R v The Queen

[2018] NZHC 2766

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.  SEE THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-000068 [2018] NZHC 2766

BETWEEN

R

Appellant

AND

THE QUEEN Respondent

Hearing:	23 October 2018
Counsel:	J B Slankard and K M Pedder for Appellant J A Eng for Respondent
Judgment:	25 October 2018

JUDGMENT OF COLLINS J

Introduction

[1]      Ms R appeals a sentence of three years and three months’ imprisonment imposed by Judge Kelly in the District Court at Wellington, after she pleaded guilty to charges of:1

(1)       dealing in a person under 18 for sexual exploitation;2

(2)       publishing an intimate visual recording;3 and

1      R v Davie [2018] NZDC 17837.

2      Crimes Act 1961, s 98AA; maximum penalty 14 years’ imprisonment.

3      Section 216J; maximum penalty three years’ imprisonment.

R v R [2018] NZHC 2766 [25 October 2018]

(3)       possessing an objectionable publication.4

[2]      Ms R appeals on the basis her sentence was manifestly excessive. She says the starting point adopted by Judge Kelly did not reflect the seriousness of her offending and was not comparable with the starting point for her co-offenders.

The facts

[3]      Ms R’s offending on the lead charge of dealing in a person under 18 for sexual exploitation arose within the context of a plan initially devised by her co-offenders, Mr Davie and Ms Platt.   Ms Platt is a 57-year-old transgender sex worker from Palmerston North.  Ms R, who is also a sex worker, is about 56 years old.  Mr Davie is about 74 years old, and is a former client of both Ms Platt and Ms R.

[4]      Mr Davie and Ms Platt began talking on a dating website on 15 May 2017. They initially discussed the possibility of a sexual meeting but their conversation quickly developed into their mutual interest in sexually offending against children after Mr Davie asked Ms Platt whether she had had sexual interaction with any underage persons and whether she would be willing to train a young girl to have sex if he could find one.  Their conversation ultimately developed into a plan where Mr Davie would find a female child for Ms Platt to “seduce” and “train” for sexual purposes including for “renting” out to clients and for sexually offending against the child themselves.

[5]      On 18 May 2017, Ms R initiated a text message conversation with Mr Davie. At the time the 10-year old victim, V1, was staying with Ms R while V1’s usual caregiver was in hospital.  Ms R is V1’s grandmother.

[6]      Within moments of the conversation starting, Mr Davie asked Ms R whether she knew any young persons who were available for sex. This led to Mr Davie asking

Ms R whether she had nude photos of her granddaughter.  Ms R ultimately sent four

naked images of V1 to Mr Davie in exchange for a $40 mobile phone “top-up”. V1’s

4      Films, Videos and Publications Classification Act 1993, s 131A(1); maximum penalty 10 years’

imprisonment.

genitalia were clearly visible in the images.  This offending led to Ms R’s conviction for publishing an intimate visual recording.

[7]      Mr Davie introduced the idea of sexually offending against V1 by asking whether  she  would  “be  interested  in  making  money  with  [her]  granddaughter”.

Mr Davie offered up to $1,000. Mr Davie said that V1 would have to be trained before being with clients and that he knew someone who could do this.  Ms R expressed her readiness to exploit V1 but sought to clarify the parameters of the sexual conduct that she would be exposed to and how well Mr Davie knew the trainer. Mr Davie explained that Ms Platt could train V1 quickly and that if V1 was okay with it he would teach her how to have sex.  However, Mr Davie assured Ms R that there would only be rubbing of V1’s vagina, unless V1 agreed to more.  Ms R was particularly concerned about whether Mr Davie would go beyond touching and whether there would be penetration of any kind.  Ms R suggested the possibility of her introducing Mr Davie to V1 as her uncle and the three of them lying in bed together, with Ms R pretending to fall asleep while Mr Davie touches V1’s vagina.

