R v Boyd CA290/04
[2004] NZCA 342
•11 October 2004
PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA290/04
THE QUEEN
v
MATTHEW JAMES BOYD
Hearing: 28 September 2004 Coram: Hammond J
Wild J France J
Appearances: A Markham for Crown
G J King with M S Milne for Respondent Judgment: 11 October 2004
JUDGMENT OF THE COURT DELIVERED BY HAMMOND J
Introduction
[1] This appeal raises some relatively novel questions relating to the sentencing of an adult male who “met” young girls via Internet chat rooms, and subsequently formed relationships with them, which in turn lead to unlawful (albeit consensual) sexual activity. This sort of thing, or so it seems, is one unfortunate aspect of the ubiquitous rise of the Internet phenomenon.
R V BOYD CA CA290/04 [11 October 2004]
Background
[2] Mr Boyd was a medical doctor. He encountered some personal difficulties in his first years of practice in medicine. After a long-term relationship broke up, he sought female company via Internet chat rooms. He flirted in these chat rooms with a variety of women. This eventually led to a series of actual meetings with teenage girls, including the victims in this case.
[3] These contacts then led to unlawful sexual encounters, on about twenty occasions. Ultimately, Mr Boyd pleaded guilty to six counts of sexual offending against six teenage girls (some of the counts being of a representative character).
[4] On 2 July 2004 Mr Boyd was sentenced on these charges, in the District Court at Wellington, to a total of two years imprisonment. Special conditions were to attach on his release. Leave was granted to apply for home detention.
[5] The Solicitor-General now seeks leave to appeal against that sentence, on the footing that it is manifestly inadequate.
Background
[6]The sentencing Judge found the relevant facts to be as follows.
[7]In 2000 Mr Boyd was living in Dunedin, completing a degree in medicine.
[8] The following year, whilst still undertaking an internship year, he began contact with females through Internet chat rooms. This Internet chatting “became sexual and led to the sending of photographs of [himself] dressed and naked. As a result of those discussions [he] knew the ages of the young females”.
[9] The offending in this case covered a period of some 14 months, from January 2001 to March 2002. There were six individual complainants, who at the time of the offending were aged between 13 and 15 years.
[10] The offending came to light as a result of a party that took place at Mr Boyd’s apartment in Wellington in March 2002. Ultimately this led to police retrieving material from Mr Boyd’s computer. From those computer records, the information in relation to a number of these offences was obtained.
[11] There are two charges of unlawful sexual intercourse with under-age girls (that is, for present purposes, a girl then aged between the ages of 12 and 16 years; Crimes Act 1961 s 134(1)), in Dunedin. Those representative charges relate to unlawful sexual intercourse with two different girls.
[12] Then there are two indecent assault charges, also arising out of relationships in Dunedin. On both of those occasions Mr Boyd took teenage girls out in his car. He touched the 15 year old on the breasts outside her clothes, and then on her genitalia. He touched the 13 year old inside her vagina, so that there was an element of actual penetration involved.
[13] Then there were two indecent assaults in March of 2002 when a group of teenagers were at Mr Boyd’s Wellington apartment. He provided alcohol to them and engaged them in a drinking game with what the Judge described as “sexual overtones”. The 15 year old and the 14 year old became intoxicated. Mr Boyd kissed one girl on the neck and touched her breasts over her bra. He kissed and licked the second, and groped her breasts. This behaviour ended when a teenage male at the party intervened, and the incident came to an end.
[14] Mr Boyd was first charged with these offences, and certain other offences, in May of 2002. A preliminary hearing took place in February 2003. In April of 2004 he was discharged on a number of other counts. He pleaded guilty to the charges which we have outlined, on 18 May 2004.
Mr Boyd
[15] Mr Boyd is presently aged 28. He had no previous convictions. He was around 25 at the time of the offending. After his arrest he lived with his supportive parents in Wellington, but subject to stringent bail conditions.
[16] As a result of his arrest in the middle of 2002, the Judge said that Mr Boyd’s “world collapsed”. He renounced his certificate to practice as a doctor. The Judge said it was “unlikely that [he] would ever work again in that field”. The loss of employment led to bankruptcy. Mr Boyd had no income to service his debts. He suffered the opprobrium of being regarded both publicly and privately as a sex offender.
[17] The sentencing Judge regarded Mr Boyd as “contrite, remorseful, apologetic and regretful”. He has made significant steps towards self-reformation, for instance by enrolling in the STOP programme for sexual offenders. And despite his circumstances, he has become engaged to be married to a woman who is supportive of him.
