Sherratt v R

[2021] NZHC 1901

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000007

[2021] NZHC 1901

BETWEEN

ISRAEL SHERRATT

Appellant

AND

THE CROWN

Respondent

Hearing:	28 June 2021
Appearances:	M A Stevens QC for the Appellant R D Smith for the Crown
Judgment:	27 July 2021

JUDGMENT OF NATION J

Introduction

[1]    The appellant, Israel Sherratt, was sentenced1 by Judge Large at the Dunedin District Court on 24 February 2021 to two and a half years’ imprisonment on two charges of unlawful sexual connection,2 and two charges of attempted rape.3 The Judge also required Mr Sherratt to pay $5,000 emotional harm reparation.

[2]Mr Sherratt appeals that sentence on the basis it is manifestly excessive.

Facts

[3]    Mr Sherratt and the victim were friends of similar age and had known each other for about five years. The pair would send daily messages to each other using the

1      R v Sherratt [2021] NZDC 3499.

2      Crimes Act 1961, s 128(1)(b) and s 128B.

3      Crimes Act 1961, s 129(1).

SHERRATT v R [2021] NZHC 1901 [27 July 2021]

Facebook Messenger app. The victim had been to Mr Sherratt’s home address on several occasions.

[4]    On 16 December 2019, Mr Sherratt messaged the victim to come to his address for a drink. The victim drove herself there, arriving at about 5.30 pm. Mr Sherratt’s partner was also at the address. The group drank wine, had dinner and used the spa at about 9.10 pm, where they continued to drink. At about 1.00 am, Mr Sherratt’s partner left the spa, at which point the victim and Mr Sherratt were intoxicated. The victim allowed Mr Sherratt to touch her vagina and breasts. She did not resist or complain. Mr Sherratt’s partner saw part of this touching and a verbal argument ensued between Mr Sherratt and his partner. The victim got out of the spa and went to bed naked in a spare room at the address.

[5]    In the early hours of the morning, the victim woke up to find Mr Sherratt lying on top of her. He had his hand over the victim’s mouth and told her to shush. Mr Sherratt tried to force his penis into her vagina but was unable to get an erection. Mr Sherratt masturbated himself in an attempt to get an erection but was unable to do so. He then inserted his fingers into the victim’s vagina while she squirmed and moved in an attempt to remove them. The victim repeatedly said “no” and told Mr Sherratt to get off her, but he continued.

[6]    After a short time, Mr Sherratt gave up and lay beside the victim on the bed. The victim told Mr Sherratt to leave, reminded him he was her friend and asked what he was doing. The victim was unsure what to do as she was unable to drive due to her alcohol consumption and did not know who to contact. She passed out and woke up a short time later with Mr Sherratt lying on top of her again with his hand over her mouth saying “shush”. The victim exclaimed “What’s wrong with you?” to Mr Sherratt and told him to get off her.

[7]    At some stage during the assault, Mr Sherratt told the victim he was going to “shag” her. He was again unable to get an erection but tried to force his penis into her vagina. The victim was squirming and moving as before and had one leg facing upwards to try to stop him. Mr Sherratt inserted his fingers into the victim’s vagina

again, with his long fingernails scratching the victim. After a while, Mr Sherratt gave up and lay beside the victim in bed before leaving the bedroom.

[8]    At 4.45 am, the victim’s alarm sounded on her cellphone in the lounge for her to go to work. Mr Sherratt also had work and the pair met in the lounge after getting dressed. Mr Sherratt told the victim he had done something bad. The victim left the house at approximately 5.00 am and went home. After leaving the address, Mr Sherratt messaged the victim and apologised for his actions, saying he was out of control. A few days later, the victim sought medical attention due to pain in her genitals and was treated for an infection from the scratching. Judge Large records in his decision that she was not physically examined to determine her injuries.

