Police v Fagasa HC Auckland CRI 2010-404-89

[2010] NZHC 889

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING  PARTICULARS OF VICTIM

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000089

BETWEEN  NEW ZEALAND POLICE Appellant

ANDWAYNE WILLIAM FAGASA Respondent

Hearing:         10 May 2010

Appearances: J Kincaid for the Appellant

D Niven for the Respondent

Judgment:      10 May 2010

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

J Kincade, Meredith Connell & Co, P O Box 2213, Auckland 1140. Email: [email protected]

D Niven, P O Box 109227, Newmarket, Auckland 1149. Email: [email protected]

NZ POLICE V FAGASA HC AK CRI-2010-404-000089  10 May 2010

Introduction

[1]      This is an appeal by the Solicitor-General under s 115A of the Summary

Proceedings Act 1957.

[2]      I raised at the outset of the hearing with counsel whether this Court had jurisdiction.     Both  counsel  agree  that  the  High  Court  can  properly  exercise jurisdiction in this case.  I need not set out the statutory route whereby this Court has jurisdiction.  Suffice to say that it results from the respondent entering early guilty pleas before committal.

[3]      The threshold for a Solicitor-General’s appeal is that the sentence imposed was manifestly inadequate.

The charges

[4]      The respondent faced two charges, laid indictably, of sexual violation (s 128 of the Crimes Act 1961).   One count related to contact between the respondent’s mouth and his victim’s genitalia.   The other count alleged digital penetration and penetration with the respondent’s tongue.

[5]      The offending took place on 28 June 2009.   The respondent was clearly arrested promptly because he had appeared in the North Shore District Court the next day.   There were various remands in custody over approximately five weeks at which stage the respondent was remanded on EM bail.

[6]      A guilty plea followed promptly on 23 September 2009.  This was followed by a further lengthy remand of five months (spanning the Christmas vacation period) until sentence.  EM bail continued during that remand period.

[7]      The sentence imposed by Judge Hinton, which I shall detail in a later section of this judgment, was 11 months home detention coupled with 200 hours of community work.

[8]      I have been informed from the bar, and Mr Niven has helpfully produced a Department of Corrections email, that to date the respondent has completed just over half (119 hours) of his community work.   The home detention regime has passed without mishap, there being reasonable compliance and completion of the “Choice Challenge Programme”.

The offending

[9]      The respondent pleaded guilty to an agreed summary of facts.  The summary discloses serious offending of an inexplicable nature.  The only feasible explanation for the offending is that the respondent at the time was intoxicated.

[10]     The respondent’s victim was aged 16.  He, at the time, was 40.

[11]     The respondent had been living in the home of his victim’s mother.  He and the mother had argued.  She went to bed.  By that stage the victim had also gone to bed and had locked the bedroom door.

[12]     In the early hours of the morning the respondent climbed up the outside of the house by a ladder which had been adjacent to the house and opened the victim’s bedroom window.  He removed the victim’s bed clothes.  He pulled down her jeans. He began kissing her on the face and touching her vagina and breasts through her clothing.

[13]     Understandably at this point the victim became distressed, cried, and covered her eyes.   Undeterred the respondent put his mouth between his victim’s legs and began licking her vagina and telling her he wanted to have intercourse with her.  She did not reply.

[14]     The appellant then masturbated.  He tried to kiss the victim and told her he loved her.   He then tried to push his semi-erect penis into her vagina but was unsuccessful.   Instead he pushed his fingers into her vagina which caused her a degree of physical pain.   Finally he pulled up the blankets and exited through the window.

[15]     It is clear that the respondent made a full admission to the police at an early stage.  He accepted that his victim had not shown any enthusiasm.  Consent was not an issue.

[16]     The effect of these violations on the victim has been significant.   In the summary of facts there was a reference to the victim having cut her wrists the following morning.  The victim impact statement makes distressing reading.  Since the offending the victim has been scared of a repetition.  She continues to lock her bedroom door.   She does not like sleeping in silence and leaves the TV on.   She withdrew prematurely from school, although hopes to return next year.  She is angry. In particular she is angry with her mother with whom she no longer lives.   On occasions, according to the victim impact statement (dated 19 February 2010), she still feels like killing herself.

The sentence

[17]     Judge Hinton had the benefit of full submissions from competent counsel.  I am informed from the bar that the Judge took time over the luncheon adjournment to consider his sentencing approach.

[18]     The major features of the Judge’s sentencing approach are as follows:

•    He correctly recited the facts;

•He refers to the respondent’s profound remorse outlined in the pre-sentence report and to a contrite letter which the respondent had written;

•He mentions the fact that the respondent was affected by alcohol at the time and that the pre-sentence report assesses the risk of re-offending as low.

•At an early stage the Judge expressed his view that the “real contest” was whether a principled response justified imprisonment or home detention.  He returned to this theme at a later stage in his sentencing notes;

•He correctly referred to most of the mitigating and aggravating features to which counsel had referred.

