Heke v The Queen

[2012] NZHC 1003

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-6 [2012] NZHC 1003

RUSSELL ERIA HEKE

Appellant

v

THE QUEEN

Hearing:         14 May 2012

Appearances: JS Gurnick for Appellant

S Cameron for Respondent

Judgment:      15 May 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 15 May 2012 at 4:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

JS Gurnick, Public Defence Service, Hamilton:  [email protected]

S Cameron, Almao Douch, Hamilton:  [email protected]

HEKE V R HC HAM CRI-2012-419-6 [15 May 2012]

[1]      Russell   Eria   Heke   has   appealed   against   a   sentence   of   three   years’ imprisonment imposed by Judge Thomas in the District Court at Hamilton following his guilty pleas to one count of sexual violation by unlawful sexual connection and one count of indecently assaulting a boy aged between 12 and 14 years.  Mr Heke says that the sentence imposed was manifestly excessive in all of the circumstances.

The offending

[2]      The 14-year-old victim in this case had been placed in the day-to-day care of the appellant where it seems it was felt he would receive support for his special needs resulting from attention deficit hyperactivity disorder and foetal alcohol syndrome.

[3]      The summary of facts to which the appellant pleaded guilty indicates that the appellant and the victim returned home late in the evening to find that one of the other occupants of the home was using blankets normally used by the victim so the two shared the appellant’s bed.  In the early hours of the morning, the victim woke complaining of chest pain. A short time later the appellant placed his hand under the victim’s pyjama pants and touched the victim’s penis.  He then removed the victim’s penis from his pyjama pants, placed it in his mouth, and sexually violated the victim for approximately five minutes.  The appellant stopped and the victim then went into the lounge and slept on the couch.

[4]      Although it seems the victim remained living with the appellant for a further nine weeks before complaining about the events, there was no repetition of them during that period.

[5]      When the appellant was spoken to by the Police he admitted his offending but could offer no explanation for it.

Personal circumstances of the appellant

[6]      Mr Heke is 51 years old and has been married for approximately 22 years. The probation officer reports that although the events leading to the appellant’s

convictions placed a strain on the relationship, Mrs Heke continues to support her husband.  Mr Heke is currently studying for a certificate in social sciences and at the time of his offending was undertaking casual work as a courier driver.  To his credit, he is a volunteer with a local association assisting stroke victims.   The probation officer reported that Mr Heke appeared to lead a very structured lifestyle as a student and a community volunteer.

[7]      Although Mr Heke has previous convictions for dishonesty and driving with excess breach alcohol, the most recent of them is some ten years old and I consider they should be disregarded for present purposes.

The approach taken by the District Court Judge

[8]      In  approaching  a  difficult  sentencing  task,  Judge  Thomas  noted  that  the victim had been placed in the care of the appellant through a family agreement, as a result of the victim having suffered physical abuse from a former foster parent and the need to provide what the Judge described as safety and sanctuary.

[9]      The Judge correctly noted two aggravating features of the offending, the first being the vulnerability of the victim because of his age and his situation. The second feature was described by the Judge as “the gross breach of trust”.  The Judge was entirely right to emphasise that aspect of the offending.

[10]     In approaching the assessment of a sentence starting point, the Judge referred to the Court of Appeal’s decision in R v AM,[1]  which is the guideline judgment for offending of this nature.

[1] R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

[11]     He placed the offending “squarely in the mid to upper range of Band 1” of unlawful sexual connection in R v AM, for which the Court of Appeal said the appropriate starting point was one of between two and five years’ imprisonment.

The Judge took a starting point of four-and-a-half years’ imprisonment.

[12]     The Judge noted genuine expressions of remorse on the part of the appellant, the fact that he had not offended for ten years, and his positive contributions to the community during the period since his last appearance in court.  The Judge observed that the victim’s concern appeared to be, principally, that the appellant should acknowledge his guilt, which he had done.   On account of those factors, Judge Thomas reduced the sentence by six  months and then applied a full 25 percent discount for the early guilty pleas.  This produced an effective end sentence of three years’ imprisonment  for  the lead  charge of sexual  violation  by unlawful  sexual connection, and  a concurrent term of 12 months’ imprisonment for the indecent assault.

