Southern v The Queen
[2020] NZHC 3347
•16 December 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-88
[2020] NZHC 3347
BETWEEN GLENN ROBERT SOUTHERN
Appellant
AND
THE QUEEN
Respondent
Hearing: 9 December 2020 Appearances:
Appellant on own behalf
S Taylor for the Respondent
Judgment:
16 December 2020
JUDGMENT OF GORDON J
This judgment was delivered by me on 16 December 2020 at 12 noon.
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Hamilton
SOUTHERN v R [2020] NZHC 3347 [16 December 2020]
Introduction
[1] Mr Southern pleaded guilty to one charge of sexual violation by rape1 and one charge of attempting to pervert the course of justice2 after a sentence indication.3 He was subsequently sentenced to a term of imprisonment for six years on the sexual violation by rape charge, and one year’s imprisonment (concurrent) on the charge of attempting to pervert the course of justice.4 He appeals against his sentence.
[2] Mr Southern is self-represented. His appeal is filed out of time by approximately 10 months. The Crown opposes leave being granted and in any event submits the appeal should be dismissed on the merits.
Facts
[3] Mr Southern and the victim had been in a relationship. They separated in December 2017. Mr Southern often stayed at the victim’s address where he lived in a vehicle.
[4] At about 1 pm on 3 November 2018, Mr Southern was at the victim’s home address in her bedroom. The victim walked into the room. Mr Southern grabbed her, threw her on the bed and removed her pants. Despite the victim’s protests, Mr Southern removed her top and used it to tie her hands behind her back. He then pushed her onto her back on the bed. He wedged her legs apart and used his hand to insert his penis in her vagina. Despite the victim’s protests, Mr Southern continued, ejaculated on her chest and then left the room. He continued to live at the victim’s address.
[5] The victim contacted a counsellor days after the incident. The police were then contacted. On 1 April 2019, the victim advised the police she was ready to proceed with her complaint and Mr Southern was arrested on 5 April 2019.
1 Crimes Act 1961, s 128; maximum penalty 20 years’ imprisonment.
2 Crimes Act 1961, s 116; maximum penalty seven years’ imprisonment.
3 R v Southern DC Hamilton CRI-2019-019-2148, 12 September 2019.
4 R v Southern [2019] NZDC 25415.
[6] Mr Southern was initially remanded in custody. He was released on bail on 3 May 2019 on condition he not associate or communicate directly or indirectly with the victim. Whilst in custody, Mr Southern wrote two letters to the victim, encouraging her to withdraw her allegations on the pretence that she was suffering from mental illness at the time. The letter included the statement that “this is a one time offer or we will never unite with love”, and he directed her to contact a local solicitor to make a statement outlining her reasoning for withdrawing her complaint.
[7] After being granted bail, he sent two further letters to the victim, and one to her neighbour, requesting the neighbour encourage the victim to withdraw her complaint. The letters to the victim outlined the financial and emotional cost of defending the allegations, and suggested there may be problems with the title of the house in which the victim lived.
[8] Mr Southern also directed a letter to the victim via her son whilst she was in hospital. The letter was three pages long and was framed as a letter to Mr Southern’s lawyer. The general tenor was that the police had coerced her into making a complaint and that the matter could be resolved short of a prosecution. The letter made reference to the victim’s supposed mental instability. The victim’s son was directed to pass the letter to her and he was encouraged to get her to withdraw her complaint.
Leave to appeal?
[9] I first address the question of leave to appeal out of time. Mr Southern’s written submissions do not provide any reason for the delay but he made an oral application and explained the late filing of the appeal.
[10] He said, first, that he had not realised that there were time limits for filing an appeal. He further said that after he was sentenced and following discussions with his lawyer at that time, once recovered from the shock of his sentence, his focus was on being a model prisoner. This was in order to assist with parole considerations.
[11] Mr Southern said it was when he saw the case of Pattison v R5 (discussed further below), he was “inspired” to think about his case and accordingly filed his appeal.
[12] Mr Southern’s explanation is adequate. Further, the nature of the charges, which are serious, favour the granting of leave and there is no prejudice to the Crown.
[13] The greatest obstacle faced by Mr Southern is the strength of his case which is discussed below. However, taking a broad view of the interests of justice I will grant leave to appeal out of time.
Sentencing decision
[14] Mr Southern was sentenced by Judge Marshall on 13 December 2019.6 As noted above, he had previously received a sentence indication. That was on 12 September 2019.
[15] In the sentence indication, the Judge considered the offending fell within band 1 of R v AM,7 attracting a starting point of seven years’ imprisonment. On the charge of attempting to pervert the course of justice, the Judge considered a two and a half year starting point would be appropriate, but that it was better addressed by an uplift of one year and six months’ imprisonment to the starting point for the rape charge. Accordingly, the Judge considered an end starting point of eight years six months’ imprisonment to be appropriate.
