years old.
[6] When spoken to by the police, Mr Hales said that he was not in a relationship with her, they had never talked about being boyfriend and girlfriend, had never lived together, and that he was simply trying to help her with her mental health issues. Mr Hales told the police that the victim kept begging him for sex, and telling him that he was doing nothing wrong, that he had said no at the start, but then slept with her once when she was 16 years old. Mr Hales said that he had never initiated sex with the victim, and that he failed by saying yes.
Procedural background
[7] Because of the submission by Mr Bourke, counsel for the appellant, that the procedural background is relevant to the appeal, I summarise his description here.
[8] Mr Hales was originally represented by Ms Mooney. Prior to the case review hearing, resolution discussions were entered into with the Crown. Because of delays in the transcription of the victim’s evidential video interview, it was agreed that the matter be administratively adjourned to call over with a full guilty plea credit preserved. A guilty plea was then entered, and Ms Mooney arranged for a s 27 report, which was obtained and filed with the District Court for sentencing.
[9] Mr Hales’ denial of significant facts in his interview with the s 27 report writer (discussed below) led the Crown to file a memorandum suggesting that sentencing may not be able to proceed. At the scheduled sentencing, Mr Mooney (on behalf of Ms Mooney), sought leave to withdraw so that fresh counsel could take Mr Hales’ instructions as to whether he wished to proceed with sentencing or take an alternative course of action.
[10] Mr Bourke was then assigned as defence counsel. He met with Mr Hales, who confirmed that he wished to maintain his guilty plea. Judge Hikaka directed that sentencing start afresh, and ordered a further PAC report, as well as a s 38 report. Mr Hales’ denials were again repeated in the s 38 report. The Crown filed another memorandum raising similar concerns, which was responded to by Mr Bourke indicating that Mr Hales did not wish to vacate his plea or engage in a disputed facts hearing. Mr Bourke says that he explained to Mr Hales that sentencing would proceed on the basis of the summary of facts, and that matters inconsistent with the summary of facts would be disregarded. Mr Bourke says he did not rely on the s 27 report when sentencing actually occurred.
[11] Late in the afternoon on 14 February 2023, the day before Mr Hales’ sentencing, Mr Bourke was contacted by Ms Clarke, Crown Solicitor for the Taranaki region. She considered it necessary to advise him that the Court had engaged in ex parte communications with the Crown, requesting, apparently at the behest of the sentencing judge, copies of various statements prepared in the investigation of
Mr Hales’ charges. This was extremely concerning to Mr Bourke, who considered that those statements were not filed as evidence at any stage, were not accepted, and had no evidentiary value for the purposes of sentencing. His request for a chambers hearing prior to sentencing was declined, however, the Judge briefly addressed the issue during the sentencing hearing. This is discussed further below. I note that I have not viewed those statements in my consideration of Mr Hales’ appeal.
PAC reports
[12] Three reports providing advice on Mr Hales’ sentence were provided to the Court. All three recommended a sentence of imprisonment.
[13] In his interviews with the report writer, Mr Hales consistently maintained that he had not initiated the sexual connection or intercourse with the victim. He also placed emphasis on a brain injury that he obtained two years prior to the offending, following an altercation on a night out drinking, resulting in him needing to learn to walk and talk again. The report writer consequently identified the following factors relevant to his sentence:
(a)his attitude to his offending;
(b)poor problem-solving skills;
(c)a heightened sense of entitlement; and
(d)offending related sexual arousal.
[14] Mr Hales also proposed available and suitable addresses for home detention if imposed by the court, firstly at a friend’s house, and then with his mother.
Section 27 cultural report
[15] A s 27 report was provided for Mr Hales by Alexander El Amanni, developed in consultation with Mr Hales and his psychologist. Mr El Amanni produced the report following a two and a half hour interview with Mr Hales, but did not talk to any other person apart from Mr Hales’ psychologist.
[16]The report asks the court to consider Mr Hales’:
(a)Mental wellbeing issues: including post-traumatic-stress-disorder, depression, anxiety, sleep deprivation, alcohol dependence, and suicidal thoughts and planning.
(b)Dysfunctional parenting: Mr Hales having no father or male role model, and a ‘poly-family’ upbringing.
(c)Adverse childhood experiences: including physical, sexual and emotional abuse and neglect, and household dysfunction.
