Solicitor-General v Rawat

[2021] NZHC 2129

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI 2021-485-36

[2021] NZHC 2129

BETWEEN

SOLICITOR-GENERAL

Appellant

AND

CHAMAN RAWAT

Respondent

Hearing:	15 July 2021
Counsel:	B C L Charmley for Appellant B J Hunt for Respondent
Judgment:	16 August 2021

JUDGMENT OF MALLON J
Table of contents
Introduction	[1]
Factual background	[3]
Victim impact	[10]
Personal circumstances	[11]
District Court decision	[19]
Starting point	[27]
Mitigating factors	[37]
Guilty plea	[39]
Youth	[40]
Good character	[44]
Remorse/amends	[47]
Respondent’s daughter	[52]
Notional end sentence	[54]
Home detention	[55]
Result	[64]

SOLICITOR-GENERAL v RAWAT [2021] NZHC 2129 [16 August 2021]

Introduction

[1]                 The respondent pleaded guilty to a representative charge of rape and a representative charge of doing an indecent act on a young person.1 He was sentenced in the District Court to 12 months’ home detention, subject to standard and special conditions to apply for a further six months, and $5,000 reparations.2 An order was also made for the respondent’s name to be placed on the Child Sex Offender Register.

[2]                 The Crown appeals this sentence. It says it is manifestly inadequate because the sentencing Judge:3

(a)applied a starting point that was too low;

(b)applied excessive discounts for mitigating factors; and

(c)erred in imposing home detention.

Factual background

[3]                 The 11-year-old complainant (R) moved to New Zealand [redacted] with her family. The respondent (aged 18 at the time) [redacted]. He began sexually offending against R shortly after the family’s arrival.

[4]                 The first occasion took place in July 2008. The respondent picked R up after school. He told her to text her parents that she had late classes. He then drove her to his family’s home, took her to his bedroom, pulled down her pants and underwear, put a condom on and proceeded to rape her for 15 to 20 minutes. Afterward he said “You’re not going to tell your mum and dad about this are you?”

1      Crimes Act 1961, ss 128(1)(a) (maximum penalty 20 years’ imprisonment) and 134(3) (maximum penalty seven years’ imprisonment).

2      R v Rawat [2021] NZDC 9261 (Judge Davidson).

3      The Crown brings the appeal under the Criminal Procedure Act 2011, ss 246(1) and 247(1)(c).

[5]                 A month later, he and R were in R’s bedroom. The respondent showed her pornographic videos then pushed her onto her bed, climbed on top and kissed her for 10 minutes.

[6]                 A month later, the respondent was staying the night at R’s family’s home. Around midnight he went to the couch where R slept, lay on top of her and masturbated. He ejaculated onto her torso then told her to go and clean herself up.

[7]                 In April 2009, when R was 12 years old and the respondent was 19, the respondent drove R to his family’s workplace. During the car ride he said how much he enjoyed sex with her and asked if she enjoyed it, to which she replied that she did not. At the restaurant, he placed a sheet on the ground, told her to take off her clothes, put a condom on and raped her.

[8]                 Later that month, the respondent drove R to his family home, lying to her that his family was home. Upon arrival, he told her to go to his bedroom and remove her clothes. After being briefly startled by a car and telling her to get dressed, he told her again to undress, despite her protests. He proceeded to rape her for around 15 minutes. In the same month, while he was driving around with her attending to work duties for his family, he pulled over, locked the doors, climbed on top of her and kissed her for 10 minutes.

[9]                 R went to the Police in September 2019 and gave an evidential interview in November 2019. The respondent entered guilty pleas to the two representative charges referred to above at an early stage.

Victim impact

[10]             R has been deeply affected by the offending. Her mother learned of what had been happening when she overheard R and the respondent talking about it one night. R said the respondent denied it and from then on her relationship with her parents went downhill. Her parents told her she had brought shame on the family. R felt very lonely and became suicidal and self-harmed. She tried to forget about what had happened but she could not do so. She feels stuck in the time when it happened and has struggled with her mental health and has never felt good enough in anything she has achieved.

She felt she could not tell anyone and, when she decided to go to the Police, she still felt unsupported by those around her. She was waiting for someone to trust her and not blame her for what happened. She believes that if she had not told her story she would have ended her life.

Personal circumstances

[11]             The respondent was aged 31 when he appeared for sentencing on the charges. He had no convictions other than a drink-driving offence committed in 2009 (when he was 19 years old).

[12]             The respondent was born in India. His father moved to New Zealand when the respondent was a boy. He lived with his mother and younger sister and grandparents and his father would visit every second year. He had a happy childhood. He moved to New Zealand to join his father in 2006, when he was 16 years old. His mother and sister joined them about six months later.

