Nicholas v The Queen
[2019] NZHC 3426
•19 December 2019
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2019-406-17
[2019] NZHC 3426
KANE NICHOLAS v
THE QUEEN
Hearing (via AVL): 13 December 2019 Counsel:
R A Harrison for Appellant
J W Cameron for Respondent
Judgment:
19 December 2019
JUDGMENT OF CHURCHMAN J
[1] Kane Nicholas was convicted (following the entry of guilty pleas) on 11 charges that included:
(a)representative charge of indecent assault;1
(b)sexual violation by unlawful sexual connection (x3);2
(c)male assaults female;3
(d)assault with intent to injure;4
1 Crimes Act 1961, s 135 (maximum sentence of seven years’ imprisonment).
2 Sections 128 and 128B (maximum sentence of 20 years’ imprisonment).
3 Section 194 (maximum sentence of two years’ imprisonment).
4 Section 193 (maximum sentence of three years’ imprisonment).
NICHOLAS v R [2019] NZHC 3426 [19 December 2019]
(e)abduction for sexual connection;5
(f)injuring with intent to injure (x2);6
(g)strangulation;7 and
(h)theft.8
[2] The offending all occurred in Blenheim on 23 May 2019 and the victim in all of the offending was unknown to Mr Nicholas prior to that day (the May offending).
[3]Mr Nicholas also pleaded guilty to:
(a)breaching bail between 1 May 2018 and 8 April 2019 (x5);
(b)receiving stolen goods between 28 October 2018 and 18 December 2018 (x3);9
(c)theft (on 13 April 2019);10 and
(d)representative charge of unlawfully using a document (the other offending).11
[4] These offences occurred in Gisborne. They resulted in a six-month uplift from the lead charges of unlawful sexual connection.
[5] For all charges, Mr Nicholas was sentenced by Judge Zohrab to nine years six months’ imprisonment with a 50 per cent minimum period of imprisonment (MPI) (being four years eight months’ imprisonment).12
5 Section 208 (maximum sentence of 14 years’ imprisonment).
6 Section 189(2) (maximum sentence of five years’ imprisonment).
7 Section 189A (maximum sentence of seven years’ imprisonment).
8 Sections 219 and 223(b) (maximum sentence of seven years’ imprisonment).
9 Sections 246 and 247(c) (maximum sentence of three months’ imprisonment).
10 Sections 219 and 223(d) (maximum sentence of three months’ imprisonment).
11 Section 223(1)(b) (maximum sentence of seven years’ imprisonment).
12 R v Nicholas [2019] NZDC 20109.
[6] He now appeals his sentence both on the basis that the finite sentence is manifestly excessive and that an MPI was not justified in the circumstances. The Crown opposes the appeal.
Relevant history of this appeal
[7] The appeal was lodged within time, but the original hearing date was adjourned on 13 November 2019 to 13 December 2019 (at Mr Nicholas’ counsel, Mr Harrison’s, request). The reason for the adjournment was to allow Mr Harrison adequate time to prepare the appeal.
[8] On 28 November, Mr Harrison filed a memorandum with the Court seeking a second adjournment of the hearing. The basis for the request was that following discussions with trial counsel:
... it is clear that a s 27 cultural report had been ordered for sentence but due to the constraints of time, the report writer withdrew from completing the report. What this meant was that counsel at sentencing did not have time to order another Cultural Report and instead attempted to address some of the matters that are addressed in a Cultural Report by way of an unsworn affidavit that was filed at Court. The affidavit was from [Mr Nicholas].
[9] Ultimately Mr Harrison opined that it was clear from reading Judge Zohrab’s sentencing notes that his Honour would have benefitted from a s 27 report and it may well have had a “significant effect” on the sentence and MPI imposed. On that basis, Mr Harrison sought an adjournment to February 2020.
[10] This was declined by Simon France J the following day. His Honour did so on the following basis:
The offending occurred in May. The nature of the offending means there should not be protracted delays. One adjournment has already been given. The Court already has considerable information.
Background
The May offending
[11] Mr Nicholas was 27 years old at the time of the May offending. On 23 May 2019, Mr Nicholas arranged an appointment with the complainant at a local motel.
She is a 53-year-old sex worker and was already in the room when he arrived. Upon entering her room, Mr Nicholas wore a hooded sweatshirt and kept his face concealed. He then grabbed her by the neck, pressed his arm against her throat and held his hand over her mouth to restrict her breathing.
[12] He then overpowered her and produced a choker chain from his pocket, which he wrapped around her neck and pulled on. He then taped a towel around her head and face and told her he did not want her to see his face. After taping another towel in her mouth so she could not scream, she was struggling so he punched her in the head which caused her to fall to the ground. He then bound her hands with duct tape so tightly that they turned purple. He removed the choker chain from around her throat and wrapped it around her wrists. He then dragged her by it, causing injuries to her shoulders and back. He then removed his clothing and pushed down hard on her face, saying he did not want her to see him, causing her to lose consciousness.