[9]    On 17 January 2020, Mr Sherratt was interviewed by Police. He admitted trying to have sex with the victim without her consent. He admitted going into the bedroom about three times and telling the victim to shush when she told him no and told him to get off her. He also admitted trying to force his penis into her vagina but being unable to as he was too intoxicated to get an erection. Mr Sherratt further admitted inserting his fingers into the victim’s vagina without her consent and touching her on the breast. In explanation, Mr Sherratt stated he was intoxicated and out of control.

District Court decision

[10]   In the District Court, Judge Large began by emphasising that the Sentencing Act 2002 requires the least restrictive penalty be imposed that is appropriate in the circumstances but that a sentence must also be imposed that holds the offender accountable for their actions, denounces their conduct, and acts as a deterrent.4

[11]   The Judge said there is no guideline case for attempted sexual violation or attempted rape, but noted the Crown had referred him to Bowman v R, in which a starting point of five years’ imprisonment was adopted for charges of attempted sexual violation by rape and attempted sexual violation by digital penetration and held to be

4      Sentencing Act 2002, ss 7 and 8.

within range on appeal.5 The Judge summarised that the aggravating features in Bowman were that the victim was asleep and vulnerable, the offending caused significant emotional issues and physical injury, and involved a breach of trust, as the parties had been friends since they were children.

[12]   Here, the Judge noted there was consensual sexual activity in the spa prior to the offending. The Judge acknowledged the victim impact statement and recognised it was clear there was significant and enduring psychological and emotional harm to the victim. In terms of the scale of the offending, the Judge found there was not one continuous incident starting at the spa that ended at the second incident in the bedroom, but two separate stages to the evening, the first of which was the drinking and consensual activity in the spa. He emphasised that, when Mr Sherratt was in the bedroom on the first occasion, the victim told him “no” and to get off her but he nonetheless continued the sexual activity. The Judge observed the victim had been Mr Sherratt’s friend and confidante, in her words “like a twin brother”. By the time Mr Sherratt got to the bedroom and continued his assault, notwithstanding the victim’s protestations, the Judge found any trust was well gone. Hence, the Judge considered a prime element of the offending was the breach of trust.

[13]   Furthermore, the Judge viewed Mr Sherratt’s second acts of attempted rape and unlawful sexual connection as clearly being an aggravating factor of his offending. The Judge did not accept that, having been told “no” on numerous occasions, there could be any basis upon which Mr Sherratt could properly undertake the second attempt without continuing the breach of trust.

[14]    Having regard to the cases of Bowman and Harawira v R cited by the Crown,6 and taking into account the emotional harm to the victim, the fact there were two separate sets of offending and the breach of trust, the Judge adopted a starting point of four and a half years’ imprisonment.

[15]   In terms of mitigating factors, the Judge acknowledged the psychologist’s report and the letters from Mr Sherratt’s sisters produced to the court and said his

5      Bowman v R [2014] NZCA 92.

6      Harawira v R [2019] NZCA 562.

upbringing was clearly very tough. However, the Judge remarked, despite his negative childhood experiences, Mr Sherratt had developed a solid moral code, only to completely breach it through his behaviour towards the victim. The Judge recognised Mr Sherratt may have had difficulty with relationships and with his mental health, for which he would give credit.

[16]   The Judge also noted Mr Sherratt had pleaded guilty to the charges. The Judge found Mr Sherratt acknowledged his involvement early so that, in the circumstances, he was entitled to a credit of 25 per cent for the guilty plea. The Judge made a further deduction of six months for Mr Sherratt’s remorse and the emotional harm offer of

$5,000 he made to the victim, at some cost to Mr Sherratt given his financial situation. The Judge allowed a further discount of four and a half months to recognise Mr Sherratt’s previous good character, as testified to by letters from his employers and acquaintances, although the Judge did not consider his upbringing could have impacted on his offending here.

[17]   These discounts amounted to 24 months in total which, when deducted from the starting point of four and a half years’ imprisonment, came to an end sentence of two and a half years’ imprisonment. The Judge ordered Mr Sherratt to pay emotional harm reparation in the sum of $5,000 within 28 days.

