R v M CA358/03

[2004] NZCA 378

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA358/03

THE QUEEN

v

[L J B M]

Hearing:         26 February 2004 Coram:  Hammond J

Laurenson J Doogue J

Appearances: S Hughes for the Appellant

A Markham for the Crown Judgment:  26 February 2004

Reasons:         1 March 2004

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

[1]            The appellant, Mr [M], was convicted after pleading guilty at his preliminary hearing to one count of sexual violation by rape and one count of aggravated robbery. He was sentenced by Williams J to six and a half years imprisonment in respect of the rape and four and a half years imprisonment in

R V [L J B M] CA CA358/03 26 February 2004

respect of the aggravated robbery. The Judge also imposed a minimum period of imprisonment of three years on the rape count.

[2]            There is no complaint about the actual terms of imprisonment imposed. The appellant now appeals on the ground that the sentencing Judge erred in imposing a minimum period of imprisonment

[3]            The appeal was heard on its listed date of 26 February 2004. At the conclusion of that hearing, the Court dismissed the appeal; and said written reasons would be issued for that declinature. These are those reasons.

The Facts

[4]            On 1 July 2003, Mr [M] was 14 years and eight months old. The day before he had been at a wild party which involved drinking, smoking marijuana, sex and voyeurism from late in the afternoon until 3.00am the following morning. When he awoke on the evening of the 1^st he went to another friend's house. There he drank further alcohol, and snorted methamphetamine.

[5]            On his way home, Mr [M] went to the victim (V)'s house. V was a 33 year old immigrant whose marriage had broken up since coming to New Zealand.

[6]            Mr [M] arrived at V's house at about 8.30pm. He knocked, but was refused entry. He thereupon opened a window, removed his shoes and climbed through the window of the kitchen. He made his way through the house to V's bedroom.

[7]            On seeing Mr [M] in her room V yelled that she wanted him to leave. He replied, repeatedly, that he wanted to have sex with her.  V  offered  him  money.  Mr [M] said he would take it only after sex. V then tried to run, but was grabbed from behind by Mr [M]. V managed to fight him off and continued to run for the door. Mr [M] thereupon grabbed her round the neck and pulled her back into her bedroom. He told her that he had a gun and threatened her with death. He then  ripped V's clothing off. He attempted to have intercourse with V on the bed, but she fought back. Mr [M] then dragged V to the floor by her hair and violently raped her.

[8]            After the rape, Mr [M] demanded money. Having found V's purse in the kitchen he emptied it, complaining about how little was in it.   V gave him more.   Mr [M] then picked up a knife in the kitchen and again demanded more money. He then began searching the house. He found some foreign currency but discarded  it. Believing that Mr [M] would find it anyway, V then gave him nine $100 notes. That too was insufficient; Mr [M] wanted a further $2,000. He demanded that V tell nobody what had occurred and insisted that he would return the next night to collect the rest of her money.

[9]            Mr [M] then forced V to return to the kitchen, and he began looking for food. He insisted that V cook him a meal and played computer games while this occurred. After eating Mr [M] forced the victim to go into the bathroom, and he took a shower. He tried to get V to have a shower (apparently to wash his semen off her) but she refused. During his shower Mr [M] exposed his erect penis to V asking whether it was bigger than her estranged husband's. He then demanded she sleep with him again, but eventually he fell asleep on V's bed while he was watching a Harry Potter video.

[10]        It was at this point that V managed to escape and call the police. Mr [M] was found asleep in the bed. He readily admitted the incident, but endeavoured to explain it away on the basis of his drinking and drug abuse.

[11]        This offending has had a significant impact on V. Physically she was bruised, grazed, scratched and extremely sore after the rape. The Victim Impact statement notes that she continues to feel unsafe in her home. Although her Buddhist beliefs mean that she has pardoned Mr [M], his flaunting of his naked body in front of her was to her, "a total defilement of [her] spirituality".

The High Court sentence

[12]The Judge identified the following aggravating factors in the offending:

•   the threats of violence

•   the use of violence

•   the threatened use of a weapon

•   the unlawful entry into the victim's home

•   the fact that the ordeal was lengthy

•   the theft of all the money that the victim had

•   the threat to return the following night

•   the effect of the offending on the victim

•   the appellant's history of sexualised criminal behaviour. Mr [M] had a history of juvenile offending which indicated that he had had a precocious but unlawful interest in sex for at least two years. In the Judge's view, Mr [M] posed "a real risk to women, despite [his] age".

[13]The Judge identified the following mitigating factors:

•   Mr [M]'s age

•   his early guilty plea.

[14]        The Judge accepted that Mr [M] had pleaded guilty at the earliest possible stage and that he had previously admitted his offending to the police. As to Mr [M]'s youth, the Judge accepted that Mr [M]'s age set him apart from many offenders. But the Judge emphasised that these were "adult crimes committed very much in an adult way".

[15]        The Judge took the starting point for a contested rape identified in R v A  [1994] 2 NZLR 129 of eight years. He indicated that after taking into account the aggravating factors he had identified, the appropriate term before allowing for mitigating factors would be ten or eleven years, perhaps even more. He considered a deduction of two and a half to three years in recognition of the guilty plea to be appropriate. Taking that factor, and Mr [M]'s age into account, the Judge arrived at a sentence of six and a half years imprisonment.

[16]        On the question of a minimum period of imprisonment the Judge correctly directed himself in terms of R v Brown [2002] 3 NZLR 670. The Judge concluded that the circumstances of the offence were sufficiently serious to justify a minimum period of imprisonment, particularly having regard to the entry into V's home, the duration of the offending, the persistence in pursuing the rape, and the continued harassment, robbery and confinement of the victim for some hours after the rape.

