Sigley v The King
[2024] NZHC 2251
•14 August 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2024-488-000066
[2024] NZHC 2251
BETWEEN DEAN BARRY SIGLEY
Appellant
AND
THE KING
Respondent
Hearing: 5 August 2024 Counsel:
JPR Scott for Appellant
B O’Connor for Respondent
Judgment:
14 August 2024
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 14 August 2024 at 10 am.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Whangarei. Thode Utting, Auckland.
SIGLEY v R [2024] NZHC 2251 [14 August 2024]
The case
[1] Dean Sigley appeals a 12-year term of imprisonment for extensive sexual offending.1 Mr Sigley’s appeal must be allowed if there is an error in the sentence and a different sentence should be imposed,2 or in short, if the sentence is manifestly excessive.3
Background
[2]Mr Sigley pleaded guilty to 19 charges:4
(a)Sexual violation by unlawful sexual connection (x 3).5
(b)Indecent act on a young person (x 2).6
(c)Sexual conduct with a child (x 2).7
(d)Knowingly making an objectionable publication (x 3).8
(e)Possession of an objectionable publication.9
(f)Intentionally making an intimate visual recording (x 7, including three representative charges).10
(g)Possession of an intimate visual recording (representative charge).11
1 R v Sigley [2024] NZDC 15814.
2 Criminal Procedure Act 2011, s 250(2).
3 Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
4 Mr Sigley maintains a not guilty plea in relation to an associated rape charge. I say no more about it for obvious reasons.
5 Crimes Act 1961, ss 128(1)(b) and 128B; maximum penalty, 20 years’ imprisonment.
6 Section 134(3); maximum penalty, seven years’ imprisonment.
7 Section 132(3); maximum penalty, 10 years’ imprisonment.
8 Films, Videos and Publications Classification Act 1993, s 124(1); maximum penalty, 14 years’ imprisonment.
9 Section 131A(1); maximum penalty, 10 years’ imprisonment or $50,000 fine.
10 Crimes Act, s 216H; maximum penalty, three years’ imprisonment.
11 Section 216I; maximum penalty, three years’ imprisonment.
[3] The chronology begins 11 November 2023 when Mr Sigley’s fiancée examined his phone, thinking he had been unfaithful. She found photographs and videos of young girls and women that appeared to have been taken without their knowledge in private settings, such as a bathroom.
[4] A Police investigation began. The phone was found to contain 30,000 images. Not all have been examined.
R: a 15-year-old; offending between 1 January and 31 December 2008
[5]Mr Sigley was connected to R’s family and stayed with them from time to time.
[6] On two occasions in 2008, Mr Sigley entered R’s bedroom overnight, pulled up her t-shirt exposing her breasts, and touched her on and about the genitalia. R said nothing about the offending until after Mr Sigley’s arrest in 2023.
F: offending between 19 March 2020 and 2 July 2020
[7]Mr Sigley was closely connected to F, an adult.
[8] On three occasions between the dates above, Mr Sigley recorded himself inserting objects into F’s genitalia. The summary of facts says the “recordings are extremely close up and show the items fully inserted until out of view”. The items included a roll-on deodorant; a pill container; and a tube of sunscreen.
[9]F was asleep at the time, and remained so throughout.
F1: a six-year-old, who is F’s daughter
[10] On 23 April 2022, Mr Sigley recorded himself pulling aside F1’s underwear, exposing her genitalia; placing his fingers on her genitalia; and pulling her vagina open. Mr Sigley then placed his penis between F1’s legs and moved it backwards and forwards.
[11] Mr Sigley later edited the footage in relation to F and F1 to create a split-screen image comparing his offending against mother and daughter.
M and M1: mother and daughter
[12] Mr Sigley moved into the home of M and M1. M was a friend of Mr Sigley. M1 was then 14 years of age. Mr Sigley installed a camera hidden in the bathroom. The camera routinely captured footage of M and M1 naked, before and after showering.
[13] Mr Sigley edited some of the footage to create a split-screen image of mother and daughter next to each other, naked.
C and C1: mother and daughter
[14] In August 2022, Mr Sigley commenced a relationship with C. He moved into her home. Mr Sigley later installed secret cameras capturing C and C1 in the home. C1 was a teenager.
[15] The cameras twice recorded Mr Sigley having sexual intercourse with C. They also recorded C and C1 in underwear.
[16]On 10 October 2023, Mr Sigley used a camera or phone to film up C1’s skirt.
Other offending
[17]The summary of facts says:
Between 1 January 2020 and 11 November 2023, the Defendant made multiple videos of his friends, partners, and ex partners in the privacy of their home.
None of the people in the videos were aware they were being recorded.
On occasions the Defendant has used a camera under a table to take images between the legs of young females.
Some videos are of his friends and their children in various states of undress as they walk around their house.