[8]      Ms R and Mr Davie also discussed prices during this conversation.   Ms R stated that she was after a cheap car and that she would be happy with “an economical cheap car with rego and warrant and cheap to run”.  Mr Davie told her that he would have a look around. They initially planned for Mr Davie to come to Wellington on the weekend of 20 and 21 May 2017 to pick up Ms R and V1 to go to Mr Davie’s residence in Levin.  However, this fell through and Ms R suggested another meeting.

[9]      Mr Davie and Ms Platt’s conversation had been continuing during this time. Mr  Davie  forwarded  the  naked  images  of V1  to  Ms  Platt,  who  expressed  her enthusiasm for training V1 to engage in sexual activity in furtherance of their plans to train a young girl for sex.

[10]     At the same time as these events were unfolding, Mr Davie had been trying to arrange a meeting with another young person, a 14-year-old female refugee from Colombia (V2).  He had approached V2 at the library in Levin and engaged her in a conversation.  He told V2 he was a scout for a modelling agency and asked if she would like to model lingerie for him at his Levin home in exchange for money.  A

second meeting took place at some stage on the weekend of 20 and 21 May 2017, which this time included V2’s non-English speaking mother. Mr Davie made the same propositions to V2 again and she translated all of this for her mother.   Mr Davie suggested that V2 leave her mother out of their next meeting.  They arranged a third meeting verbally and this was enforced by a text message.   On 23 May 2017, V2 attended the Levin Police Station with her mother and reported these incidents.  The police allowed the third meeting to go ahead under controlled circumstances.  They intercepted and arrested Mr Davie a minute or two after he had engaged with V2 at the pre-arranged meeting.

[11]     The police found the four naked images of V1 on Mr Davie’s mobile phone (one of them being the home screen).  It was established Ms R had sent these images. She was arrested on 25 May 2017 and had to be physically restrained by police to stop her from deleting data from her mobile phone.   Police also found six images one

Ms R’s mobile phone, dated 8 April 2015, of an unidentifiable female having sex with a dog. This gave rise to the charge of possessing an objectionable publication.

Background to sentencing

[12]     Ms Platt was arrested and pleaded guilty at an earlier stage than Ms R and

Mr Davie. She was sentenced on 6 April 2018 by Judge Edwards in the District Court at Palmerston North to two years and nine months’ imprisonment.  Judge Edwards took a starting point of three years and six months’ imprisonment in recognition of the aggravating factors of pre-meditation, vulnerability of the victim, extent of harm contemplated and commercial gain. Ms Platt’s role was distinguished as being slightly less serious, given that Mr Davie was the central figure in the conspiracy and Ms R was negotiating directly about V1.

[13]     Judge Edwards’ starting point for Ms Platt was based on a sentence indication given to Mr Davie and Ms R on 8 December 2017 by Judge Wilson, who said the facts made clear that the conspiracy was undeniably capable of producing serious offending but for the police stepping in as a serendipitous consequence of the unrelated offending against V2.  Judge Wilson rejected the submission that the messages between Ms R and Mr Davie were just part of a fantasy and would not have been acted upon.  The

indicated starting point for both Mr Davie and Ms R was four years’ imprisonment on the dealing for sexual exploitation charge with emphasis being placed on the breach of trust involved with Ms R’s role.  Both of them rejected the sentence indication, entered guilty pleas and requested a disputed-facts hearing.

[14]     The disputed facts hearing proceeded before Judge Kelly on 25 May 2018. At issue was whether the Crown had proved beyond reasonable doubt that there was an agreement between Mr Davie and Ms R involving the sexual exploitation of V1, which they genuinely intended to carry out.   They admitted that they had entered into dealings, but denied that they would have actually followed through with the plan because the plan was really a fantasy. The Crown was intending to rely on the fact the plan would have been carried out but for police intervention as an aggravating factor for sentencing.  Judge Kelly concluded:

(1)The text messages between Mr Davie and Ms R were not in the nature of a fantasy.   They constituted plans to sexually exploit V1 with discussion of payment, the limits on sexual activity and the role of

Ms Platt.  Ms R sent naked photos of V1.

