M v Police HC Wellington CRI-2011-485-72

[2011] NZHC 1056

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-72

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 September 2011

Counsel:         S McClean for the Crown

P Paino for Respondent

Judgment:      21 September 2011

JUDGMENT OF MALLON J

Contents

Introduction ....................................................................................................................................... [1] Background........................................................................................................................................ [3] Jurisdiction ........................................................................................................................................ [9] Starting point ................................................................................................................................... [10] Mitigating factors ............................................................................................................................ [16] Home detention................................................................................................................................ [29]

Result ................................................................................................................................................ [30]

M v NZ POLICE HC WN CRI-2011-485-72 21 September 2011

Introduction

[1]      M  is  23  years  old.    He  is  presently  serving  a  three  year  imprisonment sentence for rape.   The offending was in relation to a girl who was part of his extended  family but  was  not  a blood relative.   The offending occurred  on  two occasions between 2002 and 2004 when M was 14 and 15 years old and the victim was between 8 and 10 years old.  The offending did not come to light for some years but, when it did, M admitted it.  M was aged 22 years when he was charged with this offending and sentenced by the District Court.  In the intervening years M had left school, gained steady employment and was in a stable and supportive relationship with a partner.

[2]      M appeals against his sentence on the grounds that it is manifestly excessive. On his behalf it is submitted that the District Court Judge adopted too high a starting point, failed to take into account the delay between the offending and the sentencing or otherwise gave an insufficient discount for his youth at the time of the offending, and erred in rejecting home detention.

Background

[3]      As an older member of the victim’s extended family, the defendant was often given the responsibility of babysitting the victim.  The first rape occurred when M was staying at her house during the summer holiday.  It seems that M was 14 years old and the victim was 8 or 9 years of age.   M was left to babysit the victim and other young children one afternoon.  M called the victim into a bedroom.  He put her onto a bed, pulled down her underwear and had sexual intercourse with her. After he had finished he told her not to tell anyone about what had occurred.

[4]      The second occasion occurred when M was 15 and the victim was 9 or 10 years old.  They were both attending a family funeral and were staying on a Marae. M approached the victim in the night while she was asleep in the wharenui.  He lay down next to her and began touching her and placing his fingers inside her vagina. He removed her underwear and had sexual intercourse with her.

[5]      At the time of the offending the victim did not know what “sex” was.  She later became aware of this when her school was teaching the children about sexual health.   She told her family about M’s offending in about March 2009.  A family meeting was held.  M admitted his offending to his whanau.  M’s mother persuaded M to be assessed for potential intervention for individuals with sexual deviancy problems  as  the  whanau  were  concerned  that  M  might  be  a  paedophile.    The outcome of the assessment was that M was not deemed as requiring intervention.

[6]      M was charged in 2010.  His guilty plea was entered on 3 November 2010. He was sentenced in December 2010.  M said to the pre-sentence report writer that at the time he did not think what he had done was wrong.   Leading up to the first incident, he had been viewing pornography and masturbating constantly but had no experience of sexual activity with a female.   He was still viewing pornography regularly in the lead up to the second incident but by this time was also engaging in consensual sexual activity with a female of a similar age as himself.  He said to the report writer that he did not dwell on his actions at the time or think about the victim and that it was not until years later that he realised it was wrong.  He told the pre- sentence report writer that he is ashamed and disgusted by his actions.  He presented to the report writer as regretful and remorseful.

[7]      M left school when he was 16.   He worked in a variety of jobs before securing the job he held at the time he was sentenced in the District Court.  He had been in that job for 19 months and in the last two months had been promoted to a supervisory position.  The information before the District Court Judge was that he was his employer’s “best worker” and was very reliable, willing and trustworthy and

clients had provided positive feedback about his performance.1   M had a supportive

family and was in a committed relationship with his partner.2

[8]      For her part, as is inevitably the case in offending of this kind, the offending has had a significant impact on the victim.  She feels like she lost her childhood.  She

does not know how to be around boys.  She feels shame and anger.  She has dropped

1      This is supported by letters submitted to me on the appeal which also advise that M will be re- employed upon his release from prison.

