R v Tandy

[2007] NZCA 550

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA521/07 [2007] NZCA 550

THE QUEEN

v

STEPHEN PETER TANDY

Hearing:         15 November 2007

Court:            Wilson, Chisholm and Potter JJ Counsel:        S B Edwards for Crown

P T R Heaslip for Respondent

Judgment:      29 November 2007         at 3.30pm

JUDGMENT OF THE COURT

A        Leave to appeal is granted. B The appeal is allowed.

CThe sentence of six and a half years imprisonment for sexual violation by rape   is   quashed   and   is   replaced   by   a   sentence   of   eight   years

imprisonment.

R V STEPHEN PETER TANDY CA CA521/07  29 November 2007

REASONS OF THE COURT

(Given by Chisholm J)

[1]      The Solicitor-General seeks leave to appeal against a sentence of six and a half years imprisonment imposed on the respondent in the District Court for sexual violation by rape.  There is no appeal against a concurrent sentence of one months imprisonment for indecent assault involving the same victim.  Pleas of guilty to both charges were entered by the respondent after the complainant had completed her evidence  in  chief  and  had  been  cross-examined  by  counsel  for  two  of  the respondent’s   three   co-offenders.      Subsequently   the   jury   found   those   three co-offenders guilty on various counts, including being a party to the respondent’s rape.

[2]      It is alleged that errors by the sentencing Judge gave rise to a manifestly inadequate sentence.  In particular the Judge adopted a lower starting point than the eight years indicated by R v A [1994] 2 NZLR 129 (CA); misconstrued part of the evidence; erroneously distinguished Solicitor General v Mihaka & Taia CA397/98

23 February 1999; effectively double counted the mitigating allowance for the guilty plea;  and gave an excessive discount for the late guilty plea.

Facts

[3]      On 20 October 2004 the complainant, aged 14, and her male friend, aged 13, ran  away  from  home.    That  evening  they  met  the  respondent  and  his  three co-offenders, who were not previously known to them.  They bought beer and went to the grounds of a nearby school where they began drinking.

[4]      While at the school grounds one of the respondent’s co-offenders took the complainant around the side of a classroom and sexually violated her, following which they rejoined the group.  The group then walked to a tin shed at the rear of the address of one of the respondent’s co-offenders and continued drinking.

[5]      Soon  after  the  group  arrived  at  the  shed  the  complainant  was  digitally penetrated by two of the respondent’s co-offenders in the presence of the whole

group.  Around this time the respondent touched the complainant on the bottom, this being the indecent assault to which the respondent pleaded guilty.

[6]      After  this  the  complainant  was  taken  out  of  the  shed  by  one  of  the respondent’s co-offenders who raped and orally violated her.  When they returned to the shed the respondent asked the complainant if she had been raped to which she grunted or moaned in response.  With the assistance of others the respondent then removed the complainant’s clothing and raped her in the presence of the group.  By this time the complainant was extremely drunk.

Sentencing in the District Court

[7]      At the time of the offending the respondent was a seventh form school pupil aged 16 years.  By the time he was sentenced he was 20 years of age.

[8]      At sentencing Judge Hubble proceeded on the basis that the complainant’s evidence  at trial was to be  accepted.   After noting that the respondent and  his co-offenders  had  been  drinking  excessively  before  the  complainant  arrived,  the Judge observed that this was not a case where the respondent and his co-offenders had  gone out  hunting  as  predators,  but  rather  a  situation  that  had  evolved  and become “out of control”.

[9]      The Judge stated that the victim was “extremely vulnerable”.  He noted that after she had been raped outside the shed the respondent had asked her whether she had been raped.  This led the Judge to conclude that there was a high possibility that the  respondent  knew  the  complainant  had  already  had  sex  with  one  of  his co-offenders before he raped her.  The Judge also noted that when the victim would not let the respondent take off her jeans his co-offenders had assisted with their removal.  Then the Judge commented:

Someone said “She is playing hard to get” or words to that effect.

The Crown alleges that this reflects a misunderstanding of the evidence and that in fact the comment had actually been made by the respondent.

[10]     Judge Hubble recorded that he was required to impose a sentence that was the least restrictive outcome, but that in terms of R v A he was required to apply a starting point of eight years.

[11]     Because the Solicitor-General’s appeal has a particular focus on the Judge’s reasoning  from  this  point  it  is  appropriate  to  reproduce  the  actual  sentencing remarks:

[28]     Following the basis of sentencing in the case of R v Taueki what I must do is, firstly, set a start point based upon an eight year start for what can be said is a contested normal type of rape case.  This is not quite in that category because, in relation to you (although not in relation to your friends) you entered a plea of guilty at least at an early stage in the trial.  So I believe for you a seven year start is the correct one.

[29]      I must then take into account aggravating features.  The aggravating features here are that it was a group activity … The court requires a deterrent element in that and, in my judgment, it increases the start point to nine years. There, I am taking into account the extreme vulnerability of the victim in this case, which could perhaps aggravate the feature even more, but I am setting the start point at nine years which, in my judgment, is the least possible I can do.