(2)Mr Davie and Ms R genuinely intended to carry out the sexual exploitation as they discussed the logistics for their meeting.   They arranged, then re-arranged, on two occasions to meet when Ms R would have care of V1.

(3)Mr Davie had a genuine sexual interest in children and was willing to carry out the offending.  He was simultaneously grooming V2 during the same timeframe.  It was his unscrupulous approach to V2 that led to the fortunate interception of his and Ms R’s plans in respect of V1.

[15]     Judge Kelly therefore concluded that the Crown had proven beyond reasonable doubt that Mr Davie and Ms R genuinely intended that V1 would ultimately be used for sexual purposes.  Sentencing proceeded on that basis.

District Court decision

[16]     Judge Kelly sentenced Mr Davie and Ms R together on 21 August 2018.  The Judge recognised that the core purposes of sentencing for both individuals were denunciation and deterrence. Upon considering the submissions and cases referred to by counsel and Judge Wilson’s sentence indication, the Judge concluded that a four- year starting point for Mr Davie and a three-year nine-month starting point for Ms R was warranted.  In reaching that figure, Judge Kelly took account of the significant degree of planning by both Mr Davie and Ms R, the vulnerability of V1 and the significant breach of trust by Ms R.  Judge Kelly said the absence of actual harm to the victim was the absence of a severely aggravating factor.  However, this was to be seen in the context of her finding that there was genuine intent to go through with the plan, which was only prevented due to fortuitous intervention by the police.

[17]     Another   important   consideration   was   parity   between   the   offenders. Judge Kelly regarded Mr Davie the most culpable as the instigator and coordinator of the conspiracy, Ms R as the next most culpable, due to the breach of trust in negotiating directly for the sexual exploitation of V1 and Ms Platt as the least culpable, given her more  remote  role.    In  Judge  Kelly’s  assessment,  it  was  therefore  apparent  that

Mr Davie’s starting point would be four years and Ms R’s three years and nine months in contrast to the three years and six months starting point that Judge Edwards had already adopted for Ms Platt.

[18]     With regards to Ms R, Judge Kelly added an uplift of three months for the other charges (publishing an intimate recording and possessing an objectionable publication).  That provisional sentence was reduced by five per cent to take account of Ms R’s age and the lack of previous convictions for sexual offending. There was a further 15 per cent discount applied for the guilty plea.   This resulted in the end sentence of three years and three months’ imprisonment.

[19]     The appeal is solely in relation to the starting point adopted by Judge Kelly with respect to Ms R.

Appellant’s submissions on appeal

[20]     Mr Slankard, senior counsel for Ms R, submitted that Judge Kelly failed to place appropriate weight on the gravity and scale of her offending and the remoteness of the harm to the complainant.  He submitted a careful consideration of these factors is important when assessing culpability of a person under s 98AA of the Crimes Act, given the breadth of the charge and the wide variety of conduct potentially caught by

it.5  He submitted that Ms R’s offending arose from an exchange of text messages over

a period of five days.  V1 was in her care on only the first of those days and the text messages suggest Ms R lost interest in the dealing following 19 May 2017 and did not take any steps in furthering the dealing after this.  Mr Slankard submitted there is no evidence Ms R attempted to attain care of V1 over the period where they planned to meet.  Indeed, V1 was never told about the dealing with Mr Davie.  Notwithstanding the outcome of the disputed facts hearing, Mr Slankard submitted that the evidence demonstrates the dealing was far from fruition and the stage to which it was taken by Ms R is relevant to an assessment of her culpability because it goes to the remoteness of harm to the victim.   Mr Slankard submitted that the Judge overlooked this by adopting the counterfactual that the harm would have eventuated but  for police intervention.   Mr Slankard referred to R v Lata6  and R v Hore7  in support of the submission that the starting point was manifestly excessive.