(d)Neurological and cognitive issues: evidence of ADHD, and his traumatic brain injury.
(e)Continued assertion that the victim pursued sexual conduct with him, and that his cognition and boundaries were jeopardised due to trauma.
[17] The report paints a picture of Mr Hales as a person with a difficult past who was “vulnerable to manipulation by the victim”. Between the ages of four and six years old, Mr Hales was sexually assaulted by an older male who came to babysit him in his mother’s absence. After this, he moved between many households as he lived temporarily with the family and friends of his mother’s partner because Mr Hales “was an inconvenience in the relationship”. During this time he was physically assaulted and emotionally abused by “several families he lived with”, for being “the only European person with light skin”. The report says that during the period when his mother was in a further relationship, Mr Hales witnessed her being assaulted, her mental illness, and her substance abuse.
[18]The report states:
The victim of Mr Hales’ offence reportedly solicited the sexual conduct between them over several months. The victim reportedly manipulated Mr Hales with false information, doctored her date of birth on her social media profile, and eventually incited Mr Hales to engage in sexual conduct.
Mr Hales was in the early stages of recovery from his [traumatic brain injury] and had significantly impaired cognition when he met the victim. This impairment made him vulnerable to manipulation and exploitation. Furthermore, Mr Hales is predisposed to passive sexual boundaries due to the trauma of sexual victimisation. These passive boundaries made him further vulnerable to people seeking to engage in sexual conduct with him.
[19] Mr Hales also expressed the view to the report writer that the victim’s experience of sexual victimisation by an older male in her childhood may have resulted in her developing a sexual interest in older males. He said that the victim’s family encouraged their relationship, and that since the end of the relationship she has made false accusations. Contrasted against this view is an expression of “deep regrets” for having sexual conduct with the victim and that Mr Hales takes “full responsibility for his actions”.
[20] Mr Hales has four children, including one with the victim of the present offence. He has worked in the trades and has more recently been a truck driver. Notwithstanding his previous employment, he is a heavy drinker.
Section 38 report
[21] The purpose of the s 38 report was to assist the District Court in determining the type and length of sentence that might be imposed on Mr Hales. It was ordered pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, and prepared by Dr Shanmukh Lokesh, a Forensic Psychiatrist.
[22] The report confirms Mr Hales’ experience of traumatic brain injury and management through community mental health services in Taranaki following a suicide attempt. The report states:
Mr Hales described an extremely underprivileged upbringing with significant sexual abuse during his childhood, the lack of a paternal figure, and dysfunctional relationships. The assessment indicated that Mr Hales suffers from TBI (Traumatic Brain Injury), historical, currently in remission, post- traumatic stress disorder, and possible borderline personality disorder. His mental health issues are in remission with optimal treatment with the relevant psychotropic medication. The possibility of ADHD was recently raised, and he is at the early stages of treatment from the community mental health services.
[23] Dr Lokesh reviewed a large amount of information, had discussions with Mr Bourke, and received correspondence from Mr Hales’ mother. As to Mr Hales’ traumatic brain injury, Dr Lokesh records that Mr Hales sustained a skull fracture and required substantial rehabilitation in 2014. The report states:
He recalled that around that time, he had significant difficulties in day-to-day activities like showering. He would have recurrent headaches and lose his sense and smell. He also reported being easily misled by others and described himself as quite "vulnerable" during the recovery phase. The records substantiated these findings, and a CT scan indicated, "There are small focal areas of decreased brain volume of previous brain injury in the right anterior lobe under the supraorbital right frontal lobe where there is also focal loss of cortical density". He also reported a worsening of his attention and frequent mood swings. He described that these concerns gradually improved over time, although he still has traumatic flashbacks about the assault.
[24] Mr Hales reported again sexual abuse from a young age, and the fact that he left school aged 16. Mr Hales reported alcohol dependency dating back to his teenage years. He has used antidepressant medications at times throughout his life, and had recurring suicidal ideation. The report also expresses the view that Mr Hales’ frontal lobe functions indicate impulsivity, perseveration, lack of abstract reasoning, suggestibility, and poor problem-solving strategies.