[16] When it came to sentencing, the Judge had the benefit of a pre-sentence report and a cultural report under s 27 of the Sentencing Act 2002. Referring to the latter report the Court noted the factors in Mr Southern’s life which had “conditioned [him]
… to … a somewhat hedonistic lifestyle and led directly to issues of drug abuse and addiction”. The Judge considered that an allowance of approximately five per cent only was appropriate, reducing the sentence by six months to eight years’
5 Pattison v R [2019] NZCA 103.
6 R v Southern [2019] NZDC 25415.
7 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
imprisonment, observing that only a certain allowance can be made, as “a lot of people suffer tragedies and do not go on to offend in this way”.
[17] The Judge gave Mr Southern a full 25 per cent guilty plea discount, reducing the sentence further to six years’ imprisonment.
Approach on appeal
[18] Section 250(2) of the Criminal Procedure Act 2011 provides that the appeal must be allowed if there has been an error in the sentence imposed and a different sentence should have been imposed. While there is no mention of a “manifestly excessive” sentence being a ground of appeal, it is consistent with the statutory language and “there is no reason not to use it when considering s 250(2)”.8 Mr Southern must show that an error occurred in sentencing and that this error resulted in a sentence which was outside the range or otherwise not justified by accepted sentencing principles.9
Analysis
[19] I first note that in a letter to the Registrar Mr Southern says that he proposed to represent himself as he feels he was “misrepresented by his last lawyer”. He does not however suggest any irregularity or failure on the part of his lawyer regarding the entry of guilty pleas. His complaints relate to his claim that the sentence was excessive and that his lawyer failed to emphasise or sufficiently emphasise certain factors that Mr Southern considers are important.
[20] Mr Southern’s submissions take the form of two letters and are a mixture of evidence and submissions. The points on appeal that can be distilled from Mr Southern’s letters are that:
(a)his sentence was out of proportion compared to the case of Pattison v R, and a sentencing for the killing of a child which Mr Southern had noticed in a media report;
8 Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482 at [35].
9 Ripia v R [2011] NZCA 101 at [15].
(b)further discount should have been afforded for personal mitigating factors, particularly for remorse and the contents of his s 27 cultural report; and
(c)further credit should be afforded for other factors, such as good behaviour whilst in prison.
[21] Mr Southern also draws attention to what he contends are errors in the pre- sentence report. He submits these alleged errors, “irreversibly” tainted the sentencing judge and he should have been sentenced by a different judge.
[22] First I address the case of Pattison v R. Mr Southern submits that it demonstrates that his sentence is manifestly excessive.10 Mr Southern submits that Mr Pattison’s behaviour was “abhorrent”, and that Mr Pattison’s receipt of a sentence of two years five months’ imprisonment demonstrates that something “went wrong” with his own sentence.
[23] Mr Pattison was found guilty and convicted of four charges of doing an indecent act on a young person, and one charge of supplying alcohol to a minor. The offending was against two young girls who were friends of his daughter. Mr Pattison gave the girls alcohol and indecently assaulted one of them when they stayed at his home for the weekend.
[24] The sentencing judge adopted a starting point of three years’ imprisonment. The final sentence was two years five months’ imprisonment on one charge of indecent assault and on each of the remaining charges of indecent assault to a concurrent term of 18 months’ imprisonment. On the charge of supplying alcohol to a minor he was convicted and discharged. On appeal, the Court of Appeal considered the appropriate starting point was two years and six months’ imprisonment but that the overall sentence was not manifestly excessive, as the discounts given by the Judge were unduly generous. The appeal was accordingly dismissed.
10 Pattison v R, above n 5.
[25] Plainly, the comparison with Mr Southern’s case is not apt. The charges faced by Mr Pattison were indecent assault charges which are less serious than the rape charge on which Mr Southern was sentenced. This is reflected in the maximum penalty of seven years’ imprisonment, compared to the maximum penalty of 20 years’ imprisonment for the rape charge.
[26] I do not consider that a comparison with R v Pattison helps Mr Southern’s case. His submission that something must have “gone wrong” for his sentence to be greater than that of Mr Pattison downplays what was a rape of a woman within her own home. The profound effect which the offending has had on the victim is evident from her victim impact statement, in which she states that she, among other things, suffers ongoing physical pain, constantly feels unsafe, experiences panic attacks, and feels uncomfortable with even her own children entering her personal space.
[27] In any case, I consider that the starting point which the Judge arrived at was entirely appropriate. The Judge considered the offending was within Band 1 of R v AM, which captures:11
[O]ffending 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 the others. Where none of the factors referred to above at [37] to [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.
[28] Mr Southern faces the obstacle that his offending is comparable to one of the cases referred to in R v AM, namely R v H (CA248/02):12
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.
