R v Heke
[2022] NZHC 755
•12 April 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2021-019-2019
[2022] NZHC 755
THE QUEEN v
VINCENT HEKE
Hearing: 12 April 2022 Appearances:
B Vaili for the Crown
T C Tran and A N Gray for the defendant
Date:
12 April 2022
SENTENCING NOTES OF CAMPBELL J
R v HEKE [2022] NZHC 755 [12 April 2022]
Introduction
[1] Mr Heke, you pleaded guilty to a charge of burglary1 and two charges of doing an indecent act on a young person.2 I am going to sentence you today on those charges.
[2] You have previously been convicted of three charges of indecent assault, for offending in February and October 2020. Under the three strikes sentencing regime, you received a first strike warning on 7 October 2020, and a second strike warning on 26 January 2021.
[3] Your two present charges for doing an indecent act on a young person are third strike offences.3 Section 86D of the Sentencing Act 2002 applies. That section says I have to sentence you to the maximum term of imprisonment for those offences. That is a term of seven years’ imprisonment. Section 86D also requires me to order you to serve that sentence without parole, unless that would be manifestly unjust.
[4] However, the Supreme Court has decided, in a case called Fitzgerald v R,4 that s 86D does not require judges to impose sentences that breach s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and New Zealand’s international obligations. Section 9 of the Bill of Rights says that everyone has the right not to be subjected to disproportionately severe treatment or punishment. The Supreme Court explained that where s 86D produces a sentence that breaches s 9 of the Bill of Rights, the defendant should be sentenced in accordance with ordinary sentencing principles.5
[5] The key issue for me to decide is whether a sentence of seven years’ imprisonment in your case would breach s 9 of the Bill of Rights.
Facts
[6] I can summarise your offending briefly. In the afternoon of 24 April 2021, a 15-year-old girl was in the lounge at her home, across the road from where you lived.
1 Crimes Act 1961, s 231(1)(a). Maximum penalty: 10 years’ imprisonment.
2 Section 134(3). Maximum penalty: seven years’ imprisonment.
3 Sentencing Act 2002, s 86A definition of “serious violent offence”.
4 Fitzgerald v R [2021] NZSC 131.
5 At [252] per Glazebrook J and [231] per O’Regan and Arnold JJ.
[7] You entered her home and walked into the lounge. You approached her from behind as she bent to pick up a vacuum cleaner. You pulled her pants back, exposing her skin, and grabbed her buttocks. As she turned around, you attempted to put your other hand down her pants.
[8] The victim screamed and ran down the corridor to a bedroom where a friend was. You followed the victim into the bedroom. The victim’s friend told you to leave. Before you did, you put your hand on the victim’s buttocks once more — this time over her clothes.
[9] You then left and returned to your home. Police found you there and arrested you.
Previous strike offending
[10]I also need to describe your earlier indecent assault offending.
[11] On 2 February 2020, you approached a victim as she sat on a bench in central Hamilton. You sat next to her and began a conversation. You moved towards her and reached your arms out. When she attempted to leave, you reached under her skirt and grabbed her buttocks. You followed her as she walked away from you, stopping only when her co-worker intervened.
[12] A few minutes later, you approached another victim as she sat down near a park. Again, you sat next to her and began a conversation. You moved towards her and wrapped your arms around her. She asked you not to touch her. You reached around and attempted to grab her from behind, but she pushed your hands away and left.
[13] On 12 October 2020, you approached a victim on the street and asked her “Do you want to fuck with me?” You reached out and slapped the right side of the victim’s bottom.
Three strikes regime
[14] As I have said, the key question today is whether imposing a sentence of seven years’ imprisonment would be so disproportionately severe as to breach s 9 of the Bill of Rights. To decide that question I have to say a little bit more about the Supreme Court decision in Fitzgerald v R.
[15] Mr Fitzgerald experienced long-standing and serious mental illness. He suffered from schizophrenia and had a history of paranoid delusions and hallucinations.6 On 3 December 2016, he approached two women walking on Cuba Street in Wellington. He grabbed one of them by her arms and attempted to kiss her on the mouth. She moved her head, with the kiss falling on her cheek. He assaulted the second woman by pushing her towards a nearby wall and holding her for a moment. He was convicted of indecent assault and assault.7 He had prior strike offences that were also indecent assaults of a similar nature.8
[16] In the High Court, Mr Fitzgerald was sentenced to the maximum sentence of seven years’ imprisonment, in accordance with s 86D.9 The Supreme Court decided that a sentence of seven years’ imprisonment went well beyond excessive punishment and would shock the conscience of properly informed New Zealanders. It was therefore so disproportionately severe as to breach s 9 of the Bill of Rights. The Court ordered that Mr Fitzgerald should instead be sentenced in accordance with ordinary sentencing principles.10
[17] The effect of Fitzgerald v R, as summarised by the Court of Appeal in Phillips v R,11 is that there is a “high threshold” to establishing that a sentence breaches s 9. The Court of Appeal indicated that the sentence must shock the conscience of New Zealanders in order to breach s 9.12 The Court identified some factors that were likely