[13]             The respondent trained in cooking when he left school and after completing that training he had worked for over ten years for his employer at various establishments and had been promoted to head chef at one of those establishments. He had then worked for a new employer for about two years, again as head chef, until the charges were brought. By the time of sentencing he had been re-employed full time with his first employer. Letters of support from his employers were put before the Court. They spoke very highly of the respondent.

[14]             The respondent submitted a letter of apology to R in which he expressed his sorrow for the damage and pain he had caused R and how ashamed he was of the way he treated her as a young girl. He told the pre-sentence report writer that the offending was his first sexual experience and since then his only sexual experience has been with his wife. He also said that his understanding of consent and sexual relationships at the time of the offending was limited. He was not raised in a culture that promoted education around appropriate sexual behaviour.

[15]             The respondent’s father, on behalf of himself and his wife, confirmed this. While acknowledging what the respondent had done was not right, the father blamed

himself and his culture for not talking to his son about sex education. The father also said that after the offending had happened, they met with R’s parents, with the respondent present, to discuss it. The respondent was very upset and sorry for what he had done to R, and to her parents and his parents. He was extremely upset to have caused so much pain and asked what he could do to correct it. The father said he told R’s parents to take appropriate action.

[16]             The respondent’s wife provided a letter of support. She informed the Court that their respective parents suggested that they marry. At that time she was living in India with her parents and siblings. She talked with the respondent over audio calls and they were married in India in 2011. She moved to New Zealand and had been with him for ten years. She has found the respondent to be kind, humble and hugely supportive of her. They have a daughter who was four years old at the time the respondent was sentenced. From the time their daughter was six months old, the respondent provided the daytime care for their child while the respondent’s wife (an accountant) worked. She said that their child is very close to the respondent. She also attested to the respondent’s genuineness in understanding the seriousness of his actions and that he is a good man and not a danger to society.

[17]             The Court also had a letter of support from a close family friend, who was from the same Indian state  as  the  respondent’s  family  and  is  a  school  teacher  in  New Zealand, who also spoke highly of the respondent. He also attested to the genuineness of the respondent’s remorse.

[18]             The respondent was also assessed by a psychiatrist, Dr Lokesh, who referred to the guilt the respondent felt towards R, his shame at what he had done and how he wished he could undo the harm he had caused to R. He felt stupid and did not think about the consequences and impact at the time. He was apprehensive and tearful throughout Dr Lokesh’s assessment, and had low self-esteem with symptoms of depression. Dr Lokesh assessed R as at a low risk of reoffending.

District Court decision

[19]             The Judge’s sentencing remarks were detailed and discussed all of the information that had been put before the Court. He acknowledged that R had been very badly affected emotionally and psychologically.

[20]             In deciding on the starting point the Judge identified the aggravating features as follows:

[18] … This was planned and premeditated even if it was only taking advantage of opportunities that were made available to you by your closeness to the complainant. The persistence and scale of the offending is obvious: there were 3 rapes and 3 indecent assaults. There was a very significant breach of trust. The victim was young, naïve, vulnerable and the offending has had a significant effect on her.

[21]             The Judge agreed with the submissions from the parties that the offending sat within band two of R v AM, for which the range was seven to 13 years’ imprisonment.4 He referred to the Crown’s submission for an overall starting point of 11 to 12 years’ imprisonment and the defence submission for a seven year starting point. He considered that a starting point of eight years’ imprisonment was appropriate for the three rapes, given the aggravating features. He considered that this should be uplifted by six months “to mark the indecent assault charges”.5

[22]The Judge identified the mitigating features as follows:

[19] … you have pleaded guilty. You were young at the time … You are well-supported in the community, in a stable relationship, living with parents and family. You have a job, your risk of reoffending is low, you have not re-offended over the last 12 years or so. You were willing to attend restorative justice. You are in a position to … make some amends for your offending.

[23]             The Judge considered there could be no doubt that “very generous discounts can and should be afforded” to the respondent.6 He gave the following discounts:

(a)For the guilty plea: 25 per cent.

4      R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [98].

5      R v Rawat, above n 2, at [26].

6 At [27].

(b)For remorse: 10 per cent.

(c)For the respondent’s willingness to make amends and attend restorative justice: five per cent.

(d)For the fact the respondent had lived an otherwise good life since, built a life with a partner and child, obtained employment, and his low risk of reoffending: 10 per cent.

(e)For his youth at the time of offending (18 and 19): 20 per cent.