Principles on appeal

[18]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.7 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9

7      Criminal Procedure Act 2011, ss 250(2) and 250(3).

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

9      Ripia v R [2011] NZCA 101 at [15].

Submissions

Appellant’s submissions

[19]   Counsel for the appellant, Mrs Stevens QC, submitted the sentence imposed in the District Court was manifestly excessive due to the following alleged errors:

(a)        the starting point was too high at four and a half years’ imprisonment;

(b)       the deduction for remorse of six months was too low; and

(c)        the discount for previous good character of four and a half months was too low.

[20]   In relation to the starting point adopted by the Judge, Mrs Stevens submitted the assessment of Mr Sherratt’s culpability was not fair and his culpability was lower than that assessed.

[21]   Mrs Stevens emphasised that the victim was invited to Mr Sherratt’s address for a drink because she was having difficulties at work, which was indicative of Mr Sherratt’s kindness to others as remarked upon by one of his referees. For instance, on the day of the offending, the victim had messaged Mr Sherratt that she was “Waiting to get sacked” and “Don’t think I will have a job in an hour.” Further, Mrs Stevens recounted that by 9.00 pm the pair were extremely intoxicated and, when the victim got out of the spa, she removed her wet togs and walked naked to the spare bedroom, that Mr Sherratt in his intoxicated state wrongly perceived this as an invitation to follow and enter into further sexual connection. She submitted that Mr Sherratt’s aroused drunken condition meant it took some time for him to realise that his behaviour was totally unwelcome and the victim was absolutely serious when she said no.

[22]   Mrs Stevens pointed out that, after Mr Sherratt had slept and sobered up, he apologised to the victim the next morning. She emphasised that Mr Sherratt has no history of such behaviour and is otherwise of good character. She argued Mr Sherratt’s remorse continued to evidence itself in his conduct following the offending as he radically reduced his consumption of alcohol, arranged and attended counselling, told

his employer what he had done, confessed in detail to the Police, and apologised to his partner. Mrs Stevens noted that Mr Sherratt also organised to pay $5,000 in emotional harm reparation to the victim and wrote a letter of apology.

[23]   Mrs Stevens submitted Mr Sherratt was acutely aware he breached the trust inherent in his friendship with the victim and was deeply ashamed of his behaviour. She argued that the context of the interactions between Mr Sherratt and the victim before the offending and his conduct following the offending should be given particular weight in assessing culpability. Mrs Stevens submitted Mr Sherratt had done his utmost to take responsibility for the offending, to recognise the breach of friendship and to remedy the factors motivating the offending.

[24]   In this context, and with the assistance of R v AM,10 Mrs Stevens argued a starting point of no more than four years’ imprisonment was appropriate. Mrs Stevens accepted the Judge’s reference to the emotional harm to the victim, the fact there were two separate sets of offending and that there was a breach of trust were all appropriate and relevant in assessing the starting point. However, she argued, in arriving at the starting point, the Judge failed to consider any mitigating factors as listed in s 9(1) and

(2) of the Sentencing Act. Mrs Stevens contended that s 9(2)(b), (f), and (g) all apply in this instance, and the requirement that the least restrictive sentence be imposed should have some bearing in setting the starting point. Further, Mrs Stevens submitted s 16 of the Act was relevant to setting the starting point insofar as the Judge should have considered the desirability of keeping offenders in the community to the extent that is practicable and safe. Mrs Stevens argued Mr Sherratt had provided for the victim’s interests, created meaningful reparation and taken steps to ensure his rehabilitation.

[25]   As a second point on appeal, Mrs Stevens submitted the deduction the Judge gave Mr Sherratt for remorse did not adequately reflect his immediate apology and assumption of responsibility, his written apology, his act of fronting up to his employer, undergoing the process of seeking treatment and lifestyle change, and making an offer of reparation. In her submission, 15 per cent would have been a fairer

10     R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.

recognition for such remorse and it was hard to conceive what more Mr Sherratt could have done to put things right.

