Heng v The King
[2023] NZHC 1789
•10 July 2023
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.
SEE
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-485-29
[2023] NZHC 1789
BETWEEN NAVY HENG
Appellant
AND
THE KING
Respondent
Hearing: 4 July 2023 Appearances:
A P Dye for the Appellant
A W M Britton for the Respondent
Judgment:
10 July 2023
JUDGMENT OF PALMER J
Solicitors
Public Defence Service, Wellington
Crown Solicitor, Luke Cunningham & Clere, Wellington
HENG v R [2023] NZHC 1789 [10 July 2023]
What happened?
[1] Mr Navy Heng, now aged 42, has been convicted of sexual offences against a child. They all relate to an incident on 7 June 2018. Mr Heng was in an intimate relationship with the complainant’s mother. The complainant was eight years old at the time. The complainant and her mother each have an intellectual disability. After the complainant had been put to bed around 8 pm, Mr Heng entered her bedroom, showed her a video on his phone of himself and her mother engaged in sexual activity, lay down next to the complainant, removed her pyjama pants, and touched her genitalia and other body parts with his hand. He told her to suck his penis and attempted to put his penis in her mouth.
[2] On 18 May 2021, after a judge-alone trial in the District Court at Wellington, Judge S M Harrop found Mr Heng guilty of sexual violation by unlawful sexual connection by introducing his penis into her mouth, committing an indecent act on a child under 12 by touching her genitalia, and indecent communication with a young person under 16 by exposing her to indecent material on the video.1 On 29 November 2021, the Judge sentenced Mr Heng by setting a starting point of seven years’ imprisonment for all aspects of the incident and all three offences.2 He applied a discount of 18 months for the period of three-and-a-half years that Mr Heng had spent on bail, his previous good character, and the impact of imprisonment on his young daughter.3 This resulted in an overall end sentence of five and a half years’ imprisonment, with sentences of three years’ and one year’s imprisonment for the indecent act and indecent communication offences to be served concurrently. He was automatically registered on the child sex offender register.
[3] Mr Heng appealed against his conviction. On 2 September 2022, in the High Court at Wellington, Cull J held that there was overwhelming evidence from the complainant of attempted sexual violation but was not satisfied beyond reasonable doubt that Mr Heng did place his penis in her mouth.4 Accordingly, the Judge substituted Mr Heng’s conviction for sexual violation with one of attempted sexual
1 R v Heng [2021] NZDC 8934.
2 R v Heng [2021] NZDC 23506 [First Sentencing] at [18] and [24].
3 At [26]–[29].
4 Heng v R [2022] NZHC 2232 at [63]–[64] and [103].
violation.5 The appeals of the convictions for committing an indecent act on a child and indecent communication with a young person were dismissed. These three offences are punishable by up to 10 years, 10 years and three years’ imprisonment respectively.6 The sentence for the substituted conviction (only) was remitted back to the District Court under s 251(3) of the Criminal Procedure Act 2011 (CPA).7
[4] At the second sentencing, on 10 February 2023, Judge Harrop noted that only the sentence for the attempted sexual violation had been remitted, there was no suggestion that there needed to be a change to the discounts in the first sentence so only the starting point was at issue.8 The Judge held that Mr Heng “really tried” to put his penis in the complainant’s mouth and only the complainant’s defensive measures of closing her mouth and turning her head away prevented his achieving his purpose.9 He concluded it was a “serious” attempted sexual violation.10 On the basis of R v AM, the Judge held the distinction between attempted penetration of the mouth and vagina was not material in this case.11 In light of similar cases, the maximum penalty, and the aggravating factors, he considered a starting point of five years’ imprisonment was appropriate.12 The aggravating factors were the same as those identified in the first sentencing: the trauma of the complainant being shown explicit sexual activity involving Mr Heng and her mother; a breach of trust; the particular vulnerabilities of the complainant, of which Mr Heng was aware; the age difference of 29 years; and the offending occurring in the complainant’s bed.13 The Judge considered the other offending justified an uplift of six months and applied a 14-month discount due to the mitigating factors identified in the first sentencing.14 This resulted in an overall sentence of four years and four months’ imprisonment.
