Savelio v R HC Wellington CRI 2007-485-8
[2007] NZHC 1703
•28 March 2007
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2007-485-8
MICHAEL XAVIOUR SAVELIO
Appellant
v
THE CROWN
Respondent
Hearing: 27 March 2007
Appearances: T Rickard-Simms for Appellant
C J Boshier for Respondent
Judgment: 28 March 2007
RESERVED JUDGMENT OF MILLER J
[1] Mr Savelio appeals against a sentence of two years and six months imprisonment on one charge of sexual connection with a girl aged 14 years, contrary to s.134(1) of the Crimes Act.
[2] The summary of facts records that Mr Savelio met the victim through a relative and began sending text messages to her, asserting that he wanted to be with her. They began to exchange regular text messages and eventually started meeting alone. This led to him performing oral sex on the victim on three separate occasions and ultimately to sexual intercourse on two occasions. He was 31 at the time. The
offending began in January 2006 and ended in March 2006.
SAVELIO V R HC WN CRI 2007-485-8 28 March 2007
[3] Mr Savelio is described as a solo father of Samoan descent who until arrest had custody of one of his children and was in a relationship with a partner who is said to be supportive of him. His own family background was difficult. He explained his offending by maintaining that he loved the victim. At interview with the probation officer, he accepted full responsibility and was remorseful. He agreed to pay reparation of $2,860, and the probation officer recommended a non-custodial sentence.
[4] The District Court had before it victim impact statements from the girl herself and also her mother. The girl says that he made her feel happy at a time when she was upset, and that as a result of the incidents she has been out of school for two terms and was removed by her mother from the family environment to separate her from Mr Savelio. Her mother confirmed the impact on her daughter socially and at school, although she went on to make allegations that as the District Court recognised, could not be taken into account against Mr Savelio.
[5] Judge Everitt had the benefit of written submissions. He noted that the charge had been laid summarily, and that it carried a potential maximum penalty of up to ten years imprisonment. The offending was inherently serious because it involved taking advantage of an underaged female for the purpose of sexual gratification. He noted the ages of the victim and Mr Savelio. He would edit out of the victim impact statements those matters that were not appropriate; nonetheless, it was clear that the mother and the family of the victim had been devastated. He referred to Mental Health Services correspondence and a psychiatric report stating that Mr Savelio has had difficulties with depression and had suffered childhood sexual abuse himself.
[6] Turning to sentencing principles, the Judge observed that there is no tariff. Whilst imprisonment is the usual outcome there are exceptions, particularly where the offenders are younger than Mr Savelio. He adopted a starting point of three years imprisonment taking into account the age disparity and elements of breach of trust.
[7] Referring to R v Mako (2000) 17 CRNZ 272 and sections 8 and 9 of the Sentencing Act, he turned to aggravating and mitigating circumstances. The Judge noted mitigating circumstances were Mr Savelio’s personal circumstances, his remorse and his plea of guilty, along with the absence of previous convictions and his family circumstances.
[8] The Judge held that the main aggravating circumstance was the vast discrepancy in age. The other aggravating feature was that the victim was a vulnerable person on the ‘cusp of sexual awakening’ and was taken advantage of. There was an element of grooming and breach of trust; Mr Savelio was trusted by her family to teach her to drive motor vehicles.
[9] The Judge deducted from his starting point of three years one year for the guilty plea, remorse, and other mitigating circumstances, then added six months for the element of grooming and breach of trust.
[10] On appeal, Mr Rickard-Simms contends that the sentence is manifestly excessive, that consideration should have been given to a non-custodial sentence, and that if imprisonment was the only option, a sentence of less than two years would be sufficient, with leave to apply for home detention. He argued that the starting point was too high, the Judge double-counted aggravating factors, and the discount given for mitigating factors was too small.
[11] I begin with the starting point. There is no guideline judgment for this offence. Counsel referred me to R v P (HC Rotorua, T 015244, 31 May 2002, Chambers J), which Mr Rickard-Simms suggested was on all fours with this case, Comer v Police (HC Whangarei, CRI 2005-488-000061, 9 November 2005, Venning J) and Gyde v Police (HC Wellington, CRI 2005-485-129, 13 September 2005, MacKenzie J). For the Crown, Miss Boshier referred to R v Crooks (CA 157/05, 17
November 2005), R v Tomkinson (CA 419/95, 16 February 1994) and R v Boyd [2004] 21 CRNZ 169. I recognise that these cases must be interpreted in light of the increase in the maximum sentence from seven to ten years in 2005.