6 At [15].
7 At [16]–[17].
8 At [20].
9 R v Fitzgerald [2018] NZHC 1015 at [17]. The Court of Appeal held that this sentence was inconsistent with s 9 of the Bill of Rights but that s 86D was mandatory in its terms: Fitzgerald v R [2020] NZCA 292, (2020) 29 CRNZ 350.
10 At [231] and [252].
11 Phillips v R [2021] NZCA 651.
12 At [21]–[22].
to be significant in determining whether a sentence would cross that high threshold.13 Two of those factors are relevant to your case Mr Heke:
(a)The difference between any prison sentence that would have been imposed but for the three strikes regime and the prison sentence that would be imposed under s 86D.14
(b)Whether or not, given the nature of the offending, the defendant is plainly an inadvertent and unforeseen casualty of the three strikes regime.
Sentencing approach and analysis
[18] I will start by considering the nature and length of the sentence I would impose but for the three strikes regime. Here, the usual statutory purposes and principles of sentencing are relevant.15
[19] There are two steps involved. First, I will determine a term of imprisonment as the “starting point” for the sentence, which will be based on the seriousness of your offending. Secondly, I will consider your personal circumstances, including your guilty plea.16 This will produce the sentence I would impose but for the three strikes regime.
Starting point
[20] The first charge of doing an indecent act on a young person is the lead offence for sentencing purposes. There is no relevant guideline judgment for such an offence. I must find an appropriate starting point by identifying the aggravating and mitigating features of your offending and referring to other cases.
13 At [28].
14 The Court of Appeal also considered, at [29], that any comparison between the sentence that would have been imposed but for the three strikes regime and the sentence actually imposed should accommodate the factors identified by the Supreme Court of Canada in R v Smith [1987] 1 SCR 1045. Those factors include the gravity of the offence; the personal characteristics of the offender; the particular circumstances of the case; the nature and conditions of the sentence; whether the punishment is necessary to achieve a valid penal purpose; and whether there exist valid alternatives to the punishment imposed.
15 Sentencing Act, ss 7 and 8.
16 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
[21] There are four aggravating features of your offending. First, the victim was only 15 years old and therefore vulnerable. Secondly, you had unlawfully entered her home, where she should have been safe. Thirdly, your offending involved reaching into the victim’s pants to touch her buttocks, giving your offending a particularly invasive character. Fourthly, you followed the victim down the corridor despite being told to leave.
[22] I do not accept the submission of Ms Vaili, for the Crown, that your actions were premeditated. I agree with Mr Tran that your actions appear to have been impulsive and disorganised.
[23] In my view, there are no mitigating features of your offending. Mr Tran submits that I should take account of your mental health issues. I will do so, but as part of the second step, when I have regard to your personal circumstances.
[24] Other cases also help in finding the appropriate starting point.17 Ms Vaili referred me to several cases.18 She submits, having regard to these authorities and the aggravating features present in your case, that a starting point of about two years and six months’ imprisonment is appropriate.
[25] I take a different view. I have located some additional cases that I have found helpful.19 The broad proposition arising out of all these cases is that a starting point
17 I have regard here to the principle of consistency in sentencing: Sentencing Act, s 8(e).
18 In Wild v R [2019] NZCA 189, the Court of Appeal set a starting point of 18 months’ imprisonment for an offender who had rubbed his penis against one 12-year-old victim’s body, and inappropriately touched another victim aged between nine and 12 years old. In Masei v R [2016] NZCA 481 at [8], the Court of Appeal noted that 18 months’ imprisonment was the “general starting point” for an indecent assault involving prolonged and active touching. In O (CA643/2009 v R) [2010] NZCA 609, the Court of Appeal upheld a starting point of 36 months’ imprisonment for an offender who had indecently touched his niece on a number of occasions, including on her breasts and genitals (importantly, though, the charged offending in that case was the relatively more serious offence of doing an indecent act on a child under 12. The offender was found guilty on six charges of that offence).