The videos were all taken from around the corners of a wall and from under tables, or by a device held or left by the Defendant to capture people unaware.
[18] The Judge adopted a global starting point of 16 years’ imprisonment, structured this way:
(a)10 years’ imprisonment for the offending against F.
(b)A further three and a half years’ imprisonment for the offending against R and F1 and the balance of the offending against F.12
(c)A further two and a half years’ imprisonment for the remainder of the offending.
[19] The Judge mitigated the global starting point by 20 percent for Mr Sigley’s guilty pleas, then an additional five percent for personal circumstances. As observed, this resulted in a sentence of 12 years’ imprisonment.
The appeal
[20] Ms Sigley challenges many aspects of his sentence. Through Mr Scott, he contends:
(a)A discount should be made (now) because of the possibility that the victims might have been minded to pursue a restorative justice process.
(b)The starting point for the offending against F should have been “around eight years’ imprisonment” (not 10 years’ imprisonment).
(c)The global starting point should have been adjusted for totality.
(d)Guilty plea discount was inadequate.
(e)The level of discount for personal circumstances was also inadequate.
12 Broadly comparable cases include Men v R [2022] NZCA 455; Dickinson v R [2018] NZHC 2280; R v M HC Auckland CRI-2010-004-5197, 20 July 2010; R v Paki [2012] NZHC 3494; and van der Merwe v R [2021] NZHC 1108.
[21] Given the number of challenges, I record the material one: whether the sentence is manifestly excessive. For reasons that will become apparent, this inquiry largely overlaps [20(c)]. I, therefore, address it last.
Analysis
Restorative justice?
[22] Relying on s 24A of the Sentencing Act 2002, Mr Scott contends the sentencing Court should have explored the possibility of a restorative justice process, and because it did not, Mr Sigley should receive a discount for the “loss of a chance”.
[23] This contention is unsustainable. First, there is no evidence the victims would have been interested in a restorative justice process. Second, a recently completed jobsheet, tendered to me without opposition, records a rejection of the possibility of that process by those victims who have responded to the inquiry. Third, an identical contention has been rejected by the Court of Appeal.13
The starting point for the offending against F
[24] The offending against F came within band two of the Court of Appeal’s guideline judgment in R v AM concerning sexual violation “where the lead offence is rape, penile penetration of the mouth or anus, or violation involving objects (the rape bands)”.14 Band two of the rape bands contemplates starting points between seven years’ imprisonment and 13 years’ imprisonment.15
[25] Mr Scott contends the starting point should have been “around eight years’ imprisonment”, not more. Mr Scott says Mr Sigley’s offending against F is similar to the offending in three cases cited in R v AM, each of which attracted a starting point at or toward the bottom of band two of the rape bands. The cases are described in this way in AM:16
13 Moore v R [2019] NZCA 205.
14 R v AM (CA27/2009) [2010] NZCA 114, [2020] 2 NZLR 750 at [87].
15 At [90].
16 At [94] and [98] (footnotes omitted).
R v H (CA248/02): O and V, both adults, had been in a somewhat volatile relationship. V at one point had obtained a protection order. Early one morning, O rang V and said he wanted to come and talk to her. V declined but was later woken by O at the door. O pushed his way into the house and would not allow V to leave. He forced her on to a bed where he had oral sex and raped her. She eventually escaped.
…
R v Dunick: O, male, and V, female, had been friends for about six weeks. V invited O to her house. The visit was preceded by text messages with some sexual content. On O’ arrival, V rejected his advances. O removed V’s clothing before he digitally penetrated her, causing her pain, and then penetrated her with his penis. He made her kneel on the bed and again penetrated her while slapping her buttocks. O made a number of derogatory sexual references to V. V eventually escaped.
…
R v Castles: V, male, and the seven male Os were classmates and attended a party together. V and some but not all of the Os were drinking heavily. After an earlier incident in which V was held down and his eyebrows shaved, V went to sleep in a bedroom. The Os found a broomstick, smeared Vicks VapoRub on it and then attempted to insert the broomstick into V’s anus. They were initially unsuccessful and desisted when V almost woke. Thirty minutes later, the Os re-entered the room and acting according to a plan, forced the broomstick 10cm into V’s anus, causing considerable injury.
[26] I do not agree these cases are similar. Unlike F, the complainant in each of the three cases was conscious. Consequently, those defendants did not violate a victim who lacked the capacity to resist. Only one of the cases involved the use of an object: Castles.17 And, while Castles involved multiple offenders and the infliction of “considerable injury”, the offending occurred on a single occasion. Mr Sigley violated F on three distinct occasions. Unlike Castles, he also filmed the offending.