[21]     Mr Slankard also sought to draw an analogy with sentencings for performing an indecent act on a child under 12.8  He referred to O(CA643/2009) v R9 and Anson v R.10   In O v R, three years’ imprisonment was upheld as a stern but justified starting

point for an offender who indecently assaulted his 10-year-old niece six times over

5      Referring to R v Henry [1997] 1 NZLR 150 (CA) at 152, where the Court said: “the nature and scope of the conspiracy and the extent to which the offender participated and persisted in it must be relevant considerations”.

6      R v Lata [2018] NZHC 707, where a starting point of nine years and six months’ imprisonment was adopted for an offender who coerced her 15-year-old daughter to work as a prostitute for 18 months, resulting in over 1,000 sexual connections, seeing as many as five clients per day and being forced to have an abortion. See also R v Sehgal [2018] NZHC 1145, where Ms Lata’s co-

offender was given a starting point of five years and nine months’ impriso nment for organising

the financial and advertising aspects of this offending, as well as transporting the victim to visit clients.

7      R v Hore [2012] NZHC 1575.

8      Crimes Act 1961, s 132(3); maximum penalty 10 years’ imprisonment.

9      O (CA643/2009) v R [2010] NZCA 609.

10     Anson v R [2014] NZCA 135.

seven months. The assaults involved touching the complainant’s vagina while she lay in bed, touching her breasts and vagina over her clothing, and kissing her.  Similarly, in Anson a starting point of four years’ imprisonment was upheld for an offender who indecently assaulted two of his step-grandchildren over a four-year period. There were multiple assaults involving the offender getting in the shower with the victims, masturbating and touching the vagina of one of the victims.

[22]     Mr Slankard also submitted that the starting point for Ms R was too high when compared with the starting points for Mr Davie and Ms Platt. He submitted that Ms R was not party to the discussions between Mr Davie and Ms Platt in which they developed their plan to train a child as a prostitute for them and others to have sex with.  Further, Judge Kelly found that Ms R sought to place clear limits on the sexual activity V1 would be exposed to. She was concerned about there being no penetrative action.  She had only agreed to let Mr Davie meet V1 on one occasion with no one else being present. Mr Slankard submitted there was a significant difference between the sexual exploitation contemplated by Mr Davie and Ms Platt and that contemplated by Ms R.  While he did not contest that there was a much more significant breach of trust involved in Ms R’s offending, he submitted a lower starting point was justified to achieve appropriate distinctions between the three offenders.

The approach on appeal

[23]     Section 250 of the Criminal Procedure Act 2011 requires the Court to allow an appeal against sentence if:

(1)      for any reason, there is an error in the sentence imposed on conviction;

and

(2)      a different sentence should be imposed.

[24]     The Court of Appeal has explained that whether a sentence is “manifestly excessive” continues to be an important guide to finding an error.11    The Court of

Appeal has also explained:12

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

12     At [29], citing R v Shipton [2007] 2 NZLR 218 (CA) at [138].

The discretion to vary [a] sentence [on appeal] is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion.  In short, this Court must proceed on an “error principle”.

[25]     If the end sentence is within range, then the appeal court will not change it, even if the lower court made an error to reach that end sentence.

Analysis

[26]     In approaching this appeal, it needs to be recognised that sentencing under s 98AA of the Crimes Act is not an easy task.  It is a relatively new addition to the Crimes Act and there is very little case law from which sentencing courts may attain guidance.   Moreover, as has been pointed out by Mr Slankard, a wide variety of conduct may be caught by s 98AA.