[24]             This came to an end sentence of two and a half years’ imprisonment. The Judge then said:

[28]      There is another feature of this case which has not really been emphasised by either counsel: that is, the fact that if you were imprisoned there would be a devasting effect on your child. You have been a hands-on father from soon after she was born after your wife returned to work. It must be a mitigating feature that a sentence of imprisonment would have a disadvantageous effect on her.

[29]      … While it would be appropriate in one sense to simply impose [the sentence of imprisonment], it would not meet the very concerning feature of this case: the effect of imprisonment on your daughter. To my mind, it would be a crushing blow for a 4-year-old girl who depends on you for her everyday life.

[30]      By the narrowest of margins I have determined the appropriate sentencing outcome as one of home detention. …

[25]             The Judge decided on a sentence of 12 months’ home detention. This meant he had allowed a discount of about six per cent for the effect of imprisonment on his daughter. In doing so, he acknowledged there was “little doubt” that the respondent was “likely to face the prospect of a Crown appeal” and it was “only fair” that the respondent understood that.7

[26]             The Judge imposed standard and special conditions to continue to apply for six months after the 12 months’ home detention sentence ended. The Judge ordered that the respondent be registered as a sex offender, despite the low risk of reoffending,

7 At [30].

because of the high seriousness of the offending. Emotional harm reparations of

$5,000 was also ordered. R had advised the Court that she did not want the reparations payment to be made to her but, if it was ordered, that it should be paid to charity. Within two weeks of the sentencing, the respondent paid $2,500 to Women’s Refuge and $2,500 to Pet Refuge.

Starting point

[27]             The appellant says the Judge was correct to place the offending in band two of R v AM because the offending involved a vulnerable victim and two or three aggravating factors that increased culpability to a moderate degree. It submits that the Judge erred by placing the respondent’s offending at the lower end of the band, given that there were multiple rapes and indecencies committed against a child.

[28]In support of this submission it refers to four cases:

(a)Donaldson v R:8 this involved an indecency and rape of an eight-year- old victim. Mr Donaldson (aged 51) was a friend of the victim’s parents. He lured the victim to the spa pool and told her to undress, giving rise to the indecency charge. He later raped her in her bed, telling her they were going to play a game. A 10-year starting point for the rape and three month uplift for the indecency were upheld by the Court of Appeal.

(b)Nicolson v R:9 this involved three sexual violations (two unlawful sexual connections and one rape) by the 49-year-old defendant against his nine-year-old step-daughter. The two unlawful sexual connections were a few years apart. They involved him going into the victim’s bedroom while she slept, undressing her, licking her vagina and penetrating her digitally. On the second occasion, he also raped her repetitively. An 11-year starting point (nine years for the rape with a

8      Donaldson v R [2019] NZCA 338.

9      Nicolson v R [2018] NZCA 352.

two-year uplift for the unlawful sexual connections) was upheld by the Court of Appeal.

(c)Ikinepule v R:10 this involved an indecent assault and rape of an eight-year-old victim. Mr Ikinepule (over 30 years older than the victim) and his partner were staying with the victim’s family. He offended while the others were out visiting a neighbour. A nine years and six months starting point was upheld by the Court of Appeal.

(d)Rana v R:11 this involved a rape and indecent act against a 13-year-old girl. Mr Rana, who was 38 years old, was distantly related to the victim and offered to take her home after her mother was taken to hospital. While at home he grabbed her when she came out of the shower, groped and licked her breasts and raped her. A nine-year starting point was upheld by the Court of Appeal.

[29]             The appellant says the respondent’s offending was greater than any of these examples because it involved three separate rapes and three indecencies over a nine- month period. It acknowledges the victim here was slightly older than in the first three cases and that the respondent was younger than the appellants in all those cases. It says these differences are countered by R having an additional layer of vulnerability because she was new to New Zealand and because youth is not a relevant factor when fixing a starting point.12 It submits that, in any case, the respondent was an adult and his use of a condom during two of the rapes indicates some knowledge of sex and undermines his claim to naivety. The appellant submits the starting point should have been at least 10 and a half years’ imprisonment and could have been higher.

[30]             The respondent submits the cases are distinguishable. Some of them involved younger victims and the breach of trust was greater due to the familial link in some of them and the greater age difference between the offender and the victim. The respondent also says this was not a case of persistent offending occurring throughout

10     Ikinepule v R [2017] NZCA 125.

11     Rana v R [2014] NZCA 468.

12     Overton v R [2011] NZCA 648.

the period in question or grooming. Rather, as the Judge accepted, it involved the respondent taking advantage of opportunities made available to him.