[18] Mr Boyd has now turned his attentions to becoming a writer. He has completed an extra-mural degree in literature, and apparently intends to pursue a writing career.
The sentencing in the District Court
[19] Judge Davidson adopted a starting point of three and a half years imprisonment, and discounted the final sentence to two years, having regard to the mitigating factors. He gave leave to apply for home detention.
[20] In reaching this starting point, the Judge noted the following matters: the offending occurred over 14 months; there are six complainants; the unlawful sexual intercourse was repeated and sustained; the complainants were all young teenage girls, all extremely vulnerable; there was an age difference of at least 10 years between Mr Boyd and the complainants; the predatory nature of the way Mr Boyd initiated contact with them; the significant effect on the complainants; the significant breach of trust as a adult dealing with teenage girls; and two of the indecent assault charges occurred against a background of the provision of alcohol to teenage girls.
[21] The mitigating factors were identified as: the guilty plea; a lack of prior convictions; Mr Boyd is deeply apologetic and remorseful; he was under virtual
house arrest for two years while on remand; he is otherwise of good character; he has lost a career in medicine and has suffered and will continue to suffer the odium and stigma of being branded a sex offender; he is financially bereft as a result of being unable to work; he is unlikely to re-offend; he is willing to address the issues that may have caused his offending; and three of the indecent assaults were of a relatively low level in of themselves.
[22] In the result, the Judge sentenced Mr Boyd to two years imprisonment. This meant that the Judge gave the appellant an unusually large discount.
Crown submissions
[23]The Crown’s submits that the sentence is manifestly inadequate because:
• the starting point (three and a half years) was too low;
• the discount afforded for mitigating factors was too great;
• the resulting sentence does not adequately reflect the totality of the offending against these six young complainants.
[24] The Crown points to the significant effects on the victims, as evidenced by the victim impact statements.
[25] The Crown also points to the long procedural history of this case, which originally consisted of 15 counts relating to 10 complainants, and included counts of sexual violation and stupefaction.
[26] In terms of relevant sentencing principles, the Crown acknowledges that there is no established tariff for this kind of offending, recognising the “wide spectrum of guilt” which exists.
[27]In the present situation, the Crown submits that:
• “consent”, which is relevant to the appropriate penalty, is capable of shades of meaning, and in this case, it must be viewed in the proper context of the relationship between the parties, and the circumstances in which the sexual contact took place;
• the 1993 increase in the maximum penalty for sexual violation, and consequent effect on sentences for related offending (see R v Graham CA400/97), should be taken into account when considering older authorities.
[28] While the Crown could locate no decisions which are directly comparable, it provided examples of cases where sentences ranging from six months to four and a half years imprisonment were imposed. It should be noted that the more severe of these sentences are for offending in a familial context.
[29] The Crown identifies the following as aggravating factors: the number of victims; the 14 month duration of the offending and the frequency of offending; the age disparity (the youngest victim was 13, and Mr Boyd 24-25 at the time); the premeditated and predatory nature of the offending; the serious nature of the indecent assaults; that, regardless of what Mr Boyd may have thought, none of the complainants truly consented to the activity; and the effects of the offending on the victims.
[30] In light of this, the Crown submits that this must be seen as offending at the higher end of the scale. On the scale of seriousness, it is said to fall somewhere between that in R v Beckford (AP20/00, HC Hamilton) and R v Edmonds (CA137/99, 28 June 1999) and R v Graham (CA400/97, 26 November 1997). In the first two cases, starting points of 9 months and 20 months or more were present. The offending in these cases was said to be less serious than that in the present case and involved (significantly in the Crown’s submission) one-off incidents. Graham is said to have involved a more serious breach of trust, and had a probable starting point of five and a half years imprisonment or more.
[31] The Crown submits that, given the representative nature of the conduct and its predatory nature, a starting point of two and a half to three and a half years imprisonment would have been available for offending on one of the victims alone. Given the identical offending in relation to another victim, and the serious indecencies in respect of four additional complainants, it is submitted that a starting point close to the maximum of seven years would have been possible. However, acknowledging that the Crown only sought a starting point of four to four and a half years imprisonment, four years is said to be the lowest starting point which the Judge could have adopted in the circumstances.
[32] The Crown also submits that Mr Boyd should not, as the sentencing Judge accepted, have been given full credit for his guilty pleas, which were entered two years after his arrest. It is said to have been “plainly open” for Mr Boyd to plead guilty from the outset. The Crown referred to R v Tipene (CA269/01, 27 May 2002) in support of its submission that as a consequence of this, the delay must moderate the mitigating effect of the plea.