The submissions on behalf of the appellant

[13]     Mr Gurnick challenged the starting point adopted by the Judge, arguing that it should have been one close to the bottom of USC band 1 in R v AM and suggesting two-and-a-half  years’ imprisonment  as  reasonable.    Bearing  in  mind  the  proper discounts for remorse, good character and guilty pleas, Mr Gurnick submitted that an end sentence of 18 months’ imprisonment would have been appropriate.

[14]     He  then  noted  that  s 128B(2)  of  the  Crimes Act  requires  that  a  person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the particular circumstances of the person convicted and the particular circumstances of the offence, including the nature of the conduct constituting it, the Court thinks that the person should not be sentenced to imprisonment.[2]

[2] Crimes Act 1961, s 128B(3).

[15]     Mr Gurnick submitted that in those circumstances the Court was entitled to choose between a short term of 18 months’ imprisonment or the imposition of a period of home detention. He relied on R v Neroj,[3] in which the Court of Appeal said that there can be circumstances in which a sentence of home detention may be imposed, notwithstanding a presumption of imprisonment.[4]    He referred to also to

the Court of Appeal’s view in ZZ v R,[5]  that exceptional circumstances were not

required for the imposition of a sentence of home detention in particular classes of cases, including cases of sexual offending.

[3] R v Neroj [2008] NZCA 184.

[4] At [15].

[5] ZZ v R [2011] NZCA 662, at [33]-[36].

[16]   While acknowledging the full force of the aggravating features of the vulnerability of the victim and the gross breach of trust, Mr Gurnick argued for an approach which gave full weight to the particular circumstances of the offending, in that it was impulsive in nature and of short duration, and that it occurred only once in circumstances where it would have been possible for there to have been a repetition of the offending.   Mr Gurnick also placed particular emphasis on the fact that the appellant was also the victim of sexual offending when a close friend of his parents sexually abused him over a period of one month when the appellant was only ten years old.  He also noted that the appellant had the care of his wife, a stroke victim, who was also undergoing chemotherapy for stomach cancer.

[17]     Mr Gurnick referred to the recommendation of the probation officer that, notwithstanding the presumption of imprisonment, a sentence of home detention be imposed.     The  probation  officer  noted  Mr Heke’s  willingness  to  address  his behaviour with assistance from appropriate psychological services.   Mr Heke was being  assessed  as  representing a low  risk  of harm  to  others  and  a low risk  of reoffending.  It was proposed that Mr Heke should live at home with his wife and these arrangements were considered suitable.

Submissions on behalf of the Crown

[18]     On behalf of the respondent, Ms Cameron argued that the Judge properly placed this case towards the top of USC band 1 in R v AM, and submitted that the case  could  have  been  placed  in  USC  band 2,  given  the  presence  of  the  two aggravating factors.

[19]     In arguing that four years six months’ imprisonment was appropriate, after taking account of the aggravating features of the offending, Ms Cameron submitted that this was not a fleeting encounter, with the five-minute duration being estimated by the appellant himself.  Counsel emphasised the gross abuse of trust, and referred to the youth of the victim and the considerable age difference between the victim and

the appellant.  She argued this was a significant factor compared, for example, with the cases of R v Fisher,[6] where the victim and the offender were of a similar age, and Howe v R,[7] where the offender was aged only 15 or 16 at the time.

[6] R v Fisher CA305/91, 18 November 1991.

[7] Howe v R [2010] NZCA 367.

[20]     Ms Cameron acknowledged that a reduction of the sentence by 18 months, on account of both remorse and community contributions and the plea of guilty, was appropriate.  She submitted, however, that the Judge was right to reject the prospect of a community-based sentence or a short term of imprisonment on account of the need for deterrence and denunciation.

Discussion of other cases

[21]     The issues on which counsel focused in the presentation of their helpful oral submissions were:

(a)      whether the Judge was right to assess the offending as falling towards the top of USC band 1 in R v AM;

(b)whether the Judge provided an adequate discount for the appellant’s immediate acknowledgement of responsibility, his early guilty plea and genuine remorse; and

(c)      whether the Judge erred in failing to give serious consideration to home detention as recommended by the probation officer.

