Raea v Police

[2017] NZHC 800

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000085

[2017] NZHC 800

IN THE MATTER OF

an appeal against sentence

BETWEEN

JUNIOR POKOINA RAEA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

26 April 2017

Counsel:

S N B Wimsett for the Appellant

A L McConachy for the Respondent

Judgment:

26 April 2017

(ORAL) JUDGMENT OF EDWARDS J

Counsel:     S N B Wimsett, Auckland

Solicitors:    Meredith Connell, Auckland

RAEA v POLICE [2017] NZHC 800 [26 April 2017]

Introduction

[1]The appellant pleaded guilty to one charge of indecent assault and was

sentenced to 20 months’ imprisonment on 15 March 2017.1

[2]        The appellant appeals this sentence on the grounds that the starting point was too high; the uplift was excessive; and the Judge erred in declining to impose a sentence of home detention.

The offending

[3]        The victim had known the appellant since she was a little girl through church and considered him to be family. She voluntarily moved to stay with the appellant after she had a heated argument with her sister at her home address. The victim was 17 years old at the time of the offending.

[4]        Shortly after she moved in to stay with the appellant, he began to make inappropriate comments towards her when she was alone. He would tell her that people were saying he needed a wife, and that he wanted to marry her and have sex with her. This continued over several months.

[5]        The index offending took place during November 2015. After returning from clothes shopping with her family, the victim tried on some clothes and asked the appellant what he thought of her new outfit. The appellant grabbed the victim by the waist, and pushed her back into the bedroom. He then moved his hands to her  breasts and groped her breasts aggressively. His mouth was on her face and as she tried to turn away, he grabbed the side of her face and held it still as he continuously tried to force his tongue into her mouth. The appellant then moved his hands down  to the victim’s bottom and stroked it up and down with his hands. He moved one hand from her bottom to her vagina and moved his hand between those two areas several times in a stroking and tapping manner over the top of her skirt. While he was doing this he made comments to the victim that he “wanted to get into her”. To get away from the appellant, the victim told him that she needed to go to the

1      R v Raea [2017] NZDC 5392.

bathroom and she locked the door and stayed there for a while. When she came out, there was no further mention of what had taken place.

Personal circumstances

[6]        The appellant is a 62 year old male who has a number of convictions from 1994 and earlier, but nothing since. Those convictions include two convictions for unlawful sexual connection with a female over 16, two convictions for indecently assaulting a female under 12, one conviction for attempting to rape a female under  12 and a conviction for indecently assaulting a female between the ages of 12 and 16 years. The appellant received an effective end sentence of seven years, six months’ imprisonment for this offending.

[7]        As recorded in the pre-sentence report, the appellant is heavily involved in his local Church and his local community. He works closely with vulnerable youth through his Church.

[8]        The pre-sentence report writer recorded that the appellant had minimised his offending and placed blame on the victim during the course of the interview. He showed very little insight into his offending and no genuine empathy for the victim. The appellant was assessed as posing a medium risk of reoffending and a high risk of emotional harm.

District Court decision

[9]        The Judge noted that there was no tariff decision for this type of offending and referred to a number of cases cited by the Crown. He adopted a starting point of 20 months’ imprisonment. The starting point was then uplifted by four months to take into account previous convictions, and reduced by 20 per cent to take into account the guilty plea. That led to an end sentence of 20 months’ imprisonment.

[10]In relation to the possible sentence of home detention the Judge said:

[7]    In the ordinary course of events home detention would be a sentence the Court would consider, as I do on this occasion. What counts against you is your criminal history. I acknowledge you do not have any recorded

criminal convictions since 1994 when you were given a lengthy sentence for sexual offending and you have a number of convictions for other offences, including indecent assaults for which you were sentenced in May 1994 but the spread of those offences indicates offending over several years. And you have an earlier conviction for indecent assault. I do not know why you offended on this occasion but clearly your past is a pointer. The complainant came into your care and there was to some degree planning and premeditation given that shortly after she arrived in your home you began making overtures of a sexual nature to her.