[12] These cases suggest a starting point of somewhat less than three years, taking into account the number of sexual acts, age disparity, grooming and breach of trust. Boyd, a much more serious case, called for a starting point of around four and a half years although the Court of Appeal considered that a higher starting point would not have been open to criticism. In Crooks, the Court of Appeal declined to interfere with a sentence in which a starting point of two and a half years was chosen for very similar offending albeit less extensive. The Court in that case referred to judgments indicating sentencing levels of between four and 18 months imprisonment for single acts of intercourse, with sentences of up to two and a half years or more where there has been more regular sexual contact. It held that the two and a half year starting point was at the top of the range. In Tomkinson the Court of Appeal quashed a sentence of three and a half years and substituted two and a half years in a similar case. R v P involved a similar age disparity and breach of trust, although the Judge sentenced on the basis of one act of intercourse. Chambers J adopted a two year starting point.
[13] Based on these authorities, I consider that a starting point of two and a half years imprisonment would have been appropriate on the facts of this case. That incorporates the abuse of trust, age disparity, and the element of grooming.
[14] Mr Rickard-Simms next submitted that there was an element of double counting, in that the Judge first determined a starting point by reference to the aggravating features of the offence, then referred to some of the same matters when dealing with aggravating factors. He was critical of the Judge’s decision to refer to Mako.
[15] Miss Boshier responded that all the Judge did was to identify the orthodox approach to sentencing analysis; a starting point is established by reference to the circumstances of the offence, with aggravating and mitigating factors pertaining to the offender then being taken into account separately. She added that it does not matter if the Judge departs from this approach, so long as all relevant considerations are taken into account and none are double-counted. The Judge took into account the effect on the victim, the age disparity and the number of sexual acts in assessing
the criminality of the offending itself to reach a starting point, and the aggravating features that justified an increase for the elements of grooming and breach of trust.
[16] I think that there was an element of double counting in this case. When setting the starting point the Judge referred to some of the decisions I have mentioned, particularly R v P which he said was following. That decision took age disparity and abuse of trust into account when setting the starting point, and the Judge specifically recorded that he took those factors into account in this case. When dealing with aggravating factors, however, the Judge referred again to the disparity in age, which he saw as the main aggravating factor, the exploitation of a young girl and the elements of grooming and breach of trust. All of these things were properly taken into account in the starting point; they are characteristics of the offence rather than the offender. It was an error to treat them as aggravating factors when they had already been taken into account.
[17] Turning to the discount for mitigating factors, Mr Rickard-Simms was critical of the Judge’s decision to discount one year from the starting point (effectively 33%) for all mitigating factors before adding the aggravating factors. The discount from the starting point to the final sentence of two years six months was 20%. I agree that this is a case in which a full discount of up to one-third should have been given; Mr Savelio admitted responsibility at the outset, pleaded guilty, and displayed remorse.
[18] I am satisfied that the resulting sentence was clearly excessive.
[19] Taking into account the aggravating factors relating to the offence, including the number of incidents, I will adopt a starting point of two years, six months. There are no other aggravating features. The mitigating factors justify a reduction of ten months, resulting in a final sentence of 20 months imprisonment. I agree with the Judge that imprisonment was inevitable; indeed, Mr Rickard-Simms acknowledged that a custodial sentence was available to the Judge.
[20] Turning to home detention, Ms Boshier noted that deterrence is required and that the offending occurred, on one occasion, at Mr Savelio’s home. She also pointed to the element of grooming and Mr Savelio’s use of text messages for that
purpose. I agree that deterrence and denunciation are important considerations in this type of case, which must be regarded as serious. But Mr Savelio has no previous convictions, he has accepted full responsibility, and he is responsible for the care of a seven year old son. It also appears that he may have suitable accommodation in the home of his mother. In the circumstances, it is appropriate that leave be given to apply for home detention.
Decision
[21] The appeal is allowed. A sentence of 20 months imprisonment is substituted. There will be leave to apply for home detention.
"In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of
3.00 pm on the 28th day of March 2007."
Solicitors:
Tony Rickard-Simms, Lower Hutt for Appellant
Crown Solicitors Office, Wellington for Respondent
F Miller J
0