[31]             I agree that the lesser age disparity than in the cases relied on by the appellant is relevant to the extent to which the offending involved a breach of trust.13 I therefore consider it is useful to review cases where the age disparity between the offender and the victim is lesser than in the cases relied on by the appellant. These include:

(a)R v DC:14 The first offender was aged between 15 and 19 when he offended against the first victim, his cousin, aged between five to nine. This involved one rape when she was seven or eight, assault with intent to rape when she was eight or nine, and three indecent assaults when she was five. He was aged between 20 to 21 when he offended against another cousin, aged six. This involved rape and sexually violating her anus with his penis. The second offender was aged between 14 and 16 when he offended against his sister, aged between seven to eight. This involved two unlawful sexual connections and an indecent assault. He was between 17 and 21 when he offended against his other sister, aged between six to nine. This involved a representative charge for rape and one unlawful sexual connection. A starting point of 10 years was set for each offender.

(b)R v Bradnock:15 This case involved a defendant (aged between 14 and

18) who over a four-year period committed nine sexual offences against his victim (aged between four and eight), whom he was babysitting. On one occasion he induced her to masturbate him, induced her to perform oral sex on him, and rubbed her genitalia, and on another licked her genitalia. He also raped her. Over the next four years, he made her touch him and he touched her, made her suck his penis, and simulated sexual intercourse with her, sometimes when she was clothed, and

13     R v AM, above n 4, at [42] and [95].

14     R v DC [2016] NZHC 1984.

15     R v Bradnock [2014] NZHC 2575.

sometimes naked. He faced representative charges in relation to these acts. A starting point of 10 years was set for this offending.

(c)Lennon v R:16 This case involved a representative charge of indecent assault on a girl (aged seven to eight years) and six counts of sexual violation (by anal penetration) of a boy (aged 10 and 12 years) when the defendant was aged between 14 and 15 years old. The Court allowed an appeal against a starting point of ten years and six months (ten years for the sexual violations with an uplift of six months for the indecent assaults) imposed by the District Court Judge. It replaced it with a starting point of nine years and six months’ imprisonment. In doing so, it emphasised that, although the victims were vulnerable, it was not a case where “breach of trust issues loom large”.17 This was because he was not an adult offender and the children were not formally under his jurisdiction or control. It was also because the offending was largely opportunistic and did not involve grooming, careful planning or manipulation.

(d)V (CA400/2012) v R:18 This involved offending that took place over three to five years and commenced when the victim was about five years old and the defendant (the brother of the victim) was about fourteen years old. The offending involved multiple occasions of inducing the girl to masturbate or perform oral sex on his penis and of him performing oral sex on her vagina. The Court of Appeal allowed an appeal against a starting point of 13 and a half years and replaced it with a starting point of nine years’ imprisonment.

(e)Overton v R:19 The defendant in this case was 15 to 16 years old and his victim, a relative, was aged six to seven years. Over two years, while playing a card game, the defendant would touch her genitals or get the victim to touch his genitals, depending on who won the game.

16     Lennon v R [2012] NZCA 551.

17 At [31].

18     V (CA400/2012) v R [2012] NZCA 465.

19     Overton v R [2011] NZCA 648.

This started as touching over the top of clothing but progressed to touching under her underwear and on his exposed penis and then to each performing oral sex on the other. On one occasion he rubbed his exposed penis against her genitals, accompanied by oral sex. Some years later he also placed his hand on her crotch, on top of her clothing, saying “has it changed?”. The Court of Appeal considered that a starting point of nine years and six months was “stern, yet nonetheless available”.20

(f)M v Police:21 The offender (aged between 14 and 15) raped the victim (aged between eight and 10) on two occasions. She was part of his extended family. The first occasion was in his bedroom while he was babysitting her. The second was when they stayed on a marae as part of a family funeral. The eight-year starting point was upheld on appeal.

[32]             The appellant’s submission that the starting point should have been at least  10 and a half years’ imprisonment cannot stand when the present case is compared with these cases. The respondent’s offending was less serious than in R v DC and Bradnock because of the extended period over which it occurred and the range of sexual activity (including penetration) to which the very young victims were subjected. Those cases indicate that a starting point here of 10 years would have been too high.

[33]             I consider that the offending was more serious than in M v Police, given that there was one additional rape, as well as the indecencies. The younger age of the victim in M v Police is balanced against R’s particular vulnerability with having recently moved from India to New Zealand and the age disparity is comparable. This suggests a starting point of more than eight years’ imprisonment was appropriate but not significantly more.

[34]             Lennon is a closer comparator. The breach of trust is greater in the present case but the offending in Lennon involved three more occasions of penetrative intercourse

20 At [24].

21     M v Police HC Wellington CRI-2011-485-72, 6 September 2011.

and an indecent assault on a second young victim. V v R did not involve penetrative offending but it continued over a much longer period. Overton is less serious because it did not involve penetration but on the other hand the victim was very young. These cases suggest a starting point of nine years’ imprisonment would have been appropriate here.

