Nesbitt v Police HC Christchurch CRI-2010-409-000090
[2011] NZHC 1927
•30 November 2011
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2010-409-000090
BETWEEN TONY JESSIE NESBITT Appellant
ANDPOLICE Respondent
Hearing: 13 October 2011
Appearances: A J McKenzie for Appellant
A Raj for Respondent
Judgment: 30 November 2011
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on
30 November 2011 at 11.00 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Raymond Donnelly & Co., Crown Solicitors, PO Box 533, Christchurch 8140
Copy to:
A J McKenzie, PO Box 13968, Christchurch 8141
NESBITT V POLICE HC CHCH CRI-2010-409-000090 30 November 2011
[1] Mr Nesbitt pleaded guilty to two charges relating to sexual conduct with a young person under 16. He was sentenced to two and a half years’ imprisonment. He also faces trial in relation to a separate alleged sexual violation incident said to have occurred while he was on bail in respect of the above charges. Mr Nesbitt sought an adjournment of his sentencing so that he could be sentenced, if necessary on all offending at the same time.
[2] The application for adjourment was declined and Mr Nesbitt appeals against sentence. He says there should have been an adjournment to enable sentencing on the basis of the totality of the offending. Mr Nesbitt also argues that the uplift was excessive and that there should have been a discount for remorse.
[3] Ultimately, I must also address whether the end sentence of two and a half
years’ imprisonment is manifestly excessive.
Facts
[4] In about mid-2010 the victim met Mr Nesbitt through a friend. She was aged
13 at the time and Mr Nesbitt was 20. He was aware of her age. They communicated regularly through text messaging and facebook. A lot of the talk was of a sexualised nature. They also met personally on a number of occasions. In early July 2010 the victim’s father learnt of the friendship and warned Mr Nesbitt to stay away due to her being only aged 13.
[5] Mr Nesbitt ignored those warnings. On 27 July 2010, Mr Nesbitt travelled to
the victim’s address and engaged in consensual sexual intercourse with her. On
2 August Mr Nesbitt turned 21. On 4 August the defendant again travelled to the complainant’s address and engaged in consensual sexual intercourse with the complainant.
[6] Mr Nesbitt pleaded guilty to this offending in January, whereupon the Judge entered conviction and gave the first warning for a qualifying stage 1 offence, as he was required to do. Mr Nesbitt was remanded through to 6 April for sentencing. The February Quake intervened, resulting in the sentence being deferred to 2 September.
[7] A second charge for similar though unrelated offending was laid on 1 July
2011. This offending allegedly took place on in March 2011, after the first warning. He has pleaded not guilty to this charge and the matter is proceeding to trial.
[8] Mr Nesbitt is now a 21 year old male, unemployed and has previous convictions, though none of a similar kind to the current offending.
District Court judgment
[9] In a concise but comprehensive judgment, Judge D J L Saunders identifies the key facts relevant to the offending, the aggravating features of the offending, the underlying purpose of Parliament’s protection of girls under the age of 16 from sexual predation, the reasons for not deferring sentence, the starting point for sentencing in accordance with leading authorities, the reasons for an uplift of four months and a full credit for a guilty plea. All of this resulted in a sentence of two years six months on the lead offending of sexual connection with a person then aged
13 and a sentence of two years, to be served concurrently, for sexual grooming.
[10] On the specific issue of adjournment and the second subsequent allegations against Mr Nesbitt, Judge Saunders said:
[7] …While I understand some of the reasons behind that request and the fact that it is likely given prison policy, that you will be denied a treatment programme until outstanding matters are resolved, I have to also weigh the interests of the victim and the fact that this matter has now been before the Court for many months.
[11] Judge Saunders also stressed that no emphasis was placed on the second trial because, as a matter of law, Mr Nesbitt was entitled to the presumption of innocence.
Grounds of appeal
[12] The appellant contends:
(a) Sentence should have been deferred until resolution of the outstanding charge;
(b)The Judge was wrong to apply an uplift on account of previous convictions;
(c) The Judge should have allowed a discount for the appellant’s remorse
in addition to the 25 per cent for the prompt guilty plea. [13] I will deal with each ground in turn.
Deferral
[14] Mr McKenzie stressed the following matters:
(a) The totality principle means that it is preferable to sentence all matters together (assuming Mr Nesbitt is found guilty of sexual violation on the second charge);
(b)The appellant can undertake no rehabilitation while awaiting trial for the sexual violation;
(c) The appellant received a first warning under the three strikes legislation when convicted and sentenced by Judge Saunders. If convicted of sexual violation again, then under s86C of the Sentencing Act 2002, the appellant will be given a second warning and will serve any sentence without parole;
(d)The separation of sentencing could result in Mr Nesbitt not having the benefit of time served, with the result that separate sentencing would have a disproportionate effect on him.
(e) Deferral of sentencing involved no strong detriment to the victim in the current matter.
[15] I am not satisfied that the refusal to defer provides a proper basis for overturning the sentence. My reasons are as follows.
[16] First, the timing of sentence is a discretionary matter for the sentencing Judge and accordingly I should not lightly intervene in the exercise of that discretion. In this regard, the Judge had regard to most relevant factors,[1] including the implications of a second conviction at [6], access to treatment at [7], and the rights of the victim at [7] and Mr Nesbitt’s age at [16].
[1] R v Nesbitt DC Christchurch CRI-2010-009-018451, 2 September 2011.
[17] Second, if Mr Nesbitt is found guilty on the subsequent charge, the sentencing Judge on that matter may have regard to the first sentence and is not precluded from having regard to the totality of the offending at that time,[2] and any sentence is amenable to appeal if the outcome is manifestly excessive.
[2] R v Skipper [2011] NZCA 250.