[13] While she was unconscious, he inserted an item into her anus inflicting extreme pain and causing her to regain consciousness. This act tore her perineum. She begged for water but he punched her in the head several times, telling her to “shut up”. He raised her legs above her head and again inserted an object into her anus. She believed the object was either a bottle or an aerosol can. During this assault, he pushed his hands down on her stomach “seemingly in an attempt to feel the object as it was being pushed into her anus”. The assault continued with him inserting kitchen tongs into her vagina. This occurred a number of times and on one occasion, he sat on her face while he did it.
[14] He inserted his fingers into her vagina and pulled her labia out from her body, stretching her vagina wide apart. He used a knife to cut some of her pubic hair and when she struggled, he poked her in the stomach with the knife. He pulled her nightgown over her head and used the tongs to aggressively pinch her nipples, causing redness and soreness. He then removed the choker chain from her wrists and forced her to hold his erect penis. She could feel there was a condom on his penis. He dragged her across the room and repositioned her during this attack at least twice.
[15] After Mr Nicholas was finished sexually assaulting her, he went through her belongings and stole $600 hidden in a kitchen drawer, along with three cell phones. She believed he had left the room so she got up, but he saw her, ran up to her and kicked her in the side of her body, breaking three ribs and causing her to fall to the ground. He eventually left and she shuffled to the door where she was able to attract the attention of motel staff. She was found gagged, bound, bleeding from her vagina and anus and her hands were purple. At best she could estimate, the attack took place over a two-hour period. She thought she was going to die.
[16] The assault caused split skin at the opening of her vagina, a torn perineum, multiple bruises to her body consistent with her account of the attack, two loosened teeth, bruising to her face, red marks on her neck and wrists, three broken ribs and a graze on her right shoulder.
[17] When questioned, Mr Nicholas initially denied meeting the complainant before saying the sex was consensual. He also initially denied tying her up but then said the use of duct tape was a consensual sexual activity. He told police it was a bit rough but she was “just a prostitute”. He eventually pleaded guilty following a sentencing indication in September 2019.
The other offending
[18] The Gisborne offending was unrelated to the Blenheim offending and, beyond giving an uplift for it of six months, the Judge did not deal with it in detail saying: “it is the 23 May incident which is the matter of real significance in this case.”13 I agree with that assessment.
Standard of appeal
[19] Mr Nicholas has brought his appeal again sentence under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied that there has been (for any reason) an intrinsic error in the sentence imposed and a different sentence should be
13 R v Nicholas, above n 12, at [4].
imposed.14 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.15
[20] Notwithstanding the fact that the appellant had sought and obtained a sentencing indication and was sentenced in accordance with that indication, he is entitled to pursue an appeal.16
[21] It is only if the end sentence arrived at by the sentencing Judge is “manifestly excessive” that an appeal Court should interfere with the exercise of the sentencing Judge’s discretion. The Court is obliged to focus on the final outcome, not on the route by which that outcome was reached. As the Court of Appeal stated in Tutakangahau v R stated:17
The focus is on the sentence imposed rather than the process by which the sentence is reached. The encapsulation of the position will no doubt represent the position in the vast majority of cases.
Grounds of appeal
[22] The notice of appeal outlines the following alleged errors in Judge Zohrab’s sentencing notes:
(a)the elements of premeditation and planning were overstated and resulted in a manifestly high starting point;
(b)there was insufficient credit and weight given to reflect the impact of cultural and addiction factors in this case;
(c)insufficient weight was given to the rehabilitative and reintegration needs of the appellant; and
(d)imposing an MPI was not necessary when proper regard is had to for Mr Nicholas’ culpability in the offending.
14 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.
15 Ripia v R [2011] NZCA 101 at [15].
16 Sections 244 and 245 Criminal Procedure Act 2011.
17 Tutakangahau v R [2014] NZCA 279 [36].
Appellant’s arguments
[23] Counsel for the appellant, Mr Harrison, acknowledged that in terms of the bands set out by the Court of Appeal in R v AM,18 this case was properly categorised as being at the upper end of band 2 or at the bottom end of band 3. However, he submits that this case falls somewhere between the R v BN19 and R v King.20 In R v BN, the Court took a starting point of 15 years’ imprisonment (including a two-year uplift to reflect the fact that there were two separate incidents involving two different complainants) and in R v King, the starting point was 10 years. The appellant submits that, on the basis of the sentences imposed in those cases, that the starting point in the present case should have been 12 years rather than 13 years.
