R v Brunie

[2009] NZCA 300

NOTE:  PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA199/2009
[2009] NZCA 300

THE QUEEN

v

RALPH LINDSAY BRUNIE

Hearing:8 July 2009

Court:Ellen France, Randerson and Miller JJ

Counsel:A J McKenzie for Appellant

K A L Bicknell for Crown

Judgment:15 July 2009 at 10 am 

JUDGMENT OF THE COURT

AAn extension of time for filing the appeal is granted.

BThe appeal against sentence is allowed.  The sentence of seven years imprisonment imposed on the two sexual conduct charges is quashed and a sentence of six years imprisonment is substituted.  The sentence of four years imprisonment on the grooming charge stands.  All sentences to be served concurrently.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       The appellant was a youth worker at a secure care and protection facility.  While employed at the facility the appellant, who was then 38 years old, had oral sex with a 15-year old girl, A.  A was a resident at the facility.  Subsequently, the appellant communicated with A over a period of about a month.  He arranged to meet up with A who had by then been placed in another, non-secure, facility and had sexual intercourse with her.

[2]       As a result of this conduct, the appellant was convicted after trial of two counts of sexual connection with a person under 16 (s 134(1) of the Crimes Act 1961) and of one count of meeting with a person under 16 following sexual grooming (s 131B(1) of the Crimes Act).  The maximum penalties for this offending are ten and seven years imprisonment, respectively.

[3]       The appellant was sentenced on 21 November 2008 by Judge Crosbie to a term of seven years imprisonment.  He appeals against his sentence on the ground it is manifestly excessive.

Factual background

[4]       The background to the offending is as follows. 

[5]       The complainant was placed in the facility, which is run by Child, Youth and Family services, because she was in need of care and protection.  At the age of 13 she had been introduced to drugs and sexual behaviour by an older man.  She went missing for a period before being placed in foster care and then in the facility at which the appellant worked.  The secure nature of the facility meant she was not free to leave.

[6]       The appellant became aware that A had a cell phone, which was not permitted by the rules of the facility.  Rather than remove the phone, the appellant obtained the number and then began to send text messages to A.  The messages became sexually explicit and were a precursor to the oral sex which represents the first of the three charges.  This offending took place in A’s room.  It occurred despite warnings to the appellant from his co-workers that he should desist in his interest in A.

[7]       After the first incident, the appellant continued to contact A after she left the facility.  He made arrangements for her to write to him at a friend’s address to avoid detection.  He also provided her with credit to top-up her cell phone.  They sent text messages and phoned each other.  The grooming charge reflects what happened over this period up until the two had sexual intercourse.

[8]       The appellant eventually arranged to meet A near a shopping mall.  She was with an associate.  The appellant gave the associate some money and sent her off to buy some food.  He took A to a nearby grassed area where they had sex.

The approach on sentencing

[9]       The Judge identified a number of aggravating features including the following:

(a)       disparity in ages and the vulnerability of the complainant;

(b)premeditation and persistence despite being warned off;

(c)gross breach of trust; and

(d)repeat offending after grooming.

[10]     Applying the approach in R v Davidson [2008] NZCA 484, Judge Crosbie took a starting point of eight years and six months imprisonment. The only mitigating factor for which credit was given was the appellant’s previous good character. For that factor, the Judge reduced the term on the s 134 charges to seven years imprisonment. A concurrent term of four years was imposed on the grooming charge.

Discussion

[11]     The approach to sentencing in relation to s 134 is discussed by this Court in Davidson.  There the Court followed the approach taken in R v H (CA94/08) [2008] NZCA 237 which set a starting point of four years imprisonment. In Davidson, this Court at [28] noted that the independent offending under s 131B will “normally” be seen as an aggravating aspect of the s 134 offending leading to a “significant” uplift in the starting point that would otherwise apply.

[12]     We consider that the aggravating features identified by the Judge in this case warranted a significant uplift on the four-year point.  This offending involved a high level of premeditation.  The breach of trust arising from the appellant’s predations on this particularly vulnerable young woman required a stern response in terms of both denunciation and deterrence.  As Judge Crosbie said, the criminalisation of this conduct is intended to provide protection for young girls from predatory behaviour.

[13]     The primary issue on appeal is whether the four and a half year uplift adopted by the Judge was manifestly excessive in light of these features.

[14]     We can shortly dispose of the appellant’s first submission, namely, that the grooming involved here is only minimally aggravating.  Mr McKenzie argued that any grooming here is not independent of the other offending but is part of it.

[15]     We disagree.  The appellant’s communications over the relevant period were sexually explicit.  They were, as Ms Bicknell submits, designed to make A feel special because of his interest in her.  The overall approach was designed to make A receptive to a further meeting and to the sexual activity that ultimately took place.

[16]     The appellant is, however, on stronger ground in the second submission, namely, that a comparison with Davidson suggests that the uplift here was manifestly excessive.  On this point, the Crown accepts that the sentence imposed is stern but submits that this was warranted in the circumstances.  Ms Bicknell emphasises the breach of trust and A’s vulnerability because she was essentially a captive audience. 

[17]     There were three victims in Davidson, a greater age disparity, other sexual indignities, and the activity was close to being non-consensual.  The Court in Davidson described the offending in that case at [40] as “near the most serious of its kind”. The Court continued at [40]:

Although there was only one episode of offending in relation to each of the three victims, the offending in each case involved a number of different degradations.  A starting point near the maximum of ten years was required in order to recognise the extreme manipulation involved in the grooming of the girls prior to the offending, the extensive premeditation, the vulnerability of the girls who were the victims of the offending and the fact that the appellant photographed the girls while they underwent the sexual degradations and kept those images on his computer.  The fact that he had other particularly objectionable material on his computer adds further to his culpability.

[18]     In Davidson a starting point of nine years imprisonment was seen as appropriate.  From that point, a one-third discount for the guilty plea and efforts towards rehabilitation was allowed resulting in an end sentence of six years.  Applying that approach, even allowing for the fact that Davidson was a Solicitor-General appeal, we are satisfied that the starting point of eight years six months imprisonment adopted in the present case was manifestly excessive.

[19]     We do not however consider that the alternative starting point suggested by the appellant of five and a half to six years imprisonment and an end sentence of five years is appropriate.  In our view that does not adequately reflect the aggravating aspects of the present offending and the protective nature of the legislation creating these offences.  In this context the appellant places some reliance on the fact that the victim impact appears less severe than that in other cases.  But, as the psychologist who prepared the victim impact report notes, it is likely that the offences committed by the appellant have “served to compound the effects” of A’s previous victimisation and it may be, sadly, that those effects will only become apparent over time. 

[20]     We consider that an appropriate starting point was seven years.  With a discount broadly proportionate to that adopted by the Judge, which both the appellant and the Crown accepted was proper, a sentence of six years imprisonment is appropriate.

Disposition

[21]     For these reasons, the appeal against sentence is allowed.  The sentence of seven years imprisonment imposed on the two sexual conduct charges is quashed and a sentence of six years imprisonment is substituted.  The sentence of four years imprisonment on the grooming charge stands.  All sentences are to be served concurrently.

[22]     We also grant an extension of time for the filing of the notice of appeal.  The notice of appeal was filed about three months out of time.  It appears from the appellant’s affidavit that there may have been some misapprehension on his part as to whether an appeal had been filed.  The Crown does not oppose an extension of time.  In the circumstances, an extension of time is appropriate.

Solicitors:

Crown Law Office, Wellington