R v Rowe
[2018] NZHC 1087
•17 May 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2017-019-6156
[2018] NZHC 1087
THE QUEEN v
DAMON NICHOLAS ROWE
Hearing: 17 May 2018 Appearances:
R Douch for Crown
R Barnsdale for Prisoner
Judgment:
17 May 2018
SENTENCING NOTES OF JAGOSE J
Solicitors:
Almao Douch, Hamilton R Barnsdale, Hamilton
R v ROWE [2018] NZHC 1087 [17 May 2018]
Introduction
[1] Mr Rowe, on 5 March this year, you pleaded guilty to three charges, respectively for assault,1 doing an indecent act with intent to offend,2 and assault with intent to obstruct a constable in the execution of his duty, all during September 2017.3 I am now going to sentence you on those charges.
[2] You initially faced a charge of indecent assault, arising out of that offending.4 This would have been a third strike offence, had you been found guilty at trial. But the Crown filed an amended charge on 1 March 2018, substituting the alternative (non- strike) charge of doing an indecent act with intent to offend. You pleaded guilty four days later.
[3] I have listened to what counsel had to say, and read their written submissions, both for you and for the Crown. The Crown recommends you be sentenced to 18 months’ imprisonment. Your counsel, Richard Barnsdale, has also recommended you be imprisoned, but only for a shorter term, in his written submissions, of less than 12 months. Both counsel commend release conditions to provide a comprehensive safety net for both you and for the community.
[4] I am not bound by the lawyers’ recommendations. I must satisfy myself of the appropriate sentence for the gravity – or the seriousness – of your offending, including your culpability – or your responsibility – for it.
Background facts
—your offending
[5]Mr Rowe, I first outline the facts of your offending.
[6] The primary victim in your offending was a young woman, Ms A, who was working with [omitted]. Around midday on 2 September 2017, she was with her then
1 Summary Offences Act 1981, s 9. Maximum sentence 6 months’ imprisonment or $4,000 fine.
2 Crimes Act 1961, s 126. Maximum sentence 2 years’ imprisonment.
3 Section 192(2). Maximum sentence 3 years’ imprisonment.
4 Crimes Act 1961, s 135. Maximum sentence 7 years’ imprisonment.
preschool son in Hamilton’s CBD, on their way to the movies. You approached her. Noticing your bare and dirty feet, she responded compassionately, offering to buy you shoes from the Salvation Army Store. I make permanent suppression orders, suppressing publication of the victim’s name and her working association with [omitted].5
[7] While you were walking there together, you began making intimate comments to her. This made her nervous. But she carried on, choosing shoes for you at the store, and then heading with you to an ATM to obtain the cash to purchase the shoes. Around this time, you started asking personal questions of her.
[8] Ms A obtained the cash, gave it to you, and went to leave. The events that follow give rise to the assault charge. Rather than letting her leave, you grabbed her, holding her tight, chest to chest, so she could not get away. You said to her “give me a hug, thank you so much, just give me a hug”. She gave you no sign she wanted to be hugged by you.
[9] Ms A then left with her son to a playground in the central city, in advance of going to the movies. You arrived there some time later, this time accompanied by another person. You sat next to her, again making inappropriate comments. She felt intimidated, and called out to her son it was time to go. Once again, you hugged her without her consent, calling her intimate names.
[10] The summary of facts records these experiences left her shaken – so distressed, she locked herself with her son in the cinema toilets for about 20 minutes and texted her partner to come to her assistance.
[11] The second charge – of an indecent act with intent to offend – relates to an incident a fortnight later, on 19 September 2017. Again, around midday, Ms A was walking on Anglesea Street when you intercepted her, repeatedly making inappropriate comments about her appearance, as she walked towards London Street. After she told you she had a meeting to go to, you took hold of her without warning,
5 I have left my words unedited to remain faithful to the oral transcript. However, I did not intend a statutory suppression, but an anonymisation of the victim’s name and working association, which edits I made to the transcript before its publication.
placing your hands on her back and pulling her pelvis against you. This time, she became aware you had an erection which you were pushing into her. She tried to pull away, but you held her tight by her upper body. Eventually, she pushed herself out, crossed the road, and phoned the police.