[24] Counsel submits that the fact that the appellant was on a “methamphetamine bender” was not given sufficient weight by the Judge and relies on the observations of the Court of Appeal in R v Zhang,21 in support of the proposition that a cultural report should have been obtained and that the appellant’s personal mitigating circumstances (including his use of methamphetamine) should have been given greater weight. It is specifically submitted that the appellant’s use of methamphetamine prior to the offending “clearly diminished” the appellant’s moral culpability and ability to make rational decisions”.
[25] Counsel noted that the Judge had not specifically addressed the appellant’s rehabilitative and reintegration needs and submitted that the six convictions for assault that the appellant had incurred at the age of 17 were not relevant.
[26] In terms of the MPI, counsel submitted that no MPI was required to meet the purposes of deterrence, denunciation or accountability. It was noted the appellant had not appeared previously on charges of a sexual nature nor had he received a sentence of imprisonment.
18 R v AM [2000] NZCA 114.
19 R v BN [2019] NZHC 1231.
20 R v King [2019] NZHC 537.
21 R v Zhang [2019] NZCA 507.
[27] Counsel submits that “a sentence of one-third would allow the Appellant to make substantial treatment gains in addressing his substance abuse issues.” Exactly how this might be achieved was not specified.
[28] It was also submitted that there was insufficient evidence upon which to form a conclusion that the appellant posed an ongoing safety risk or, upon release, would be at a high risk of recidivism.
[29] Counsel submitted that the sentencing Judge had overstated the callousness of the offending and also took exception to the Judge’s remarks at [33] where the Judge had stated:
[33] You were completely indifferent to her humanity and the degradation here was extreme. Your attitude of contempt towards her as a human being was obvious in your actions, and the statements made to the police. There was extreme violence in this case, she was extremely vulnerable and, as I have previous[ly] commented, there was significant premeditation, and this was carried out with chilling clarity of purpose. There were serious consequences, and the consequences intended by you were serious.
[30] In relation to reference by the Judge to “the statements made to the police”, counsel refers to the fact that at the time the appellant made these statements, he was still maintaining his innocence and that the events were consensual. It is not entirely clear why these facts mean that the Judge made an error in referring to what the appellant said to the police, or why these comments should not have been regarded as relevant by the Judge to the gravity of the offence.
[31] The particular comments were set out in [10] of the decision where the Judge said:
[10] When questioned, you initially denied meeting the victim before saying the sex was consensual. You also initially denied binding the victim before saying that the use of the tape was a consensual sexual activity. You stated that you were a bit rough, but she was just a prostitute.
[32] Counsel also challenged the Judge’s reference to “the extreme violence” saying that there were no threats to kill, that the knife the appellant had was not used to stab or cut the victim’s skin, there was no other offender and there was no invasion of the victim’s home.
[33] There was also a submission that “the Crown has also intensified the violence by particularising the charges”. It was submitted that this involved penalising the appellant twice for matters which were elements of separate charges.
[34] The appellant also challenged the Judge’s reference to the victim as being “extremely vulnerable”. It was acknowledged that the victim was vulnerable due to her occupation but submitted that she was not working at night nor was she in an isolated area.
[35] In relation to the MPI, it was submitted that, the fact that the appellant has two young children would “be a strong motivating factor for a person in prison to work hard to rehabilitate themselves”.
[36] Counsel acknowledged that if this had not been the appellant’s first offence of this nature he could not argue against a minimum non-parole period.
[37] In relation to what was said to be the “essential” need for a cultural report, counsel referred to the fact that in the material before the Court, there were “indicators of a deprived and gang-related background” in the appellant’s early youth.
[38] Counsel also criticised the Judge for only allocating a five per cent discount for issues such as the appellant’s background and the effects of his use of methamphetamine. Counsel sought an adjournment of the appeal to enable a full cultural report to be placed before the Court. The adjournment application was dismissed, following argument, prior to the hearing of this appeal.22
The Crown’s arguments
[39] Counsel for the respondent submits that the sentencing Judge appropriately arrived at a starting point of 13 years given the criteria set out by the Court of Appeal in R v AM.23 Counsel referred to the Court of Appeal in that case having specifically regarded premeditation as reflecting on the criminality of sexual violation.
22 Nicholas v R [2019] NZHC 3312.
23 R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [37].
[40] In support of the Judge’s findings as to premeditation, counsel refers to facts such as the making of an appointment, the concealing by the appellant of his face, keeping his back turned, immediately subduing the victim with violence, blindfolding her, saying “I don’t want you to see my face”, taping her mouth and hands with tape he had bought with him and producing a choker chain which he had bought with him and using that to further restrain the victim.
[41] Counsel submits that given these facts, it could not be said that the appellant’s actions were impulsive but were properly described as premeditated.
[42] Counsel did not accept the characterisation of the facts in this case as being less serious as the facts in R v BN.