2      The support from his family and partner remains.

out of school and binges on alcohol.   She has had counselling to help her cope with the bad feelings she has.

Jurisdiction

[9]      Because M was 22 at the time that he was charged with these offences, he was proceeded against in the District Court.  M applied under s 160 of the Summary Proceedings Act 1957 to be called before the Judge, prior to committal, in order to plead guilty.   Having been sentenced by the District Court in accordance with the procedure under s 161 of the Summary Proceedings Act and sentenced to a term of

imprisonment of less than five years, the appeal is to the High Court.3

Starting point

[10]     The District Court Judge adopted a starting point of eight years.  In doing so he applied band 2 (for which the range is 7 to 13 years) as set out in the Court of Appeal’s guideline judgment in R v AM,4   but also recognised that if he applied the top of band 1 the result would be the same.   His sentencing notes indicate that counsel were agreed that the case applied although it was a recent judgment and the offending pre-dated the judgment.5   In setting this starting point the Judge referred to the vulnerability of the victim, that M was her babysitter, that there was an element of pre-meditation, that the impacts on the victim were immeasurable, especially because of her age, and that there were two separate incidents.

[11]     The first issue raised by counsel for M is whether R v AM applies to youth offending.  This submission was raised in the written submissions for M on the basis that it has been said that there is no tariff for youth sexual offending,6 and the Court of Appeal in R v AM did not say that this authority was overruled.  However, in oral

submissions counsel for M accepted that R v AM does apply.

3      Section 28H District Courts Act.

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

5      R v AM at [125] states that the guidelines are to apply to all sentencing taking place after 31

March 2010.

6      R v TT CA257/02, 29 October 2002.

[12]     I agree that R v AM applies to sexual offending involving young offenders. Two of the examples the Court of Appeal gives in R v AM, as illustrations within the bands, involved young offenders.7     In one of those two examples, the Court of Appeal hearing the sentence appeal in that case said that the correct methodology was to adopt a starting point for an adult offender and to then treat youth as a mitigating factor.8   In R v AM9 the Court of Appeal said that the bands were starting points and were, in the usual way, to be adjusted up or down to reflect circumstances personal to the offender such as “youth.”   This is consistent with the approach required when sentencing a young person in the District Court or High Court where the sentencing has been transferred from the Youth Court.10

[13]     On the basis that R v AM applies, the next issue is whether the starting point of eight years which the District Court Judge adopted was too high.  Counsel for M submits that  the appropriate starting point  was somewhere in  the lower part of band 1 (for which the range is 6 to 8 years).  He submits that the offending could not really be described as a breach of trust.  He makes the point that M was not a paid babysitter or trained caregiver.  Rather, it was a situation where M was left in charge of the children as the oldest child amongst them.  He submits that it was wrong to characterise the offending as involving any real pre-meditation.  He submits that on both occasions M acted impulsively and without the sort of self-control which comes with maturity and social experience.  He submits that, while the victim was young and M was older, the age disparity was not as great as in other cases involving adult offenders and young children.

[14]     The difficulty with accepting that the offending falls within band 1 is that the Court of Appeal has indicated that band 1 is not appropriate where the victim is vulnerable because of age.  The victim here was 8 or 9 on the first occasion and 9 or

10 on the second occasion.  That indicates that the lowest possible starting point is seven years (the bottom of band 2) and, depending on whether there are aggravating

factors, the starting point could be higher, unless the case is so unusual that a starting

7      R v Castles CA105/02, 23 May 2002; R v Alletson [2009] NZCA 205.

8      Alletson at [67].

9 At [84].

10     Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868.

point outside the band is appropriate.11   In this case the age disparity was not of the kind as in R v W,12 and did not involve the kind of breach of trust as in R v S,13 which are both given as examples of offending at the lower end of band 2.  Although there were two incidents, and that is aggravating, they were isolated incidents rather than on-going persistent offending.  There was no mob element as in R v Castles.14 The offending was more impulsive than pre-meditated.  There are no other aggravating

factors as discussed in R v AM.