•He also seems to have referred to relevant Sentencing Act purposes and principles.

•On the aggravating factor front the Judge recites the Crown’s submissions which included a gross abuse of trust (not the grossest the Judge said); the victim’s age; the quasi-family relationship; and the harm rendered to the victim, particularly evident in the victim impact statement.

•On the mitigating front the Judge referred to the appellant’s good record during the period he had been on EM bail; the loss of his employment as a result of having to move to a Bay of Plenty address from Auckland; the guilty plea; and what was termed the respondent’s “previous good character” being a reference to there being no previous convictions of a sexual nature.

•The Judge acknowledged the Crown’s submission that an appropriate start point was four to five years.  He also made reference to s 128B of the Crimes Act.

•The Judge also referred to various authorities which counsel had discussed with him.

[19]     The Judge’s sentencing approach was as follows:

[23]      The conclusion I have reached is that a starting point of between three and a half to four years’ imprisonment is appropriate here.  This case, and your circumstances, are unusual and I have reached the view that I am able to afford you discounts that bring a final imprisonment end point of approximately 24 months or, in fact, below.

[24]      If, for example, I were to consider a starting point of 42 months and afford you a discount of 33 percent for plea, and 10 percent for the balance of the credit factors Mr Niven has mentioned; including the e-bail, your previous record, the steps you have taken, and so forth, then that would amount to a discount of 43 percent, or 18 months, which would lead to an end point of 24 months.

[25]      In fact, that is just one way of looking at it.  As I say, I have formed the view that an end sentence of 24 months is appropriate, which brings me, Mr Fagasa, to what is the real point in issue here and that is, is this an appropriate case for home detention?  The starting point here is to look at s 128B of the Crimes Act.  That section says that there is a presumption of sentence to imprisonment for this offending, but the Judge has to take into account the particular circumstances of the person convicted (that is you), and, secondly, the particular circumstances of the offence, including the nature of the conduct constituting it.

…

[28]      I regard the particular circumstances in subs 3(a) [s 128A(3)(a)] as entitling me to take into account other steps that you have taken in relation to addressing factors relevant to this offending and the letter that you have written to the Court, and the other matters that I have referred to.

[29]      The   more   difficult   issue   is   the   fact   that   under   subs 3(b) [s 128A(3)(b)] the Judge must consider the particular circumstances of the offence, including the nature of the conduct constituting it.   There is no doubt that this is particularly serious offending.

[30]     The Judge, however, must look at that in context against the total construct of the Sentencing Act in deciding whether home detention could yet be an appropriate response.  I have given this some serious consideration, I can assure you, Mr Fagasa, and I have concluded that in this instance I regard home detention as, in fact, a principled response in all the circumstances.

The  11  month  home  detention  sentence  coupled  with  community  work  then followed.

Discussion

[20]     I do  not  need  to  traverse  in  great  detail  the  helpful  submissions  I have received from counsel today.

[21]     The  appellant’s  major  submission  was  that  the  resulting  home  detention sentence was manifestly inadequate having regard to the aggravating features.  These were expanded somewhat, there being no disagreement from Mr Niven, as the gross abuse of trust; the extent of harm to the victim; the age disparity; the victims’s vulnerability, particularly her being in a family situation and her being asleep; the premeditation (a reference to the respondent climbing up a ladder to get into the victim’s room); and the pre-violation behaviour which involved skin to skin contact

which  would  in  the  normal  course  of  events  have  constituted  indecent  assault although I acknowledge the respondent was not so charged.

[22]     It was also pointed out by Ms Kincaid that the Judge had erred by applying the one third discount available in R v Hessell[1] at a premature stage.  Counsel agreed that this discount should not be applied until the Court reaches a sentence which would otherwise have been imposed but for a plea of guilty.

[1] R v Hessell [2009] NZCA 450

[23]     Ms   Kincaid   also   submitted   that   there   was   nothing   relating   to   the circumstances of either the respondent or his offending which would necessarily bring  s 128B(3)  into  play,  thus  permitting  a  departure  from  the  parliamentary imperative that people convicted of sexual violation must be sentenced to imprisonment.

[24]     Mr Niven pointed out to me the importance of my not interfering in an arbitrary way with discretions exercised by the Judge.  He submitted (with which Ms Kincaid agreed) that a Solicitor-General’s appeal did not involve a resentencing exercise but must focus instead on any manifest inadequacy.  He referred me to R v

O’Neil[2]   to the effect that an appellate court should be reluctant to interfere with the

sentencing judge’s exercise of mercy.

[2] R v O’Neil (CA417/91, 1 April 1992).

[25]     There was common  ground between  counsel that the one third discount, which in terms of R v Hessell should apply to early pleas of guilty, was appropriate in this case.   Counsel further agreed that the fact that the appellant has already performed more than half of his community work and some two and a half months of the home detention sentence should be factored into any sentence of imprisonment which might result from this appeal.