[43] In terms of the uplift of six months for the prior unrelated dishonesty offending and multiple failures to answer District Court bail, counsel submits that this was lenient and that there was no analysis by the sentencing Judge. It was also submitted that, other than for a reparation order, the theft by the appellant of the victim’s money and cellphones, was not discussed or reflected anywhere in the sentence.
[44] The Crown challenged the appellant’s interpretation of the Court of Appeal’s decision in Zhang v R and submitted that the Court of Appeal’s decision was a response to an earlier Supreme Court decision which had created the impression that, in cases involving sentencing for serious drug offending, personal mitigating factors and aggravating circumstances were of minimal relevance. The specific submission was:
In this manner, the Court of Appeal was not revealing a brand new discount scheme for users of methamphetamine generally, but was removing an impediment that had evolved in relation to [a] particular class of crime – dealing and manufacture of methamphetamine.
[45] Counsel submitted that the Court of Appeal had sought to recognise the mitigating factors particularly germane to methamphetamine offending, which included addiction. It was submitted that the relevance of addiction of methamphetamine in cases of dealing in methamphetamine is inherent by the fact the object of addiction, namely methamphetamine, is an element of the offence. Counsel noted the Court of Appeal as expressing the view that “non-causative addiction will
be of little mitigatory relevance”. Counsel submitted that what the appellant was inviting the Court to do was to “read Zhang as authority for the proposition that correlation infers causation.
[46] On the issue of whether or not the obtaining of a s 27 cultural report was “essential”, counsel notes that before such a report is likely to be helpful, it must find a causative nexus between cultural issues (often the issue of systemic social deprivation arising from the effects of colonisation). In the present case, the Court had significant information about the appellant’s upbringing including a comprehensive psychological report which was based on detail and narrative from multiple sources including family.
[47] On the issue of whether or not the appellant’s rehabilitative and reintegrative needs were appropriately considered, counsel draws the Court’s attention to the fact that the sentencing Judge had available to him a comprehensive psychological report which indicated that there was not enough evidence to diagnose any mental disorder other than drug addiction which was in remission and possible PTSD. The implication was that until the appellant’s health issues were properly diagnosed, the issue of rehabilitation could not be sensibly addressed.
[48] In relation to the issue of an MPI, counsel submits that the appellant had misstated the test in his submission that “there is insufficient evidence on which to form a conclusion that the appellant poses an ongoing safety risk or upon release or be a high risk of recidivism”. It is submitted that the Court of Appeal had stated that MPIs were not a “reserve measure to safeguard” against potential future misjudgements of the NZ Parole Board.24
[49] Counsel emphasised the Court of Appeal in Tuau v R and R v Brown had indicated that when applying s 86, the central consideration must be culpability which is necessarily increased by matters such as unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences.
24 See Tuau v R [2013] NZCA 623 at [52], R v Brown [2002] 3 NZLR 670.
[50]Counsel also referred to the decision of the Court of Appeal in Tiunalu v R
where the Court said:25
This Court has recognised the sentencing Judge should be extended a margin of appreciation, both in making such an order and its length. In cases of serious violence, denunciation and deterrence are considered to be important values which together with the need to protect the community rule, not uncommonly, result in the imposition of an MPI.
Analysis
The starting point
[51] The submission that the facts of this case fall somewhere between R v BN and R v King is unjustified. The submission that the level of violence against both complainants in R v BN arguably makes that case significantly worse than the present case is plainly wrong. The Judge in R v BN specifically found that there was no physical harm at all to the first victim in that case.26
[52] In respect of the second victim in R v BN, the violence identified by the sentencing Judge related to the defendant having a knife which he pointed at the victim and held against her thigh. The Judge also regarded as “violence” the fact that the defendant in that case had threatened to kill the victim and told her that he had “cut up three girls before”.27
[53] Therefore, while there was some physical violence in relation to the second of the victims in R v BN, I cannot accept the appellant’s submission that the level of violence in that case makes it “significantly worse” than in the present case. The victim in the present case endured a variety of forms of violence: punching, kicking, choking, binding, dragging and, perhaps the most serious of all, suffocation to the point of unconsciousness. I also note that, contrary to the submission of counsel, the appellant did use the knife, using it to cut the victim’s pubic hair. The physical injuries sustained by the victim in this case greatly exceed anything sustained by either of the victims in R v BN. Arguably, the psychological and emotional consequences for the victim in this case were greater than for either of the victims in R v BN.
25 Tiunalu v R [2019] NZCA 234, at [18].
26 R v BN, above n 19, at [35(d)].
27 At [38(b)].
[54] The victim impact statement makes it clear that the victim thought, at various stages throughout her ordeal, that she was going to die. This is not a belief just induced by a threat but was the rational and reasonable conclusion resulting from the physical violence and degradation inflicted on the victim by the appellant.