[25] However, Mr Hales disagreed with most of the description of the offending provided to Dr Lokesh, expressing the view that he pleaded guilty because he did not want the victim to go through stressful court hearings. He reported that he believed that the victim was 16 years of age when they had sexual intercourse and denied having any earlier sexual contact with the victim. He denied that the sexual intercourse had been regular and that he provided the victim with drugs. He repeated that he was vulnerable at the time of the offending, that the victim demanded sex, and that the charges were only laid because the victim’s family were angry at him for refusing to sign adoption papers for their child.
[26] Overall, Dr Lokesh formed the view that Mr Hales has a low risk of further offending. As to his overall criminal responsibility, Dr Lokesh concluded that Mr Hales’ traumatic brain injury should fairly be associated with suggestibility, vulnerability, and a tendency to be exploited, leading to poor judgement and decision- making in stressful situations. Dr Lokesh was of the view that it would be possible to
manage Mr Hales in the community if a degree of compulsion was applied, and that if a custodial sentence was received, his mental health and wellbeing would still require ongoing treatment. Dr Lokesh noted Mr Hales’ willingness to engage with psychological interventions to assist rehabilitation.
District Court decision
[27] At the outset, the Judge addressed the issue regarding the statements he had requested from the Crown, stating:3
I need to record that at the start of this sentencing there was some discussion between your counsel and myself because he had become aware that I had yesterday asked to see the formal written statements, that is, the evidence that would have been filed for the prosecution witnesses had you pleaded not guilty and taken this to trial. Clumsily, that request for the formal written statements was made by an email solely between the Court and the Crown, that is, the prosecution, and that excluded Mr Bourke, and he quite rightly raised that as something which could be significant. Happily, when the Crown replied they copied in Mr Bourke, so he did immediately become aware.
The purpose of my wanting the formal written statements was because there was such a vast gulf between the facts alleged by the prosecution and the version of events that you have consistently advanced. As I said to Mr Bourke, anyone who has ever practiced in the area of criminal law, particularly as defence counsel, and I did for many years, is aware that clients say to you: “I just want to plead guilty and get it over and out of the way”, and of course as a lawyer you have to say to your client: “You must understand that the Judge will sentence you on the basis of your guilty plea”, not “I know you are pleading guilty, but you didn’t really do it”. There is only one way a court can proceed with that.
So, because I was aware of that, because I was aware of the vast gulf and the difference between your version of events and the prosecution’s events, and in particular because of some of the things that you had said to Dr Lokesh and the cultural report writer about the involvement of the victim’s family in this, I wanted to see what the parents of [the victim] had said to the police. As a result of that, I am going to sentence you solely on the basis of the summary of facts, and any idea that I might have had that I could somehow fudge it as an acknowledgement that whilst you pleaded guilty you were not really as guilty as they made out, or even hardly guilty at all, or not guilty at all as you have asserted in some cases, I put right out of my mind.
[28] The Judge then proceeded by describing the impact of Mr Hales’ offending on the victim. The Judge stated:4
3 Above n 1, at [1]–[3].
4 Above n 1, at [11].
…what is clear is that this has had a devastating effect on her life because she was a young and very vulnerable person when you met her. Apart from the long-lasting legacy of a child from this relationship, she did drop out of school, she became alienated from her friends and family, she got into drugs. I note that she says methamphetamine as well, or her parents do, I am not sure which, but I sentence you on the basis that it was cannabis, not anything more serious. This will impact her for the rest of her life, sadly. I would like to say otherwise.
[29] The Judge then addressed the s 27 report. His Honour noted that the report “was based on a two-hour conversation with you, held over the phone, and that report writer has not made any attempt at all to corroborate any of the potentially very important information that he was provided with”.5 Accordingly, the Judge placed little weight on the report’s contents. The Judge considered that Mr Hales’ discussion with Mr El Amanni could only be explained if it was accepted that Mr Hales had lied about what happened between him and the complainant.6 His Honour came to the conclusion that Mr Hales’ assertion that he was vulnerable to manipulation and had been manipulated by the victim was a complete denial of the summary of facts, and that therefore he could not have confidence that Mr Hales had told the report writer “anything approaching the truth about [his] background”.7
[30] The Judge viewed Mr Hales as a manipulative person, and that he was continuing his manipulation of the victim, by claiming that in fact it was she that was at fault. However, the Judge did accept that Mr Hales suffered a traumatic brain injury, had attempted suicide, used alcohol extensively, and suffered a difficult and abusive childhood. The Judge obtained that information, which he viewed as reliable, from the s 38 report.
