STEWART STANLEY HUBBARD AND THE KING
[2024] NZHC 2604
•11 September 2024
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 NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2024-441-9
[2024] NZHC 2604
BETWEEN STEWART STANLEY HUBBARD
Appellant
AND
THE KING
Respondent
Hearing: 29 August 2024 (via VMR) Appearances:
J S Jefferson for Appellant I R Murray for Respondent
Judgment:
11 September 2024
JUDGMENT OF McQUEEN J
[1]Mr Stewart Hubbard appeals his:
(a)convictions for indecent assault on a girl aged between 12 years and 16 years1 and stupefaction2, following a Judge-alone trial; 3 and
(b)sentence of four years and three months’ imprisonment.4
1 Crimes Act 1961, s 134 (as it was in 2004, when the offending occurred). The maximum penalty is seven years’ imprisonment.
2 Section 197(1). The maximum penalty is five years’ imprisonment.
3 R v Hubbard [2023] NZDC 9677 [Conviction decision].
4 R v Hubbard [2023] NZDC 16675 [Sentencing decision].
HUBBARD v R [2024] NZHC 2604 [11 September 2024]
[2] Mr Hubbard says that the Judge erred in finding the charges proved because the complainant and her mother were not reliable witnesses and their evidence contained inconsistencies. Mr Hubbard also says the sentence was manifestly excessive.
[3] The Crown opposes the appeal, arguing there was no miscarriage of justice by way of conviction and the sentence is not manifestly excessive.
The offending
[4] The offending occurred at the end of 2004 when the complainant was 15 years old and the appellant was 48 years old. The complainant’s mother told her to accompany Mr Hubbard, who required assistance in the nature of door knocking (the complainant would knock on the door so that the Mr Hubbard could ascertain whether the occupant was home, without revealing who wanted to talk to them). The complainant had done this before for other adults. She was told it would take about five minutes.
[5] Mr Hubbard drove the complainant to an associate’s address in Pōrangahau where he gave her pills to take. She did not take the pills, instead putting them in her bag. She felt uneasy and telephoned her mother asking her to come and get her. Her mother was unhelpful, not knowing where the complainant was and not having any means to get her. Her mother reassured her she would be alright with Mr Hubbard.
[6] Later on, Mr Hubbard went through the complainant’s bag and found the pills. He supplied her with a drink containing those pills. The complainant drank the drink and soon became unconscious. She awoke the next morning lying next to Mr Hubbard, both naked apart from underpants. Based on pain in her genitals and the presence of ejaculate she became aware that she had been sexually assaulted. Mr Hubbard drove her back to her mother. The complainant’s mother gave her methamphetamine, telling her it would make her feel better.
[7] The complainant disclosed what had happened to her sister when she was 18 years old.5 Nine or 10 years later, she reported the incident to the Police when making an unrelated statement.
Procedural history—mistrials
[8] The first attempted trial in this matter was declared a mistrial in July 2017.6 Mr Hubbard was to be tried by jury for sexual violation by rape and stupefaction. The trial was joint, with complainant’s mother as a party to the charges. The complainant’s mother pleaded guilty to supplying methamphetamine and the trial Judge dismissed the sexual charges against her under s 147 of the Criminal Procedure Act 2011. The trial Judge ordered a retrial of Mr Hubbard.
[9] On 6 March 2018 a retrial for Mr Hubbard commenced, culminating in him being convicted of sexual violation by rape and stupefaction, and sentenced to nine years’ imprisonment.7 He appealed his convictions on the basis of the directions the District Court Judge gave the jury, which made no reference to the presumption of innocence, the burden of proof or the standard of proof. On 21 February 2020 the Court of Appeal quashed his convictions, finding that the omissions in the jury directions constituted a miscarriage of justice.8 The Court ordered a second retrial, which was set down but delayed three times by the pandemic and other events. It was set down a fourth time to a date in March 2023 that had to be vacated due to Cyclone Gabrielle. At that time, Mr Hubbard changed his election from jury trial to Judge-alone trial.
The trial under appeal
[10] On 15 and 16 May 2023, Mr Hubbard was tried before District Court Judge Aitken. On 2 June 2023, the Judge issued verdicts finding stupefaction proved and that the evidence established the alternative charge of indecent assault on a girl aged
5 I observe that the District Court said the complainant’s disclosure to her sister occurred 18 months after the offending: see Conviction decision, above n 3, at [38].