5 At [104].
6 Crimes Act 1961, ss 129, 132(3), and 124A(1).
7 Heng, above n 4, at [110].
8 R v Heng [2023] NZDC 2401 [Second Sentencing] at [4] and [8].
9 At [10].
10 At [12].
11 At [15] citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [75]–[76].
12 At [25] citing: Bowman v R [2014] NZCA 92; R v Tutu HC Napier CRI-2010-041-163, 4 February 2011; Pesefea v R [2016] NZCA 35; and Harawira v R [2019] NZCA 562.
13 At [24] citing First Sentencing, above n 2, at [9]–[14].
14 At [25]–[27].
Appeal
[5] Mr Heng appeals the sentences. The appeal of the undisturbed sentences from the first sentencing are not out of time because Mr Heng appealed those sentences when he appealed the conviction. Accordingly, that appeal remains to be dealt with. The appeal of the second sentencing decision was filed on 21 March 2023 so was seven days out of time.15 The Crown does not take any point about the appeal being out of time. I consider it is in the interests of justice to consider the appeal on its merits. I grant leave for that appeal to be brought out of time.
[6] Under s 250(2) of the CPA, I must allow the appeal if satisfied there has been a material error in the sentence imposed and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.16 The Court will only intervene and substitute its own views on appeal if the sentence is “manifestly excessive”.17
Main issue: Attempted sexual violation
Submissions
[7] Mr Dye, for Mr Heng, submits the Judge erred in the cases to which he compared Mr Heng’s offending and set a starting point for sentencing that is manifestly excessive. This is the main ground of appeal. He submits the Judge was wrong to equate attempted sexual violation by penile penetration of the mouth with attempted sexual violation by rape, as rape is more serious. R v AM is not authority for analogising attempted penile penetration of the mouth with attempted rape. The offending here could have been worse. The cases of Bowman and Harawira, which the Judge relied upon, both involved quite different facts than here, with actual violation and more prolonged offending, with starting points of five years’ imprisonment.18 In Bowman, the Court of Appeal considered skin-to-skin contact was highly relevant. There is no analogous case with a starting point approaching that set
15 Criminal Procedure Act 2011, s 248(2): appeals must be brought within 20 working days of the decision being appealed against.
16 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27], [33], and [35].
17 Ripia v R [2011] NZCA 101 at [15].
18 Bowman v R, above n 12; and Harawira v R, above n 12.
for Mr Heng. Mr Dye relies on a number of non-penetrative cases which he submits are more analogous to the facts here, where there was no completed violation and starting points were lower.19 The starting point should be in the two-and-a-half year to three-and-a-half year range.
[8] Mr Dye also submits that the Judge failed to consider the sentencing afresh, but rather amended his previous sentencing, which led him into error. And he submits the Judge failed to give appropriate weight to ss 8(c) and 8(e) of the Sentencing Act 2002, which concern the seriousness of the type of offence compared with other types of offences, and the general desirability of consistency in sentencing with similar offenders in similar circumstances.
[9] Mr Britton, for the Crown, submits the starting point was appropriate and in line with recent authorities to treat attempted sexual violation by rape as analogous with attempted sexual violation by penile penetration of the mouth.20 It is the intention to violate without consent that colours the seriousness of attempts. It is misconceived to place much weight on skin-to-skin contact. It was for the Judge to assess the seriousness of the offending by weighing all the facts. It was open to the Judge to consider a starting point by comparison with band one for rape, in the range of six to eight years. The starting point is consistent with the starting points in Bowman and Harawira which involved attempts close to completion. The cases referred to by Mr Dye involved digital penetration which are not appropriate comparators. The end sentence is within the available range. Mr Britton submits that the Judge did consider the sentencing afresh and did account for the factors in ss 8(c) and 8(e).
Was the sentence for the attempted sexual violation manifestly excessive?
[10] The Court of Appeal’s “rape” sentencing guidelines, expressed in R v AM, also explicitly apply to penile penetration of the mouth.21 As the Court of Appeal said, any act of sexual violation involves “an act of violation to the body of another involving at the very least an invasion of privacy and loss of personal dignity”.22 Equating penile
19 Men v R [2022] NZCA 455; O (CA643/20090 v R [2010] NZCA 609; R v Lynch [2014] NZHC
1788; Britow v R [2017] NZCA 229; and R v Yen [2007] NZCA 203.