[31] The Judge considered that the aggravating factors of the offending were abuse of trust, a significant age gap, full penetrative sex on a number of occasions, and significant adverse effects on the victim, who was vulnerable due to her age. His Honour considered that Mr Hales’ had groomed the victim, and treated her in a demeaning fashion.
5 At [14].
6 At [17].
7 At [17].
[32] However, the Judge did also accept that although there was a significant age gap, it was proper to describe Mr Hales as immature. The Judge accepted that Mr Hales’ brain injury loosened his self-control, stating:8
On your behalf, Mr Bourke has made a number of good points and I have considered them carefully. I do accept that your brain injury probably did loosen your self-control, and I think I likened it just now during discussions with counsel to someone who smokes when they have got a genetic predisposition to cancer. You had a predisposition, I am prepared to accept that you may have had some predisposition to sexual offending and that your brain injury reduced your level of self-control. I do not accept it was anything to the extent that you have made out, I am just unable to do so, but I think Mr Bourke is right, this occurred not long after your brain injury, you have not behaved like this in the past, and you have not behaved like this since.
[33] The Judge adopted a starting point of four and a half years’ imprisonment— the midpoint between the five years advocated for by the Crown, and the four years advocated for by the defence. His Honour accepted that Mr Hales should properly receive a full 25 per cent discount for his guilty plea. As to further discounts, the Judge considered again the s 27 report, expressing the view that it was extraordinary that no attempt at corroboration had occurred. The Judge said that he was disregarding the cultural report completely. His Honour went on to say:9
Had this been a one-off incident of intercourse which you clearly then regretted and did your best to distance yourself from, I could accept that your brain injury was the most significant factor in all of this. However, you embarked on a sustained relationship, lying about your age to [the victim’s] parents, pretending that you were only a few years older than her, you introduced her to drugs, you separated her from her family by your controlling behaviour. Over a sustained period of time you embarked on a deliberate course of conduct solely designed to have a long-term sexual relationship with this young woman, and as a result you have done great harm to her.
So, from a starting point of four and a half years’ imprisonment or 56 months, taking into account your guilty plea and the effects of the traumatic brain injury, I reduce that by 20 months, so your end sentence is 36 months, it is three years’ imprisonment.
[34] Accordingly, Mr Hales received a discount of approximately 35 percent, taking into account his guilty plea and the effects of the traumatic brain injury, resulting in an end sentence of 36 months.
8 Above n 1, at [30].
9 At [39]–[40].
Approach to appeal
[35] Under s 250(2) of the Criminal Procedure Act 2011, the appeal court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. Otherwise, the Court must dismiss the appeal.
[36] Where the appeal court allows the first appeal, the appeal court must, pursuant to s 251:
(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate or,
(b)vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or
(c)remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.
[37] Section 250(2) was not intended to change the previous approach taken by the courts under the now repealed Summary Proceedings Act which applied where the sentence was "clearly excessive or inadequate or inappropriate.10
[38] Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals. An appeal court will not interfere with the end sentence if the end sentence is within range.11 The focus is on the end sentence and not the process adopted to reach that end sentence.
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] and [27].
11 Ripia v R [2011] NZCA 101 at [15].
Analysis
Starting point—the offending
[39] Mr Bourke submits that the starting point of four and half years’ imprisonment was outside of the available range and manifestly excessive. Overall, his view was that the Judge should have reached a nominal end sentence of two years’ imprisonment and that this should have been converted to home detention. Mr Bourke referred to Bloomfield v R, R v H, and R v Johnson.12
[40] In R v H the Court of Appeal considered a starting point of four years’ imprisonment could be applied for offending under s 134 of the Crimes Act 1961. This was repeated in R v Johnson, where the Court of Appeal considered that a sentence of four years’ imprisonment was a useful reference point for s 134 offending where the particular aggravating factors have resulted in moderate culpability. Again, a starting point of four years was applied in Bloomfield v R.