[22]     In the course of giving his reasons for sentencing in a busy List day, the District Court Judge did not identify, by reference to the cases discussed by the Court of Appeal in R v AM, or other authorities, why he considered four-and-a-half years’ imprisonment to be the appropriate starting point within USC band 1.  He did not have the benefit of the helpful submissions advanced in this Court containing a full discussion of the cases referred to in R v AM and others.  In contrast, I have had an opportunity to identify how the offending in the present case compares with that in

others.

[23]     I take, first, the examples given by the Court of Appeal of cases falling within the lower part of the USC 1 band ( two to five years):

R v McNicholl:[8] O, male, and V, female, were friends and neighbours. V, O and V’s mother had been out together. V’s mother dropped the other two at V’s flat. V was intoxicated and eventually went to sleep. When she woke up, O had removed her trousers and her underpants and had his face near her pubic area and his finger in her vagina. She got up and left the room. She told a flatmate and the flatmate saw that O left the flat.   McNicholl did not involve any breach of trust or particular vulnerability, except to the extent that the victim was intoxicated and asleep at the time of the offending.   In the District Court, the Judge had taken a starting point of three-and-a-half years’ imprisonment which he reduced by three months on account of the offender’s good record.  No discount for a guilty plea was available. The Court of Appeal endorsed the sentencing Judge’s approach.

[8] R v McNicholl CA176/02, 29 October 2002.

In R v Neroj[9], O, male, 36, went to V’s house for dinner. V, female,

[9] R v Neroj [2008] NZCA 184

15, became uncomfortable when O started play fighting with her friend. O followed V out of the room, hugged and kissed her and touched her breasts. He held her on the ground but she got away so he pursued her around the house, put $20 in her bra and tried to put his hands down her pants. He then forced her hand into her pants, put his hand inside her pants and briefly put his fingers into her vagina.   In Neroj, there was also no issue of vulnerability or breach of trust but the offending involved digital penetration of the victim’s vagina, and persistence on the part of the offender despite being rebuffed.   A three-year  starting  point  was  reduced  by  six  months  for  personal

mitigating factors.

In R v Fisher,[10] O, male, was at the male V’s flat for a party. All were heavily intoxicated. V retired to bed with his partner, leaving O sleeping in lounge. V woke to find O had removed V’s shorts and underpants and was sucking V’s penis. O left when V woke.  Fisher was  a  much  older  case  (1991)  which  had  some  similarity  to  the present in terms of the circumstances in which the offending occurred and the nature of the unlawful connection.  In that case, however, the offender and the victim were of similar ages and the Court of Appeal seems to have noted that the offending was affected by alcohol.  There was no breach of trust or victim vulnerability.  The Court agreed with counsel for the Crown that the offending was very much at the lower end of the range and a sentence of six months’ imprisonment was upheld.

[10] R v Fisher CA305/91, 18 November 1991.

[24]     Two of the examples given by the Court of Appeal in R v AM as falling at the upper end of USC band 1 were:

(a)      R v MacKenzie,[11]  in which the offender licked the anus of an eight- year-old girl in his care.  He was interrupted by the phone, threatened the victim with a jug cord for putting her clothes back on, and then penetrated her anus with his tongue.  A four-year starting point was taken having regard to the breach of trust, the vulnerability of the victim, the threat, and the repetition of the indecencies.  A six-month discount for the youth of the offender (aged 21) was allowed.   The Court of Appeal noted that the incidents involved in MacKenzie were relatively brief, but it was the additional factor of the breach of trust which warranted its placement “a little higher up the Band.”

[11] R v MacKenzie [2007] NZCA 72.

(b)In R v M,[12]  a 15 year-old girl, was a friend of the male O’s daughter and  was  staying  with  O  on  a  weekend  sleepover.  O,  V  and  O’s daughter went out drinking. V fell asleep on couch and woke to find O

touching her genitals and kissing her. V pretended to be asleep but

crossed her legs in an attempt to stop him. O opened her legs and inserted his finger. He desisted when V made a show of waking up but asked if he could have sex with her. She refused.  The Court of Appeal imposed a sentence of three years’ imprisonment, following trial, on an appeal by the Solicitor-General.   The aggravating feature in that case was the offender’s persistence despite the victim’s attempts to stop him.

