R v Scurrah CA304/05

[2006] NZCA 392

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA304/05

THE QUEEN

v

LEON GRANT SCURRAH

Hearing:         6 March 2006

Court:            Glazebrook, Wild and Venning JJ Counsel:     S C Holt for Crown

B S Yeoman for Respondent

Judgment:      8 March 2006

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe sentence of five and a half years is quashed and replaced with a sentence of eight years’ imprisonment.

REASONS

(Given by Venning J)

R V SCURRAH CA CA304/05  8 March 2006

[1]      On 28 June 2005 the respondent Leon Scurrah was found guilty following a jury trial in the District Court of one charge of sexual violation by unlawful sexual connection and one charge of sexual violation by rape.   On 29 July 2005 District Court Judge Barry sentenced him to five and a half years’ imprisonment.

[2]      The Solicitor-General seeks leave to appeal against the sentence pursuant to s 383(2) of the Crimes Act 1961.

Background facts

[3]      The respondent was 42 at the time of the offences.  He was a member and regular attendee at the Avalon Rugby Clubrooms.   The victim was aged 18 at the time.  She worked in the bar at the clubrooms.

[4]      On 6 November 2004 the victim stayed behind at the clubrooms after her shift was finished.  She had a drink with some of the club members, including the respondent.  She then ordered a taxi to take her home as was her practice.  The taxi arrived but the respondent cancelled it.   He offered to drive her home instead, an offer which she accepted.

[5]      However,  instead  of  taking the  victim  home  the  respondent  drove  to  an isolated track maintenance road adjoining the railway running through the Lower Hutt area.   The respondent stopped the car and attempted to kiss and touch the victim.  She  rejected  his  advances  and  said  “no”  and  “stop”  on  a  number  of occasions.  Despite this, the respondent forced her hand onto his penis and undid the victim’s lower clothing.   He then digitally penetrated her.   The respondent then climbed into the passenger seat in the front of his car and began having sexual intercourse with the victim.  The respondent then moved to the back seat of the car. He asked the victim to get in the back seat with him. She did so but on her evidence, unwillingly.  The respondent continued with the act of sexual intercourse in the back of his car until he ejaculated.  The respondent then drove the victim home.

[6]      In sentencing the respondent to five and a half years the District Court Judge referred to an eight year starting point and found as aggravating features the breach of trust and the effect on the victim.  He then considered by way of mitigation and “on the credit side of the ledger” the remorse expressed by the respondent in letters to the Court and to the victim prior to sentence and accepted that the offending was “totally out of character”.  In the end result the Judge imposed a sentence of five and a half years’ imprisonment.   The Judge did not expressly impose a sentence in relation to the charge of sexual violation by digital penetration but clearly took the charge of sexual violation by rape as the lead offence.

Principles

[7]      As this is a Crown application for leave to appeal against sentence the respondent’s sentence is not to be increased unless the Court is satisfied the sentence is manifestly inadequate or some error of sentencing principle has occurred and, in the event the Court is satisfied the sentence is to be increased on one or other of those grounds the sentence is only to be increased to the level of the lower range of appropriate  sentences:    R  v  Pue  [1974] 2 NZLR 392 and R  v  Muavae  [2000]

3 NZLR 483.

Crown submissions

[8]      In support of the application for leave the Crown submits the sentence was manifestly inadequate as a result of the Judge giving far too much weight to what he perceived as mitigating factors, namely the remorse and good character of the respondent.  Mr Holt referred to the leading case of R v A [1994] 2 NZLR 129 and a number of other decisions including R v Woolland CA69/96 11 September 1996; R v Woolley CA02/01 23 July 2001;  and R v Hill CA94/02 21 October 2002.

[9]     For the respondent Mr Yeoman submitted the sentence was within the appropriate range for offending of this nature.  Mr Yeoman accepted the Judge was merciful to the prisoner in imposing the sentence of five and a half years’ imprisonment.