[41] In Bloomfield, the defendant had engaged in sexual intercourse with a 14 year old victim over a period of five months. The offending happened when the defendant visited the victim’s father at his work sites, in semi-rural locations. The victim was also being abused by her father. The defendant would separate the victim from her father for the purpose of facilitating sexual intercourse. A starting point of four years was upheld by the Court of Appeal, which referred to the following statement from R v Johnson:13
We consider that the four year starting point in R v H is still a useful reference point in relation to sentencing for sexual connection with young persons, where the offending shares features present in that case. Particular aggravating features in R v H were abuse of trust, a significant age gap between the offender and the victim, full penetrative sex on a number of occasions, and significant adverse effects on the victim. Where aggravating features in R v H are present, a starting point of four years may be appropriate. Other aggravating factors not present in R v H may be seen as increasing culpability. Such features could include grooming, or abusive and demeaning behaviour. Where there has been no breach of trust as in R v H but the same aggravating features are present, a lower starting point will be appropriate. A different combination of aggravating and mitigating factors might produce yet another
12 Bloomfield v R [2021] NZCA 102; R v H [2008] NZCA 237; and R v Johnson [2010] NZCA 168.
13 Bloomfield, above n 12, at [15]; citing R v Johnson [2010] NZCA 168 at [17].
result. It follows that the starting point of four years should be seen as no more than a mid-point in the range of offending where there is moderate culpability.
[42] Mr Bourke accepts that the age gap, the nature of the sexual activity, and adverse impact on the victim are properly regarded as aggravating factors of the offending. He also submits that as to the aggravating factors of the level of grooming, breach of trust, and the finding of demeaning behaviour, the Judge erred by failing to take proper account of Mr Bourke’s personal circumstances in his assessment of those factors. Mr Bourke says that that to properly evaluate Mr Hales’ culpability in the offending, it is necessary to have a regard to his personal circumstances. He says that the significant age gap is tempered by Mr Hales’ own psychological functioning and level of maturity, as well as the impulsivity identified by Dr Lokesh, following Mr Hales’ significant brain injury. Mr Bourke submits that the present case is not of a sophisticated older man preying on a young girl, but rather of an immature and brain damaged person operating at a lower level of emotional maturity than his physical age.
[43] Mr Bourke submits that the Mr Hales’ involvement in the church was simply how he met the complainant rather than being a material factor in the development of the relationship. He says Mr Hales did not exercise or exert any power or control over the victim, and nor was this a situation where there was an ongoing pastoral care role. He submits this is reflected in the summary of facts as the relationship developed while Mr Hales was living in the South Island. He similarly disputes the Judge’s view that Mr Hales groomed the victim, and that he had engaged in demeaning behaviour. He says that this demonstrates the risk the Judge was unconsciously biased by having read the statements referred to in the beginning of his judgment, despite saying that he placed no weight upon them and sentenced only on the summary of facts.
[44] Mr Bourke also submits that although the Judge said he accepted that Mr Hales was immature and that his brain injury lessened his self-control, this was not reflected in the starting point adopted by the Judge.
[45] The Crown relies on the same cases as Mr Bourke, and submits that s 134 is a provision that is designed to protect young people under the age of 16 as they are
inherently vulnerable.14 In relation to Mr Hales’ traumatic brain injury, counsel for the Crown, Ms Hicklin, further says that a reduction to the starting point is only available where a causative relationship between a disorder and the offending reduces the moral responsibility of the offender.15 The Crown notes the aggravating factors of the offending, and says that the offending cannot be described as an impulsive reaction by a brain damaged man. Ms Hicklin submits that the summary of facts does not reveal any situations in which Mr Hales would have been stressed and therefore struggled to make a correct or lawful decision. She submits that there is no indication that his brain injury impacted upon his decision-making at all. Ms Hicklin also highlights the introduction of drugs into the relationship and says that the court cannot be sure that if Mr Hales’ decision making was impaired, it was not as a result of the drugs that he wilfully consumed.
[46] While acknowledging Dr Lokesh’s findings, I do not agree with the submission made by Mr Bourke that Mr Hales’ own mental capacity, wellbeing and maturity seriously ameliorates his culpability when assessing the starting point of the offending. I accept that mental illness is relevant at both the first and second step of the sentencing approach, where it is shown that mental illness reduces the offender’s moral responsibility.16 However, the Judge accepted that Mr Hales’ maturity was a relevant factor, explicitly taking that into account when that was raised by Mr Bourke in the District Court. As noted by the Judge, this argument would have much more merit if the facts involved a one-off episode of sexual connection that could properly be attributed to a momentary lapse of judgement. That is not the situation in the present case, which rather concerns a relationship that developed over the period of a year, resulting in a large amount of sexual intercourse, the birth of a child, drug use, and significant adverse impacts on the victim.