[55] While there are some similarities between the two cases, there are also a number of features that arguably make the present case more serious. One is the element of premeditation. In relation to the first victim in R v BN, the Court concluded:28
Pre-meditation: first, I accept that there was no pre-planning or pre-meditation evident or present in relation to the offending against the first victim.
[56] In relation to the second victim, the defendant had a knife and the Court found that he used the knife to force the second victim to enter his house with the view of intending to force her to have sex with him. The Judge concluded:29
In relation to the second victim this pre-meditation is a significantly aggravating feature of the offending.
[57] Compared to that relatively modest evidence of premeditation, the sentencing Judge in this case had the following evidence of premeditation:
(a)the making of an appointment by the appellant to see the victim;
(b)the concealing of his face from the victim and the keeping of his back turned;
(c)his immediate subduing the victim with violence, blindfolding her and saying “I don’t want you to see my face”;
(d)the fact that the appellant bought with him to the appointment a roll of tape which he proceeded to use to tape the victim’s mouth and bind her hands, and the fact that he also brought with him a choker chain which he used to restrain the victim.
28 R v BN, above n 19, at [35(a)].
29 At [38(a)].
[58] The inescapable conclusion is that there was a very high degree of premeditation in this case. The appellant’s conduct could not in any way be described as spontaneous or spur of the moment. He had carefully planned exactly what he was going to do and went to considerable lengths to ensure that the victim would not get to see him.
[59] In addition to the extent and nature of the violence used and the issue of premeditation, there are some other factors which arguably make the present case more serious than R v BN. These include the fact that the appellant was considerably older than the defendant in R v BN who was only 21 years old. The appellant was 27 years old at the date of the offending and could not credibly claim any significant discount for youth.
[60] Other features which distinguish the two cases, but which do not appear to have been analysed by the sentencing Judge are the fact that the appellant committed these offences while on bail and, in addition to the offences detailed in the sentencing notes, the appellant also stole the victim’s money and all her cellphones. The appellant was fortunate that the sentencing Judge chose not to impose an uplift for these aspects of the offending.
[61] Even when regard is had to the fact that the defendant in R v BN was sentenced for two separate incidents involving two victims and had made threats to kill. The features of this case detailed above justify a conclusion that it was more serious rather than less serious than R v BN.
Rehabilitation and reintegration
[62] The appellant is correct that the sentencing Judge did not directly analyse the appellant’s prospect of rehabilitation and reintegration.
[63] Section 7 of the Sentencing Act lists among the purposes for which a Court may sentence an offender, the purpose of assisting “in the offender’s rehabilitation or reintegration”.30
30 Sentencing Act 2002 s 7(1)(h).
[64] There is no hierarchy in the purposes listed in s 7 and Judges are left with a discretion to determine which purpose or purposes should be given precedence according to the overall circumstances of the individual case.
[65] The extent to which the Court may have regard to issues of rehabilitation and reintegration, it depends according to the facts of each case.
[66]As Davison J said in the R v BN:31
It is well recognised that youth may attract a discount at sentencing to reflect the rehabilitative potential of youth and young people, as well as the lack of full development that young people have that may lead them to act during their youth in a way that [they] would not, were they more mature.
[67] Davison J also went on note that long sentences can in some cases have a crushing effect on young offenders and young people are recognised as having a greater capacity for rehabilitation. Both observations were drawn from the comments of the Court of Appeal in Churchward v R. The defendant, Ms Churchward, was 17 at the time of the offending and the comments of the Court of Appeal were based on the expert evidence of a doctor who specialised in adolescent brain development.32 Mr Nicholas cannot credibly claim to be entitled to the same treatment as an adolescent on account of his “youth”.
[68] The Courts have been more ready to factor a defendant’s potential for rehabilitation and reintegration into the sentencing exercise where the offending is of a relatively low level.33
[69] The more serious the offending, the less likely the Courts are to make significant adjustments to the sentence for issues to do with rehabilitation and reintegration. As the appellant has submitted, in the recent decision of Zhang v R, the Court of Appeal clarified that even in serious drug dealing cases, personal circumstances relating to the defendant, which can include the consequences of addiction, including the prospects of rehabilitation from that addiction, are able to be considered on sentence.
31 R v BN, above n 19, at [46]. See also R v Rapira [2003] 3 NZLR 794 at [122].
32 Churchward v R [2011] NZCA 531.
33 See Hansch v Police [2014] NZHC 2438.
[70] However, it goes too far to assert that Zhang v R is authority for the proposition that methamphetamine addiction will always be a mitigating factor particularly in cases where there is no clear causative connection between the addiction and the offence.
[71] As the Court of Appeal noted in Zhang v R: “Non-causative addiction will be of little mitigatory relevance.”34
[72] Therefore, while addiction to methamphetamine can be a matter relevant to both length of sentence and issues of rehabilitation, it is not automatic.