[35]             The Judge correctly identified the aggravating features from R v AM. Primarily they were R’s vulnerability at her young age and in a new country and the repetitive nature of the offending, albeit that the offending was sporadic (one rape and two indecencies between July and September 2008, and two rapes and one indecency in April 2009) and, to a degree, opportunistic. There was also an element of breaching trust but this was not at the highest end. It is true that R’s family trusted the respondent with her because the families were friends and they were new to New Zealand, but he was a young man and not in a comparable position to an adult with official care or responsibilities for a child. R has undoubtedly suffered significantly. Without intending to minimise this, it is the inevitable kind of emotional harm that follows from offending of this kind and, sadly, it seems it was exacerbated by R not receiving the emotional support she was looking for from her parents when they learned of the offending. Overall, there were two or three main aggravating factors (vulnerability, scale and victim harm) present to a moderate degree. Breach of trust was also present to a more limited degree. I consider that these factors put the offending somewhere between the middle of band two and the bottom of band two, but closer to the middle than the bottom. That confirms a starting point of around nine years’ imprisonment would have been appropriate.

[36]             I conclude that a starting point of nine years’ imprisonment would have been appropriate. However, sentencing is not an exact science and judges acting properly and in accordance with the relevant guidelines can form different views about the appropriate sentence. What is important is that the starting point decided upon is within the available range. I consider the Judge’s starting pointing was lenient and was on the cusp of being outside the available range, but is supportable by a comparison with M v Police. Given this is a Solicitor-General appeal, I would not disturb it if the starting point was the only issue. Such appeals are not for borderline

cases. There must be solid ground for treating a sentence as manifestly inadequate or inappropriate.22

Mitigating factors

[37]             The appellant takes no issue with the discounts for the guilty plea and youth. It submits that the other discounts were generous, and, in combination, excessive and out of step with analogous authority. Overall, the appellant submits that at most an overall discount of 70 per cent for all mitigating factors (45 per cent plus 25 per cent for the guilty plea) was available, but here the Judge allowed 76 per cent (51 per cent plus 25 per cent for the guilty plea) and this was too much.

[38]             On a Solicitor-General’s appeal a six percent difference seems unlikely to provide solid ground for treating a sentence as manifestly inadequate. Nevertheless, I will consider each of the discounts that were allowed before considering the total discounts and end sentence overall to ensure there has not been inappropriate discount creep leading to a manifestly inadequate sentence.23

Guilty plea

[39]             As noted, there is no challenge to the discount of 25 per cent and nor could there be.

Youth

[40]             It is well established that youth can be a substantial mitigating factor. This reflects the age-related neurological differences between young people and adults that contribute to (as relevant here) poor and impulsive decision-making. It can also reflect a greater capacity for rehabilitation and that long sentences may be crushing on young people. Because the Judge also allowed discounts for good character and demonstrated rehabilitation, and for the impact of imprisonment on the respondent’s family unit, it is the first of these considerations that was relevant.

22     R v Cargill [1990] 2 NZLR 138 at 140.

23     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607, (2010) 24 CRNZ 966 at [63] and R v LB

[2020] NZHC 94 at [53].

[41]             The material before the Court supported the fact that this was age-related, poor and impulsive decision-making by a  young  man,  who  was  relatively  new  to  New Zealand and its culture, and who apparently had not had the benefit of education around appropriate sexual relations. The offending (which included kissing and masturbation) suggests an element of sexual experimentation. The appellant submits that the respondent was not as sexually naïve as he claimed – he used condoms and R had told him that she did not want to participate. I do not regard those factors as illustrating an awareness of appropriate sexual conduct with others. The respondent seemingly did not appreciate that he should not carry out sexual activity on a young girl, let alone an unwilling one. The fact that he asked a 12-year-old girl if she enjoyed the sex suggests he did not appreciate quite how inappropriate his conduct was. The respondent cannot now explain why he acted so stupidly and caused R the harm that he did and his subsequent actions show that the offending was entirely out of character. The psychiatrist referred to his immaturity as a cause of the offending and the Judge also said it was “inescapable that [he was] young, naïve, and impulsive”.24

[42]             The Judge allowed a 20 per cent discount for youth. I agree with the respondent’s submission that this was at the lower end of the available range. The respondent refers to a range of cases where greater discounts were allowed.25 These were for mostly younger offenders, but not significantly so in some of them. For example, in M v R the District Court allowed a 33 per cent discount for youth understanding that the offender was 18 years old when in fact he was 17. The Court of Appeal increased the discount to 40 per cent to reflect that he was 17 at the time and for good character.26

[43]             The appellant refers to R v LB, where the charges related to offending over a four-year period when the defendant was aged between 14 and 18 years old.27 The High Court Judge reviewed a range of Court of Appeal authorities and concluded that the discount for youth and subsequent good character should not have exceeded 40 per

24 R v Rawat, above n 2, at [27].

25 Churchward v R [2011] NZCA 531; M v R [2018] NZCA 630; R v Alletson [2009] NZCA 205; R v Parata CA72/01, 21 June 2001, (2001) 19 CRNZ 352; BB v R [2013] NZCA 139; and M v Police, above n 21.