[47] Given the considerable period over which the offending occurred, and the nature of the offending as described in the summary of facts to which Mr Hales pleaded guilty, I consider that the Judge did not err in his assessment on this point. I consider that this issue is further compounded by Mr Hales’ refusal to accept
14 Sentencing Act 2002 s 9(1)(g); and R v Johnson, above n 13, at [13].
15 Shailer v R [2017] NZCA 38 at [50].
16 L (CA719/2017) v R [2019] NZCA 676 at [48]–[50]; and Orchard v R [2019] NZCA 529 at [45]–
[46].
responsibility for his actions, and claiming that in fact, he was manipulated. It is my view that any causal relationship between his mental state and the offending capable of warranting a discount from the starting point is eroded by the facts of the case, and his refusal to acknowledge the harm that he has caused.
[48] I do not consider that the Judge erred in finding that Mr Hales had groomed the victim, or that his behaviour had a demeaning effect. I accept the Crown’s submissions on these matters. Further, the breach of trust inherent in the offending is not lessened in its seriousness by the fact that the bulk of the offending occurred outside of the church context. The meeting between Mr Hales and the victim in the church environment provided the opportunity for the offending to occur. Mr Hales pursued the victim, and their relationship eventually developed a sexual element, thereby breaching the trust a young person is entitled to have in an adult, both generally, and where a heightened relationship of trust existed because of the church aspect.
[49] Overall, I accept the Crown’s and the Judge’s summation of the seriousness of the offending and Mr Hales’ culpability. While the Court of Appeal has indicated that a starting point of four years’ imprisonment is appropriate for an offender with moderate culpability, upon a sentence appeal, in the absence of an identified error as to starting point, the Court is reluctant to intervene. I am unable to describe, in the circumstances as presented before me, a starting point of four and a half years’ imprisonment as unavailable to the Judge. The deviation from the Court of Appeal’s suggested starting point is minimal, and I consider that it was within range. I note particularly the Court of Appeal’s comments that the starting point of four years should be seen as no more than a mid-point in the range of offending where there is moderate culpability.17
Adjusting the starting point – mitigating factors of the offender
[50] Mr Bourke submits that the Judge erred in failing to apply adequate discounts for personal mitigating factors. Mr Bourke also argued that the Judge made a mathematical error equating four and a half years with 56 months, rather than
17 R v Johnson, above n 13, at [17].
54 months. He says this should be corrected. The Crown accepts that there was a mathematical error in the Judge’s calculation of the sentence.
[51] Mr Bourke further submits that the Judge’s overall assessment of the mitigating factors was compromised by an excessive focus on the contents of the s 27 report, in circumstances where that report was disclaimed by him, and not relied upon in submissions. He says that there can be no dispute that Mr Hales suffered a brain injury, and that he is more properly described as someone with memory issues, rather than an outright liar. Mr Bourke says that the undue focus on the s 27 report meant that the Judge did not adequately consider the issue of Mr Hales’ remorse. He submits that Mr Hales entered a guilty plea and that he did not resile from that when given the opportunity, showing that he has accepted responsibility.
[52] Mr Bourke submits that the clear evidence of Mr Hales’ difficult and abusive upbringing, indicating a history of trauma, is a mitigating factor that requires reassessment, as the Judge acknowledged might be necessary. He submits that the evidence of Mr Hales’ upbringing and that his cognitive impairments played a ‘significant role’ in his offending is directly relevant to the assessment of his culpability and warrants a far more generous discount than that allowed by the Judge. He says also that the Judge failed to give any considerations to prospects of rehabilitation.
[53] Given Mr Hales was imprisoned, registration pursuant to the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 automatically followed. Mr Bourke submits that that the punitive consequences of registration were something that should have been taken into account by the sentencing judge.18 He says that therefore registration itself also warranted a discrete sentencing discount. Ultimately, Mr Bourke submits that from an adjusted starting point of four years or less, the combination of discounts for guilty plea, remorse, rehabilitation, childhood trauma, brain injury, mental health issues, and registration should result in an end sentence of two years’ imprisonment or less. He says that then the appropriate sentence is one of home detention.
18 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [135]–[136]; and Bird v Police [2017] NZHC 1296.
