Palamu v The Queen
[2021] NZHC 3105
•18 November 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000403
[2021] NZHC 3105
BETWEEN THOMAS JUNIOR WIHAPI LAILE PALAMU
AppellantAND
THE QUEEN
Respondent
Hearing: 15 November 2021 Appearances:
J M Scott for the Appellant
L E Nunweek for the Respondent
Judgment:
18 November 2021
JUDGMENT OF ROBINSON J
This judgment was delivered by me on 18 November 2021 at 12:00 noon
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
Public Defence Service, Auckland Meredith Connell, Auckland
PALAMU v R [2021] NZHC 3105 [18 November 2021]
Introduction
[1] On 13 August 2021, Judge Glubb sentenced Thomas Junior Palamu to 25 months’ imprisonment after Mr Palamu pleaded guilty to:1
(a)one charge of sexual connection with a young person,2 and
(b)one representative charge of indecent act on a young person.3
[2] Because Mr Palamu’s term of imprisonment is for longer than two years he is ineligible to apply to have the sentence converted to home detention; and he is automatically registered as a child sex offender pursuant to the terms of the Child Protection (Child Sex Offender Government Agency Regulations) Act 2016.
[3] The sentence was precisely that which the Judge had previously indicated he would impose at a sentence indication hearing on 21 April 2021.4 Nevertheless, Mr Palamu appeals his sentence on the grounds that it was manifestly excessive. He says the Judge failed to consider the availability of further discounts, having previously indicated at the sentence indication that he would hear further submissions in that regard.
[4] Mr Palamu says that with additional discounts his sentence should have been 24 months or less. He says further that his sentence should have been converted to one of home detention; and that he should not be ordered to be registered on the Child Sex Offender Register because he does not pose a risk to the lives or sexual safety of children.
Background
[5] I set out the factual and procedural background below. My summary of the factual background is taken from the Summary of Facts underlying the charges to which Mr Palamu has pleaded guilty. In support of his appeal Ms Scott, counsel for
1 R v Palamu [2021] NZDC 16608.
2 Crimes Act 1961, s 134(1); maximum penalty 10 years’ imprisonment.
3 Crimes Act 1961, s 134(3); maximum penalty seven years’ imprisonment.
4 R v Palamu DC Manukau CRI-2020-004-007057, 21 April 2021 [Sentence Indication].
Ms Palamu, emphasises that he accepts responsibility for the matters described in that Summary.
The offending
[6] The complainant is Mr Palamu’s ex-partner’s cousin. She was 13 years’ old at the time of the offending. Mr Palamu was 37 years’ old. The complainant used to stay regularly at Mr Palamu and his ex-partner’s house and babysit their daughter.
[7] In late December 2019 the complainant got her own cellphone. Mr Palamu obtained her number. He began texting her. They exchanged frequent text messages and phone calls between 24 December 2019 and 27 January 2020. Throughout January, the text messages from Mr Palamu became more flirtatious and sexual in tone. He would frequently tell the complainant that he wanted to meet with her. In the texts, Mr Palamu would refer to the complainant as his ‘baby mama’ and girlfriend. He would tell her to delete her call and text history from her phone.
[8] On several occasions when the complainant was staying at Mr Palamu’s home, the defendant would text her during the night to secretly meet with her.
[9] On 18 January 2020, Mr Palamu texted the complainant that he wanted to meet up with her that night. He told her that her lips were soft and that he wanted to know if her tongue was also that soft.
[10] On another occasion in January 2020, when the complainant was sleeping in Mr Palamu’s daughter’s bedroom, Mr Palamu texted the complainant saying that he wanted to ‘hit [her] from behind’. Shortly after that, Mr Palamu entered his daughter’s room and put his hands down the complainant’s pants and penetrated her vagina with his finger. Mr Palamu eventually stopped and left the room. This is the conduct in relation to which Mr Palamu has been convicted of sexual connection with a young person under 16.
[11] The representative conviction for indecent act on a young person arises out of sexual acts referred to in other text messages Mr Palamu sent to the complainant.
[12] At 4:00 am on 19 January 2020 Mr Palamu texted the complainant to arrange to meet her in the house. Text message data shows that they engaged in sexual activity. Afterwards, Mr Palamu texted her and said “Love u baby mama u made me cum in my pants”.