[26]   Mrs Stevens’ third point on appeal was that the discount given for Mr Sherratt’s previous good character was too low and should have been 10 per cent. It was argued recognition of Mr Sherratt’s good character should be heightened given the circumstances of his childhood, which resulted in his lack of confidence and difficulty maintaining relationships. She submitted Mr Sherratt was deprived of a normal development because of his parents’ “authoritarian religious view”, where harsh discipline and rejection undermined his self-worth.

[27]   Mrs Stevens submitted a sentence of home detention should be imposed as recommended by the pre-sentence report, with special conditions as to programmes.

Respondent’s submissions

[28]   Counsel for the Crown, Mr Smith, submitted the starting point was generous to Mr Sherratt and well within the available sentencing range. With reference to R v AM, he argued the culpability assessment factors applicable here were harm to the victim (being significant emotional harm), the scale of the offending (in that there were two separate incidents of offending, albeit occurring on the same evening), and breach of trust (the victim being a close friend of the appellant). Mr Smith acknowledged there was consensual sexual activity immediately before the offending but submitted any consensual activity occurring earlier in the evening could not mitigate the offending to any significant degree in circumstances where it was clear the victim was resisting Mr Sherratt’s advances once she retired to the spare bedroom, yet he returned to the bedroom and attempted to rape her. Having regard to these aggravating features and the fact the offending involved two distinct incidents, Mr Smith submitted the Judge’s starting point was unimpeachable, if not merciful.

[29]   Further, Mr Smith submitted the overall credit for mitigating circumstances, including the guilty plea, remorse and good character, totalled 44.4 per cent and was generous to Mr Sherratt.

[30]   Mr Smith submitted the guilty plea credit of 25 per cent was more than Mr Sherratt was entitled to, having particular regard to the timing of the guilty pleas. Mr Smith emphasised that Mr Sherratt entered not guilty pleas two months following his first appearance. The matter was adjourned to a case review hearing scheduled for 13 May 2020 but was vacated because of COVID-19. The matter was then progressed to trial callover on 16 September 2020, at which Mr Sherratt sought a sentence indication in respect of all his charges. He declined the sentence indication on the basis of certain factual disputes. Mr Sherratt pleaded guilty on 15 December 2020, nearly 12 months after the offending and almost 11 months after his first appearance. Mr Smith submitted that, in this context, it could not be said Mr Sherratt pleaded guilty at the first reasonable opportunity. He submitted the Judge erred in allowing 25 per cent credit for guilty pleas, and this should be borne in mind when considering the additional credits allowed for remorse and good character.

[31]   In terms of credit for remorse, the Crown submitted the six month discount (11.11 per cent) was within range and arguably generous. Mr Smith cited the cases of Poi v R and Rowles v R in support of this submission.11 With regard to credit for good character, the Crown submitted there were reliability issues around the true nature of Mr Sherratt’s upbringing but, in any event, the Judge was correct to identify there was no causal connection between his upbringing and the present offending. On this basis, it was argued the Judge’s allowance of four and a half months (8.3 per cent) was within the available range, especially given Mr Sherratt had previously appeared before the court and had a background which was neither particularly disadvantaged nor causally connected to the offending.

[32]   For these reasons, the Crown argued the overall sentence could not be described as manifestly excessive.

The starting point

[33]   There is no guideline judgment for attempted rape. As the Court of Appeal recognised in Bowman v R:12

11     Poi v R [2015] NZCA 300; Rowles v R [2016] NZCA 208.

12     Bowman v R, above n 5, at [17].

… there is no guideline judgment for attempted rape “although the culpability assessment factors and banding in R v AM … are still relevant and should be used”. The comparison should be with rape band one in R v AM, with sentencing starting points in the range of six to eight years’ imprisonment. The Judge was justified in observing this case instances the fine line that may exist between an attempt and the completed act.

