R v Downing
[2021] NZHC 159
•11 February 2021
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2018-092-007753
[2021] NZHC 159
THE QUEEN v
EDWIN JOHN DOWNING
Hearing: 11 February 2021 Appearances:
L P Radich and C E Best for the Crown
P J Kaye and S D Withers for the Defendant
Judgment:
11 February 2021
SENTENCING NOTES OF CAMPBELL J
Solicitors/Counsel:
Kayes Fletcher Walker Limited, Auckland Vulcan Chambers, Auckland
R v DOWNING [2021] NZHC 159 [11 February 2021]
Introduction
[1] Mr Downing, you appear for sentence having been found guilty, following a jury trial, of eleven charges of sexual offending against two young people. I am going to refer to the two victims as D and B. Both are biologically male, but B now identifies as female, and I will refer to her as such.
[2]In relation to the first victim, D, the offending was:
(a)One charge of sexual violation by unlawful sexual connection;1
(b)Two charges of doing an indecent act on a young person under 16;2
(c)One charge of meeting a young person following sexual grooming;3
[3]In relation to the other victim, B, the offending was:
(a)Six charges of sexual connection with a young person;4
(b)One charge of meeting a young person following grooming.5
Facts
[4] You met D near a school in south Auckland on 3 July 2018. About ten days earlier you had connected with him through Grindr, a smartphone social networking application used particularly by LGBTI people. At the time, D was 14 years old. On 24 June 2018, you participated in a video call with him, during which you exposed your penis and rubbed it to an erection.
[5] Two days later, D turned 15 years old. In the course of your exchanges, you offered him cash in exchange for engaging in sexual activity. That offer led to the meeting on 3 July 2018. D got into your car and you drove to Sutton Road, near Drury.
1 Crimes Act 1961, s 128(1)(b). Maximum penalty: 20 years’ imprisonment.
2 Crimes Act 1961, s 134(3). Maximum penalty: seven years’ imprisonment.
3 Crimes Act 1961, s 131B. Maximum penalty: seven years’ imprisonment.
4 Crimes Act 1961, s 134(1). Maximum penalty: 10 years’ imprisonment.
5 Crimes Act 1961, s 131B. Maximum penalty: seven years’ imprisonment.
On the way, you touched his thigh and attempted to work your hand into his shorts. At Sutton Road you parked the car, removed your lower clothing, took D’s hand and placed it on your penis. You took his head and pushed it down on to your penis. When he resisted, you did it again. At that point, you acknowledged that D was resisting your activities and you drove him home.
[6] In relation to your activity with D you were found guilty of meeting a young person following sexual grooming, two counts of sexual conduct with a young person under 16, and one count of sexual violation by unlawful sexual connection.
[7] Your actions in relation to D brought you to the attention of Police. In the course of their investigations, your messages to B were located. B was 13 when you started communicating with her in 2017. You sent messages of a sexual nature, including naked pictures of yourself. You agreed to pay B for engaging in sexual activity. B’s family was under financial pressure at the time.
[8] Over the course of between five and ninth months, you met with B about five times. On the first occasion, you collected B from the house where she lived and drove to a quiet location near her school. At your request, she removed her clothes. You tried to have anal sex with her, but achieved penetration to only a very minor degree. B found this painful and so you stopped. B performed oral sex on you instead. You drove B home.
[9] You collected B on four further occasions where she performed oral sex on you. You paid her between $40 and $100 for doing so. On your final encounter with B, you offered more money in exchange for anal sex. B agreed. She was then 14. She described the anal sex as being very painful. She bled for two days afterwards.
[10] As a result of these actions, you were found guilty of meeting a young person following sexual grooming, and six counts of sexual conduct with a young person under 16.
Victim impact statements
[11] Both D and B have provided the Court with victim impact statements. If I may say so, the statements are very eloquent and speak highly of the victims.
[12] D says the effect of your offending on him has been serious. He is highly sensitive to touch and easily overwhelmed and startled by even the most mundane interactions that involve physical contact. He withdrew from school, leaving behind existing friendships. He has engaged in self-harm. Your offending continues to have a profound effect upon him.
[13] B speaks of her insecurity and lack of trust in people, especially men. She now recognises the effect of your offending on her and the control you exercised over her. She struggled to deal with the court proceedings but is attempting to move on with her life and put your offending behind her.