[13] On 21, 22, 23 and 24 January 2020, Mr Palamu sent more sexually explicit text messages to the complainant. Text message data from 23 January 2020 shows that they engaged in sexual activity that day. On 24 January 2020 Mr Palamu texted the complainant “ur fing gona be really wet wet and sore sore” and told her he wanted to “fully stick my mmmmm in u” and “I wana be ur first”. The complainant only engaged with Mr Palamu’s text messages minimally. The text message data shows that the complainant went to sleep without any sexual activity occurring that night.
[14] Over the next three days Mr Palamu sent the complainant numerous text messages. He received no response from her. The communication ended on 27 January 2020 when Mr Palamu’s ex-partner found sexually explicit text messages sent by him.
District Court
The sentence indication
[15] In his sentence indication on 21 April 2021, Judge Glubb identified five aggravating factors of the offending;5
(a)the planning and premeditation of the offending, as Mr Palamu essentially groomed the complainant;
(b)breach of trust, particularly noting that the complainant was related to Mr Palamu’s ex-partner and was staying in their home;
(c)the vulnerability of the complainant due to her age, the 24 year age difference, and the fact she was in bed and in a babysitting role when the offending occurred;
5 At [2]-[5].
(d)the impact on the victim, while the Judge did not have the victim impact statement before him at this time, he noted that the impact of this sort of offending “can be significant”;6 and
(e)the extent of the sexual conduct which was ongoing and only stopped when discovered by Mr Palamu’s partner.
[16] Judge Glubb then outlined four authorities where defendants had been sentenced following conviction on similar charges.7 He set a starting point of three years imprisonment for the lead charge of sexual connection with a young person under 16. The Judge applied a six-month uplift to the starting point for the representative charge of indecent act on a young person. This resulted in a starting point of 42 months.8 Mr Palamu does not challenge the starting point on appeal.
[17] In terms of factors relevant to the offender, Judge Glubb said he would apply a 25 per cent discount if Mr Palamu pleaded guilty following the sentence indication. He observed there had been a “major shift” in the charges brought against Mr Palamu, such that this would be his first opportunity to plead guilty.9 The Judge also said he would award a 15 per cent discount in recognition of Mr Palamu’s “lack of convictions” and “likely remorse”.10
[18] This resulted in an end sentence of 25 months imprisonment. The Judge concluded by saying:
[17] I am unsure if there are other discounts available to you and that would await further submissions made. What I can indicate that [sic] even if it got below 24 months it is probably unlikely that I would grant a conversion of these charges, but if I did then I would give consideration to registration on the Child Sex Offender Register, and given the grooming, the breach of trust, and the risk it highly [sic] likely that I would register you but, of course, I would hear further submissions on that.
6 At [4].
7 Faapuea v R [2010] NZCA 20; Anand v R [2015] NZHC 397; R v Burdett [2009] NZCA 366; and
Williams v R [2019] NZHC 768.
8 Sentence Indication, above n 4, at [15].
9 At [16].
10 At [16].
Sentencing
[19] When Mr Palamu came before Judge Glubb for sentencing on 13 August 2021 the Judge had before him the following information that he did not have when giving his sentencing indication on 21 April 2021:
(a)Victim impact statements: the complainant and each of her parents provided victim impact statements. The complainant referred to the offending against her having made her suicidal. She has self-harmed. She said the offending has traumatised her and that Mr Palamu has “taken a huge part of my life”. Each of her parents spoke of the damage and harm that has been suffered by their daughter, themselves and the wider family group.
(b)Pre-sentence report: amongst other things this identified Mr Palamu’s “offending related sexual arousal, attitudes, and sense of entitlement” as factors contributing to the offending. It reported that Mr Palamu demonstrated no remorse or insight into his offending, stating “it was just texts and I didn’t touch her”. Mr Palamu could not explain why he had sent the texts but denied any sexual desire or other feelings towards the complainant. In light of these continued denials the author of the pre-sentence report assessed Mr Palamu’s risk of re-offending and harm to others as high.
(c)Psychologist’s report: Mr Palamu’s psychologist, Dr van Rensburg, had carried out a static-99R assessment and a STABLE 2007 assessment of the risk of sexual re-offending by Mr Palamu. Dr van Rensburg considered this to be low, i.e. below four per cent over a five- year period.
Dr van Rensburg also reported that Mr Palamu had admitted that he had sent all the text messages, but he could not explain why. Mr Palamu had preferred not to elaborate about the nature of the sexual activity that had occurred. Mr Palamu told Dr van Rensburg he had pleaded guilty because the text messages were damning, and it would be hard
for him to explain that away. Nevertheless, Dr van Rensburg opined that Mr Palamu “presented with a sincere and very intense level of remorse about the offending and his sense of loss of his partner and daughter”. Dr van Rensburg explained that in his experience it is not unusual for men from Pasifika backgrounds who are convicted of sexual offences to acknowledge the offending without being able to discuss the nature of it.