(footnotes omitted)

[34]   In R v AM, the Court of Appeal provided a guideline sentencing decision for rape and sexual violation by unlawful sexual connection.13 Starting points for these charges are adopted by reference to the presence or absence of a number of culpability assessment factors non-exhaustively set out in R v AM and identification of the appropriate sentencing band. The culpability assessment factors discussed in that case include: the degree of planning and premeditation, the seriousness of the overall level of violence (including detention and home invasion), the vulnerability of the victim, harm to the victim, the scale of the offending, breach of trust, the degree of violation, mistaken belief in consent, and consensual sexual activity immediately before the offending.14

[35]The Court of Appeal in R v AM described rape band one as follows:

[93] This band will be appropriate for offending at the lower end of the spectrum; that is, offending where the aggravating features are either not present or present to a limited extent. Rape band one is not an appropriate band for offending where the level of violence is serious, the case involves an extended abduction, a victim who by reason of factors such as age (children or elderly persons) or mental or physical impairment is vulnerable or an offender acts in concert with others. Where none of the factors referred to above at [37]–[52] which increase the seriousness of the offending are present a starting point at the bottom end of this band would be appropriate. Where one or more of these factors is present to a low or moderate degree, a higher starting point within the band would be required.

[36]   In Bowman v R, the appellant challenged a starting point of five years’ imprisonment adopted in respect of charges of attempted sexual violation by rape and attempted sexual violation by digital penetration.15 After a party involving consumption of alcohol, the appellant in that case ended up with the victim. Both had been drinking heavily and potentially been smoking cannabis. The appellant claimed

13     R v AM, above n 10.

14 At [64].

15     Bowman v R, above n 5.

there had been consensual sexual intercourse immediately preceding the offending but this was not accepted by the trial Judge. In any event, when he returned, the victim was asleep. The appellant attempted to digitally penetrate the victim’s vagina, waking her. He then attempted to insert his penis into the victim’s vagina but actually penetrated her anus. The Court found the aggravating features of the offending were that the victim was asleep and unable to protect herself or refuse consent, the offending caused significant emotional harm as well as minor physical injury, and involved a breach of trust, as the appellant and victim were related and had been close friends since childhood. For these reasons, the starting point of five years’ imprisonment was held to be within range.

[37]   In Harawira v R, the Court of Appeal endorsed a starting point of five years’ imprisonment in respect of charges of attempted rape, sexual violation by unlawful sexual connection, and attempted sexual violation by unlawful sexual connection.16 The appellant lay on top of the victim, forced her onto her back as she struggled to escape, undressed her, and used one of his hands to rub inside her genitalia. The appellant then attempted to insert his penis into her vagina but was unable to because of her struggling. The appellant then straddled her midriff, grabbed her hair and attempted to place his penis in her mouth. The Court identified the aggravating features of the offending were the breach of trust associated with entering her home, an element of violence, the prolonged nature of the assault, and the vulnerability of the victim who was 18 years old. The Court also noted the appellant had pulled the victim’s hair and used his weight to pin her down, acts which were viewed as additional to the inherent violence in sexual assaults and as evidence the appellant was able to overpower her and neutralise her resistance.

[38]   Here, in adopting a starting point of four and a half years’ imprisonment, the Judge did not explicitly have regard to the bands in R v AM. However, the Judge identified three culpability assessment factors drawn from R v AM tending to aggravate the offending. These were, as also identified by the Crown: the harm to the victim, the scale of the offending, and the breach of trust. Mrs Stevens accepted these factors were appropriate and relevant and I would agree.

16     Harawira v R, above n 6.

[39]   As testified to by the victim impact statement provided to the Court, the emotional harm to the victim caused by Mr Sherratt’s offending was significant. The victim attested to how she was struggling to process Mr Sherratt’s actions and the trauma of the assault. She said she finds it difficult to sleep and lies in bed scared of noises or movement. The victim testified to how she had to leave her job as a result of the emotional toll of the assault and that she did not work for three months. She said she used to stay at Mr Sherratt’s house because she felt safe and trusted him but, following the assault, she suffers from issues trusting others, especially men. She referred to the fact that, had anyone else assaulted her in this manner, it would have been Mr Sherratt to whom she would have turned for help and support. She stated it was the loss of this trust that has hurt her most and has caused her to feel depressed. Indeed, she said her “life has been destroyed” by Mr Sherratt’s actions.