[17]        The Judge then turned to whether a possible release of Mr [M] after serving one third of the sentence would be insufficient to punish, deter or denounce the offending. He took into account the fact that the crimes were committed almost wholly in an adult way with a number of disquieting aspects to the offending, and  Mr [M]'s history of sexualised behaviour. He commented that, had Mr [M] been an adult, a minimum period of two-thirds imprisonment might well have been appropriate. However, given Mr [M]'s youth it was desirable to provide for a lesser period. Accordingly a minimum period of less than that period was imposed.

The submissions on the appeal

[18]        First, it was submitted that there was nothing about the rape to take it outside the ordinary range of offending. This submission is based substantially on an assertion that in assessing the circumstances of the rape it was inappropriate for the Judge to take into account the post-rape behaviour of Mr [M].

[19]        It was accepted that the entering of V's house could properly be taken into account, but not the other identified factors of concern to the court. Ms Hughes said the rape was not persistent – after initial resistance V was dragged into the bedroom and raped with a matter of minutes. The duration of the actual rape was short, and occurred in the first few minutes of entering the house. It was said that the post-rape conduct of Mr [M] relied on by the Judge both in extending the duration of the offending and in and of itself was not properly taken into account as it made no contribution to the actual offence (the rape).

[20]        The second submission is that even if was open to the Judge to impose a minimum period of imprisonment, the Judge should not have so ordered in this case, because of Mr [M]'s youth. It is submitted that the Judge failed to give proper consideration to s7(h) and s8(h) of the Sentencing Act 2002 when exercising his discretion whether to impose a minimum period. Miss Hughes relied in particular on the youth of Mr [M], and the fact that if the sentence is upheld the last eight months of the minimum period if in prison will necessarily be served in an adult prison (as opposed to a Youth facility). This, it is said, will severely fetter his rehabilitation into the community.

The Crown submissions

[21]        Miss Markham submitted that the Judge was correct in determining that the circumstances of the offence were sufficiently serious to attract a minimum non- parole period. She noted that the offending was premeditated, involved additional violence to that inherent in the rape itself, and was accompanied by threats of further violence. These and other aspects of the offending should not be dismissed as "childishness": adult offenders have shown similar patterns (R v Larkins CA279/03, 27 November 2003).

[22]        Miss Markham said the Judge was correct to take into account the post-rape conduct of Mr [M]. It was submitted that this approach was adopted by this Court in R v Larkins and was consistent with both the Court's general approach to events immediately following the offence (see Hall Sentencing I.5.2(c)) and the statement of this Court in R v Howse [2003] 3 NZLR 767, para [62], that an assessment of whether to impose a minimum period of imprisonment is to be made "in a broad and realistic way".

[23]        It was then submitted that the Judge was not in error in exercising his discretion as to whether to impose a minimum period of imprisonment. The Judge was entitled, given the adult nature of the offending and the appellant's history of sexual offending, to conclude that Mr [M]'s youth did not prevent a minimum period being appropriate: R v Mahoni and Ors [1998] 15 CRNZ 428.

[24]        Ms Markham took issue with the place at which the sentence would be served. She said that Mr [M] is presently in a CYF Residential Centre. It is more likely that he will be transferred to a specialist youth unit.

Discussion

(a)   The facts

[25]        It is correct that there is a passage in the sentencing notes in which the Judge appears to refer to Mr [M] as having a knife during the rape. However it apparent from other passages in the sentencing notes – which have to be considered as a

whole – that the Judge clearly understood that the appellant only picked up the knife in the kitchen after the rape stopped. The reference to the knife as part of the  analysis of the violence additional to the rape is consistent with the Judge's view that the seriousness of the rape should include the post-rape conduct of Mr [M], to which we now turn.

(b)   Post-rape conduct

[26]        Section 86 of the Sentencing Act 2002 provides for the imposition of a minimum period of imprisonment in relation to determinate sentences of imprisonment. Section 86(2) authorises the court to impose a minimum period of imprisonment "if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment [that is longer than a period of imprisonment which would otherwise apply under the Parole Act 2002]".

[27]        It is correct, as Miss Hughes emphasised, that subs 1 of s86 requires that a minimum period of imprisonment relate to a particular offence. But the ordinary meaning of that phrase does not exclude consideration of the conduct of the accused both before and after the actual commission of the actus reus of an offence in the way that, for example, it precludes consideration of the circumstances of the offender (R v Brown [2002] 3 NZLR 670).

[28]        Miss Hughes was unable to point to any direct authority for the proposition that other offences and conduct carried out over the course of a single incident cannot be taken into account in assessing the seriousness of one of the offences carried out during that incident. The argument appears to be that it is implicit in the leading authorities on s86 that this is the case. This Court has held that the s86 decision is to be based on a broad and realistic basis (R v Howse) and that in considering whether to impose the minimum non-parole period the Court can take into account "multiple offending" (R v M; R v D (2003) 20 CRNZ 231, para [27]). In our view it is quite artificial to endeavour to segregate off the immediate post- offence effects, even in a single offence instance; a fortiori in a case of multiple offending.

(c)     Was the offending sufficiently serious?

[29]        Once this point is reached, there was ample basis for the Judge to reach, as he did, a view that the circumstances of the offence were sufficiently serious to justify the minimum period of imprisonment actually imposed.

Conclusion

[30]        There was no error of principle on the part of the Judge. The imposition of the minimum period of imprisonment was well justified in the particular circumstances.

[31]For these reasons the appeal was dismissed.

Solicitors:

Govett Williams, New Plymouth for the Appellant Crown Law Office, Wellington for the Crown