Paul Nils Herlund v The Queen - [2021] NZSC 165

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 51/2021
[2021] NZSC 165

BETWEEN	PAUL NILS HERLUND Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and O’Regan JJ
Counsel:	Applicant in person M R L Davie for Respondent
Judgment:	2 December 2021

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant pleaded guilty to sexual offending against three young people, AB, CD and EF. This was after his trial had commenced and after a sentence indication (of five years and seven months’ imprisonment) from the Judge. He was later sentenced to five years and two months’ imprisonment.[1] His appeal against sentence was dismissed by the Court of Appeal and he now seeks leave to appeal.[2]
[1]R v Herlund [2019] NZDC 253 (Judge C M Ryan).
[2]Herlund v R [2021] NZCA 71 (Courtney, Wylie and Katz JJ) [CA judgment].
At the time of the offending, the applicant was approximately 50 years old. According to the summary of facts on which the applicant was sentenced:
(a)The offending against AB occurred “over the course of approximately one year”, with the date range specified between March 2014 and March 2017. AB was approximately 13 to 15 years old. It involved penetrative sex, oral sex on him, and oral sex on her. The applicant pleaded guilty to two charges of sexual connection with a young person, one of which was representative.
(b)The offending against CD occurred between 1 August 2017 and 31 August 2017. CD was 15 years old. While CD was sleeping at the applicant’s address, the applicant attempted to penetrate her anus with his penis. The applicant pleaded guilty to a representative charge of doing an indecent act on a young person.
(c)The offending against EF occurred between 1 July 2017 and 31 August 2017. EF was 15 years old. While EF was intoxicated at the applicant’s address, the applicant removed her clothes. When EF woke up, she was naked on the floor and had a sore throat. The applicant pleaded guilty to a charge of doing an indecent act on a young person.
From the material which the applicant has provided, we understand that there are four issues he wishes to raise:
(a)he was bullied into pleading guilty;
(b)in fixing the starting point, the Judge applied an uplift for prior offending (of two months) having said, when giving the sentencing indication, that she would not do so;
(c)when dismissing the sentence appeal, the Court of Appeal expressed the view that the allowance given by the Judge for pleas of guilty (25 per cent) was extremely generous and that a discount of “at best” 5 per cent would have been appropriate;[3] and
(d)the summary of facts on which he was sentenced was wrong in relation to the date range of the offending against AB.
[3]CA judgment, above…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZSC 165
Decision Date: 2 December 2021

CaseChat Overview and Summary

Paul Nils Herlund, an applicant, appealed against his sentence for sexual offending against three young people. The Supreme Court of New Zealand, consisting of William Young, Glazebrook, and O’Regan JJ, heard his application for leave to appeal. The applicant pleaded guilty to charges of sexual offending against three young people, AB, CD, and EF. He was sentenced to five years and two months' imprisonment. The applicant raised four issues in his appeal, including being bullied into pleading guilty, the Judge applying an uplift for prior offending, the Court of Appeal expressing the view that the discount for pleas of guilty was extremely generous, and the summary of facts on which he was sentenced being incorrect in relation to the date range of the offending against AB.

The Court of Appeal had considered the first three points and found that the applicant’s counsel did not challenge the convictions, and thus, the appeal had to be determined on the basis of the appropriateness of the sentence. The Court of Appeal found that the 25% discount was generous and that the uplift did not prevent the sentence from being “just”. The Court of Appeal also found that the applicant accepted the summary of facts when he entered his guilty pleas, and any appeal against sentence must be decided by reference to the facts contained in the summary. The Court of Appeal found that the precise time of the offending did not affect the position to any great extent and that the offending against AB was only slightly less serious than that alleged in the summary of facts.

The Supreme Court found that the Court of Appeal's assessment of the appropriateness of the sentence was unassailable, and there was no basis upon which the sentence as imposed could be successfully challenged. The Supreme Court dismissed the application for leave to appeal.

Orders