…

[9] The issue for me is whether I should then sentence you to the lesser deterrent sentence of home detention. A deterrent sentence is clearly required, as is a sentence to denounce your conduct. In my view, having regard to all of the factors including the fact that you were clearly preparing the complainant for your sexual approaches, the high degree of trust and your previous convictions, the only way the purposes of sentencing can be met, in particular the need to impose a deterrent sentence and a sentence denouncing your conduct, is a sentence of imprisonment, even bearing in mind the injunction to consider imposing the least restrictive outcome on  you where the sentence is less than two years’ imprisonment. For you, I think the sentence must be imprisonment and accordingly you are sentenced to 20 months’ imprisonment and with release conditions as set out in the pre- sentence report for a period of one year following your release.

Approach to appeal

[11]      Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

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

(b)a different sentence should be imposed.

[12]      In any other case, the Court must dismiss the appeal.2 An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.3

2      Section 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

Starting point

[13]      The appellant submits that the starting point of 20 months (one year, eight months) imprisonment was excessive when compared to the starting points adopted in cases involving comparable offending.

[14]      In Hunt v R, the sentencing Judge adopted a starting point of one year, nine months’ imprisonment on four charges of indecent assault.4 The victim in that case was a teenage girl. The offender had entered the victim’s bedroom in the early hours of the morning after returning from an evening of heavy drinking. He lay on the victim’s bed and touched her stomach and breasts. The offender tried to lie on top of the victim and kiss her while rubbing the general area of his penis up and down the side of the victim’s body. He placed her nipple inside his mouth, placed his hand on the victim’s bottom and around her genitalia. The offending involved Mr Hunt leaving and returning to the victim’s bedroom on numerous occasions and persisting with the offending until the victim got out of bed and went to the lounge area at which time the assaults ceased.

[15]      In R v S, the appellant lived in a de facto relationship with the complainant’s aunt.5 The 15 year old complainant visited them regularly. The offending involved touching the complainant’s breasts and buttocks over the top of her clothing and trying to touch her genital area. The incidents were fleeting in nature. There were approximately 10 such incidents. The Court of Appeal considered a starting point of 18 months’ imprisonment would have been appropriate for that offending.

[16]      The appellants’ counsel cited two other Court of Appeal cases in support of a lower starting point.6 Both involved different charges and were appeals against conviction. The end sentence was not before the Court. I do not consider either case to be directly comparable.

[17]      I consider Mr Raea’s case to be broadly comparable to both Hunt and R v S. The extent of the violation was greater in Hunt than in the instant case, and the fact

4      Hunt v R [2012] NZCA 469.

5      R v S CA465/05, 11 April 2006.

6      Walker v R [2012] NZCA 520; P v R [2012] NZCA 325

that Mr Hunt returned on several occasions makes that offending more serious than this one. However, the breach of trust may be considered more serious in this case  as the appellant was in the role of a caregiver, and the victim was particularly vulnerable having sought refuge with him due to a disagreement with family. Similarly, the sexualised comments made by the appellant over a number of months suggests a degree of premeditation which was absent in Hunt v R.

[18]      Those sexualised comments over a period of months narrows the gap  between this case and the repetitive incidents at the centre of R v S. In any respect, I consider the appellant’s offending in this case was more persistent and aggressive than that described in R v S.

[19]      It follows that a starting point of 20 months was at the higher end of the range but not outside the applicable range based on comparable cases.

Uplift for previous convictions

[20]      The Judge applied an uplift of four months’ imprisonment for previous convictions whilst acknowledging that the appellant did not have any convictions since 1994. The appellant submits that given the 23  years that have elapsed since  Mr Raea’s previous offending, a more modest uplift would have been appropriate.

[21]      In Reedy v New Zealand Police, Dunningham J set out the principles relevant to an uplift for prior convictions.7 Her Honour identified that the permissible lines of reasoning justifying an uplift fell into the following three broad categories:

(i)previous convictions bearing upon character and culpability;

(ii)indication of predilection to offend in a specific way (an indicator of reoffending);

(iii)the need to protect society by the imposition of a deterrent sentence.

[22]In this case, an uplift for the appellant’s prior convictions falls within all three

categories and was therefore appropriate in the circumstances.

7      Reedy v New Zealand Police [2015] NZHC 1069 at 19.

[23]      However, I consider an uplift in the order of 20 per cent was significant and did not adequately reflect the age of the prior convictions. An uplift in that order risks punishing the appellant twice for previous offending. I accept counsel for the appellant’s submissions that an uplift in the order of 10 per cent, or approximately two months was appropriate.