26 M v R, above n 25.

27 R v LB, above n 23.

cent. As discussed next, the Judge here allowed the respondent 10 per cent for good character. I consider that a discount of 25 to 30 per cent was potentially available for the respondent’s youth which, when combined with the good character discount, would have been in line with authority discussed in R v LB.

Good character

[44]             The appellant submits a 10 per cent discount for an otherwise blameless life and contribution to society is excessive. It says the offending was not just a blip but took place over nine months, the respondent’s community contribution is unremarkable, and the discount given for youth already recognised his subsequent maturing and rehabilitation. It refers to Court of Appeal authority that good character discounts must be offset by the duration of offending, because offending over a long period undermines a claim to good character.28 It also says, because the victim lacked support and had trauma from the offending, her complaint was delayed, giving the respondent more time to take advantage of a subsequent conduct discount.

[45]             It is well established that a defendant who has shown themselves “generally law-abiding citizens of good character are usually entitled to invoke their creditable record in mitigation when they come before the Courts, even for quite serious offences”.29 One of the factors underpinning this is recognising the greater potential for rehabilitation where community involvement and good character bear witness to a reduced probability of reoffending.30

[46]             In this case, the respondent has demonstrated his generally law-abiding character in the twelve years since the offending took place. Apart from the drink driving offence aged 19 (committed one month after the last of the offending on R), he has not offended subsequently. He is a loving son, husband and father with an excellent employment record. He is assessed as being at a low risk of reoffending. The offending was sporadic, rather than persistent and continual, and occurred over a confined period of the respondent’s life when he lacked maturity. A discount of 10 per

28     Britow v R [2017] NZCA 229 at [10].

29     R v Howe [1982] 1 NZLR 618 (CA) at 629.

30     Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA9.23]. See also R v Findlay [2007] NZCA 553 and R v Davidson v R [2011] NZCA 356.

cent is not out of line with other cases.31 When assessed together with the discount for youth, it is low relative to other cases, especially for someone who has actually demonstrated his rehabilitation rather than someone who merely has good prospects of rehabilitation. What would have happened had he been charged earlier is beside the point. It does not change the fact the respondent has in fact demonstrated good character in the intervening years, which has provided good evidence that his reoffending risk is low.

Remorse/amends

[47]             The appellant submits that a combined discount of 15 per cent for remorse and willingness to make amends and to attend restorative justice was excessive. It says that the offer to make amends and to participate in restorative justice are evidence of remorse, not factors that require an additional discount.

[48]             In support of this submission the appellant says that in Poi v R, “the Court of Appeal described a 15 per cent discount for remorse as well beyond the norm”.32 That is not a correct statement of what the Court of Appeal said. The statement relied on by the appellant related to the discount given for good character rather than for remorse. The trial judge had declined to award  any discount for remorse because  Mr Poi had declined to plead guilty. Mr Poi had, however, expressed regret and been willing to pay reparations and to participate in restorative justice. The Court of Appeal considered five per cent should have been allowed for remorse but this was balanced out by the “beyond the norm” discount for good character.33

[49]             The appellant referred to three other examples where remorse discounts ranged from 3.6 per cent to eight per cent on top of the discount for the guilty plea.34 The case where only 3.6 per cent was allowed included a payment of $10,000 reparations

31 In addition to the cases reviewed in R v LB, above n 23, discussing discounts for youth and rehabilitative prospects, in other contexts see, for example, Ratnam v R [2020] NZCA 314; Arona v R [2018] NZCA 427; Chai v R [2020] NZCA 202; and Faiyum v R [2020] NZCA 523, where discounts of 10 per cent were given.

32 Poi v R [2015] NZCA 300 at [8]. That case involved an unprovoked, violent and prolonged assault committed by Mr Poi and a co-offender. Mr Poi was convicted by a jury of wounding with intent to injure.