[18] Third, while it is regrettable that Mr Nesbitt cannot undertake counselling as soon as possible (if that is the case), this factor is simply one of several to consider and not by itself a basis for saying the decision to proceed with sentencing was flawed.
[19] Fourth, the implications of the second warning flow from the operation of the three strikes provisions in the Sentencing Act 2002. There is no inherent injustice in this. The second charge for similar though unrelated offending was laid on 1 July
2011, some months after the first warning. It is only through happenstance that sentencing on all offending might now take place contemporaneously. Plainly if all charges were laid at the same time then the first strike warning would apply to all of them. The effect of this would be that Mr Nesbitt would be entitled to parole in respect of all sentences. But that did not happen and the timing of sentencing cannot reverse that fact.
[20] I accept that deferring sentencing might enable the Judge to ameliorate the apparent severity of s86C of the Sentencing Act 2002. But a key purpose of the warnings under that legislation is to deter repeat serious offending. That purpose could be seriously diluted if the sentencing process were employed to avoid or
ameliorate the effect of section 86C, especially in relation to offending that occurred
after the first warning. For this reason also I reject the refusal to defer as a valid basis for changing sentence.
[21] Fifth, Mr McKenzie’s concern about the Mr Nesbitt not having the advantage of time served is also a complaint about the ordinary operation of law, namely section 91(5) of the Parole Act 2002 and I see no inherent injustice arising from this complaint either.
[22] Under section 91(5) detention under the first sentence is not pre-sentence detention for the purpose of a subsequent sentence. The effect of that is that Parole Board does not treat that as time served for the purpose of its assessment of Mr Nesbitt’s statutory release date or eligibility for parole on the subsequent sentence. Mr McKenzie contends therefore that deferring sentencing will enable all detention up to sentencing to be treated as time served for Parole Board purposes.
[23] But the corollary of all of this is that the detention under the first sentence is not automatically precluded by section 82 of the Sentencing Act 2002 from consideration in determining the length of imprisonment on the second sentence. Under that section only pre-sentence detention as defined by s91 of the Parole Act is excluded from consideration. Where appropriate therefore that detention might have a bearing on the length of imprisonment under the second sentence. For example, there are circumstances where it might be appropriate to reduce the length of a second sentence to avoid an element of double punishment, including where an accused would have been eligible for parole in the absence of being in remand in
custody on the new offence.[3]
[3] Refer Adams on Criminal Law (online ed) at SA 82.03
[24] While it is not necessary for me to decide the point, I would also hesitate before endorsing an exercise of discretion on the timing of sentencing solely to circumvent the normal operation of the Parole Act, particularly in a context where the subsequent offending occurred after a guilty plea on the first offending. Arguably that would not be consistent with the purpose of the exception specified in
section 91(5).
[25] I note for completeness that both Mr McKenzie and Ms Raj sought to persuade me that there would be, or would not be, a material difference in actual time served depending on the timing of sentencing. I conclude that at best it was a draw. The outcome really depended on the assumptions employed. Ultimately, I decide this point on the basis that the outcome is not inherently unfair and any apparent unfairness can be addressed, if appropriate, by the second sentencing Judge.
[26] Finally, Mr Nesbitt’s assessment of the detriment to the victim of deferral is not soundly based. One obvious value of sentencing is that it is a critical step on the path to closure for victims. The victims here included not only the affect young girl, but her family. Without some clear evidence to the contrary, a sentencing Judge is entitled to assume that delivery of sentence as soon as reasonably practicable, better serves the interests of the victims than not. This point has no merit.
Uplift and Remorse
[27] Mr McKenzie is correct that the uplift of 4 months for unrelated offending is high. Plainly disregard for the law is an aggravating feature and not irrelevant to the judicial task of sentencing. However the prior offending was of markedly different kind, and occurred when Mr Nesbitt was aged 17 to 19. For my part I would not have included an uplift of 4 months on the grounds of his prior convictions. I do nevertheless agree with the Judge that uplift for offending while on bail was appropriate.
[28] As to remorse, it does not feature overtly in the sentencing. The presentencing report suggests that Mr Nesbitt was remorseful. But I need to remind myself that any remorse must be genuine before it warrants a discount. The comments in the report do not, in my view, paint an overly compelling picture of remorse. While a different view could be reached on this, I see no significant error in the approach taken by Judge Saunders.
Manifestly excessive
[29] I come then to the primary issue of whether in all of the circumstances the sentence was manifestly excessive. With respect to the careful submissions of Mr McKenzie, the sentence is well within the spectrum of sentences for this type of offending.4 While I may have reached the result by a different route – for example I view the features of the offending as more aggravating than the Judge and I would not have uplifted the sentence to account for the previous convictions – the end
result is not manifestly excessive or even out of the ordinary.
[30] There is one feature that did initially cause me some pause for concern and that is the observation by the Judge that at 20 years, Mr Nesbitt should be treated as an adult. The point may be fast approaching where a person aged of 20 is not presumptively an adult and more consideration needs to be given to personal circumstances when fixing a sentence. As the Court of Appeal recently stated, a lengthy prison sentence can have a disproportionately punitive effect on a younger
person.5 Having said all of this, the Judge plainly gave thought to his age as is
evident from the following passage:
[16] I certainly recommend to the prison authorities having regard to your age that you do be considered for treatment. Whether or not you are admitted to a treatment programme may of course depend on outstanding matters. I certainly urge the Crown to have regard in the interests of both the young victim in that matter and your ability to undertake a sentence, that there be some expedition in relation to getting that matter resolved.
[31] I respectfully endorse these comments and the final sentence.
[32] The appeal is dismissed.
Whata J
4 R v Johnson [2010] NZCA 168 and cases cited therein.
5 Churchward v R [2011] NZCA 531.
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