[73] The Courts have also indicated that where rehabilitative efforts require recognition, this should be done by deduction from the starting point not by refusing to impose an MPI under s 86.35
[74] In the present case, it cannot be said that the Judge made an error in failing to separately address issues of rehabilitation or reintegration. The offences with which the appellant was charged, were very serious. A lengthy custodial sentence was inevitable. It was entirely appropriate that sentencing objectives such as deterrence or denunciation took precedence.
[75] This is also not a case where the appellant could point to significant rehabilitative steps taken between his apprehension and sentence. Neither is this a case where there was any evidence before the Court that indicated a real prospect of rehabilitation. If anything, the report from the clinical psychologist was equivocal. For example, it noted that there was not enough evidence to diagnose the appellant with any mental disorder and it noted the appellant’s differing accounts. Specifically it said:
[The appellant] claimed to have very little memory for the alleged offending and his account of events to the police, his mother, and to me have varied somewhat. His memory may well have been hampered by his drug use, although being evasive is also a possibility.
34 Zhang v R, above n 21, at [147].
35 See R (CA 400/12) v R [2012] NZCA 465; Matthews v R [2017] NZCA 493.
[76] There is nothing in the report that suggested any particular rehabilitative initiative should be considered. No particular initiative was advanced by counsel at sentencing as requiring consideration.
[77] The Provision of Advice to Courts report was also equivocal. It assessed the appellant as being a high risk of harm to others on release. The author noted that while the appellant “appeared to say the right things at the right time” he also minimised parts of his offending. His conclusion was that the appellant’s “true level of remorse is hard to gauge”.
[78] There is no doubt that the sentencing Judge had before him a variety of information about the appellant’s drug habit and mental wellbeing. None of that information raised any particular issues as to the rehabilitation or reintegration. The Judge did give a five per cent discount for personal factors. There is no basis to say that the discount should have been bigger for issues to do with rehabilitation. Neither is this a case where there is a causal connection between the appellant’s methamphetamine habit in this offending, that would warrant any particular reduction in sentence.
[79] The causative connection identified by the Court of Appeal in Zhang v R as being required is missing.
Section 27 report
[80] Cultural reports can be of assistance to the Court if they identify issues such as systemic poverty resulting from the loss of land, language, culture, rangatiratanga, mana and dignity. In proper cases they may indicate impaired choice and diminished moral culpability. However, for these factors to significantly influence sentencing, it needs to be shown that they contributed causatively to the offending.
[81] In the present case, the Court had significant information before it, detailing the appellant’s upbringing and the influences on his life. This included the appellant’s own statements about these issues. It is clear that the early years of his life in particular were blighted by poverty of material and emotional resources, and dysfunction.
[82] However, there was also evidence that, as a result of the change from being in the custody of his father to his mother, that the appellant was able to make significant progress socially, emotionally and academically. He achieved particularly well at NCEA level 1.
[83] As an adult, the appellant was also able to rise above issues of systemic poverty and cultural deprivation. He achieved material success being promoted to a position as manager of a vineyard at a very young age, earning a six-figure salary and being able to purchase a substantial house where he lived with his partner and their two children.
[84] Given that the appellant had managed to overcome the effects of cultural and material deprivation undoubtedly present in his early life, and to achieve a life of social and emotional stability, as well as high occupational achievement and material success, there appears to be no basis for suggesting that a cultural report would be of any material assistance to the Court, much less that it is likely to influence the sentencing outcome, given the lack of causative effect between the systemic poverty resulting from colonisation and the facts of this offending.
[85] The appellant has argued, both in relation to the application for an adjournment and, in relation to the substantive appeal, that it was essential that the Court have before it a report under s 27 of the Sentencing Act.
[86] I start by noting that this is not a case where the District Court Judge was requested to adjourn the sentencing in order for a s 27 report to be obtained, or where he refused to hear a person or persons called by the offender to give such a report.
[87] Where a Court refuses to hear a person or persons called by an offender to give a s 27 report, s 27(2) requires the Court to hear such a person on any of the matters set out in s 27(1) unless the Court is satisfied that there is some special reason that makes this unnecessary or inappropriate.
[88] I will adopt the same test in relation to the submission made to this Court that the appeal cannot be properly determined in the absence of a s 27 report.
[89] I note that s 27(3) provides that if a Court declines to hear a person called by an offender under this section, it must give reasons for doing so.
[90] I will set out the reasons why I believe it is unnecessary or inappropriate for the hearing of the appeal to be delayed until a report of the type submitted by counsel as being essential.
[91] I have already canvassed these reasons in the separate decision to refuse the request of adjournment.36
[92] Firstly, the Court does not need any further evidence to accept that aspects of the appellant’s early life in particular, were consistent with the systemic deprivation experienced by Māori as a result of colonisation.