[12] Constable Lin of the Hamilton Police located you soon afterwards. After the constable handcuffed you, you became agitated and starting to resist, refusing to enter the police vehicle. You kicked the constable in the chest; he responded by wrestling you to the ground. This incident, of course, gives rise to the third charge of assault with intent to obstruct a constable in the execution of his duty.
[13] At the police station, you acknowledged you had hugged Ms A to thank her, but you denied having an erection. You apologised for kicking the constable, and requested alcohol and drug rehabilitation counselling.
—victim impact statement
[14] Ms A has provided the Court with a victim impact statement, describing the effects of the offending on herself and her young son. She candidly and maturely recounts how your offending initially triggered past trauma for her, though this passed after a few weeks, and she says the incident has not affected her long-term. Ms A was clearly concerned about the impact of your offending on her son, and this no doubt compounded the distress you caused her through your behaviour. She insightfully suggests, however, your offending might have had much greater effect on other people who had been through less in their lives than she has.
Personal circumstances
[15] Mr Rowe, you are now 41 years old. You are the second of four children. You describe the traumatic effects of your grandmother’s death when you were 14, following which you fell in with a bad crowd and started using cannabis and alcohol. You left school after failing to attain School Certificate in fifth form, and began working numerous odd jobs. As an adult, you have had little employment, your last job being several years ago as a cleaner in a holiday park owned by your parents. You
describe your own lifestyle as “chaotic and transient”. Often – including at the time of your offending – you have had no fixed abode to live in.
[16] These details of your life I take from specialist medical reports which have been provided to the Courts to give insight into your serious mental health concerns. These reports are made under s 38(1)(c) and (d) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Even though you were assessed fit to stand trial, I take into account these mental health concerns in your sentencing.
[17] The first report, authored by Dr Galley and Dr Dean and dated 22 January 2018, details your history of psychotic illness, characterised as either paranoid schizophrenia or schizoaffective disorder in the past. As a result of these illnesses, you have been diagnosed with an abnormal state of mind, intermittent in nature, characterised by delusions, disorders of mood and perceptual disorder. The report notes your abnormal state of mind poses a significant risk of danger to others around you. Finally, the report records previous evaluations indicate you have borderline intellectual function (although not intellectual disability).
[18] On 18 April 2018, Justice Moore made orders under s 38(2)(b) of the Act, that you temporarily be detained for the purpose of obtaining a targeted psychiatric assessment. Dr Shailesh Kumar, the author of this second report dated 15 May 2018, ultimately could not complete a comprehensive psychiatric assessment because you became uncooperative with the assessment process, eventually cutting the interview short.
[19] Dr Kumar’s report affirms the first report’s findings, and expands on the psychosexual aspects of your history and ongoing behaviour.6 It records your history of experiencing sexual abuse. In the interview, you claimed a high sex drive, but became agitated and angry when asked about your anti-social or criminal sexual behaviours.
6 There appears to have been some confusion in the interview as the nature of the charges faced by Mr Rowe, Dr Kumar seemingly unaware the third-strike offence of indecent assault had, by this time, been substituted for a lesser charge. Regrettably, the report suggests this confusion led to some frustration and angst on Mr Rowe’s part.
[20] Aside from your formal charges and convictions, Dr Kumar refers to a pattern of your sexually disinhibited behaviour with staff, patients and members of the public, particularly in conjunction with your substance abuse. Perhaps most troubling is how you deny or minimise your sexual offending, asserting “it’s not against the law to hug and kiss”. Indeed, you appeared to suggest Ms A was expecting something from you
– namely sex – in return for the money she gave you.
[21] More constructively, you show some insight your behaviours are tied to ongoing issues with drug and alcohol abuse, as well as your chaotic life on the streets. The doctors confirm you are engaged in your mental health treatment, and stable with it. Since your arrest, your treatment has been refined, and your symptoms are observed to be well controlled. Those two factors – your insight, and your response to treatment
– offer opportunity for you to avoid longer terms of imprisonment, or even preventative detention. The doctors recommend you receive mental health care in prison – especially through a sex offender treatment programme – and further that you receive care and support from mental health services on your release.