[27] More similar is Tatterson v R, a decision I referred to counsel for submission.18 Mr Tatterson gave his partner gamma-butyrolactone,19 which she drank voluntarily. After she fell unconscious, Mr Tatterson inserted the handle of a chisel into her genitalia; attempted to penetrate her genitalia with a baseball bat; and then successfully did so with the head of the bat, repeatedly (after applying cooking oil). Like Mr Sigley, Mr Tatterson filmed the offending.
17 R v Castles CA105/02, 23 May 2002.
18 See my e-Minute of 1 August 2024.
19 GBL.
[28] The Court of Appeal held the starting point should have been 10 years’ imprisonment, not the 11-years adopted at first instance. However, the substituted 10-year starting point did not encompass the filming of the offending. That feature formed part of an unchallenged one-year uplift, an uplift which also captured other offending, including Mr Tatterson’s possession of the GBL. So, the relevant starting point in Tatterson was somewhat more than 10 years’ imprisonment.20
[29] Mr Scott argued Mr Tatterson’s offending was more “brutal” than Mr Sigley’s given the nature of the implements inserted and the associated degree of force. This contention is largely offset by a combination of two facts. First, Mr Sigley fully inserted three implements: a roll-on deodorant; a pill container; and a tube of sunscreen. Second, the violations were committed on three discrete occasions, not one. However, as will be apparent, I accept Mr Tatterson’s offending is a little more serious than Mr Sigley’s for the reason Mr Scott identifies. It follows the 10-year starting point was within range, albeit toward or at the upper end of what was available. The significance of this I return to.
Guilty plea discount
[30] Mr Scott relies upon this chronology in contending the guilty plea discount should have been the full 25 percent, not 20 percent:
a.On 27 November 2023, Mr Sigley appeared, facing two charges of making intimate visual recordings and one charge of possessing the same. No pleas were entered because the police prosecutor advised that further charges and an amended summary of facts would be forthcoming, without signalling what those charges would be.
b.On 11 December 2023, police laid and disclosed to Mr Sigley the majority of the charges currently before the Court. That day, counsel sent the summary of facts and disclosure to Mr Sigley to review.
c.On 31 January 2024, Mr Sigley advised he would enter guilty pleas to fourteen of the charges, but sought the opportunity to discuss with the police amending three of them. The Court allowed him a further remand without plea through to 14 February 2024. That day, counsel sent proposed instructions to Mr Sigley at Northern Region Corrections Facility to review, amend, and sign, ahead of making the resolution proposal to the police.
20 Mr Tatterson’s provision of GBL to the victim was not treated as aggravating the offending, presumably because she took it voluntarily, knowing what it would or might do.
d.On 9 February 2024, the Court administratively brought forward the appearance. The police advised, being Crown schedule offences, that they would not engage in any resolution discussions. Counsel sent further proposed instructions to Mr Sigley in custody.
e.On 22 February 2024, the prison not having returned Mr Sigley’s instructions to counsel, the matter was adjourned to 26 February 2024.
f.On 26 February 2024, Mr Sigley pleaded guilty to fourteen charges. The Court remanded him without plea to 4 June 2024 on the remaining three charges, to discuss amending those with the Crown.
g.On 27 February 2024, counsel on behalf of Mr Sigley proposed amendments to CRNs 4269, 4274, and 4275.
h.On 23 May 2024, the Crown advised it would amend CRNs 4274 and 4275.
i.On 4 June 2024, Mr Sigley entered guilty pleas to the amended CRNs 4274 and 4275. The Court not being prepared to offer a sentence indication on CRN 4269, Mr Sigley pleaded not guilty and elected trial by jury. That charge is not part of this appeal.
j.Sentencing proceeded on 5 July 2024.
[31] There are important qualitative differences between a defendant saying guilty pleas are likely (or offering the same sentiment through use of the term “resolution”), and guilty pleas being entered. The latter cements a defendant’s position in relation to criminal charges. A guilty plea marks a fundamental change from the presumption of innocence, a right affirmed by the New Zealand Bill of Rights Act 1990,21 to an assumption of guilt. It explains, why in a case such as this, the complainants are no longer called complainants, and instead called victims. Furthermore, a guilty plea affords certainty, including for the community and victims.22 Given these differences, I am unpersuaded of error.
[32] In any event, another factor counts against full discount. In Hessell v R, the Supreme Court held the strength of the prosecution case is relevant to the level of discount for a guilty plea.23 The prosecution case against Mr Sigley was strong. It involved multiple complainants; the likely admissibility of propensity evidence as between those complainants; and the incriminating imagery recorded by Mr Sigley
21 New Zealand Bill of Rights Act 1990, s 25(c).
22 A guilty plea may be vacated only with permission of the court; Criminal Procedure Act, s 115.
23 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
himself, including imagery depicting aspects of his sexual offending against some of the complainants.24
Discount for personal circumstances
[33] Mr Sigley adduced a report from Dr Alex Kettner at sentencing. Dr Kettner is a clinical psychologist who holds a doctorate in psychology. His report concludes:
Mr Sigley is a 52 year old male charged with a number of sexual offending charges against a few of his ex-partners and against those ex-partners’ daughters, making objectionable publications and representative charges of making objectionable publications.