Personal circumstances
[14] As to your personal circumstances Mr Downing, you are 43 years old. You were formerly a secondary school teacher. You were married. That marriage appears to have had some troubles even before your offending. The marriage has now ended. You have a son from that marriage, and you are close to him.
Approach to sentencing
[15] The approach I must take to sentencing is guided by the Sentencing Act 2002 (the Act), which sets out the purposes and principles of sentencing. In cases of sexual offending against young persons, relevant purposes include holding you accountable for the harm you have caused to the victims, to promote in you a sense of responsibility for, and an acknowledgment of, that harm, to denounce the conduct in which you were involved and deter both you and others from committing the same or similar offences, to protect the community and assist in your rehabilitation.6
6 Sentencing Act 2002, s 7(1).
[16] The principles in the Act include the need to consider the gravity of your offending and your degree of culpability,7 and the general desirability for consistency with sentences that have been imposed in similar cases.8 And, Mr Downing, that desirability for consistency is why you have heard me and counsel talk rather a lot this morning about a Court of Appeal decision called R v AM.
[17] Determining the appropriate sentence involves two steps. First, I must determine a term of imprisonment as the “starting point” for the sentence, which will be based on the seriousness of the offending for which you have been found guilty.9 Secondly, I will consider any appropriate deductions from that starting point to reflect your personal circumstances. This will produce the end sentence.
Starting point
Submissions
[18]Counsel provided written submissions in advance of this morning’s sentencing.
[19] In those submissions Mr Radich, on behalf of the Crown, says your offending against D is at the lower end of band two of R v AM,10 which is a guideline case from the Court of Appeal for unlawful sexual connection. Mr Radich therefore says your offending against D warrants a starting point of five years’ imprisonment. He then says that the starting point for your offending against B should be four years’ imprisonment. He says that cumulative sentences should be imposed. Accordingly, he submits that the starting point for your total offending should be nine years’ imprisonment.
[20] On your behalf, Mr Kaye, in his written submissions, said the appropriate starting points are three years’ imprisonment for your offending against D, and three years, three months’ imprisonment for your offending against B. However, he submitted that concurrent sentences should be imposed, with an adjustment for totality
7 Section 8(a).
8 Section 8(e).
9 Moses v R [2020] NZCA 296.
10 R v AM [2010] NZCA 114.
to reflect the seriousness of the offending against each victim. He submitted an end sentence of approximately four years’ imprisonment is justified.
[21] At this morning’s hearing, as you have heard, I said to counsel that, in my view, the lead offending was in a different band from that identified in their written submissions. In essence that band comes from a quite different category of offence which, as shorthand, the Court of Appeal in R v AM referred to as rape bands. The rape bands include offending which involves penile penetration of the complainant’s mouth. Mr Radich accepted the view I expressed and made further oral submissions on that basis. Mr Kaye attempted to persuade me that my provisional view was incorrect. Having heard submissions from both counsel my clear view is that the rape bands in AM are applicable.
Analysis
[22] I will address the starting point for the offending against D first. The charge of unlawful sexual connection is the lead offence in relation to him, but I will consider all of the offending against him in setting a starting point.
[23] As I have said, R v AM provides a guideline judgment for this type of offence. The Court of Appeal identified a number of relevant culpability factors. Two of those factors are present in your offending, in my view to a moderate degree.
[24] First, there was a degree of planning in your offending. You connected with D on Grindr, exchanged messages and exposed yourself during a video call. You arranged a meeting with him with the intention of engaging in sexual activity.
[25] Secondly, the age difference between you and D increased his vulnerability above that inherent in the offence.
[26] I do not accept the Crown’s submission that the level of force involved in this offence was more than minimal. Among D’s descriptions of what happened was that you were “controlling” his head on to your penis. D was still able to stop, which is consistent with minimal force. The second time he stopped, he told you he did not like it. At that point you offered to take him home and did so.
[27] Nor do I accept the Crown’s submission that there was any breach of trust in this offending. The Court of Appeal in R v AM said that a relationship of trust arose where a person has assumed some responsibility in relation to the victim. That was not the case here. In no sense had D been entrusted into your care.