[40]   The enduring psychological harm suffered by the victim is closely linked to the second culpability assessment factor present here of breach of trust. Mr Sherratt and the victim were close friends of a similar age who had known each other for about five years, who messaged each other on a daily basis, and visited each other often. As the victim recounted in her victim impact statement, she had previously stayed at Mr Sherratt’s house “because I felt safe, I knew I could trust you” and that she loved him as a “twin brother”. In this context, Mr Sherratt’s actions in attempting to rape the victim on two separate occasions throughout the evening, notwithstanding her clear refusal of consent, as well as her protestations and resistance, constituted a serious breach of trust and only added to the sense of violation inherent in such offending.

[41]   Thirdly, I agree with the Judge that the scale of the offending amounts to a culpability assessment factor tending to aggravate the offending. There were two separate incidents of offending as Mr Sherratt left the bedroom after the first assault and returned later when the victim was again asleep. On both occasions, Mr Sherratt held his hand over the victim’s mouth and told her to “shush” whilst attempting to penetrate her. He continued each assault despite the victim’s vehement protest and attempts to wrestle herself free. Between his visits to the bedroom, Mr Sherratt had an opportunity to contemplate his actions and refrain from pursuing them. I do not accept that the consensual sexual activity immediately before the offending mitigated Mr Sherratt’s culpability.

[42]   It should have been abundantly clear to Mr Sherratt that the victim was rejecting his advances through repeatedly exclaiming “no”, telling him to get off her, and squirming to get him off her. I do not consider Mr Sherratt could have plausibly perceived the victim’s naked retirement to her room as an invitation for sexual interaction. Even if Mr Sherratt did see her nakedness as such an invitation, he could not have had any reasonable belief in consent. Mr Sherratt approached the victim when she was asleep. He restricted her speech and movement. He ignored her steadfast refusals and, after leaving the bedroom, returned and tried to rape her again.

[43]   These culpability assessment factors are analogous to Bowman where the victim was asleep, the offending caused significant emotional harm, and involved a breach of trust. In both instances, the rape attempt only appeared to be foiled by the extreme degree of intoxication of each of the offenders. I would regard the offending in Harawira as more serious than here as it involved uninvited entry into the victim’s home, the vulnerability of the victim (who was only 18 years old), and the application of greater violence to pin the victim down, although it did not involve multiple incidents of offending.

[44]   Given the five-year starting points imposed in those cases and the multiple culpability assessment factors present here, I consider the starting point adopted by the trial Judge here was unimpeachable. A starting point as high as five years’ imprisonment would have been within range to recognise Mr Sherratt’s persistence in the face of clear opposition.

[45]   Mrs Stevens submitted that in adopting the starting point the Judge failed to take into account Mr Sherratt’s guilty plea, remorse and previous good character. However, as Mr Smith identified, those matters are all considerations arising at the second stage of the sentencing exercise required by Moses v R.17 To take such matters into account at the first stage would have been an error as it would have resulted in Mr Sherratt receiving credit for the same factors at both stages of the sentencing exercise, leading to an unmerited double benefit.

17     Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.

Personal mitigating factors

Guilty plea

[46]   The Judge took note of the fact Mr Sherratt’s guilty plea was not made at the earliest possible opportunity but nevertheless thought a 25 per cent discount was appropriate to recognise it. I agree that Mr Sherratt’s plea could not be said to have been entered at the first available opportunity. He initially entered pleas of not guilty. After the Crown assumed responsibility for the case, Mr Sherratt attempted, through counsel, to persuade the Crown to reduce the charges. He sought a sentence indication only at the time of the trial callover.