[54] The Crown acknowledges that the evidence provided now establishes that Mr Hales suffered from childhood sexual abuse, which was self-reported prior to the charges being filed. Ms Hicklin says, however, that the causative effect of this upon the offending is limited. She submits that Mr Hales has expressed no genuine remorse, having consistently denied the offending and engaged in victim blaming, in contradiction with the summary of facts. Ms Hicklin submits that the guilty plea and effect of the traumatic brain injury was accounted for in the discount awarded and that registration on the Child Sex Offenders Register reflects ongoing risk and should not be treated as a mitigating factor. The Crown’s submission is that the overall discount awarded appropriately recognises Mr Hales’ mitigating factors, and that the end sentence was not manifestly excessive.
[55]I address first the issue regarding the s 27 report.
[56] I agree with the District Court Judge that the s 27 report does not reveal much that assists Mr Hales in the sentencing process. It is particularly damning evidence of Mr Hales’ refusal to accept responsibility for his actions, and his complete lack of remorse. In a broader sense, it is these kinds of attitudes which perpetuate a culture in which sexual manipulation and abuse of girls and young women is normalised. It is inappropriate for Mr Hales to seek to ameliorate the Courts’ view of his culpability by shifting the blame to a young woman half his age, who the law seeks to protect by the age of consent. The position held is entirely at odds with Mr Hales’ guilty plea. I agree with the Judge that without any form of independent verification, the assertions made in the s 27 report are essentially baseless.
[57] Mr Hales also refused to accept responsibility for his actions in his discussions with the PAC report writer and the s 38 report writer, including raising allegations of a conspiracy against him by the victim’s family to the latter. Accordingly, although Mr Bourke did not rely upon the s 27 report at the sentencing hearing, it is apparent to me that Mr Hales’ attitude to the charges against him has been uniform throughout the proceeding, and that his guilty plea represents a strong desire to avoid imprisonment, rather than a fulsome acceptance of responsibility for his offending. That does not change the fact that he is entitled to a full discount for his plea, but it does mean, in my view, that any further discount for remorse or rehabilitative prospects is
unavailable. Such a discount is only available where in a proper and robust evaluation of all the circumstances, there is evidence of genuine remorse.19 Despite sending a letter to the victim, I do not consider that Mr Hales has demonstrated any genuine remorse.
[58] As to rehabilitation, I accept that Dr Lokesh records Mr Hales’ willingness to undertake rehabilitation, as well as Mr Hales’ engagement in counselling, and the assessment of his future risk of offending as low. However, generally, discounts for rehabilitation or prospects of rehabilitation are given in circumstances where an offender has already started down that road, of their own volition.20 Further, given the length of time over which the offending occurred, the nature of the offending, and Mr Hales’ continued denials of responsibility, I consider that he is required to show real steps towards rehabilitation to attract a discount on appeal.21 As I consider that Mr Hales has not done so, I am unwilling to provide a further discount for rehabilitation.
[59] Turning then to the more general allegations of insufficient discounts for mitigating factors. Very recently the Supreme Court in Berkland clarified how s 27 reports (and background factors generally) are to be approached in the sentencing exercise.22 While the context of Berkland was commercial methamphetamine dealing, I consider the comments made by the Supreme Court very likely to be of general application.
[60] The Supreme Court identified in Berkland that the Courts had not been applying a uniform approach to the required degree of connection between background factors and their mitigatory effect on sentencing.23 For example, in Carr v R, the Court used a “causative contribution” approach, to show that there was no requirement for offenders to establish that deprivation is a ‘proximate cause’ of the
19 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
20 See for example R v Gear [2023] NZHC 432 at [17]-[18].
21 R v Toa [2023] NZHC 403 at [10(c)].
22 Berkland v R [2022] NZSC 143.
23 At [100].
offending.24 Other cases have required “a demonstrative nexus”25, or that deprivation be “an operative cause”. The latter is obviously a higher threshold.
[61] In deciding that the Carr v R ‘causative contribution’ approach should prevail, the Supreme Court stated:26
Where it can be established that background was an operative or proximate cause of the offending it is likely to be a potent sentencing factor. Proximate afflictions such as addiction or mental illness may be examples. There may be other background factors that invite similar inferences in particular cases. As we have said, restrictive rules or heuristics that tend to exclude factors at the outset without assessing their potential relevance have no place in the making of factual assessments. They create analytical blind spots.