The submissions for the respondent
[33] Mr King submitted that the sentence was properly available, in the exercise of the Judge’s discretion, and was imposed in accordance with established sentencing principles. He submitted that the sentence was open to the Judge and was in accordance with that sought by the Crown (allowing for mitigating factors).
[34] Mr King submitted that the Crown’s argument is “essentially a rehashing of the aggravating features that were extensively referred to” at the sentencing.
[35] With regard to the Crown submissions, Mr King emphasised that: the charges of unlawful sexual intercourse involved “entirely consensual acts” (or at least that Mr Boyd had an “honest belief” that they were); that Mr Boyd was entirely honest with the complainants and that none of the offending was in any way related to his former occupation as a medical doctor; that the starting point adopted by the Judge was not radically different from that sought by the Crown and was open to the Judge on the basis of the totality principle; that the substantial discount (of the order
of 43 percent) was appropriate in the circumstances; that Mr Boyd had “matured enormously” in the last two and a half years; that Mr Boyd’s career has been lost, as has his reputation; and that he has been bankrupted.
The principles relating to Crown appeals
[36] On a Crown appeal against sentence such as the present, this Court “if it thinks that a different sentence should have been passed” may quash the sentence, vary it, or substitute some other sentence (s 385(3) Crimes Act 1961).
[37] The only way a reviewing Court can perform that task is to determine how a person ought to have been sentenced, and then to see, how far (if at all) there is a variance from the position actually taken by the sentencing Judge. (See Dyson v Ellison (1974) 60 Cr App R 191 at 194 per Lord Widgery CJ, commenting on s 11(3) of the Criminal Appeal Act 1968, which is in pari materia with the New Zealand provision).
[38] The matter does not however end there, as a matter of principle. What if the “variance” is only small? By way of response, it has been said, many times, that appellate Courts should not “tinker”. See, for instance, the strong observations of the Supreme Court of Canada in R v Proulx (2000) SCC 5 against intermediate appellate Court “tinkering”: the sentence must be “demonstrably unfit”. The now English legislation (s 36, Criminal Justice Act 1986) has also endeavoured to reinforce this concern by explicitly providing that the reviewing Court can only interfere where the sentence is “unduly lenient”. In short, there ought to be a respectable margin of appreciation for the judgment of the trial Judge, particularly bearing in mind that sentencing is not a science.
[39] Because, on a Crown appeal, a person is effectively passing through the sentencing process twice, with the psychological damage which may attend on a repeat process, appellate courts conventionally endeavour to redress that imbalance, should they find it necessary to intervene, by only raising a sentence to the minimum considered to be appropriate.
Discussion
[40] The starting point here must be that legislation of the character against which Mr Boyd offended is prophylactic. It is protective legislation, and it was quite deliberately put into place by our Parliament to protect young girls against precisely the sort of thing which occurred in this particular case. In such circumstances, the fact that the conduct could in a sense be described as “consensual” is of no moment.
[41] The second point is that Mr Boyd was very well placed to understand and appreciate the importance of provisions of this character. Not only was he expected to observe the law, but his very training and background ought to have made him aware of the social and psychological importance of those prohibitions. We now know - the medical and social science literature, and indeed the law reports themselves, are replete with evidence - that young girls who become enmeshed in these sorts of incidents routinely suffer delayed psychological problems. This point was well put by the English Court of Appeal recently, in Attorney-General’s Reference No 39 (Wheeler) [2004] 1 Cr App R (S) 79:
Young girls, who have consented to sexual activity with men who are appreciably older than they are, frequently become disturbed when they reach an age where they have a full understanding of what they have been involved in …. Equally the fact that the sexual activity has included other acts apart from sexual intercourse is another matter that may cause a girl to be distressed when she looks back on her involvement in the sexual activity (per Kay LJ at 480).
[42] Thirdly, whilst it must be acknowledged that this offending did not take place in the nature of a breach of trust between a doctor and patient (which would be an extremely serious breach of trust), Mr Boyd was nevertheless able to portray himself as being a doctor, which added something to the exploitative feature of what occurred; and these were adult/child situations.
[43] Fourthly, there is the feature of this case of the persistent pattern of conduct of this kind over some months. And as to particular complainants, there was the on- going conduct with respect to two complainants on the two most serious counts
(which involved unlawful sexual intercourse on a number of occasions with each of them).