Approach to sentencing
[22]Mr Rowe, I approach your sentencing in three stages.7
[23] With reference to relevant cases, I first set a starting point for your sentence to take account of the facts of your offending. Then I consider whether to adjust it up or down in light of your personal circumstances. Finally, I give a discount for your guilty plea.
[24] Throughout this process, I have regard to all the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002.
[25] To summarise them, I must impose a sentence to hold you accountable for your offending and to encourage you to feel a sense of responsibility for the harm that you have caused. The sentence should denounce your conduct, and deter others from committing the same or similar offences. I should protect the community from you.
7 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[26] I must also take account of the gravity and seriousness of your offending, the effect of your offending on your victims, the need for consistency with appropriate sentencing levels, and the need to impose the least restrictive sentence that is appropriate in the circumstances. I am also mindful, in light of your ongoing mental health issues, of the need to assist you in your rehabilitation and your reintegration back into the community.
Starting point
[27] I take as the lead offence – the most serious aspect of your offending – the charge of doing an indecent act with intent to offend. This relates to the incident on 19 September 2017, where you accosted and non-consensually hugged Ms A, pushing your erection into her pelvis.
[28] There is little sentencing case law in respect of this charge. In the cases we do have, the charge is one of many charges for much more serious sexual offending (often against minors). Your counsel refers to Penwarden v R as one example.8
[29] The Crown suggests a starting point of 12 months’ imprisonment for this offending; your counsel proposes a lower starting point, relying on Rongonui v Police,9 in which Muir J held on appeal the six-month starting point was “stern”, but nonetheless “within range for such offending”.10 In that case, while imprisoned at the Hawke’s Bay Regional Prison, Mr Rongonui grabbed a female prison officer’s bottom, commenting “Sorry Miss, I couldn’t help myself.” When spoken to shortly after, Mr Rongonui said “What do you expect? She wanted it, she led me on.”
8 Penwarden v R [2013] NZCA 352.
9 Rongonui v Police [2017] NZHC 688.
10 At [17].
[30] Commenting on two other cases in his Rongonui sentencing – Walker v Police,11 and Jury v Police12 – Muir J observed the offending in Jury was more serious than in Walker, and Mr Rongonui’s offending was:13
… more serious again in that it involved a direct violation of the victim’s person by way of actual assault. Indeed it is possible that, on the facts, an indecent assault charge could have been sustained attracting a significantly higher maximum period of imprisonment and a strike warning.
His Honour noted the additional aggravating feature of the victim’s status as a Corrections Officer acting in the course of her duty, and considered Mr Rongonui’s offending comprised a direct challenge to prison discipline. This justified the higher starting point than in Jury.14
[31] Finally, I note R v Aitken,15 as an example of a charge of doing an indecent act with intent to offend not attracting a sentence of imprisonment (but instead a sentence of 160 hours community work). The Court of Appeal describes those facts as follows:16
… the appellant and his partner were joined in their bed by the partner’s daughter, a seven year old girl. When the partner left the room for some reason, the appellant forced the child’s head under the blankets and broke wind in her face. What might have seemed merely an act of puerile vulgarity has a more indecent connotation in the fact that the appellant was 38 years of age and that he forced the child’s head into the vicinity of his naked genitalia.
[32] I mention this case because the Court of Appeal rejected defence counsel’s submission the District Court Judge had misunderstood the nature of the offence, wrongly regarding it as sexually motivated. The Court held:17
There is no doubt that the appellant’s conduct was indecent and whether or not it had some sexual motivation, there was nevertheless a sexual element in
11 Walker v Police HC Auckland CRJ-2004-404-362, 17 August 2005: the offender unzipped his trousers in front of his former partner and exposed his genitals. He repeated several times “I know you want some”, before eventually zipping up his trousers and leaving her house. The High Court upheld a sentence of three months’ imprisonment for this offending.