[12] R v M CA176/02, 29 October 2002.

[25]     I have also paid some attention to the judgment of the Court of Appeal in Howe v R,[13]    in which the Court of Appeal upheld a sentence of two years eight months’ imprisonment for two counts of sexual violation by unlawful sexual connection, one of which was a representative count, and two representative counts of indecent  assault.   The offending occurred  between 2002  and 2003 when the appellant was aged between 15 and 16 years and the two victims were aged between six and eight.

[13] Howe v R [2010] NZCA 367.

[26]     One of the victims was a young relative of the appellant and the other a neighbour.  In relation to the first victim, the appellant had enticed the child into his bedroom on numerous occasions and rubbed his hand against her genitalia.  On six other occasions the appellant also performed oral sex on the girl.  He offended in a similar way against the other child although oral sex occurred on only one occasion.

[27]     The sentencing Judge in that case had placed the offending as falling between the top of USC band 1 and the lower end of USC band 2 and adopted a starting point of four-and-a-half years’ imprisonment.   The Judge considered the victims to be vulnerable on account of their ages and considered also that there was aggravation in the degree of harm suffered by the victims.  The Judge noted that there was a degree of breach of trust in that the appellant was much older than the children and was a relative of one of them.  The Judge also held that there was a considerable degree of violation although not as high as there would have been if there had been actual physical penetration.   The Court of Appeal rejected a contention that a four year starting point would have been appropriate and considered that four-and-a-half years

was within the range available to the Judge.

[28]     While acknowledging that there was a serious breach of trust in the present case and a vulnerable victim, I consider the Judge to have been in error in assessing an appropriate starting point to be one of four-and-a-half years.   In my view, the circumstances of the case lie somewhere between the examples given by the Court of

Appeal as falling at the lower end of USC band 1,[14]  and those falling towards the

upper end of the band[15] where four years and three years respectively were taken as the starting points.

[14] McNicholl, Neroj and Fisher.

[15] MacKenzie and M

[29]     The offending in this case was less serious than that in Howe.[16]    Although there was a much greater disparity in the age of the offender and victim in this case than there was in Howe, this case involved one instance only of offending which was of relatively short duration and was voluntarily terminated by the offender.  It was an impulsive and isolated incident, despite opportunities for further offending.

[16] At [29].

[30]     I note also that there was no penetration of the victim by the offender, and no violence or threat of violence.  Furthermore, there was no evidence of any particular enduring harm to the victim, although I acknowledge that it may be too early to judge and that some harm can be inferred.

[31]     Approaching the matter afresh, I would have placed the starting point for this offending at about the mid-point of USC band 1, namely three-and-a-half years, but the range properly available to the Judge, in my view, would have had an upper limit of four years and I adopt that as being the appropriate starting point on appeal.

Mitigation: remorse and guilty pleas

[32]     The  District  Court  Judge  was  right  to  regard  the  appellant’s  remorse  as genuine and to allow a full 25 percent discount for an early guilty plea.  A discount of 18 months’ imprisonment on account of those factors is appropriate, resulting in

an end sentence of two-and-a-half years’ imprisonment.

[33]     That outcome precludes consideration of home detention as an alternative to imprisonment.   In any event, s 128B of the Crimes Act provides a presumption in favour of imprisonment unless the particular circumstances of the offender and of the offending lead the Court to the conclusion that the offender should not be sentenced to imprisonment.

[34]     After  making  specific  inquiries  at  my  request,  Mr Gurnick  frankly  and properly informed me that the appellant’s wife, who has recently received treatment for cancer, has the benefit of a reasonably positive prognosis and is currently in the care of a family member.  The other mitigating personal circumstances having been taken into account, I am unable to conclude that a community-based sentence would have been appropriate bearing in mind the factors of vulnerability and breach of trust.  They require a sentence which denounces and acts as a general deterrent, even if the appellant himself presents a low risk of reoffending.

Result

[35]     The appeal is allowed in part.  The sentence of three years’ imprisonment on the charge of unlawful sexual connection is quashed and one of two-and-a-half years’ imprisonment imposed.  The concurrent sentence of 12 months’ imprisonment for indecent assault is confirmed.

....................................

Toogood J