[24]      Adopting the starting point of 20 months adopted by the District Court Judge, and applying an uplift of two months leads to a sentence of 22 months. Applying the 20 per cent discount for the guilty plea leads to an end sentence of 18 months’ imprisonment.

[25]      I have considered whether substituting a sentence of 18 months’ imprisonment for 20 months’ imprisonment is mere tinkering. I have concluded that it does not. The combination of the high (but within range) starting point, with an excessive uplift for previous convictions, pushes the end sentence beyond the applicable range and makes it manifestly excessive. An end sentence of 18 months’ imprisonment will therefore be substituted on appeal.

Home detention

[26]      The appellant submits that the Judge erred in failing to give adequate consideration to a sentence of home detention. In particular, the appellant submits that the Judge should have taken into account the following factors:

(a)Mr Raea is an elderly man in poor health. He has significant lung and heart conditions and walks with a cane.

(b)Mr Raea does not speak fluent English. He required an interpreter for the pre-sentence report and at Court.

(c)Home detention was recommended by the writer of the pre-sentence report, and the address was assessed as suitable for electronic monitoring.

(d)The Crown raised no objection to home detention noting that it would depend upon the Court’s view as to likely compliance with a home detention sentence. There was nothing to indicate that  Mr  Raea would not comply with a sentence of home detention.

(e)Home detention would better serve the sentencing principles relating to Mr Raea’s rehabilitation and reintegration, which were not directly considered by the Judge. The short prison sentence he received would not allow any participation in an appropriate sex offender programme whilst in custody.

[27]      In Palmer v The Queen, the Court of Appeal set out the approach to be taken on appeal where the issue is commutation of a sentence of imprisonment to home detention.8 The Court of Appeal confirmed that the Tutakangahau approach applied equally to that decision and went on to say:

[19] This change of approach is  unlikely to make  a  difference  in the  result, because it is frequently difficult for an appellant to identify an error in a refusal to commute a short sentence of imprisonment to an equivalent term of home detention, and any material error would normally have justified intervention under the former approach. As William Young P pointed out in R v Vhavha, there is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either generally or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.

(footnotes omitted)

[28]      In this case, the Judge took into account the relevant sentencing principles and in particular the requirement to impose the least restrictive sentence. The Judge also took into account the need for deterrence and denouncement which was particularly evident given the appellant’s previous criminal history and the need to protect the public.

8      Palmer v The Queen [2016] NZCA 541 at [19].

[29]      However, the Judge did not expressly refer to the appellant’s personal circumstances, and in particular his serious health conditions. The pre-sentence report notes that contact was made with the appellant’s general practitioner who confirmed that he had significant lung and heart medical conditions which required him to attend hospital and GP appointments as required. The importance of the appellant being able to seek medical attention urgently should the need arise was  also stressed and it was as a result of these multiple health problems that the appellant was deemed not suitable by the report writer for a sentence of community work.

[30]      These health concerns and the appellant’s age (62 years) were relevant factors to be taken into account as they have the potential to make imprisonment disproportionately severe for the appellant. Furthermore, the appellant’s rehabilitation and reintegration also needed to be taken into account. A home detention sentence would no doubt meet those needs in a way in which a sentence of imprisonment cannot.

[31]      However, I do not consider the failure to consider the appellant’s personal circumstances would have altered the balance in this case. The appellant’s lack of remorse and insight into his offending, the serious breach of trust, and the need to protect against the risk of reoffending in this case against vulnerable young women, tips the balance in favour of a custodial sentence. In my view, a sentence of imprisonment is the least restrictive sentence for the appellant’s offending.

[32]      In any event, an appellate Court will usually defer to the sentencing Judge in cases where an offender is on the cusp of home detention.9 That is the appropriate approach to be followed in this case and I decline to commute the sentence of imprisonment to one of home detention.

9      R v D (CA 253/2008) [2008] NZCA 254 at [66]; Otufangavalue v R [2010] NZCA 585.

Result

[33]      The appeal is allowed. The sentence of 20 months’ imprisonment is quashed and substituted with a sentence of 18 months’ imprisonment. The application to commute the sentence to one of home detention is declined.

Edwards J