[15]     I consider that the offending was at the bottom of band 2.  I do not view the case as so unusual as to take it outside the band altogether.  A seven year starting point might have been taken had there been just the first incident but that was not the case.  I consider that it was open to the Judge to take a starting point of eight years’ imprisonment.  I view the serious aggravating feature of the victim’s young age as only very slightly diminished by the relative youth of M.  That is because there was still an age disparity as  between M and the victim,  which M was able to take advantage of (as is illustrated by the victim not knowing what sex was).

Mitigating factors

[16]     The District Court Judge reduced the eight year starting point by 40 per cent to take into account M’s reduced level of criminality because of his age.   That brought the sentence down to 57 months.  To that he applied a 33 per cent discount for remorse and the guilty pleas.  That brought the sentence down to 38 months.  He then reduced the sentence by a further two months because of the whanau meeting which he described as a de facto restorative justice meeting.   That meant an end sentence of three years’ imprisonment.

[17]     Counsel  for  M  submits  that,  in  discounting  the  sentence  for  mitigating factors, the Judge failed to take into account the impact of sentencing M at age 22 for

11     R v AM at [83].

12     R v W CA87/93, 4 June 1993 where the offender was an adult boxing trainer/coach and his victims were aged 11 to 16.

13     R v S [2009] NZCA 210 where the offender was the father of the victim’s sibling and the victim regarded the offender as “Dad.”

14     R v Castles where there were seven involved in the sexual violation of their class mate and in respect of which the Court of Appeal considered the starting point ought to have been not less than 7 years.

offending when he was 14 and 15.  He submits that, had M been sentenced when he was 14 or 15, he was unlikely to have been sentenced to any term imprisonment.  He submits that is because M was at school at that time and it is likely that he would have been viewed as having good rehabilitation prospects.  He submits that here M had actually demonstrated his rehabilitation and yet no allowance appears to have been made for this.

[18]     The District Court Judge referred to M’s age as being 23.  That appears to be an error according to the birth date and M’s age as referred to on the pre-sentence report.  That error is not significant.  The Judge recognised that it was relevant that there had been a number of years between the offending and the sentencing.15   As to this he said:

... I have got to try and treat you as a District Court Judge would have if you had been called to account at around that time and the case was transferred from the Youth Court to the District Court for sentencing, as would have happened I am sure.  You would not have been dealt with in the Youth Court for this type of offending but would have had to face sentence in the District Court.

[19]     Therefore,   given   that   the   Judge   went   on   to   impose   a   sentence   of imprisonment, the Judge’s view must have been that even if sentenced at age 15, an imprisonment sentence would still have been imposed.   When the Judge came to consider the appropriate sentence he applied band 2 from R v AM and took account of youth by the 40 per cent discount he applied to the starting point.  In explaining that discount the Judge referred only to the level of maturity and understanding that M would have had at age 14 or 15 years.  This different level of maturity is relevant when considering impulsive sexual behaviour as occurred here.  As is explained in a

psychologist report referred to in R v Slade16:

It is widely accepted that adolescents do not possess either the same development   level  of  cognitive   or   psychological  maturity  as  adults.

15     For example, in Corney v R HC Wanganui AP 10/00, 31 August 2000 the Court considered it relevant how the offender would have been sentenced if he had been sentenced at the time of the offending (when aged 15). The offending did not come to light until he was aged 36 years. The case pre-dates the now standard R v Taueki approach to sentencing and the offender’s youth was taken into account “in the round.”

16     R v Slade at [43]; and relied on in R v Patea-Glendinning (2006) 22 CRNZ 959. Also in R v Alletson, in the context of sexual offending, the Court of Appeal accepted that the offender’s immaturity and lack of judgement could reduce the criminal responsibility.

Adolescents   have   difficulty   regulating   their   moods,   impulses   and behaviours.