[44] In our view, in the circumstances of this case, the Crown was amply justified in seeking a starting point of around four and a half years. Indeed, in the particular circumstances a distinctly higher starting point would not, we think, have been open to criticism.
[45] Offending of this character, in these sort of circumstances, must be regarded as very serious indeed. It will necessarily attract sentences near the top of the range. We entirely endorse the recent observations of the English Court of Appeal in Wheeler (above), that:
The use by older men of Internet chat rooms used by young girls can have no acceptable justification. It is an area in which the courts need to deliver a clear message of disapproval. Where a man considerably older than a teenager makes contact with young girls in this way and this leads to sexual offences against the girls, it needs to be clearly understood that sentences will be to the top end of the range (at 479).
[46] Wheeler (which counsel did not draw to our attention), is a particularly helpful recent authority in this area of emergent concern. In that case, the offender entered guilty pleas to five counts of unlawful sexual intercourse with a girl under the age of 16 and six offences of indecent assault. The victims were two 13 year old girls. The then 34 year old offender made contact with the girls via Internet chat rooms, during which he claimed to be 19 years old. The first victim claimed to be 16, but after she and the offender made contact it became apparent she was 13. Sexual contact between the two commenced soon after the girl’s 13th birthday, and progressed to intercourse, which occurred on six occasions, along with the other sexual activity, including oral sex. The offender met the second victim around the same time, and initiated sexual contact by requesting she masturbate him. This progressed to sexual intercourse, which occurred several times, as well as oral sex.
[47] Mr Wheeler was originally sentenced to five years imprisonment, consisting of a custodial term of three years and an “extension period” of two years. This was made up of terms of 15 months concurrent imprisonment for each unlawful sexual intercourse count relating to the first victim, together with three months
imprisonment for each indecent assault offence in relation to the same victim, to be served concurrently, but consecutively with the 15 month sentences. Similar sentences were imposed in respect of the second victim.
[48] This matter reached the Court of Appeal as an Attorney-General’s reference on the ground that the sentence was “unduly lenient”.
[49] Overall, the Court of Appeal considered that the least sentence that could properly have been imposed was one of five and a half years imprisonment, rather than the three years imposed by the sentencing Judge. However, in accordance with UK practice (which mirrors that in New Zealand on this point) some discount was given for the fact that the offender had to go through the sentencing process twice.
[50] Reference might also usefully be had to the schedule of sentencing decisions attached to the decision of the New South Wales Court of Criminal Appeal in R v Dawson [2000] NSWC AA 399, for comparative purposes, which again reinforces our view that the sentence in this case was decidedly too low.
[51] The next point is as to any appropriate discounts. There was a good deal of discussion before us as to what the appropriate discount in this case should have been. The complications in the case are that there was a good deal of delay in the case coming forward. Counsel traversed closely why that was, and the conditions of bail for Mr Boyd during that time. There was also discussion before us, as to how (if at all) Mr Boyd’s “fall from grace” and its impact on his future should be viewed in a case such as this.
[52] In our view there should have been an allowance for the guilty pleas, and credit was given for them. Credit for bail conditions would be most unusual, and we would not have regarded it as an appropriate allowance in this case. Neither, in our view, in a case such as the present, involving sexual offending, should there have been a differential for the damage these incidents have wrought in Mr Boyd’s life.
[53] We are of the view that, in all the circumstances, the discount of 43 percent was undoubtedly very much on the high side. And, as Ms Markham said, this was
open to the construction that the sentence had been “tailored” to leave open the possibility of home detention for Mr Boyd, rather than the sentence leading to a present prison term.
[54] In the result, although this should not be taken as the sort of allowance this Court would be prepared to entertain for the future, given the particular circumstances which this case has followed, the delays which have occurred, and the psychological impact on Mr Boyd of now having to endure an actual prison term, in this instance we will adopt the discount figure struck by the sentencing Judge.
[55] If the matter had been before the Court de novo, entirely unconstrained by the process difficulties and other factors it has attracted, we would have thought an appropriate sentence to be at least five years imprisonment, less perhaps a discount of 25 percent, which would yield a net effective sentence distinctly above that presently sought by the Crown.
[56] In the result, leave to appeal against the sentence is granted. The sentence imposed by the District Court is set aside. We substitute (on a totality basis) a sentence of three years imprisonment. That will be achieved by attaching that sentence to Counts 1 and 2. On the indecent assault counts, we substitute sentences of six months imprisonment, concurrent. In the result, Mr Boyd will not be eligible to apply for home detention.
Solicitors:
Crown Law Office, Wellington
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