[10]     Mr Yeoman also submitted that the victim could have given the respondent the impression she was consenting to sexual intercourse but he properly acknowledged the jury must have rejected that by their verdicts.  He next submitted that the victim could have used the cellphone she had with her at the time to call for help or even could have got out of the car.  In the circumstances he submitted that the Court should not interfere with the exercise of the discretion of the District Court Judge.

Discussion

[11]     In R v A a full Court of the Court of Appeal confirmed that eight years is to be the starting point in a contested rape case.  The Judge correctly referred to that in his sentencing notes.

[12]     The Judge then identified two aggravating features of the offending itself, namely the breach of trust and the effect on the victim.  Although he identified these as aggravating features, the Judge did not go on to identify by how much they increased the starting point before considering the personal mitigating factors of the respondent.  As a full Court of this Court recently explained in R v Taueki [2005]

3 NZLR 372 (CA):

… The modern approach to sentencing uses as a reference point a starting point  taking  into  account  aggravating  and  mitigating  features  of  the offending, but excluding mitigating and aggravating features relating to the offender. Put another way, a starting point “is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial” (R v Mako [2000] 2 NZLR 170 at para [34]). …

[13]     This was a severe breach of trust by the respondent.  As a 42 year old man, he was over twice the age of the victim.  He made a conscious decision to send her taxi away after she had called it, and then offered her a ride home.  The victim accepted his actions at face value.  She put herself into his care and trusted him to take her home.   The respondent breached that trust.   He took advantage of his position of dominance over her in relation to where he took the victim and the events that followed.

[14]     Apart from the effect of this incident on the victim, the aggravating feature of breach of trust supports a starting point in this case, before taking account of any personal mitigating factors, of at least eight and a half years’ imprisonment.

[15]     It  is  then  necessary  to  consider  the  personal  mitigating  factors  of  the respondent as identified by the Judge.

[16]     The Judge considered that the respondent had genuine heartfelt remorse as set out in the letters to the complainant and to the Court.

[17]     However, the letters of remorse were clearly prepared for the purposes of sentencing.  It is significant that in the pre-sentence report the probation officer noted that on more than one occasion the respondent continued to maintain his innocence and his surprise at the verdict.  He continued to maintain that the sexual intercourse was by mutual consent.  The inability of the respondent to accept responsibility for his actions detracts from the belated expressions of remorse set out in the letters to the Court and to the victim.

[18]     Next,  the  Judge  said  the  respondent  had  no  history of  “serious  criminal offending” and apparently accepted that the offending was totally out of character. While it is correct that the respondent has no previous serious or sexual criminal convictions he does have some 27 previous convictions including convictions for low level violence, drugs and nuisance offending.  Section 9(2)(g) of the Sentencing Act requires the Court to take account of previous good character.  It is difficult to apply that description to a man with 27 prior convictions. Rather than a mitigating factor as such, the respondent’s lack of previous serious or sexual offending is more

properly to be taken as neutral.  Further, while the respondent has the support of his partner and employer, that does not of itself support the submission the offending is out of character.

[19]     None of the other factors referred to by Mr Yeoman in his submissions assist the respondent.  By their verdicts the jury clearly found against the respondent on the issue of consent.  Further, in the circumstances the respondent found herself in, it is not realistic to suggest that she could have used her cellphone to call for help or to have  left  the  car.    Her  failure  to  do  either  does  not  reduce  the  respondent’s culpability.

Summary

[20]     The  appropriate  starting  point  for  this  offending  (including  aggravating features of the offending, but excluding personal mitigating factors) would be at least eight and a half years.

[21]     Taking  account  of  what  properly  can  be  described  as  the  respondent’s personal mitigating factors a deduction in the sentence of six months would have been the maximum possible.

[22]     The sentence of five and a half years is, in the circumstances manifestly inadequate.

Result

[23]     The Crown application for leave to appeal against sentence is granted.  The sentence of five and a half years is quashed.  In its place the respondent is sentenced to eight years’ imprisonment.

Solicitors:

Crown Law Office, Wellington

B S Yeoman, Lower Hutt for Respondent