[93] Secondly, I do not accept that the only way that the information covered by s 27 can be placed before the Court as by way of someone who is an expert in law or history, or a combination of both.
[94] In this case, as will be the case in many cases, the Court had detailed evidence as to the appellant’s personal, family/whānau, community and cultural background provided to it in material from people who knew the appellant and his background personally, or (such as the clinical psychologist) who had met with the appellant and discussed these matters with him in depth and distilled their analysis of such matters into a written opinion provided to the Court.
[95] The issue of whether a report under s 27 is required where the Court already had before it, the information that such a report might cover in the pre-sentence and psychiatric reports, was considered in the case of Fane v R. In that case, the appellant had been sentenced to 10 years’ imprisonment with a five-year minimum period imposed after guilty pleas to charges of causing grievous bodily harm, unlawful possession of a firearm, and possession of cannabis for the purposes of sale. The appellant had assaulted his partner’s step-father, and whose care CYP had placed one of the appellant’s children.
36 Nicholas v R, above n 22.
[96] The pre-sentence report had set out in some detail the appellant’s cultural background. The probation officer had spoken to the appellant’s mother and one of his whāngai parents, both of whom had described the pain the appellant had experienced in having his two children taken from him. These matters were also covered in the psychiatric report. It was submitted that the appellant’s offending arose out of a dispute with the victim over a hospital visit by the appellant’s child which was said to be sparked by the appellant’s grief on being denied parental rights, access to whakapapa and “denial of mana in Tikanga Māori terms”.37
[97] The Court of Appeal upheld the sentencing Judge’s decision that the appellant was not entitled to credit for alleged provocation and that there was no nexus between the appellant’s cultural background and his serious and unprovoked attack, nor was there a basis for a discount for cultural and family background, his alleged co- operation with the police or remorse.
[98] A similar approach was taken by the Court of Appeal in the case of RS v R.38 In that case, the appellant had been convicted of sexual violation by rape, breaching a protection order and burglary. There was no s 27 report provided by counsel to the sentencing Judge and the sentencing Judge had not called for one under s 27(5).
[99] The factors which were identified in the pre-sentence report as contributing to the appellant’s offending where his use of alcohol and drugs and his inability to manage relationship difficulties.
[100] On the issue of whether or not the Judge should have exercised the discretion in s 27(5), the Court of Appeal said:
[17] The starting point is that where no request is made under s 27(1), the Court “may” suggest to the offender that it may be of assistance to the Court to hear from a person on any s 27(1) matters. But in this case, there was nothing before [the sentencing Judge] which might or should have prompted him to consider exercising his discretion under s 27(5).
37 Fane v R [2015] NZCA 561.
38 RS v R [2014] NZCA 484.
[101] The Court also made it clear that there needs to be a nexus between an offender’s background and the offending committed by way of causal connection. The Court said:
[18] The serious nature of that offending and (the appellant’s) prior record of serious offending precluded any finding of causal connection, through ethnic or cultural factors, that could assist the Court on any of the factors in s 27(1). Whilst, as recognised in s 27(1)(b), cultural factors might mitigate culpability in very specific circumstances, or might be relevant to the type of rehabilitative sentence that could be appropriate, as recognised by s 27(1)(d) a particular ethnicity or cultural background could never be a ground in itself for a discount on sentence. In [the appellant’s] case, there could be no discount on these grounds.
[102] Thirdly, that as a result of the nature of the offending, and its extreme seriousness, the extent to which matters of personal or cultural background could influence the overall sentence, are extremely limited. Given that the sentencing Court allocated a five per cent discount for such matters, it could not be said that a greater discount was required.
[103] Finally, what Mr Harrison, for the appellant, has effectively submitted is that the trial Judge made an error in not seeking an adjournment to get a s 27 report but in electing to have these issues addressed by relying on the report from the appellant himself and the other documentation available to the Court. The Court in Fane v R noted that in that case, the experienced defence counsel who had appeared at sentencing, had been content to rely on the information provided in pre-sentence and psychiatric reports.
[104] In the present case, it cannot be said that defence counsel at sentencing adopted an incorrect or erroneous approach. Neither did the sentencing Judge make an error in not invoking s 27(5) and calling for a further report himself.
Minimum period of imprisonment
[105] Section 86 of the Sentencing Act 2002 (the Act) provides for the imposition of an MPI:
86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
(3)[Repealed]
(4)A minimum period of imprisonment imposed under this section must not exceed the lesser of—
(a)two-thirds of the full term of the sentence; or
(b)10 years.
(5)For the purposes of Part 6 of the Criminal Procedure Act 2011, an order under this section is a sentence.