[30]      In  the  case  of  Mihaka  &  Taia  -  I  agree  with  your  counsel, Mr Heaslip, that that was a worse case.  I believe it was worse because they did set out, as a predatory gang, to carry out the rapes that they did.  Their victim however was not as vulnerable as the young woman was in this case. In that case the start point was 12 years.  In your case, having pleaded as you have, and taking into account the aggravating features, I believe nine years is the appropriate start point.

[31]      …

[32]      What can be  said in  mitigation?    You  entered  a  plea  of  guilty. Ms Hauer, for the prosecution, says there should not be a full discount …

[33]      But I take on board Mr Heaslip’s submission – as far as counsel are concerned they do not have much of a prior opportunity to enquire into the charge being faced until they have at least heard and seen the complainant, or had a chance to study and assess the evidence.  Your plea did come late but I indicated at the time that I think it was a courageous thing to do in the face of your other fellow accused and I intend to give you a discount of one- and-a-half years (18 months) for your plea.

[34]      I also intend to give you a discount of one year because of your age at the time so you are entitled to a discount of two-and-a-half years against a sentence  of  nine  years  imprisonment.    That  means  the  sentence  I  have arrived at is one of six-and-a-half years imprisonment on the charge of rape and I impose that sentence accordingly.

[12]     The Solicitor-General’s position is that for rape, without consideration of any mitigating or aggravating features, the starting point is eight years imprisonment: R v A.   While Ms Edwards accepted that on some occasions lower starting points have been used, she emphasised that adherence to the eight year starting point has been  recently  reiterated  by  this  Court:    R  v  Takiari  [2007]  NZCA  273.    She submitted that the proper approach is to start at eight years and then make any adjustments for aggravating/mitigating factors.

[13]     Although  Ms  Edwards  contended  the  two  year  increase  for  aggravating features was conservative, she accepted that, taken in isolation, this increase was within the available range.  However, she submitted that the Judge had fallen into error  by  wrongly  attributing  the  “she  is  playing  hard  to  get”  comment  to  a co-offender and by distinguishing Mihaka & Taia.   It is claimed that both those errors played a part in the Judge arriving at a manifestly inadequate sentence.

[14]     A primary focus of the appeal is the credit for the guilty plea.  It is alleged that the Judge effectively reduced the starting point by one year for the guilty plea and then doubled up the discount by allowing a further 18 months for the plea later in his sentencing remarks.  Moreover, submitted Ms Edwards, the 18 month discount failed to take into account that the complainant had not been spared the ordeal of giving evidence and under those circumstances a 10 percent discount for the guilty plea could be regarded as generous having regard to R v Fonotia [2007] 3 NZLR 338 and R v C CA51/00 22 September 2003.

[15]     In all the circumstances the Solicitor-General suggests that a sentence of eight to nine years imprisonment would have been appropriate.  However, given that this is a Crown appeal, the Solicitor-General accepts that the sentence should be increased to eight years imprisonment which, in his submission, was the lowest possible sentence available to the sentencing Judge.

[16]     Mr Heaslip argued that the Judge was entitled to reduce the starting point to seven years because this was not a “contested” rape in terms of R v A.  He explained that at sentencing he had advanced submissions along those lines.  His submission is that the Judge’s comments in [28] of his sentencing remarks reflect his submissions and that the Judge was not “straight jacketed” by R v A.  Mr Heaslip cited a number of authorities in which a lower starting point was adopted.

[17]     Any suggestion that the trial Judge misconstrued the evidence was rejected by Mr Heaslip, as was the allegation that the  Judge  had  wrongly distinguished Mihaka  & Taia.    Mr  Heaslip  submitted  that  the  Judge  was  well  aware  that  a principled approach to rape sentencing was required and that this Court should not interfere with the right of a sentencing Judge to act mercifully:  R v Fate (1998) 16

CRNZ 88 (CA).

[18]     In relation to the guilty plea Mr Heaslip disputed that there had been any double counting and submitted that the discount of 18 months was entirely justified given that the respondent had “courageously” pleaded guilty.  He also claimed that the plea at trial would have effectively assisted the Crown by providing a “credibility card” in favour of the complainant’s evidence.   He noted that in some cases a discount of up to 60 percent has been considered appropriate for assistance to the Crown.   Mr Heaslip also noted that, even though the Judge had not mentioned remorse, there had been “substantial” submissions on that topic and that remorse was a factor that could be taken into account when assessing the discount for mitigating factors.

[19]     As the respondent sees the matter, the appeal is misconceived and should be dismissed.  Mr Heaslip emphasised that the respondent is effectively a first offender facing a very lengthy prison sentence in circumstances where he accepted his offending.

[20]     In R v Tawha CA396/02 26 February 2003 this Court made the following observations about the eight year starting point referred to in R v A:

[16]      A careful reading of R v A reveals that the Court was referring to the ultimate sentences imposed, not a starting point, when referring (p132) to cases justifying going below, even well below, the eight year starting point. Seeking to fix a different starting point having regard to some of the circumstances of particular offending tends to make that term meaningless and to detract from efforts to attain consistency in sentencing.  The starting point is the sentence level appropriate for the nature of the offence before aggravating and mitigating circumstances are considered, not after such circumstances are considered.