[47]   However, I consider that in cases such as these there is considerable benefit in saving victims the trauma of giving evidence and, as such, guilty pleas ought to be especially encouraged. In Hessell v R, the Supreme Court commented:18

The better course is to permit sentencing judges to assess the value of the plea in the particular circumstances, without a rigid requirement for application of a scale of discounts dependent on the exact timing of the plea

[48]   Here, although Mr Sherratt did not enter his plea at the earliest available opportunity, his plea did indicate an acceptance of responsibility, optimise the administration of justice and save the victim the considerable distress that comes with giving evidence and being cross examined on a highly traumatic event. Ultimately, it is for the sentencing judge to stand back and evaluate all the considerations in relation to the entry of a plea.19 That is exactly what the Judge did. I do not consider there was any error in that regard. Nor would there have been if the discount had been only 20 per cent.

Remorse and previous good character

[49]   Mrs Stevens submitted the discounts allowed by the Judge of six months for remorse (11.11 per cent) and four and a half months (8.3 per cent) for previous good character were too low.

18     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [61].

19 At [77].

[50]   Mrs Stevens referred to the report prepared by a registered psychologist, Colin Goldthorpe, on behalf of Mr Sherratt outlining the mental health difficulties Mr Sherratt faces. Mr Goldthorpe considered Mr Sherratt suffered an emotionally neglectful childhood and physically abusive relationship with his father. His parents were highly conservative Christians whose relationship with their son was not loving or supportive, and who deprived him of his social skill development. Mr Goldthorpe considered the trauma Mr Sherratt experienced in his childhood had long term effects on his self-esteem and mental health that he was still experiencing.

[51]   Mrs Stevens went so far as to submit that, because Mr Sherratt had been brought up in a cult, he had no opportunity to develop normal social interaction skills. I reject that submission. The references filed for him indicate he did have such skills. He was able to relate positively to a range of people socially in ways they appreciated and liked. His sisters had described him as being caring and respectful towards them and other women.

[52]   Prior to this offending Mr Sherratt had a nearly unblemished record and could have been referred to as a person of good character. A number of letters from Mr Sherratt’s employers, family and acquaintances were produced by the defence testifying to this.

[53]    His manager at Fulton Hogan described him as “a likeable guy” and an “extremely valuable member of the team”. A friend of Mr Sherratt’s partner described him as a “kind-hearted person” in whose company she has never felt uncomfortable. His sister described him as usually “kind and respectful” and “remorseful and ashamed” of his actions, as well as referring to his hard-working and caring nature. The sister of Mr Sherratt’s partner said he was a “fundamentally good man” who has had “a difficult upbringing” but is making good progress in recognising and addressing damaging behaviours. Mr Sherratt’s neighbours characterised him as “kind, courteous, friendly and very obliging”.

[54]The psychologist concluded his report by saying:

I believe Mr Sherratt to be of sound character with a clear moral code who, during a moment of inebriation, acted out of character traumatising the victim,

his partner and himself. Until this time he had been a contributing member of his community with a good reputation.

[55]   I consider his state of intoxication was the key factor in his offending. All the information before the Court did not establish there was a causal connection between Mr Sherratt’s particular upbringing and the offending.

[56]   Mrs Stevens highlighted Mr Sherratt’s remorse for what he had done. She highlighted his apology the next morning and said there could not have been any greater indication of his remorse for what he did. There did have to be recognition of the remorse he demonstrated, including the way he had acknowledged, to his employer and to others, what he had done but it was only with his guilty plea that Mr Sherratt acknowledged the actual criminality of his actions as charged. He could not have appreciated the harm he did to the victim when he texted her in the morning, apologised and said “I will understand if you cut me off. I’ve probably ruined your day. I’m very sorry.” As her victim impact statement showed, his actions did more than just ruin her day.

[57]   I note also that, despite his remorse, the submission made for Mr Sherratt at his sentencing in the District Court was that he would reasonably have interpreted the victim walking away from the spa naked towards a bedroom after being sexually intimate with him as an invitation to do what he subsequently attempted to do. In further submissions counsel seemed to be saying the victim was also to blame for the situation they were in when in the spa pool and that she had breached the friendship with both Mr Sherratt and his partner in what happened there. The submission made for Mr Sherratt in the District Court was that the victim’s conduct had materially reduced the culpability of Mr Sherratt.