6 See Hubbard v R HC Napier CRI-2024-441-9, 28 May 2024 (Minute of Grice J).
7 R v Hubbard [2018] NZDC 8920.
8 Hubbard v R [2020] NZCA 22.
12 years to 16 years,9 because the Judge could not be satisfied beyond reasonable doubt that the penetration element of sexual violation by rape was established.
[11] On 16 June 2023 the Judge provided her written reasons.10 The Judge reminded herself of the burden and standard of proof, treating the appellant as innocent until the Crown proves his guilt. The Judge identified the three elements of each offence and two issues for determination: has the complainant given an honest, plausible and reliable account; and if so, can the Court conclude from her account that the Crown has proved the charges to the requisite standard?
[12] The Judge first considered whether the complainant had given an honest account, addressing three factors. The Judge concluded that the timing of the complaint did not tend to make the complainant a dishonest witness. There were good reasons why she made her complaint several years after the event. She had lost trust in the Police when she had earlier reported an unrelated incident and the Police did not take action. She did not tell her mother when she returned home because she believed her mother was complicit in the offending. The Judge was aware of research that shows victims of sexual offending react to the trauma in different ways including by not disclosing the offending for some time. The timing of the complaint was treated as a neutral factor.
[13] The Judge concluded that no improper motive on the part of the complainant could be discerned. The complainant strenuously denied that she complained to the Police to get back at her mother, who she believed had arranged to supply Mr Hubbard with her in exchange for methamphetamine,11 and in any event her mother would not be harmed by the complainant’s evidence given she was discharged from the rape charge.
[14] The Judge emphasised that the complainant gave a detailed and consistent account. At times the complainant presented as frustrated at having to answer questions put to her before, but at no time did she waver from her account.
9 Charge amended under Criminal Procedure Act 2011, s 136.
10 Conviction decision, above n 3.
11 At [7] and [89].
[15] The Judge therefore concluded that the complainant honestly believed the account she gave to the Court.
[16] The Judge then concluded that the complainant’s account was inherently plausible. The Judge did not find it implausible that a friend of the complainant’s mother would take her away from home, surreptitiously drug her drink and then sexually assault her. The Judge referred to the unchallenged facts that Mr Hubbard did know the property in Pōrongahau, had been there before, had stayed in the caravan, and had taken other girls and young people there.
[17] The Judge took into account the defence argument that the complainant fabricated the whole story. The Judge concluded that the complainant’s evidence was reliable. Since the complainant’s evidential interview in 2015, she had given the same relatively detailed account on four separate occasions. Her evidence as to the layout of the property was not “so inconsistent with the evidence of the other witnesses as to make it unreliable.”12 The Judge reminded herself that the layout of the property might be somewhat of a peripheral issue, concluding that even if the complainant’s recollection of the internal layout is inaccurate, it is not so inaccurate as to conclude that she was never there, nor does it render unreliable her account of what happened there.
[18] The complainant’s evidence about making a telephone call from a small hallway in the house was preferred, the Judge having recognised that the reliability of her evidence as to having made a telephone call from the landline in the house being “perhaps the strongest challenge to her overall reliability”.13 The Judge considered the aspects of the evidence of another person (who I call Ms M) that were inconsistent with the complainant’s account, concluding that she was satisfied Ms M was the woman at the property when the complainant was taken there by Mr Hubbard. The Judge concluded that little turned on the complainant not recognising the appellant from a photo montage presented to her by the Police because she has always known him by name and identified him by name.
12 At [133] and [138].
13 At [148].
[19] The Judge accepted the complainant’s evidence that she travelled to the property with Mr Hubbard and her evidence as to what happened there. The Judge found her evidence detailed, compelling and convincing.
[20] The Judge was satisfied beyond reasonable doubt that the appellant intentionally rendered the complainant unconscious, without lawful justification or excuse, such that stupefaction was proved.
[21] The Judge could not exclude the possibility that penetration did not occur, which is one of the necessary elements of sexual violation by rape. The Judge was satisfied that the appellant ejaculated on the complainant’s genitalia when she was unconscious after he stupefied her. The Judge concluded that the evidence supported finding the lesser charge of indecent assault on a girl aged between 12 years and 16 years proved, under s 134 of the Crimes Act 1961 as it was at the time of the offending in 2004. The Judge accordingly amended the charge to fit the evidence pursuant to s 136 of the Criminal Procedure Act. In an addendum to the conviction decision correcting an error of dictation, the Judge added:14
… I was satisfied that the defendant was well aware of the aspects of the assault and the surrounding circumstances that would make his offending indecent to right-minded members of the community. It is a fairly self-evident point in my view given his knowledge of her age and the fact that he drugged her and what he did to her.