[20]     So the Judge was correct to discount the start point for reduced culpability because of M’s age for offending of the nature that occurred here.  But there were other relevant considerations.

[21]     While sometimes the seriousness of the offending requires imprisonment17 the Court can recognise that prison is likely to have harsh effects on adolescents,18 and that society might be better served by imposing a sentence that enabled a young person to stay at school (rather than sending a teenage boy, with good prospects, to

the prison environment where he might emerge a more hardened criminal than when he went into prison).  That would have been a relevant consideration had M been sentenced when he was 15.  On the other hand, M was not before the Court for this offending when he was 15.  He had the chance to complete school, establish a good employment history, and to form good relationships with contributing members of society.  At 22 years old it might be said that he was better placed to withstand the rigours of the prison environment than he would have been at 14 or 15.  That said, M at 22 is still a young man for whom imprisonment is likely to bear heavily.   The Judge did not refer to these considerations.

[22]     I consider it is also relevant that, had M been sentenced at 15, the Court would have only had M’s potential to rehabilitate to consider rather than his demonstrated rehabilitation.   Here, the Court was able to consider that M has not gone  on  to  re-offend  in  any similar  way and  is  not  considered  to  be  likely to (although he was convicted of some driving offences and one charge of male assaults female in the period between 2006 and 2009).  Reformed character is a mitigating

factor that can be taken into account.19    As was said in a decision of the British

17     For sexual violation the presumption is in favour of imprisonment (s 128B(2) of the Crimes Act

1961).

18     R v Slade [2005] 2 NZLR 526 at [43] refers to a report from a psychologist that adolescents suffer more from incarceration than do adults.

19     For example R v Way HC Hamilton CRI 2004-019-4311, 30 June 2005. The offender in that case was 17 years at the time of the offending but was not sentenced until he was 47 years old.

More generally, that this discretion existed is acknowledged in R v Seiuli [2009] NZCA 315 although viewed as counterbalanced in that case by the much lower sentencing levels which applied to the offender because of the historic nature of the offending. The topic is discussed in Geoffrey C Hall Hall’s Sentencing (looseleaf ed, LexisNexis) at [I.7.7(b)] and a number of other examples are set out in that discussion.

Columbia Court of Appeal,20 and cited with approval by our Court of Appeal in R v

Carruthers:21

... a conventional term in prison should not be the only possible response of society in requiring this accused to account for his misconduct, particularly after he has rehabilitated himself, and when such a response would not only be  meaningless  punishment  but it would  also seriously harm his  fragile family  unit,  and  could  reverse  or  have  a  negative  effect  upon  the rehabilitation which has been accomplished.

[23]     Apart from the prospect of doing more harm than good, where an offender has reformed in the intervening period, the concern for the safety of others is a less significant factor,22  and the need for individual deterrence may have diminished

altogether.23   Here, M has demonstrated in the intervening years that the sentence for

this  offending  does  not  need  to  be  directed  to  individual  deterrence.    While  a sentence of imprisonment was appropriate for denunciation and accountability purposes, the term imposed could reflect that no individual deterrence was necessary and a lengthy term of imprisonment may do more harm than good for M in returning to the community as a contributing member of society.

[24]     In this case M received a total discount of around 63 per cent.   An adult offender, who had not previously offended, and who entered a guilty plea at the first available opportunity and had demonstrated genuine remorse including by taking restorative justice steps, could have received a discount of around 33 per cent from the eight year starting point.  When considered in this light, the total discount M was given was in my view insufficient allowance for M’s immaturity at the time of the offending, that in the intervening period he had shown that he was not someone in respect of whom a deterrent sentence was necessary and that he remains a young man with potential for whom any period of imprisonment is likely to bear heavily.