12 Jury v Police [2015] NZHC 2587: the offender masturbated under his clothing while his lawyer was attempting to take instructions from him in prison. The District Court had adopted a five- month starting point; Muir J concurred on appeal, to observe a four to five months’ starting point was appropriate.
13 Rongonui v Police [2017] NZHC 688 at [17].
14 Rongonui v Police [2017] NZHC 688 at [18] and [24].
15 R v Aitken CA 251/03, 26 November 2003.
16 At [2].
17 At [5] and [7].
the fact that the victim’s head was forced into the vicinity of the appellant’s naked genitals.
[33] A similar remark could be made of your offending Mr Rowe whether or not your motivations were explicitly sexual, your conduct was palpably indecent and offensive to Ms A in this case. A ‘hug’ – with its implicit connotations of comfort, and consensual intimacy – is woefully inappropriate and inadequate to describe your behaviour. Your actions were received by a non-consenting victim as being forcibly pressed into your body in a very sexualised manner, chest-to-chest, pelvis-to-pelvis, your erection pressing into her.
[34] As in Rongonui, your offending involved actual physical conduct; your culpability is heightened by the fact the 19 September 2017 incident was the third time you had non-consensually ‘hugged’ the victim.
[35] Described in these terms, in my view your offending carries a comparable culpability to the offending in Jury. There is also the serious aggravating factor of Ms A’s young son’s presence during your encounters with her. This factor calls for a sterner response, and justifies a six-month starting point for your offending.
[36] To reflect the totality of your offending, and your overall culpability, I uplift this by one month for the charge of common assault, and two months for the charge of assault with intent to obstruct a constable in the execution of his duty.
[37]I therefore arrive at a global starting point of nine months for your offending.
Personal factors
[38] I now adjust that starting point up or down for your personal mitigating or aggravating factors.
—Aggravating factors
[39] Your criminal history is long and varied. You have 66 convictions on that record, although your offending is almost invariably fairly low-level, not atypical of
others who share a chaotic and transient lifestyle on the streets.18 Your charges range from minor dishonesty offending to violence, numerous charges of supervision failure, sexual offending, and alcohol and cannabis related offending.
[40] Notably, your current offending is part of a consistent pattern of similar offences. You have previously been convicted of nine different sexual offences between 2007-2017, and you have four convictions for assaults against police, and numerous convictions for assaults generally.
[41] It is also relevant you have received two previous strike warnings, both for charges of indecent assault on a female over 16 (the charge for which you would have been again on trial, before you pleaded guilty to the lesser charge of doing an indecent act with intent to offend). The first strike warning was given in the Tauranga District Court on 19 April 2011; the second in the New Plymouth District Court on 19 February 2015. Mr Rowe, as for withdrawal of the third strike charge, you can consider yourself the very fortunate beneficiary of the exercise of responsible prosecutorial discretion.
[42] The Crown submits your current offending, despite two previous strikes for sexual offending, justifies an uplift of six months. However, I must take into account that you are on sentence for the lesser charge, not for indecent assault. Also relevant is the low-level culpability involved in much of your offending.
[43] I consider your criminal record justifies an uplift of three months in those circumstances. This takes your sentence to twelve months’ imprisonment, before accounting for personal mitigating features.
—mitigating factors
[44] I now turn to mitigating factors that are personal to you. I am entitled to take into account your mental illness as a personal mitigating factor, as the Court of Appeal has made clear in Shailer v R and E (CA689/2010) v R.19 Discounts at the second stage
18 Alex Woodley A Report on the Progress of Te Kooti o Timatanga Hou – The Court of New Beginnings (Point Research Ltd, Auckland Homeless Steering Group, 25 September 2012) at 37.
19 Shailer v R [2017] NZCA 38 at [45] citing E (CA689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ
411 at [17].
for mental illness have ranged between 12 and 30 per cent. I apply a 15 per cent discount in your case.
[45] The Crown submits you are not entitled to any credit for a guilty plea because the plea followed a significant concession made by the Crown in substituting a third strike offence for the lesser charge. The guideline judgment on guilty pleas, Hessell, provides a foundation for that submission:20
Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending.