[20] Importantly, Judge Glubb also recorded that when giving his sentence indication he had been led to believe, “albeit wrongly but through no error on the part of defence counsel”, that Mr Palamu had only one prior conviction for driving with excess breath alcohol.11 In fact, Mr Palamu’s criminal history is more significant. He has at least four convictions for violence; three of male assaults female; one of assault with a blunt instrument; and two for wilful damage. The Judge noted “that was not the situation as I apprehended it at the time I gave the sentence indication, which was the basis on which I set the discounts”.12 As noted above, those discounts included 15 per cent discount for “lack of previous convictions” and “likely remorse”.
[21]Judge Glubb continued:
[28] … When I dealt with this, I articulated the discounts. I gave you a discount for lack of previous convictions and remorse. Dr van Rensburg believes you are remorseful. I factor that in. But the discount I gave for lack of previous convictions is probably overstated. I do not propose to go back on it, but I simply note and qualify it as generous given the material that is now before the Court. It would not likely have resulted in an uplift of the sentence for a further aggravating factor, but it would not have resulted in a discount of that size. I then gave you a discount for your plea of 25 per cent. I acknowledged that ordinarily, I would have only given 20 per cent but given there had been a significant shift, a number of charges had been withdrawn and there had been significant negotiation, 25 per cent was appropriate. So that got me to 40 per cent which is 16.8 which brought it down to 25.2.
[29] Your counsel has asked me to apply further discounts in light of the fact of the low risk of recidivism in terms of the report received. I am not prepared to give any further discounts. I am satisfied that the discounts given have been generous as I have already articulated.
11 R v Palamu, above n 1, at [19].
12 At [19].
[22] The Judge sentenced Mr Palamu to 25 months imprisonment. He did not impose any standard or special release conditions, leaving these to be dealt with by the parole board. A first strike warning was issued and Mr Palamu was automatically registered on the Child Sex Offender Register.
Additional evidence on appeal
[23] Prior to hearing the appeal I granted leave for Mr Palamu to adduce the following additional evidence on appeal:
(a)an updated Psychological Risk Assessment Report from Dr van Rensburg dated 28 October 2021. This reassesses Mr Palamu’s risk of re-offending in light of his previous convictions which were unknown to Dr van Rensburg when he wrote his first report; and
(b)an affidavit from Mr Palamu’s doctor about Mr Palamu’s health conditions. This is filed in support of Mr Palamu’s submission that once his term of imprisonment is reduced to less than two years it should be converted to a sentence of home detention.
Approach on Appeal
[24] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[25] In any other case, the Court must dismiss the appeal.13 Section 250 makes no express reference to allowing appeals where the end sentence is “manifestly
13 Criminal Procedure Act 20111, s 250(3).
excessive”, but this principle is “well-engrained” in the Court’s approach to sentence appeals.14
[26] An appeal against sentence is an appeal against discretion. An appellate Court will not intervene where the end sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.15
Discussion
[27] Ms Scott’s primary submission is that Judge Glubb placed insufficient weight on Mr Palamu’s risk of re-offending. She says this resulted in a manifestly excessive sentence.
[28] Ms Scott submits that at the sentencing indication the Judge expressly “left the door open” for further discounts, and that having done so he should have awarded Mr Palamu an additional discount to reflect his low risk of re-offending. Ms Scott acknowledges that no discount is available for a lack of previous convictions, but she says the 15 per cent discount could easily have been given for Mr Palamu’s remorse. She says an appropriate discount in recognition of Mr Palamu’s low risk of re- offending would have reduced the end sentence below 24 months, so that he would be eligible for home detention.
Remorse
[29] I do not agree with Ms Scott that the 15 per cent discount for lack of convictions and likely remorse could “easily” have been substituted for remorse alone.
[30] The Court may take into account any remorse shown by the offender as a mitigating factor.16 The defendant must show the remorse is genuine with tangible evidence and that the remorse justifies the Judge awarding an additional discount
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [33] and [35].