[25]     There is no specific percentage that represents the appropriate discount for such factors.  As is recognised in Pouwhare v R, the fact that the offender is a young person can sometimes be given “radical effect” on sentence.   Taking the starting

point of eight years’ imprisonment, I consider that the sentence should be reduced to

20     R v DESM (1993) 80 CCC (3d) 371 at 375.

21     R v Carruthers CA 401/94, 10 April 1995 at 5.

22     As was said in R v D CA 221/95, 5 September 1995 at 5.

23     R v Tutty [1998] 3 NZLR 165 (CA) at 169.

three years’ imprisonment for all these relevant factors.  I consider that the sentence should be further discounted to two years’ imprisonment to take account of M’s guilty plea, remorse and the steps that were taken before he was sentenced (to acknowledge  his  offending  to  the  family  and  to  be  assessed  for  potential intervention).

[26]     I  consider  that  a  sentence  of  two  years’  imprisonment  brings  the  end sentence24 more into line with other comparative cases.25   For example, in R v CS,26 the offender was aged 17 when sentenced and 14 at the time of his offending.  He faced 12 counts of sexual violation by unlawful sexual connection.  The victim was

10 years old.  The offender was sentenced to a term of imprisonment of two years. The offending was more serious than here because of its ongoing nature.

[27]     Another example is R v TT.  In that case the offender was 15 years old.  The victim was 7 years old.   He pleaded guilty to one charge of rape and one representative charge of sexual violation by digital penetration.  The Court of Appeal concluded that a three year term of imprisonment should be imposed.  The offending in that case was, in my view, more serious than here because, as well as the one incident of rape, the digital penetration occurred between 6 to 10 times, the victim was younger and she contracted gonorrhoea.

[28]     R v Alletson provides a further example.  In that case a sentence of two years and 10 months was not disturbed on appeal27 in relation to an offender found guilty after a jury trial on seven counts of sexual offending against two young girls, six of which were representative counts.   The most serious charge was a representative count of sexual violation involving digital penetration of the girl’s vagina.   The offender was aged between 15 and 17 years at the time of the offending.  One of the

young girls was aged between 8 and 10 years old.  The other was aged between 6

24     The end sentence is the appropriate comparator because the sentencing approach prior to R v AM

did not always take a starting point that would apply for an adult offender.

25     The offending in Police v C HC Auckland A49/03, 22 May 2003 and H v R [2011] NZCA 227 (the latter referred to by the respondent on this appeal as an example of R v AM applying to

youth offending) involved considerably worse offending. The respondent also referred to R v Titoko CA144/96, 11 September 1996 but that is an older case and the circumstances of the offending were different.

26     R v CS HC Auckland CRI 2006-244-75, 5 September 2008.

27     On the appeal it was submitted that it was manifestly excessive but this was rejected.

and 8 years old.  Because of the repeated nature of the offending, that the offender was older, one of the girls was younger, there was a greater age disparity and there was no guilty plea, the sentence in this case  should have been lower than was imposed in that case.

Home detention

[29]     For M it was submitted that the Judge erred by not imposing a sentence of home detention.   It is unnecessary to consider this further because M has nearly completed a year of his sentence.  A sentence of two years’ imprisonment will mean that he is released when he has served a year of his sentence.

Result

[30]     I conclude that the sentence imposed by the District Court was manifestly excessive.   The sentence is quashed and replaced with a sentence of two years’ imprisonment.

[31]     In  addition  to  the  standard  conditions,  I  impose  the  following  special conditions to apply for six months after the sentence expiry date:28

(a)      To undertake a psychological assessment and thereafter to attend and complete such intervention as deemed appropriate by a Departmental Psychologist and by the direction of the Probation Officer.

(b)To  attend  and  complete  any  other  counselling,  programme  or treatment, as may be directed by the Probation Officer.

(c)      Not to associate or otherwise have contact with any person 16 years of age or younger unless under the direct supervision of an informed

adult who has been approved in writing by the probation officer.

28     These conditions are as per the probation officer’s pre-sentence report and are not opposed on his behalf.

(d)Not  to  have  contact  with  the  victim,  either  directly  or  indirectly, without the prior written approval of the Probation Officer.

[32]     Although suppression of M's name has not been sought, this judgment refers to M to ensure that the identity of the victim is not disclosed.

Mallon J