Gravity and scale of offending

[27]     The only previous cases that come close to being factually analogous to the present offending are the following:

(1)R v Greer, where the offender was convicted under s 98AA, in addition to class B and C drug offending, for, on at least two occasions, supplying cannabis to school girls for free or at a discount in return for allowing him to photograph them in sexualised positions.  A sentence of 18 months’ imprisonment was imposed for the sexual exploitation charge, cumulative upon the sentence for the drug offending. 13

(2)R  v Hore,  where the offender offered  money to  11  victims,  aged between 11 and 19 years old, in exchange for them performing sexual services.  This included having the victims masturbate in front of him online and meetings where the offender engaged in sexual activity with

the victims.  The victims were never paid and the offender threatened

13     R v Greer [2013] NZHC 3025.

to expose them if they did not comply with his demands.  A starting point of five years’ imprisonment was adopted.14

(3)R v Ellmers, where police intercepted online communications between the offender and the father of an 18-month old infant in which the father offered to trade his son, indicating that he preferred girls. The offender arranged to pay $500 in exchange for access to the infant for sexual gratification. The intended conduct was “general boy love” and for the offender to rub his penis between the infant’s buttocks.  The offender also sent the father videos depicting young girls being sexually abused during their negotiations. The plan did not eventuate as an undercover police officer posed as the infant’s father and arrested the offender when he showed up for a pre-arranged meeting.   The offender was being sentenced for unrelated offending against two other children involving numerous charges including sexual violation by unlawful sexual connection.  This ultimately resulted in an end sentence of preventive detention, but in the course of setting the appropriate determinate sentence, the sentencing Judge uplifted the starting point of the lead charges by five years to account for the exploitation charge, despite there being no direct contact.  That uplift also related to the videos he sent.15

[28]     Despite the limited usefulness of the analogies provided in these cases, I consider a starting point of 45 months’ imprisonment is not out of range given the 18- month starting point in the significantly less serious case of R v Greer and the 60 month starting points in the somewhat more serious cases of R v Hore and Ellmers v R. Unlike those latter cases, there was a significant breach of trust involved in Ms R’s offending. I consider the uplift provided in Ellmers v R to be telling as no actual sexual

exploitation occurred, just as in the present case.

14     R v Hore, above n 7.

15     Ellmers v R [2013] NZCA 676.

Remoteness of harm to the victim

[29]     As to the issue of remoteness, Judge Kelly’s findings following the disputed fact hearing make clear that Mr Davie and Ms R’s plan was not merely in the nature of a fantasy. They clarified the parameters of the sexual conduct that would take place, the price, the time and place where it would occur, and the logistics. They made plans, re-made them when circumstances changed.  Ms R was the one to suggest another time after the original plan fell through.   The arguments as to remoteness are diminished significantly by these findings.

[30]     Moreover, I consider the Crown’s submission that Ms R had an evolving understanding of the arrangement to be convincing.  While Ms R made some attempt to ensure that Mr Davie was going to be the only one indecently assaulting V1 on the first occasion and that he was only going to touch her (as opposed to penetrative conduct), it is clear from the communications that she did not preclude Mr Davie’s suggestions that this might go further in future. Her response to Mr Davies suggestions of penetrative sexual activity was that she had not been exposed to penetrative sexual activity until a later age, which indicates that she saw further exploitation as being a possibility.

[31]     Finally, in R v Lata, Muir J directly addressed the relevance of the fact that the exploitation did not eventuate in the following way:16

Decisions such as Doling v Police and R v Wales indicate a generally stern approach for offending involving sexual exploitation, even where, by intervention of the police, the exploitation has not in fact occurred.  I agree that this is appropriate, having regard to the commercial element associated with the offending and the role of deterrence in that respect.

[32]     I reject Mr Slankard’s submission that Judge Kelly failed to give adequate weight to the remoteness issue in setting the starting point.  The exploitation planned by Ms R and Mr Davie was not merely in the nature of a fantasy and it was undeniably capable of eventuating into very serious harm and developing into further instances of more serious offending. In that context, the sentencing purpose of deterrence demands

that a stern starting point be set despite the absence of any direct harm occurring.