15 Ripia v R [2011] NZCA 101, at [15].
16 Sentencing Act 2002, s 9(2)(f).
separate from the guilty plea.17 As observed by the learned authors of Adams on Criminal Law, where there is tangible evidence of genuine remorse, an additional discount of five to eight per cent may be appropriate.18
[31] The pre-sentence report records that initially Mr Palamu minimised and denied his offending. Mr Palamu initially did not wish to discuss the sexual activity and told Dr van Rensburg that he pleaded guilty because the text messages were “damning”. However, Dr van Rensberg explains that cultural factors may explain Mr Palamu’s initial reluctance to take responsibility for the offending. Most recently Dr van Rensburg observes that Mr Palamu appears to have “far more sincere remorse” since the initial interview and wishes to apologise to the complainant and engage in a Restorative Justice meeting if she were willing.
[32] Be that as it may, I do not consider that there is tangible evidence of such remorse from Mr Palamu as to justify a discount of 15 per cent. There is merit in Ms Nunweek’s submission that the Mr Palamu’s expressions of remorse tend to show he regrets his current predicament, including his having lost contact with his partner of 22 years and their daughter. Whilst acknowledging the cultural factors highlighted by Dr van Rensburg, I also take into account that Mr Palamu’s most recent and sincere expressions of remorse are made two months into his term of imprisonment.
[33] For these reasons I consider that any discount for remorse on top of the 25 per cent discount for the guilty plea was generous. A 15 per cent discount was remarkably generous.
Low risk of re-offending
[34] When Dr van Rensburg first assessed Mr Palamu he, like Judge Glubb, was unaware of his previous convictions. He reassessed Mr Palamu’s recidivism risk in light of those convictions and concluded that Mr Palamu has a higher risk of sexual re-offending than previously thought. In the concluding opinion section of his report, Dr van Rensburg wrote “Mr Palamu is considered to be at an average risk of sexual
17 Moses v R [2020] NZCA 296, at [24].
18 Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Brookers) at SA9.22.
re-offending”. In other places he describes the risk as low. Dr Rensburg calculates Mr Palamu’s risk of sexual re-offending as less than 7.5 per cent over 5 years. He records a willingness by Mr Palamu to undertake any suitable treatment programmes but says it will be unlikely for him to attend any intensive programmes in prison.
[35] An offender’s risk of re-offending is not a mandatory consideration that a sentencing Judge must take into account under s 9(2) of the Sentencing Act 2002 (Act). A sentencing Judge may take account of a low risk of re-offending if the Judge sees fit under s 9(4) of the Act.
[36] Ms Scott says that Judge Glubb had indicated he would hear submissions on further discounts, and at the sentencing there was a clear basis for him to apply a discount to reflect the low risk of re-offending. She submits that Dr van Rensburg still considers that risk to be low, especially if Mr Palamu is able to access treatment programmes that are not presently available to him in prison.
[37] Ms Nunweek expresses concerns with some of Dr van Rensburg’s conclusions which she says are inaccurate or inappropriate given the nature of Mr Palamu’s offending. For example, in his most recent report Dr van Rensburg records:
It is difficult to state what prompted Mr Palamu to have engaged in the text messaging, but it is likely that he got carried away in an adventurous mindset following his victim’s initial participation in the flirtatious texts. It is also likely that the holiday atmosphere and festivities typical during the month of January, played a role in disinhibiting him.
[38] Ms Nunweek submits that this description of the offending minimises or misapprehends the extent of Mr Palamu’s offending which included a premeditated sexual connection with a 13 year old girl who was in his care. Ms Nunweek says this suggests that Dr van Rensburg’s assessment of Mr Palamu’s risk of re-offending may have been impacted by his misunderstanding of the offending.
[39] Whilst fully accepting Dr van Rensburg’s expertise, I agree that reasonable questions arise out of Dr van Rensburg’s references to Mr Palamu likely having an “adventurous mindset” following “his victim’s initial participation in the flirtatious texts”, and the “disinhibitions” arising out of the holiday/festive period. However, it is not necessary to consider this further for present purposes. That is because in my
view it was clearly open to Judge Glubb not to apply any further discounts beyond the 40 per cent he had already granted.
[40] When considering whether Mr Palamu’s sentence is manifestly excessive my focus is on the totality of his end sentence. I do not consider that in all the circumstances the 25-month term of imprisonment is manifestly excessive. I appreciate Mr Palamu’s obvious incentives to try to reduce the term of imprisonment to be less than two years, but ultimately he is asking me to “tinker”. That is not the Court’s function on appeal.
Conclusion
[41] The sentence imposed on Mr Palamu was not manifestly excessive. If anything, I consider it to be at the lower end of available sentences having regard to the circumstances of the offending and the relevant sentencing principles.
Result
[42]The appeal is dismissed.
Robinson J
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