Mr Sigley experienced sexual abuse as a child leading to feelings of worthlessness, low self-esteem, poor coping strategies, a poor self-image, suicidality and chronic depression. His early experience of sexual abuse also led to persistent difficulties across adulthood in multiple life domains, including mental health, sexual health and interpersonal relationships.
Research suggests there are links between sexual victimization and later sexual offending. Sexual abuse victims may be at increased risk for sexual offending and may contribute to abnormal or deviant psychosexual development, which in turn may increase risk for sexual offending behaviour. Also, with regard to mental health, childhood abuse is related to various mental health problems, including substance abuse, depression, suicidal ideation, anxiety and Posttraumatic Stress Disorder.
Mr Sigley’s offending appears to have occurred within the context of maladaptive emotional and cognitive responses to the sexual abuse he experienced as a child. These negative mood states, coupled with persistent life difficulties and poor coping strategies, likely triggered or exacerbated his offending.
[34]A cultural report adduced at sentencing contains a broadly similar analysis.
[35] Mr Scott contends the Judge erred in not affording a greater discount for Mr Sigley’s personal circumstances, including his otherwise good character. Mr Scott contends that discount should have been between 10 and 15 percent, not the five percent afforded.
24 Similar reasoning appears in Tatterson v R [2023] NZCA 467 at [30].
[36]This topic was explored (extensively) by the Supreme Court in Berkland v R.25
Paragraph [111] of that Court’s judgment requires citation:
The causative contribution of background may also be displaced, in whole or in part, where the offending is particularly serious. Complex and orchestrated offending is likely to involve careful assessment of the risks of detection and therefore increased agency. The contribution of background to offending with this level of agency may therefore be significantly reduced or even negated and other sentencing goals, such as community protection, may become more important. Such assessment will depend very much on the facts, however.
[37] Mr Sigley’s offending was intrusive, extensive, and serious. Partners were targeted, as were their children. Much of the offending appears to have been premeditated. Consequently, even if one accepts the analysis offered by Dr Kettner (and within the cultural report), other sentencing imperatives constrained the scope of the discount available. The same reasoning addresses Mr Scott’s good character submission which, given the nature of the offending and its extent and duration, presents as hollow.26 Again, I am unpersuaded of error.
An adjustment for totality? A manifestly excessive sentence?
[38] Given the analysis above, these inquiries largely overlap. The issue is whether a 16-year starting point, which resulted in a 12-year sentence, is too severe.
[39] Mr Scott takes no issue with the additional starting points at [18(b) and (c)]. Rather, he contends the totality principle required an amelioration of the starting point. The Crown contends otherwise.
[40] Each of the arguments is credible. On the one hand, the Judge does not appear to have assessed totality; that step is typically undertaken when there are multiple offences; and a 16-year starting point (or 12-year sentence) is significant. On the other hand, an adjustment for totality is not automatic; the offending is very serious; and it is arguable the end sentence is not “out of proportion to the gravity of the overall offending”.27
25 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
26 See, for example, Britow v R [2017] NZCA 229.
27 Ashcroft v R [2014] NZCA 551 at [32]; see also Blackwood v R [2018] NZCA 215 at [36].
[41] On balance, I accept Mr Scott’s submission. While each of the underlying starting points was available, that in relation to the sexual violations of F was toward or at the upper end the range. No adjustment was made for this feature when all three starting points were made cumulative. The result is a disproportionally severe global starting point which has affected the ultimate sentence.
[42] Mr Scott argued the totality adjustment should have been in the region of two years’ imprisonment, if not more. I disagree. The aggravating features of the offending are numerous and include, as the Judge observed, significant breaches of trust. A two-year deduction would not be commensurate with the full arc of Mr Sigley’s offending, offending that must be denounced.
[43] I, therefore, deduct 10 months’ imprisonment expressed in relation to the sexual violation charges. The sentence otherwise stands.
Result
[44]The appeal is allowed.
[45]The sentence of 12 years’ imprisonment is quashed.
[46] A sentence of 11 years and two months’ imprisonment is substituted. The substituted sentence is structured this way:28
(a)A sentence of seven years and two months’ imprisonment in relation to the charges of sexual violation.
(b)A cumulative sentence of three years’ imprisonment on the charges of indecent act on a young person and sexual conduct with a child.
28 Again, the only change concerns the term in relation to the sexual violation charges.
(c)A cumulative sentence of 12 months’ imprisonment in relation to all other charges.
……………………………..
Downs J
0
6
0