[58]   Mr Sherratt had taken rehabilitative steps after the offending. He told the Police what happened and admitted trying to have sex with the victim without her consent. It did take a significant time before he pleaded guilty. On sentencing, it was submitted he thought the victim had invited further sexual connection through going to the bedroom naked after she had taken off her togs. It would thus seem it was only through his guilty pleas that he acknowledged he had not believed on reasonable grounds that she was consenting.

[59]   Mr Sherratt continued with counselling. He has addressed the way in which he was using alcohol to excess. Importantly, he offered to pay significant reparation to the victim and made sure he was able to do so on sentencing.

[60]   The Judge however did give generous discounts for previous good character and for the remorse Mr Sherratt had shown over and above the remorse inherent in a guilty plea. The discounts for these factors totalled almost 20 per cent as against the starting point the Judge had adopted. The discount for remorse, including reparation, was not “miserly” as Mrs Stevens described it.

[61]   The combined discount of 20 per cent for remorse, including reparation and previous good character, was within the range the Court of Appeal indicated is appropriate as apparent from cases in which they have had to consider such matters.20

[62]   Mrs Stevens submitted the sentence imposed was not a “solution-based” sentence. The Judge however had to recognise all relevant purposes and principles of sentencing. These included holding Mr Sherratt accountable for his offending and the harm he had done to the victim. The Judge had to denounce the offending. The sentence had to be one that deterred not just Mr Sherratt but others from offending in this way. It was with regard to all relevant purposes and principles of sentencing that the Court of Appeal has provided guidance as to the range of sentences that could be imposed for this sort of offending. The Judge had to recognise that guidance.

[63]The Judge also had to have regard to s 128B of the Crimes Act 1961:

128B Sexual violation

(1)Every one who commits sexual violation is liable to imprisonment for a term not exceeding 20 years.

(2)A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks that the person should not be sentenced to imprisonment.

(3)The matters are—

(a)      the particular circumstances of the person convicted; and

20     Poi v R, above n 11; Rowles v R, above n 11; Clark v R [2013] NZCA 63; Watene v R [2014] NZCA 381.

(b)      the particular circumstances of the offence, including the nature of the conduct constituting it.

[64]   Mr Sherratt pleaded guilty and was convicted of two charges of sexual violation, namely that he sexually violated the victim by digitally penetrating her vagina with his finger. Mrs Stevens submitted this section did not apply because two of the charges to which he pleaded guilty were for attempted sexual violation by rape.

[65]   Section 128B clearly applied to the two sexual violation offences that were not attempts. As the authors of Adams on Criminal Law state the “presumption in favour of imprisonment … is consistent with the view that almost every offence of rape involves serious violence”.21 It applies to all forms of sexual violation. With reference to authority, the authors of Adams point out “[even] when there are substantial mitigating factors, some term of imprisonment will normally be required”.22

[66]   The Court of Appeal have said “the meaning of ‘particular circumstances’ is not to be artificially strained or extended to enlarge the Court’s discretion and effectively negate Parliament’s intention.23

[67]   On an appeal, this Court’s focus must be on the end sentence imposed. Approaching matters that way, Mr Sherratt has not established there was any error in the sentencing or that the ultimate sentence imposed was manifestly excessive.

Conclusion

[68]Mr Sherratt’s appeal is dismissed.

Solicitors:

M A Stevens QC, Barrister, Dunedin RPB Law, Dunedin.

21     Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CA128B.02].

22     At [CA128B.02], citing R v Accused (CA265/88) [1989] 1 NZLR 643 (CA); R v Edwards (1994) 12 CRNZ 302 (CA); R v W (CA271/96) (1996) 14 CRNZ 132 (CA).

23     R v Donaldson [1997] 14 CRNZ 537 (CA); R v Jackson [1997] 14 CRNZ 573 (CA).