33 At [8].

34 McArthur v R [2013] NZCA 600, Rowles v R [2016] NZCA 208, Watene v R [2014] NZCA 381 and Poi v R, above n 32.

to his victims, a significant sum for the defendant and realistically all that was possible for him. That example is very much at the bottom end and likely was influenced by the very serious nature of the offending involving a defendant who had been “persistently [sexually] offending against children for 17 years”.35

[50]             Here the respondent, in a range of ways, demonstrated his remorse from the outset. He did so when the offending was discovered and he attended the conference between the families. He accepted responsibility, was extremely upset and sorry about his actions and asked what he could do to correct it. When charges were ultimately brought, he pleaded guilty. He wrote a letter of apology, offered to attend restorative justice and made substantial payments to charities. Sentencing was delayed for some time to enable restorative justice to be explored. The respondent remains ashamed of what he has done and the harm he has caused, as is evident from Dr Lokesh’s report.

[51]             I agree with the appellant’s submission that the offer to attend restorative justice and the payment of a substantial sum were tangible evidence of remorse to be considered with all the factors that demonstrated remorse. I also agree that the 15 per cent allowed here was too generous. The cases where 15 per cent or higher has been awarded have involved some elements that made the remorse exceptional, including returning to New Zealand to face the charge, very substantial reparations or very successful restorative justice conferences.36 I consider that a total discount of 10 per cent was available.37

Respondent’s daughter

[52]             The appellant submits that the fact the respondent has a child does not entitle him to a discount. It submits that, although it is open to a court to consider the impact of a sentence on family and make adjustments, circumstances that elevate the impact

35 McArthur, above, at [6].

36 Hayden v R [2020] NZCA 369; R v Martin [2017] NZHC 1571; Brampton v Police [2015] NZHC 2618; R v Henry [2015] NZHC 1684; Kerwin v Police [2014] NZHC 3106; and McMillan v Police [2014] NZHC 150.

37 A 10 per cent discount for remorse alone was allowed in: R v Kalepo [2021] NZHC 578; R v Taylor [2020] NZHC 3333; R v Patel [2018] NZHC 2946; R v Piddeck [2017] NZHC 1016; R v Singh [2014] NZHC 209. A 10 per cent discount for remorse and factors such as restorative justice offers or participation and reparations was allowed in: R v Pan [2020] NZHC 2342; Millar v R [2019] NZCA 570; R v A [2018] NZHC 2024; R v Karekare [2018] NZHC 1364; Cameron v Police [2016] NZHC 2678.

beyond the usual negative consequences will usually be required for such an adjustment. It provides examples where the offender’s children have had special needs or the offender was a solo parent.38

[53]             I agree that allowing a discount for the impact on the respondent’s young daughter was marginal. This was serious offending, the daughter had other family members to take care of her and she did not have needs beyond the ordinary.39 It is clear that the Judge wished to avoid causing unnecessary damage to a loving family unit, with a young child, in which the respondent plays an important role. The allowance he made, at six per cent, was small. It enabled the Judge to reduce the end sentence to two years’ imprisonment because he considered in all the circumstances a sentence of home detention was available. I consider it is better to consider the discounts overall and ultimately the end sentence, rather than quibble about whether this small allowance should have been made.

Notional end sentence

[54]             The Judge adopted a lenient starting point, which I consider was on the cusp of being outside the available range but was (just) supportable. The discount for remorse and making amends was five per cent too generous and the six per cent discount for the impact on the respondent’s young daughter was strictly not available when compared with other cases where it has been allowed. On the other hand, the discount for youth was at the lighter end of what might have been allowed. I consider the overly generous (total) 11 per cent discount was balanced out by the fact that more could have been allowed for the respondent’s youth. This means that the end point of two years’ imprisonment, while at the lenient end and being close to outside the available range, was not quite manifestly inadequate. At two years’ imprisonment, home detention could be considered.

Home detention

[55]             In deciding on home detention, the appellant submits the Judge failed to expressly apply s 128B(2) and (3) of the Crimes Act 1961, which provides:

38     R v Prior (1993) 10 CRNZ 147 (CA); A v R [2018] NZHC 543; Wikohika v R [2020] NZCA 595.

39     See Adams, above n 30, at [SA8.14].

(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

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

[56]             The appellant found only one example, Asiata v R, in which the Court of Appeal accepted that home detention was appropriate for the rape of a young person, in that case a 15-year-old girl.40 The Court said this was exceptional and it was largely due to the offender’s mental impairment (he had the mental age of a 12 year old) meaning he could not remember the offending and was particularly vulnerable in prison. The appellant says the norm is that imprisonment is usually the only appropriate sentence for sexual offending against children.41 It says that even if the home detention threshold properly had been met, the presumption of imprisonment could not have been easily displaced in this case.