19 In Khoja v Police [2019] NZHC 2343, an offender knocked on the door of a house and, when it was opened by a 13-year-old victim, forcibly hugged and kissed her and touched her buttocks. Jagose J, at [25] said a starting point of six months’ imprisonment was at the low end of the available range. At n 32, his Honour referred to Tini v Police [2013] NZHC 2143, in which “a 28- year-old courier driver stopped and asked a 12-year old girl if she wanted a lift home, before holding her hand touching her breast; he asked her a number of personal questions and asked if she wanted to be picked up from school; a starting point of ten months adopted”. In Taitapanui v R [2018] NZCA 300, an offender entered a home occupied by members of his extended family through an unlocked front door. He proceeded to the lounge, where a 15-year-old girl was asleep
for your type of offending is more properly set in the range of 12 to 18 months’ imprisonment.
[26] None of the cases is the same as your offending. Each case of indecent offending on a young person turns on its particular facts, and care must be taken in drawing comparisons.20 But, viewing your offending in terms of its relative seriousness and accounting for its aggravating features, I would set the starting point at 18 months’ imprisonment.
Personal circumstances
[27] Mr Heke, I will turn now to discuss your personal circumstances and any uplifts or discounts to the starting point that those circumstances warrant.
[28] First, the matter of uplifts. You have 11 previous convictions, including three for indecent assault of a female over the age of 16.21 In cases of recidivist offenders, an increased sentence may sometimes be required on grounds of deterrence or public protection.22 And it is relevant that you offended while you were subject to release conditions.23 I agree with Ms Vaili that an uplift of 20 per cent is appropriate on these grounds.
[29] As to discounts, I have read the mental health assessment reports completed by clinical psychologist Ms Young and consultant psychiatrist Dr Dean. I have also read your pre-sentence report.
on the couch. He put his hand under the blanket covering her and stroked her arm, before forcing his hand into her pyjama pants and stroking her bottom. The District Court Judge assessed the appropriate sentence for the indecent assault as being in the region of 15 months’ imprisonment, with a nine-month uplift for surrounding offending. The Court of Appeal dismissed an appeal against the Judge’s sentence. And, in Parker v R [2007] NZCA 534, an offender entered the bedroom of a relative’s 11-year-old stepdaughter while she was in bed. He reached under the covers and touched her genitalia for approximately 10 seconds, under her pyjama pants but over her underwear. The offender was otherwise of good character and claimed the touching was accidental. The Court of Appeal found an end sentence of 12 months’ imprisonment to be stern, but within range.
20 Wild v R [2019] NZCA 189 at [15].
21 Sentencing Act, s 9(1)(j).
22 Beckham v R [2012] NZCA 290 at [84]; and Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [39]. See also R v Arthur [2005] 3 NZLR 739 (CA) at [26].
23 Sentencing Act, s 9(c); Thomas v R [2020] NZCA 257 at [19]–[20].
[30] Ms Young describes you as a man with a long-standing diagnosis of paranoid schizophrenia and drug and alcohol dependence. She reports that you were exposed to drugs and alcohol while your mother was pregnant with you. She also says that you experienced emotional and physical abuse throughout your childhood. She says you have been chronically unwell since the age of 16. Her opinion is that you have a degree of mental impairment.
[31] Dr Dean likewise identifies that you experience recurrent symptoms of disorganised thinking, auditory hallucinations and delusions. His opinion is that it is likely you were experiencing psychotic symptoms at the time of your offending. He says your chronic schizophrenia impairs your judgement, higher reasoning and processing — impairments exacerbated by your use of drugs and alcohol. Dr Dean draws a direct linkage between your mental illness and your offending.
[32] The pre-sentence report writer assesses that you will need the ongoing support of Community Mental Health upon your release to ensure you remain appropriately medicated. You are assessed as posing a high risk of sexual reoffending, particularly if you refuse professional support, cease taking your medication or resume your substance abuse.
[33] An offender’s mental health is a relevant mitigating factor where there is a causal link between the offender’s mental health and the offending.24 Discounts for mental health issues tend to range from 12 to 30 per cent.25 From the mental health assessment reports and the pre-sentence report, it is clear to me that your mental health difficulties are a cause of your offending, and that substantial credit should be allowed for that. I would allow a discount of 20 per cent.
[34] I have also been provided with a report prepared by Dr Jarrod Gilbert, Ben Elley and Beck Eleven. The writers identify that your parents separated in your early childhood. Your parents were both alcoholics and solvent abusers who could not look after you properly. Your mother drank alcohol and abused solvents while she was pregnant with you.