[28] All offending of this sort is serious. It is invidious to draw comparisons between different levels of seriousness in such offending. But that is something that I must do in sentencing. In that regard, the scale and degree of violation in the unlawful sexual connection with D was low. You parked on the side of a relatively busy rural road. The location where you parked was not at all secluded. The connection that you had with D that led to this particular conviction on the lead charge was relatively brief. Mr Radich acknowledged in his submissions this morning that this connection was fleeting and probably less than a minute. I agree with that observation, having sat through the trial. The connection involved minimal force as I have earlier referred to. Once D told you he did not like it, you offered to take him home.
[29] Another comparison that I make with some other cases of this sort, and again it is necessarily a slightly invidious comparison, relates to the extent and nature of the grooming that led to your meeting with D is relevant. Mr Kaye referred to the nature of the Grindr website. While I do not accept all that Mr Kaye said in relation to that, it does seem to me to be relevant that the initial connection with D and also with B, was through a website that had, to use a general expression, “dating” as its primary objective. That seems to me to be quite different from other cases where initial contact arises from the use of a website or other social connection which has an otherwise entirely innocent purpose.
[30] Taking account of those matters – and having heard the evidence at trial – I am firmly of the view that your offending is at the lower end of the spectrum identified by the Court of Appeal in AM. Nonetheless, as I said, because this offence involved the penetration of D’s mouth with your penis, the applicable bands in the AM judgment are the rape bands. The Court of Appeal said in that case that where the victim is young – as was the case here – the applicable band will usually be band two. That involves a starting point of seven to 13 years. However, the Court of Appeal also emphasised that sentencing remains an evaluative exercise. For the reasons I have just
given, my firm view is that this is a case where the starting point should be below the usual range indicated by the Court for band two. Indeed, Mr Radich in his submissions acknowledged as much by saying that, in his view, the appropriate rape band was band one, for which the range identified by the Court of Appeal was six to eight years. Mr Radich’s submission was that the appropriate starting point was six years. That is at the bottom of rape band one. I agree. Taking into account all the circumstances I have identified, a starting point of six years is appropriate for the lead offence and your offending against D.
[31] This brings me to your offending against B. Counsel agree that R v Johnson11 provides guidance for determining a starting point in sexual conduct offences in the absence of a guideline judgment. Among the relevant factors in assessing a starting point are the difference in age between victim and offender, offending which involved penetration on several occasions, significant adverse effects on the victim and grooming. In such circumstances, the Court of Appeal considered a starting point of four years’ imprisonment was appropriate.
[32] Mr Radich identifies the following features of your offending in relation to B. First, it occurred four times over about nine months. Second, B was aged 13 to 14 years at the time of the offending. Third, the age difference was significant. Fourth, B’s anus was penetrated by your penis on two occasions. The Crown acknowledges penetration on the first occasion was limited. Fifth, you engaged in grooming of B. Sixth, the transactional nature of the offending contributed to the vulnerability of the victim. Mr Radich further compares your offending with that in another case Jackson v R. The Court of Appeal upheld a starting point of four years’ imprisonment for offending which involved a comparable age difference and sexual activity over three months involving penetration, including of the complainant’s anus, on several occasions.
[33] Mr Kaye, by contrast, submits the offending in Johnson was more serious than your offending.
11 R v Johnson [2010] NZCA 168.
[34] I have come to the view that your offending is not as serious as that in Johnson or Jackson and that a starting point of four years’ imprisonment for the offending in relation to B is not justified. In your case there were two instances of penetration, but one of those was both minimal and brief. In the second you did cause some injury to B’s anus. In the other cases to which counsel have referred, penetration occurred on several occasions and the offending was more serious and more extensive. In Johnson, the treatment of the complainant by the defendant was threatening and degrading. In my view having heard all the evidence during trial, neither of those factors was evident in your case. The age difference goes to vulnerability, but the age of the complainant is inherent in the offending. Grooming and the payment of money as an incentive to participate are both key considerations which go to the vulnerability of B.
[35] In the circumstances, I consider a starting point of three years’ imprisonment is appropriate for the offending against B.
Concurrent or cumulative?
[36] I now turn to consider whether the sentences should be cumulative or concurrent. I first note that it is not in dispute that these sentences in respect of each offender should be concurrent as between themselves. The dispute is whether the two groups of sentences, one for D and one for B, should be concurrent between those groups or whether they should be cumulative.