Recently those comments were endorsed in Takiari.  Given those decisions there is no room for debate about the approach that should be adopted by sentencing Judges.

[21]     Although Judge Hubble seems to have accepted that he was obliged to adopt the eight  year starting point, and that he did so, his explanation at  [28]  of  his sentencing remarks seems to indicate that he then made a reduction of one year to reflect the respondent’s guilty plea.   Even if, as submitted by Mr Heaslip, there is some more obscure reason for the reduction, it is clear from the Judge’s remarks that the guilty plea was the underlying factor.

[22]     Later (at [33]) the Judge expressly allowed a further discount of 18 months for the guilty plea, thereby effectively providing a two and a half year discount for the plea.  It is not entirely clear whether he overlooked the earlier allowance or had something else in mind when he made the earlier allowance.  Either way the reality is that a discount of two and a half years has been allowed for a plea that was not entered until the complainant had completed her evidence in chief and been cross- examined by counsel for two of the three co-accused.

[23]     In our view a discount of those proportions is unsustainable and contrary to principle.   Even though no guideline judgment on reductions for guilty pleas has been delivered by this Court, it made the following observations on that topic in R v Fonotia at [50]:

This Court has regularly approved discounts of between 10% and 33%.  The extent of the discount primarily reflects when the guilty pleas were entered: the earlier the plea is entered, the greater the discount.

And in R v C at [18] this Court observed that a plea of guilty which does not spare the  complainant  the  ordeal  of  giving  evidence  is  inherently  less  worthy  of recognition than a plea of guilty which does not have that consequence.

[24]     Whatever the respondent’s reasons for delaying his pleas, the fact remains that they were not entered until after the complainant had suffered the ordeal of giving evidence.  The pleas are thereby inherently less worthy of recognition than they would have been if they had been entered earlier.  While it is true that because of the not guilty pleas of the three co-accused the complainant was always going to have to give evidence, the respondent must carry his share of responsibility for that situation up to the time he entered his guilty pleas.

[25]     Moreover,  we  do  not  accept  Mr  Heaslip’s  argument  that  in  all  the circumstances (including the respondent’s intoxication on the night in question and the delay before trial) the respondent was justified in delaying his plea until he had heard  the  complainant’s  evidence.     Such  an  approach  would  undermine  the principles behind credits for guilty pleas, especially the factors mentioned in Fonotia and R v C.  We should also add that we do not accept Mr Heaslip’s proposition that the guilty plea can be equated with cases in which there have been substantial discounts for assisting the Crown.  Apart from anything else the Judge would have directed the jury that they were to disregard the guilty plea when assessing the cases against the other accused.  There was no assistance.

[26]     Even allowing for the fact that this is a Crown appeal, we are satisfied that the two and a half year discount for the guilty plea was manifestly excessive.  To the starting point of eight years imprisonment must be added the Judge’s allowance of two years for aggravating factors, resulting in a sentence of 10 years imprisonment. The Judge’s discount of one year for the respondent’s youth reduces the term to nine years.  We agree with Ms Edwards that, given the timing of the plea and the fact that the complainant had to give evidence, a discount of approximately 10 percent represents  the  maximum  that  was  available  under  a  principled  approach.    This

produces a sentence of eight years imprisonment, which we consider is the lowest possible sentence that would have been available to the sentencing Judge.

[27]     We   are   not   persuaded   that   remorse   justified   a   further   discount. Notwithstanding that almost three years had elapsed since the offending by the time the probation officer interviewed the respondent, the probation officer reported that the respondent continued to deny having committed the offences and that he lacked any insight into his offending.   Sentencing was put off by the Judge so that this aspect could be investigated.  We were advised by Mr Heaslip that submissions were advanced at sentencing on this issue.  Under those circumstances we are not prepared to contemplate making an allowance that the Judge was obviously not prepared to make.

[28]     Had this not been an appeal by the Solicitor-General we think that a sentence significantly in excess of eight years would have been within the range available to the  Judge.    This  was  offending  by  a  group  against  a  young  victim  who  was extremely vulnerable.  We do not share the Judge’s view in [30] of his sentencing remarks that Mihaka & Taia can be distinguished.  Like this case, that case involved sexual offending by more than one person against the victim.   In its decision this Court  expressly  recorded  “[t]here  is  no  suggestion  that  the  participants  were members of any gang” and that “[t]here is no sufficient evidence here that the respondents  had  in  mind  in  advance  to  waylay  and  rape  the  victim”.    On  a Solicitor-General’s appeal the sentences were increased to 10 years imprisonment, with the Court commenting that sentences of 12 years would likely have been upheld on a prisoner’s appeal.

Result

[29]     The  Solicitor-General’s  application  for  leave  to  appeal  is  granted.    The sentence of six and a half years imprisonment imposed on the respondent for sexual violation by rape is quashed and replaced with a sentence of eight years imprisonment.

Solicitors:

Crown Law, Wellington