20 R v AM, above n 11d; Bowman v R, above n 12; and Harawira v R, above n 12.
21 R v AM (CA27/2009), above n 11, at [5].
22 At [68] citing R v Accused CA265/88 [1989] 1 NZLR 643 at 653.
penetration of the mouth with other forms of penetration was a deliberate change in sentencing practice.23 The Court emphasised that the sentencing judge must assess the degrees of seriousness with a reasonable degree of latitude.24 Band one for rape and penile penetration of the mouth, with a starting point of six to eight years, was said to be appropriate for cases where the encounters and violation were relatively brief but not to be appropriate where the victim is vulnerable by reason of age or mental impairment.25
[11] It is true that the Court of Appeal in R v AM did not explicitly discuss attempts. But in Bowman and Harawira, the Court of Appeal held that the culpability assessment factors and banding in R v AM are still relevant and should be used in assessing the starting point for attempted rape.26 The principles are analogous for attempted penile penetration of the mouth. The case Mr Dye relied upon, D (CA95/2014) v R, did not involve penetration, a fact the Court of Appeal there specifically noted.27 Accordingly, I do not consider the Judge erred by referring to cases of attempted sexual violation by rape in setting the starting point here at five years’ imprisonment.
[12]Mr Dye made a valiant effort to distinguish the cases of Bowman and
Harawira:
(a)In 2014, Mr Bowman, aged 17 at the time of the offending, was convicted for attempted rape and attempted digital penetration, apparently on the basis that he had mistakenly and fleetingly penetrated the drunken young complainant’s anus with his penis and finger, thinking it was her vagina.28 The Court of Appeal upheld a starting point of five years’ imprisonment for the attempted rape, aggravated by vulnerability, significant emotional harm, minor physical injury, and an element of breach of trust.29 I note that, in discussing the fine line
23 At [76].
24 At [78]–[79].
25 At [93]–[94].
26 See Bowman v R, above n 12, at [17]; and Harawira v R, above n 12, at [54].
27 D (CA95/2014) v R [2015] NZCA 171 at [63].
28 Bowman v R, above n 12, at [6]–[9].
29 At [17].
between attempts and completed acts, the Court of Appeal did not discuss the importance of skin-to-skin contact.30
(b)In 2019, Mr Harawira was convicted of sexual violation by digital penetration, attempted rape and attempted sexual violation by penile penetration of the mouth of an 18-year-old complainant. Mr Harawira was a friend of the family, who often came over to the complainant’s house to use her mother’s Wi-Fi. He admitted he would use Wi-Fi to watch pornography, when outside the house on the road. On this occasion, Mr Harawira entered the complainant’s bedroom, locked the door, lay down on top of her, pulled her top up and her tights and underwear down but was unable to insert his penis into her vagina or her mouth because of her struggling and resisting.31 The Court of Appeal considered the five-year starting point could not be impugned, as it reflected the seriousness of the offending, involving a breach of trust, violence, and vulnerability.32
[13] The Court of Appeal in Harawira compared the offending with that in Pesefea, as did the Judge here.33 In Pesefea, the offender was convicted of attempted sexual violation of a 14-year-old girl who was staying at his house. Mr Pesefea forced the complainant into his bedroom, pinned her on his bed, was unsuccessful in removing her shorts, but undid her zipper and inserted his penis through her clothing, simulating sexual intercourse until he ejaculated on her.34 The Court considered the starting point of six years was not out of line.35
[14] Here, it was for the Judge to assess the seriousness of the offending by weighing all the facts. I consider the Judge’s assessment of the aggravating factors was correct. This was an attempted violation of an eight-year-old child with an intellectual disability in her own bed at home at night by a much older man who should have been able to be trusted, preceded by intentional exposure to a recording of her
30 At [17].
31 Harawira v R, above n 12, at [4]–[5].
32 At [55]–[59].
33 At [58]; and Second Sentencing, above n 8, at [20].
34 Pesefea v R, above n 12, at [3].
35 At [11].
mother engaged in sexual activity and touching of her genitalia. The aggravating factors are worse that in the above cases. Having regard to the above cases, I do not consider the Judge erred by setting the starting point at five years’ imprisonment.