[37] Mr Kaye submits a concurrent sentence is available because you are being sentenced for offending of a similar kind which are a connected series of offences.12 He is correct that the Court may consider the time of the offences, the nature of the offending and any other relevant relationship in determining whether two or more offences are a connected series of offences.13 Mr Kaye says there is a clear established pattern in your offending against each complainant, they overlap in time and the nature of the offending is similar in that the meeting point was Grindr, a meeting has been arranged and money was offered and paid for sexual activity.
12 Sentencing Act 2002, s 84(2).
13 Sentencing Act 2002, s 84(3).
[38] A concurrent sentence for sexual offending against two victims would not, in my view, be consistent with the authorities.14 While the offences are similar in kind, in that they all relate to sexual offending against a young person, they are not a connected series of events. While they occurred at a similar time and have a similar nature or quality, the offending was against different and unrelated victims. In assessing whether the offences are a connected series of offences, considerable weight is given to this last point. As the Court of Appeal concluded in the case R v Mwai, “to make them cumulative [sentences] was a proper recognition of their cumulative nature and effect.”15 An individual sentence was required for each of the victims to properly take account of the purposes and principles of sentencing.16
Totality
[39] I now turn to totality. On a cumulative basis, the overall starting point for all your offending, then, is nine years’ imprisonment.
[40] By s 85(2) of the Sentencing Act, those cumulative sentences must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. I am clearly of the view that a sentence of nine years’ imprisonment would be out of proportion. Mr Radich acknowledges that an adjustment for totality is appropriate for that reason, although in his submission the overall starting point should be ten years rather than the nine years that I have taken. His submission was that an adjustment for totality should reduce the overall sentence to a range of between eight and nine years.
[41] I agree with that general approach. I conclude that, making such an adjustment from the overall starting point that I have adopted, the starting point should be seven years’ imprisonment.
14 See, particularly, R v Mwai [1995] 3 NZLR 149 (CA), applied in the context of sexual offending against several victims who were children or young persons in R v T CA370/04, 27 April 2005.
15 R v Mwai [1995] 3 NZLR 149 (CA) at 158.
16 R v Mwai [1995] 3 NZLR 149 (CA) at 158. Compare R v T CA370/04, 27 April 2005 at [15].
Personal factors
[42] I now turn, Mr Downing, to your personal factors. The pre-sentence report records your continuing denials that you committed the offences. It is clear you have not accepted responsibility for your offending and you do not acknowledge the harm you have caused the victims. You are not entitled to any reduction for remorse.
[43] You do not have any prior convictions. I consider some credit is available for your previous good character. For two decades you have served the community as a teacher. There is nothing to suggest any blemish on that record until the offending I am dealing with this morning. I do not accept Mr Radich’s submission that your continued denials reduce your potential for rehabilitation and enhance the risk of reoffending. The rehabilitation journey for you will be a long one, and Mr Downing I encourage you to make use of it. But I accept your prior good character is an indication that you will be able to address the causes of your offending once you have accepted the reality of it.
[44] In my view a discount of six months from the starting point is appropriate to reflect your previous good character.
[45]The final sentence will therefore be six years and six months’ imprisonment.
Result
[46]Mr Downing, please stand.
[47]First I will sentence you on the charges in relation to D:
(a)On the charge of sexual violation by unlawful sexual connection, I sentence you to three years, six months’ imprisonment.
(b)On each charge of doing an indecent act on a young person under 16, I sentence you to two years’ imprisonment.
(c)On the charge of meeting a young person following sexual grooming, I sentence you to two years’ imprisonment.
[48] Those sentences are to be served concurrently. This means you will serve three years, six months’ imprisonment for all your offences relating to D.
[49]On the charges in relation to B:
(a)On each charge of sexual connection with a young person, I sentence you to three years’ imprisonment.
(b)On the charge of meeting a young person following grooming, I sentence you to two years’ imprisonment.
[50] Those sentences are to be served concurrently. This means you will serve three years’ imprisonment for all your offences relating to B.
[51] The sentences relating to D are imposed cumulatively on the sentences relating to B. This means that your total effective end sentence is six years, six months’ imprisonment.
[52] Mr Downing, you are now a registrable offender under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. Your details are to be recorded on the Child Sex Offenders Register. A written notice will be given to you by the Court.
[53]Mr Downing, you may stand down.
Campbell J
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