16     R v Lata, above n 6, at [37], referring to Doling v Police HC Tauranga CRI-2010-470-12, 18 March

2010 and R v Wales [2012] NZHC 138.

Analogy with cases under s 132(3)

[33]     Mr Slankard’s attempt to draw analogies with cases involving charges of performing an indecent act on a child under 12 is similar to the argument advanced by the Crown in R v Lata that the sexual exploitation in that case could be compared to serious rape cases.  Muir J rejected the usefulness of such analogies in the following way:17

… I find the comparison with rape cases not entirely helpful. The elements of the offences are too different. The main element of this offence is exploitation. It need not involve a sexual element, whereas sexual connection is a necessary element of the charge of rape. Moreover, rape is an inherently violent offence, whereas s 98 offending need not be … In my view, the best way to proceed in this case is to consider the range of offending that could fall under the section, then place this offending in that range, considering the aggravating (and possibly mitigating) features I have identified.  At most, I consider the rape cases as something of a cross-check to the sentence which I ultimately arrive at.

[34]     I consider Muir J’s reasoning is also apposite with respect to the proposition advanced by Mr Slankard. Performing an indecent act on a child is a different offence aimed at an altogether different mischief.  Judge Kelly noted this in her sentencing.  I agree with the Crown that the harm s 98AA is concerned with is the exploitation of a child or young person’s body.  That is why the offence also refers to the removal of body parts and forced labour alongside sexual exploitation.  Moreover, the maximum penalty for performing an indecent act on a child is 10 years’ imprisonment, whereas the maximum under s 98AA is 14 years’ imprisonment.  This too was considered by Judge Kelly at sentencing and I agree that it diminishes the availability and usefulness of the analogies to s 132(3) cases as advanced by Mr Slankard.

Parity with co-offenders

[35]     I also reject Mr Slankard’s submission that the starting point for Ms R’s offending was too high having regard with the starting points adopted for her co- offenders. Comparisons with her co-offenders mandated that Ms R’s starting point be below Mr Davie’s and above Ms Platt’s.   If anything, it was arguable that Ms R’s

starting point could have been closer to that given to Mr Davie. Mr Davie’s offending

17     R v Lata, above n 6, at [34].

is arguably worse given he was the instigator, coordinator and the ultimate intended offender who would do indecent acts with the exploited child.  However, there was a significant breach of trust involved in Ms R’s offending, and her involvement was critical to any act of sexual exploitation actually occurring.  Ms Platt’s role was less serious than Ms R’s in that she was ancillary to the overarching plan in that she would only become involved once Mr Davie had been able to procure a child from someone like Ms R. Ms Platt’s role also did not involve the extremely serious element of breach of trust that was involved in Ms R’s offending.

[36]     While it is true that Ms R sought to limit the parameters of sexual conduct that would be involved in the first meeting, her messages to Mr Davie suggest that further meetings would be possible if all proceeded as envisaged. The Crown’s narrative that

Ms R viewed the offending as an evolving matter is further confirmed by the fact that she was only too willing to provide naked pictures of V1 to Mr Davie and that she did not directly rebuff any of Mr Davie’s repeated indications that he eventually wanted

to have sex with V1 and that he wanted to have her trained by Ms Platt. It is clear that Judge Kelly had regard to the few protective measures taken by Ms R when she reduced  Ms  R’s  starting  point  from  the  four-year  starting  point  indicated  by Judge Wilson.

Result

[37]     There was no error with the starting point Judge Kelly adopted.  It was clearly within range given the comparisons that can be legitimately made with similar cases and the need to deter others from planning the sexual exploitation of young people.  I also consider the comparison with Ms R’s co-offenders at the least justified the starting point that was ultimately adopted.

[38]     The appeal against sentence is dismissed.

D B Collins J

Solicitors:

Public Defence Service, Wellington for Appellant
Crown Law Office, Wellington for Respondent