24 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [44]–[45].
25 E (CA689/2010) v R [2011] NZCA 13, (2011) 24 CRNZ 411 at [71].
[35] You were in your Aunt’s care between the ages of five and 15. You reported being abused in her care. You described being hit by both your father and your stepfather. As a teenager, you began drinking and using drugs. You became involved in a gang.
[36] The report writers say your mental health difficulties have clearly disadvantaged you in society. As well, they say your problematic drug and alcohol use, parental neglect, experience of violence during youth, and gang membership have fed into your offending. They identify that family, medication and psychological treatment may help you to prevent you from reoffending, but that you report no desire to engage in steps to control your substance abuse.
[37] Social deprivation having some causal relationship with offending may diminish an offender’s moral culpability.26 A discount can be allowed for this.
[38] I am satisfied there is a clear linkage between your deprived upbringing and your offending,27 and that some allowance for this is warranted. However, in my view the discount should be modest, for two reasons. First, you have shown a lack of interest in taking steps to address your substance abuse. Secondly, your mental health issues are in part a result of your upbringing, and there is therefore a risk of double counting the effects of your upbringing given that I have already made an allowance for your mental health issues. I would here have allowed a discount of five per cent.
[39] Finally, you are entitled to credit for your guilty plea.28 I would allow a 20 per cent discount, which the Crown accepts is appropriate.
Notional end sentence
[40] Taking the starting point of 18 months’ imprisonment, and the uplifts and discounts that I have identified, your end sentence would be, rounded up, 14 months’ imprisonment.
26 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159]–[162].
27 R v Whiu [2007] NZCA 591 at [32]; Tuau v R [2012] NZCA 146 at [35]; and R v Pitceathly [2010] NZCA 95.
28 Sentencing Act, s 9(2)(b).
Would imposing the maximum penalty be so disproportionately severe as to breach s 9 of the Bill of Rights?
[41] I now turn to consider whether imposing the maximum sentence of seven years’ imprisonment would be so disproportionately severe in your case as to breach s 9 of the Bill of Rights.
[42] Such a sentence would be six times the length of the sentence I would otherwise impose. That is a glaring disparity. Your offending was more serious than that of the defendant in Fitzgerald v R, but not by a large margin. The difference is not so meaningful that the Supreme Court’s approach should not apply here.
[43] Your offending was at the low end of the spectrum of indecent acts on a young person. As with the defendant in Phillips v R, I consider that you are an inadvertent and unforeseen casualty of the three strikes regime.
[44] As well, as Winkelmann CJ found in Fitzgerald v R, it is profoundly unjust to punish a defendant more severely when his or her mental health condition has rendered the deterrence rationale underpinning the three strikes regime largely inapplicable.29 I consider that proposition holds true in your case.
[45] For these reasons, I conclude that the maximum sentence of seven years’ imprisonment would be so disproportionately severe in your case as to breach s 9.
[46] Accordingly, I will instead sentence you in accordance with ordinary sentencing principles. On the analysis I have already undertaken, I consider the appropriate sentence is one of 14 months’ imprisonment.
Conditions on release
[47] As this is a short sentence of imprisonment, I also need to address conditions on release. The pre-sentence report proposes some special conditions. First, at the top of page 3 of the report, a whereabouts condition by way of GPS monitoring is proposed to mitigate the risk to victims during any likely visits by you to whānau. Secondly,
29 Fitzgerald v R [2021] NZSC 131 at [80]–[82].
other special conditions are proposed on page 7 to ensure that you remain engaged with Community Mental Health upon your release and that you continue to take prescribed medication.
[48] I have discussed those with counsel this morning. Ms Vaili supports all the conditions. Mr Tran accepts that the conditions directed at ensuring you remain engaged with Community Mental Health are appropriate, but he submits electronic monitoring is not necessary.
[49] Given the mental health issues to which I have referred and the need to protect the victims of your offending, I agree that all the special release conditions proposed in the pre-sentence report should be imposed. The special conditions, and standard release conditions, should expire six months after your sentence expiry date.
Result
[50]Mr Heke, please stand.
[51] On the charges of burglary and sexual conduct with a young person, I sentence you to 14 months’ imprisonment. I also impose standard release conditions and the special release conditions set out at the top of page 3 and on page 7 of the pre-sentence report dated 30 March 2022. All those conditions are to expire six months after the sentence expiry date.
[52]Mr Heke, please stand down.
Campbell J
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