But requiring operative or proximate cause in every case sets the bar too high. We prefer the Carr standard of causative contribution. It captures background factors that are, as we explain below, the more diffuse drivers or the intergenerational sources of offending; factors that would be excluded as insufficiently connected under a stricter causation standard. These contributory factors are important because they can provide rational explanations for why an offender has come to offend. Contributory mental illness can still explain why an offender is living in the chaotic or conflictual circumstances that made the offending more likely. Contributory addiction can help to explain why an offender was drawn into the commercial drug dealing environment. Contributory deprivation, including that precipitated by historical dispossession and sustained by poor educational and other intergenerational outcomes, can help to explain an offender’s limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely. Where these factors do help to explain how the offender came to offend, they will amount to causative contribution and so will be relevant for the purpose of sentencing.
(footnotes omitted, emphasis added).
[62] However, the contribution of background factors may be displaced where offending is particularly serious, or where an offender has exhibited increased agency.27 The discount range for these factors is wide and largely fact dependent, although the Court of Appeal has acknowledged that a discount of 30 per cent is at the upper end of the spectrum.28
24 Carr v R [2020] NZCA 357 at [64]–[65] and [71].
25 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].
26 Above n 19, at [108]–[109].
27 Above n 19, at [111].
28 King v R [2020] NZCA 446 at [28].
[63] While my view is that the ultimate end sentence of three years’ imprisonment was well within range for the offending, I also consider that the Judge did not provide sufficient discounts for personal factors which appear to me to be established on the evidence and which help to explain Mr Hales’ offending. These factors include significant childhood trauma, his traumatic brain injury, and his recorded and ongoing mental health issues. These matters are addressed in pre-sentence reports other than the problematic s 27 report. The Judge took a dim view of the assertion that Mr Hales had been sexually abused as a child, which was made in the s 27 report. His Honour appeared only to allow a discount based on Mr Hales’ traumatic brain injury.
[64] It seems to me that the Judge’s understandable frustration with the s 27 report has resulted in the omission of the noted factors, which logically help explain the offending. As noted by the Supreme Court, contributory mental illness can still explain why an offender is living in the chaotic or conflictual circumstances that made the offending more likely. Childhood trauma and poor educational outcomes do the same. The Crown accepts that the sexual abuse suffered by Mr Hales as a child is established. There is also a recorded link between traumatic brain injuries and criminal offending. While these factors are not considerations that lead me to a conclusion that Mr Hales’ culpability was of the nature as advocated for by Mr Bourke, they are personal factors that were required to be properly taken into account at the second step of the sentencing process by the Judge. I do not, however, consider that the Judge erred in not considering the effect of registration on the Child Sex Offenders Register as a mitigating factor.29
[65] As such, in the circumstances, I consider that personal mitigating factors justified a 20 per cent discount, rather than the approximately 10 per cent imposed by the Judge. It follows also that as I propose to recalculate Mr Hales’ sentence, I will also correct the apparent mathematical error in the Judge’s calculation of the sentence, by the use of a figure of 54 months (four and a half years), rather than 56 months.
29 The punitive effect of registration may be a factor relevant to the type of sentence imposed, but it is not a mitigating factor informing the length of sentence: Hughes v R [2022] 2835 at [40].
Conclusion
[66] From a starting point of four and a half years’ imprisonment (54 months), I deduct 25 per cent for Mr Hales’ guilty plea and a further 20 percent for recognition of personal factors including his childhood trauma, traumatic brain injury and recorded mental health issues. That results in an end sentence of 30 months imprisonment (rounded up from 29.7 months), or of two and a half years’ imprisonment. Accordingly, home detention is not an available option.
[67] I consider that an end sentence of two and a half years’ imprisonment is the least restrictive outcome in the circumstances. While a sentence of home detention may be appropriate in some circumstances of sexual offending against a child, and it is not strictly necessary for me to come to the following conclusion, I am satisfied that a sentence of imprisonment is necessary in the circumstances for the purposes of sentencing contained in ss 7 and 8 of the Sentencing Act 2002 to be given effect.
Result
[68]Appeal allowed. I sentence Mr Hales to two and a half years’ imprisonment.
McQueen J
Solicitors:
Crown Solicitor, New Plymouth for Respondent
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