[46] This reasoning is not to be applied mechanically. The Supreme Court was at pains to stress, in contradistinction to the Court of Appeal’s more rigid approach, the sentencing Judge must evaluate the circumstances in which the plea was entered, and what those circumstances indicate about acceptance of responsibility for the offending.21 It is worth noting the Supreme Court was in part reacting against the Court of Appeal’s suggestion that ‘first reasonable opportunity’ should not be extended because the defendant was engaged in plea bargaining.
[47] So there are alternative possible readings of late plea bargains, and much turns on my assessment of whether the original or substituted charge more appropriately reflects your culpability (and therefore whether the plea bargain is fairly described as a ‘concession’). The presumption of innocence does not permit me to assume your culpability for the much more serious indecent assault charge. I consider the lesser charge (of doing an indecent act with intent to offend) more appropriate than the original charge of indecent assault, especially in a third-strike scenario. In the round, a discount of 20 percent is appropriate in my view.
20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].
21 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [61]-[62], and [65].
[48] Applying a total 35 percent discount to your sentence of twelve months’ imprisonment, I arrive at an effective end sentence of eight months’ imprisonment.
[49] I am entitled also to impose the standard conditions set out in s 14(1) of the Parole Act 2002 and any special conditions, for a period of up to six months after your sentence comes to an end.22 I note Dr Kumar’s advice you should continue to obtain psychological assistance, and the conditions I impose are intended to achieve that during the balance of your sentence and for a period thereafter.
[50] The special conditions are designed to reduce the risk of your reoffending, to facilitate or promote your rehabilitation and reintegration, and to provide for Ms A’s reasonable concerns. On the last, in particular, I note Ms A’s informed concern “I think as far as sentencing, I think he should have prison time but not a huge sentence, I think more than prison time, he needs help”.
Result
[51]Mr Rowe, please stand.
[52] On the charges to which you have pleaded guilty – assault, doing an indecent act with intent to offend, and assault with intent to obstruct a constable in the execution of his duty – I sentence you to eight months’ imprisonment.
[53] In addition to the standard release conditions,23 I impose the following special conditions, which are to expire six months after your sentence expires. You are to:
(a)reside at an address approved by a probation officer and to not move from this address without the prior consent of the probation officer;
(b)attend a psychological assessment with a Department of Corrections psychologist, and to attend and complete any treatment or counselling as recommend by the psychological assessment to the satisfaction of a probation officer and treatment provider;
22 Sentencing Act 2002, s 93.
23 Parole Act 2002, s 14(1).
(c)attend and complete any appropriate assessment and any counselling, treatment or programme to address any rehabilitative or reintegrative needs as may be directed by and to the satisfaction of a probation officer. I note in particular the recommendation you undergo a sex offender treatment programme through Corrections’ Psychological Services;
(d)attend all appointments and maintain engagement with Community Mental Health;
(e)submit to electronic monitoring in the form of Global Positions System technology as directed by a probation officer in order to monitor your compliance with any condition(s) relating to your whereabouts;
(f)comply with the requirements of electronic monitoring, and provide access to the approved residence to the probation officer and representatives of the minoring company, for the purpose of maintaining the electronic monitoring requirements as directed by the probation officer;
(g)not enter licensed premises or gambling establishments unless with prior written permission from a probation officer;
(h)not stay away over night from your place of residence, between the hours of 22:00-06:00 hours Monday or Sunday inclusive without the prior written permission of a probation officer.
[54] Finally, I remind you the third strike legislation remains in force, and any further offending on your part may make you subject once more to its draconian consequences. A continuation of your offending raises also the risk of preventative detention. Mr Rowe, you should not be in any doubt you are on your very last chance. You are being offered an opportunity to address your sex offending as successfully as you have addressed your mental health. I hope you take full advantage of that opportunity.
[55]You may stand down.
[56]Mr Douch seeks, and I grant, leave to withdraw the indecent assault charge.
—Jagose J
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