[57]             The respondent says s 128B(2) and (3) were addressed in oral submissions. The Judge was therefore aware of the presumption but nevertheless considered that home detention was appropriate. It is apparent from his remarks why that was, despite the significant harm to the victim and the serious nature of the offending, both of which he acknowledged. It is clear that the Judge’s consideration of the particular circumstances that might displace the presumption were focused on the effect on the young daughter if the respondent were imprisoned. The Judge correctly identified that youth properly substantially reduced the overall culpability of the offending and there were other substantial mitigating factors. It is apparent that the Judge could see little benefit to anyone if the respondent were now to be imprisoned 12 years after the offending (committed when he was young, for which he had accepted responsibility and was at that time prepared to take the consequences of whatever action R’s parents considered appropriate) and who had shown himself to be a good young adult in his family and work life.

40     Asiata v R [2020] NZCA 53.

41     See R v S (CA465/05) CA 465/05, 11 April 2006 at [12].

[58]             I therefore do not accept that the Judge failed to consider the statutory presumption. He did so, and determined there were particular circumstances that justified a departure from the presumption albeit by “the narrowest of margins”. I am unable to say that this was a wrong exercise of the statutory power available to him.

[59]             I contrast this with R v LB, where the Judge adopted a starting point of 11 years for serious sexual offending. The Judge applied a 76 per cent discount for personal factors and a further 25 per cent for guilty pleas that led him to a notional sentence of two years’ imprisonment and an end sentence of 12 months’ home detention. On appeal, the High Court considered  the minimum  starting  point  should have been 12 years’ imprisonment and the appropriate discounts should have resulted in an end sentence of four years and three months’ imprisonment. That was a case where the High Court considered that the offending was too serious to have reached a two year notional sentence, so home detention should not have been open for consideration. There are examples where home detention has been imposed for serious sexual offending where the offending occurred when the offender was young and had good prospects of rehabilitation or had turned their life around.42

[60]             Standing back, the sentence was on the cusp of being inadequate because of the lenient starting point and the decision to impose home detention by the narrowest of margins. It is clear that the Judge wished to take a merciful approach. As it was said in R v Fate “[t]he right of a sentencing Judge to show mercy in the special circumstances of the particular case must always be borne in mind”.43 This was not a case of the Judge failing to follow the guidelines of the Court of Appeal or to obtain guidance from comparable cases. Rather, working within those guidelines and comparisons, he reached a lenient outcome that, in his view, was appropriate in the particular case of the still relatively young man before him, despite the serious offending he had committed 12 years earlier and despite the dreadful consequences of that offending on R, of which the Judge was fully cognisant. In my view this was not a clearly manifestly inadequate sentence.

42 R v Millar [2019] NZDC 20005; R v Symons HC Wellington CRI-2007-091-424, 11 April 2008;  and R v SMR HC Auckland CRI-2007-4-21910, 9 October 2008. See also Police v Thomas-Pilling [2016] NZDC 12057, where prison was considered unsuitable for a highly vulnerable young offender.

43 R v Fate (1998) 16 CRNZ 88 at 94.

[61]             While other Judges may have ended up at a higher end sentence, I am not satisfied that this a case where I should disturb the overall assessment that the experienced Judge made. In R v Johnson the Court of Appeal said:44

[32]      … A defendant who has received a merciful sentence and escaped imprisonment will feel great relief. There will be a natural tendency to assume that the sentence is final, and to organise affairs and expectations accordingly. To be then faced with a reversal of that situation at a later date and immediate imprisonment is a harsh further penalty, not earned by the offender.

[33]      [The defendant] has completed more than half of his sentence, albeit in home detention, rather than in custody … to then be faced with removal to prison carries with it “a distinct element of unfairness”. …

[62]             In that case the Court of Appeal considered the end sentence should have been two years and four months’ imprisonment, rather than the nine months’ home detention imposed in the District Court. It declined to impose what would have been the otherwise appropriate sentence. Instead it increased the sentence to 12 months’ home detention.

[63]             Here the respondent faced the prospect of going to prison. He received a merciful sentence. He has now served just over three months of his home detention sentence. He was on notice that an appeal was possible (the Judge acknowledged this in sentencing) and has also had to bear the prospect of imprisonment hanging over him following the lodging of this appeal in early June. Had I been persuaded that the sentence was inadequate, like the Court of Appeal in Johnson I would not have considered it to be so inadequate as to require the Court to impose the harsh effect of now sending him to prison when he avoided that outcome before the District Court at sentencing. I consider society will be better served if this still relatively young man remains in the community and continues to contribute to it in the way he has demonstrated he can do.

Result

[64]The appeal is dismissed.

Mallon J

44     R v Johnson [2010] NZCA 168.