[26]     I have also been referred to a number of cases.  I do not consider, however, that these are particularly comparable.  They include R v M,[3] a case which exercised Judge Hinton, Sale v New Zealand Police,[4] and R v Chapman.[5]  Those cases in my

view are distinguishable given the premeditated and sustained nature of the respondent’s behaviour and the circumstances of the violations.

[3] R v M [200] 2 NZLR 60.

[4] Sale v New Zealand Police (HC TAU CRI -2005-470-000033, 5 August 2005, Heath J).

[5] R v Chapman CA104/03 25 June 2003.

[27]     Counsel were also agreed on the approach which I should take to the recent Court of Appeal judgment R v AM.[6]   Counsel were correct that offending of this type would probably come into the higher end of the two to five year unlawful sexual connection band 1 which the Court specifies at [114] – [116]. R v M, to which I have referred, is specified by the Court of Appeal as a case perhaps illustrative of circumstances which might sit at the higher end of that band.  However, R v AM is

not applicable on this appeal given the very clear comment by the Court of Appeal at [127]  that  appeals  from  sentences  imposed  before  31  March  2010  must  be determined under the previous law and previous appellate authorities.   R v M, of course, is one of those authorities.

Conclusion

[6] R v AM [2010] NZCA 114.

[28]     There  are  two  issues  for  me.    The  first  is  whether,  by  an  appropriate application   of   sentencing   methodology,   the   Judge’s   arrival   at   two   years imprisonment, which thus triggered his home detention discretion, was manifestly inadequate.   The second issue is whether, if the Judge was correct at reaching the two year level, he exercised his discretion wrongly.

[29]     The offending, as it sits in the sexual violation range, is disturbing.   The premeditation and the sustained nature of the offending (there being two types of violation), preceded as it was by unwanted sexual activity, raised the level of culpability.  The respondent must be held accountable for the effect of his offending on his victim, which has been serious.

[30]     I  cannot  see  the  respondent  being  entitled  to  any  significant  mitigating reduction because of his previous criminal record.  It is true, as Mr Niven submits, he has not been in prison before, nor is there any history of sexual offending.  However, there are two previous blood alcohol offences (2002 and 2003) and other more minor

offences such as disorderly behaviour and common assaults.   I note that previous offending in the main has been dealt with by imposition of community service sentences.

[31]     Having regard to the respondent’s overall culpability I would be of the view that an appropriate start point would be in the order of four years imprisonment.  I think the Judge was correct to allow a mitigating discount for the quite lengthy period of six and a half months when the respondent was on EM bail.  I consider that an appropriate discount for that factor would be in the order of three months.  Then, to the resulting three years nine months, should be applied the full one third R v Hessell discount which would bring the sentence down to one of two and a half years.

[32]   The 43 percent discount which the Judge applied, quite apart from his application of the Hessell one third discount at the incorrect phase (see Hessell at [14]) is, in terms of Sentencing Act principles, too generous.

[33]     Even if I were to apply the same figures to the Judge’s start point of three and a half years, that would result in the Hessell discount being applied to a sentence of three years and three months and an end sentence of two years and two months.

[34]     I am thus of the view that the sentence imposed by the Judge of two years contrasted with two and a half years as the proper end sentence, which I consider should have been imposed, was manifestly inadequate.  Two and a half years or two years two months, of course, would both preclude the home detention discretion.

[35]     Some might say that the difference between two years and two months and two years is a bagatelle or tinkering, so I need to examine briefly whether the Judge was correct in imposing home detention rather than imprisonment.  That approach of course is predicated on the fact that the Judge was justified in getting to two years in the first place.

[36]     I consider that having regard to the Sentencing Act purposes and principles, which must include holding the respondent accountable for the harm inflicted on his

victim, and denunciation of offending of this type, home detention would be an inadequate sentence.   In particular the s 128B imperative is not to be read down. There is nothing remarkable about the respondent’s particular circumstances which would justify home detention rather than imprisonment in this situation.  Nor is there anything about the circumstances of the offence which would justify a more lenient approach.   The offending itself was, in my judgment, calculated, distressing, and inexcusable.

[37]     So, even at two years, I consider the discretion here was wrongly exercised.

[38]     Were I to arrive at a midway sentence between two years two months and two  and  a  half  years  a  sentence  of  two  years  and  four  months  would  follow. Changed circumstances between the sentencing and today, however, justify, as counsel accept, a reduction to reflect the fact that the respondent has completed part of his sentence imposed.  It would be unfair to punish him twice.

[39]     My conclusion is that the respondent should serve a term of imprisonment of two years and one month.

Result

[40]     Accordingly, the sentences imposed by Judge Hinton in the North Shore

District Court on 23 February 2010 are quashed.

[41]     A term of imprisonment of two years and one month is substituted.

[42]     The respondent is directed to surrender himself to the New Zealand Police so that his sentence can begin no later than Friday 14 May 2010.

[43]     I also recommend that the relevant Parole Board should, when considering the respondent’s situation and possible release, take into account his good performance whilst on home detention and his completion of the programmes to which I have referred.

.......................................… Priestley J