[106] In R v Brown, the Court of Appeal explained that when an MPI is under consideration, the Judge must carry out a two-stage process.39 The first stage is to fix the maximum length of the sentence, while the second is to consider separately whether the offending itself is sufficiently serious that serving the normal minimum period of one-third of the sentence will be insufficient to meet one or more of the four specified purposes in subsection (2).
[107] Mr Harrison submitted that no minimum period of imprisonment was necessary for any of the purposes of deterrence, denunciation or accountability, and submitted that these things were all achieved by way of a determinate sentence.
39 R v Brown [2002] 3 NZLR 670 at [35].
[108] The circumstances in which an MPI can be imposed was recently considered by the Court of Appeal in the case of Blackler v R. It said that minimum periods of imprisonment should not be imposed as a matter of routine or in a mechanistic way; that it is not sufficient for a sentencing Judge to simply recite the statutory provisions, but a reasoned analysis was required.40
[109] The Court of Appeal made it clear that not all four of the criteria set out in s 86 need to be present in order to justify the imposition of an MPI. In that case, they concluded that a sentence without an MPI was:41
… insufficient for the purposes of denouncing Mr Blackler’s conduct and holding him accountable, because it is insufficient recognition of the enormity of the consequences of his offending and the degree callousness involved.
[110] In that case, the Court of Appeal upheld the 50 per cent MPI. The Blackler case involved a conviction for manslaughter with a sentence of seven years’ imprisonment and an MPI of three and a half years. Mr Blackler had assaulted a friend after they had been drinking together and had both consumed a significant amount of alcohol. The Court concluded that the injuries inflicted were not in themselves fatal and would not have resulted in the death of a healthy person. The callousness referred to, was the actions of Mr Blackler and leaving the premises where the assault took place without doing anything to render assistance to the deceased, effectively abandoning him to die.
[111] Judge Zohrab, in the present case explained why he believed an MPI was required. He listed five factors:
(a)significant callousness;
(b)the extreme violence;
(c)the extremely vulnerable position of the victim;
(d)the significant premeditation; and
40 Blackler v R [2019] NZCA 232.
41 At [38].
(e)the serious consequences.
[112] Mr Harrison submitted that the Judge overstated the callousness of the offending.
[113]The precise words that the Judge used were:
[33] Of concern to me in this offending is that there was significant callousness on your part. You were completely indifferent to her humanity, and the degradation here was extreme. Your attitude of contempt towards her as a human being was obvious in your actions, and the statements made to the police.
[114] These comments are an apt description of the sustained brutality and degradation to which the appellant subjected the victim.
[115]In relation to the finding of extreme violence, Mr Harrison’s submission was:
The Judge referred to the extreme violence. Whilst not downplaying the offending, which was indeed serious, there were no threats to kill, the knife was not used to stab or cut the victim’s skin, there was no other offender and there was no invasion of the victim’s home.
[116] This submission focuses on matters that were not present in this offending but completely ignores the aspects of the offending that were present. There are numerous aspects of this offending that justified categorisation as involving extreme violence:
(a)the appellant restricted the victim’s breathing causing her to pass out;
(b)the effect of taping a towel around the victim’s head and face so that she could not see him or anticipate what he would do to her next must have been terrifying;
(c)the binding of the victim’s hands so tightly that they turned purple;
(d)the use of the choker firstly around her neck and then her wrists and to drag her across the floor;
(e)the insertion of an object into the victim’s anus inflicting extreme pain and tearing her perineum;
(f)the appellant punching the victim in the head several times (again while she was blindfolded with a towel);
(g)the manner in which appellant caused bleeding from the victim’s genitalia and anus;
(h)the kicking of the victim so hard as to break three ribs at a time when she was blindfolded and bound.
[117] It is wholly unrealistic to submit that this case did not involve extreme violence.
[118] In relation to the vulnerability of the victim, Mr Harrison’s submission was “whilst the victim was vulnerable due to her occupation, she was not working at night nor was she in an isolated area.”
[119] The victim was working as a prostitute on her own. She had no-one to call upon for assistance. She was vulnerable. The appellant exploited that vulnerability by gagging, blindfolding and binding her.
[120] Mr Harrison does not specifically address the other two issues relied upon by the sentencing Judge, namely premeditation and the serious consequences. The Judge’s identification of these features as being relevant to the issue of whether deterrence and denunciation required an MPI cannot be challenged.
[121] For the reasons set out above, I am satisfied that this is a case where the sentencing Judge correctly discharged his obligations under s 86, articulated the grounds upon which an MPI was required, and identified accurately the features of this offending that required deterrence and denunciation. I am also satisfied that there is nothing manifestly excessive about any other aspect of the sentence.
Conclusion
[122]For these reasons, the appeal is dismissed.
Churchman J
Solicitors:
Crown Solicitor, Nelson cc: R A Harrison
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