11 R v AM, above n 7.
12 At [94]. Citing R v H CA248/02, 31 October 2002.
[29] With this in mind, I consider a starting point at the top of Band 1 was entirely appropriate.
[30] For completeness I note that Mr Southern also mentions a sentencing in this Court which he noticed in a media report in the week prior to one of his letters, where a defendant was sentenced to five years and nine months’ imprisonment for killing an 18 month old. The comparison is even less apt than the comparison with Pattison.
[31] Turning to the issue of remorse, I do not consider that the lack of restorative justice indicates that the Judge considered there was a lack of remorse or otherwise held the lack of a conference against Mr Southern. The Judge said:
[6] A restorative justice conference was to take place and it appears that she considered because of certain denials of yours that that should not take place concerning violence. I think there may have been a misunderstanding, I am unsure of that, but I put it on that basis in any event. I will give you the benefit of the doubt on that.
[32] I do not consider a further discount is warranted for remorse. Although Mr Southern states he is sorry for his offending, the majority of his points in his letters appear to focus on his general sorrow at the state of his relationship with the victim. He also expresses what I consider to be a worrying view of consent, particularly when remarking that:
Yes [the victim] was saying no and is upset but I was initiating a sexual encounter we’ve done before. I got it wrong, the experience this time was not received well, so I realised this and I stopped. Yes I ejaculated on her stomach as a confused departure from the experience.
[33] These remarks demonstrate a lack of insight into his offending, and in my view bring into question the sincerity of any remorse expressed. As does what can only be described as a thorough attempt to pervert the course of justice, although this was plainly dealt with by way of a discrete uplift to the starting point.
[34] Next, the supposed error in the PAC report. The writer proceeded without the knowledge that Mr Southern had accepted a sentence indication, and noted he had pleaded guilty to only two of the charges originally laid (the Crown did not proceed on the remaining charges). This was expressly addressed by the Judge, who also stated that Mr Southern “did not attempt to blame the victim in any way and [was] positive
about [the victim] as a person”. I do not consider anything improper happened here as regards the PAC report.
[35] I now turn to the discount for matters referred to in the cultural report. The Judge said:
[7] I did also have the benefit of a cultural report. That was very comprehensive and spoke about your childhood and issues that arose afterwards. One thing that is certain is that you did enjoy the benefit of loving and caring adoptive parents and they have been a support to you throughout. I do not underestimate the impact that the deaths of a close childhood friend, your best friend, had on you, nor the tragic subsequent deaths of a number of other people that were close to you and to him. That no doubt had conditioned you up to that I think Mr Sutcliffe described as a somewhat hedonistic lifestyle and led directly to issues of drug abuse and addiction issues over the years. You were capable of a lot more Mr Southern and are capable of a lot more.
[8] I however can only make certain allowances for those tragedies. A lot of people suffer tragedies and do not go on to offend in this way. However I make a further allowance of approximately five percent for those mitigating factors which will reduce the end starting point of eight years and six months by six months through the eight years.
[36] The reasoning of “others have suffered through similar, therefore the discount is limited” is not one which has found favour. As the Court of Appeal remarked in Carr v R:13
Nor is it appropriate to reason that because other people with disadvantaged backgrounds do not offend, legitimate references to deprivation affecting the life of an individual offender can be put to one side.
[37] As the Court of Appeal also noted in Carr v R, the assessment of an appropriate allowance to recognise matters raised in a s 27 report is a very fact specific exercise.14 The Judge properly referred to relevant matters from the report in [7] of his decision set out above. Another matter referred to in the s 27 report (not mentioned by the Judge) is that Mr Southern was a victim of unwanted sexual assaults at the age of 12 when he was at intermediate school. Three female students chased him around the school, restrained him and forced him to have orgasms. The report writer suggests that this then led Mr Southern to implement deviant sexual behaviour (threesomes, fantasies and bondage). She says this has a causative link to his offending.
13 Carr v R [2020] NZCA 357 at [66].
14 Carr v R, above n 13, at [63].
[38] Even adding this factor to the matters considered by the Judge, when I consider the appropriate discount, I take into account the gravity of the offending (a charge of rape) which tempers the extent of a discount. As a consequence I consider the five per cent discount for personal circumstances, taking into account the s 27 report, was appropriate.
[39] Finally, Mr Southern says that he has been a “model prisoner”; once released he hopes to see his children again; he has learned from courses attended while in prison; and he has prospects of employment on release. He submits that he does not pose a risk of re-offending. He states a number of times that if anyone were to get parole, it would be him. Whilst undoubtedly these are matters to be applauded, they are for the Parole Board to consider at his eventual parole hearing. They are not matters relevant to this appeal.
Result
[40]Accordingly, I grant leave to appeal, but the appeal is dismissed.
Gordon J
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