[15] Other cases also support a five-year starting point being within range. For example, in Rua v R a teacher-aide, convicted of sexual violation by digital penetration and attempted sexual violation by attempted penile penetration of the mouth of an 11-year-old pupil, had a starting point of five-and-a-half years.36
[16] The other cases Mr Dye relies upon involve digital penetration, which the Court of Appeal has stated is generally less serious than penile penetration of the mouth.37 R v Yen was decided before R v AM and did not involve any physical element of attempt. Lynch v R involved a sentence of preventive detention. The other cases are relevant but do not mean the starting point was out of the available range.
[17] I consider the starting point of five years appropriately reflected the vulnerability of the complainant. The Judge did not err in relation to the starting point.
[18]In relation to the other arguments raised by Mr Dye:
(a)I do not consider the Judge erred by considering the extent to which he needed to reduce the sentence from the first sentencing. The Judge went through clear steps to assess the starting point afresh and said explicitly in the second sentencing:38
[12] I need to treat this in line with other penetrative sexual violation, but it is an attempt. So that tends to suggest that the overall sentence should not be reduced by very much, but as I have said to Mr Dye today it is not so much a case of comparing what I did last time with what I should do today but rather of determining today what I should do in relation to the new charge.
36 Rua v R [2014] NZCA 599. And see Sherratt v R [2021] NZHC 1901 where attempted sexual violation by rape of an 18-year-old, thwarted by impotence, had a four-and-a-half year starting point.
37 R v AM (CA27/2009), above n 11, at [73].
38 Second Sentencing, above n 8. Emphasis added.
(b)I do not consider the Judge failed to give appropriate weight to ss 8(c) and 8(e) of the Sentencing Act. He did consider the seriousness of the offence of attempted sexual violation with the offence of sexual violation and the desirability of consistency in sentencing.
[19] The uplift was not excessive and the discounts were not ungenerous. I consider the overall end sentence for the attempted sexual violation offence is not manifestly excessive. I do not consider another sentence should be imposed.
Issue 2: Lead offending
[20] Mr Dye submits the Judge erred in setting the attempted sexual violation offence as the lead charge, as opposed to the offence of sexual conduct with a child, which is inherently more serious due to the skin-to-skin contact and being a complete offence, rather than an attempt. He submits that error also led to the sentence being manifestly excessive.
[21] Both offences carry the same sentence. As the Judge stated, Mr Heng came very close to completing the attempt and he regarded it as “considerably more serious” than the indecent act offending.39 I agree that the attempted sexual violation offending is more serious. And even if it were not, the Judge still had discretion to make it the lead offence.40 It is the end sentence that matters, which I have held is appropriate.
Issue 3: Seriousness of indecent act
[22] Although the overall sentence of imprisonment will remain the same, Mr Dye also submits the sentence of three years’ imprisonment for the indecent act offence was manifestly excessive and the relevant case law points to a starting point of 18 months’ imprisonment. This was not canvassed extensively by counsel in oral argument who relied primarily on written submissions.
[23] On examining the case law, I agree that the starting point of three years’ imprisonment for the indecent act offence was too high. In Stevens v Police, which
39 At [23].
40 Thomas v R [2020] NZHC 2138 at [5] and [27].
concerned a single instance of short duration involving a four-year-old girl, Potter J in the High Court considered the starting point for this type of offending falls within the range of six months and two years and set it there at 16 months.41 The Court of Appeal cited that with approval in Men v R.42 There, there were five offences of indecent assault on a child of six and seven years, in two incidents that included touching her genitalia and placing her hand on his penis. The Court held the starting point for each incident was 18 months’ imprisonment.43
[24] Taking into account the differences in the offending, including in particular the complainant’s vulnerability here, I consider a sentence of 20 months’ imprisonment should be imposed for the offence of committing an indecent act on a child. That does not affect the overall end sentence for the offending as a whole.
Result
[25] I dismiss the appeal of the sentences for attempted sexual violation and indecent communication with a young person.
[26] I allow the appeal of the sentence for committing an indecent act on a child and substitute the concurrent sentence of three years’ imprisonment with a concurrent sentence of 20 months’ imprisonment.
Palmer J
41 Stevens v Police HC Hamilton CRI-2007-419-133, 11 December 2007 at [32].
42 Men v R, above n 19, at [50].
43 Men v R, above n 19, at [50].
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