The sentencing under appeal
[22] On 8 August 2023 Judge Aitken imposed on Mr Hubbard a sentence of four years and three months’ imprisonment.15
[23] The Judge assessed the starting point on the basis that the offending was a serious one-off indecent assault coming close to sexual violation. The Judge considered other aggravating factors:
(a)The age of the complainant, although the Judge noted that is inherent in the charge.
14 Sentencing decision, above n 4, at [1]–[3].
15 Sentencing decision, above n 4.
(b)The vulnerability of the complainant, who had been drugged and was unconscious at the time of the indecent assault.
(c)The offending was premeditated. Mr Hubbard drove the complainant to his friend’s house where he knew he could spend the time and took the pills with him or obtained them once there.
(d)The offending was highly intrusive, demeaning, degrading, humiliating and took away the complainant’s agency over her body.
(e)The offending had a significant impact on the complainant. She gave evidence and a victim impact statement about the long-term adverse impact of the offending.
[24] The Judge acknowledged that the legal process including the complainant needing to give evidence in three separate trials was traumatising for the complainant, but expressly said that is not a factor attributable to Mr Hubbard.
[25] The Judge noted that the Crown had sought a starting point of four years and counsel for Mr Hubbard had sought three years. Having noted that there is no tariff decision for indecent assault, that regard was had to the cases referred to her by counsel, and that the aggravating factors put the offending well above the mid-range for assault of this type, the Judge imposed a starting point of five years’ imprisonment.
[26] In considering personal aggravating factors, the Judge considered that although Mr Hubbard has prior convictions, their dissimilar nature did not require the Court to uplift the starting point.
[27] As to mitigating factors, the Judge summarised the cultural report and probation report. The Judge noted that Mr Hubbard denies the offending and expresses no remorse. The report writers identified two factors potentially providing a causative link to the offending. The first was cultural deprivation. The appellant has Māori whakapapa but is deprived from his culture. The Judge noted that empirical evidence links cultural deprivation of Māori with an increased risk of offending but in the
circumstances, nothing in his personal history evidenced any impact of cultural deprivation given he continues to deny the offending. The Judge acknowledged that Mr Hubbard’s mother died when he was 16 years old, which may have led him into the antisocial behaviours forming the basis of his conviction history but struggled to find a causative connection between the death of his mother 30 years earlier and a serious indent assault on a 15-year-old girl he had drugged. However, the Judge accepted the submission that the combination of those factors may have left Mr Hubbard with a poor moral or social compass such that he was more susceptible to act in the way he did. The Judge applied a nominal discount of around seven per cent for that.
[28] The Judge applied an eight per cent discount for the appellant’s age (68 years at the time), ill health, and the length of time that these proceedings had been “hanging over” him (seven years). The total discounts amounted to 15 per cent, resulting in the end sentence of four years and three months’ imprisonment.
Approach on appeal
Conviction appeal
[29] This appeal is brought under s 229 of the Criminal Procedure Act. Section 232(2)(b) provides that a first appeal court must allow a first appeal if satisfied that,––
…
(b)in the case of a Judge-alone trial, the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
The Court must dismiss the appeal in any other case.16
[30] Where an appellant argues that a Judge erred in their assessment of the evidence, the appeal proceeds by way of rehearing, and the appeal court is required to
16 Criminal Procedure Act, s 232(3).
form its own view of the facts.17 If the appeal court comes to a different view than the trial Judge on the evidence, the appeal must be allowed.18 The appellant has the onus of showing that an error has been made. In assessing the evidence, the appellate court must recognise any benefits that the trial Judge may have had. Particularly, where a challenge is made to the credibility of findings based on contested oral evidence, the appellate court must exercise caution.19
[31]For the purpose of s 232(2), “miscarriage of justice” is defined as:20
… any error, irregularity, or occurrence in or in relation to or affecting the trial that [either] has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.
[32] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice. Importantly, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.21 A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.22 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe” but that there is a real possibility the verdict would be unsafe.23
Sentence appeal
[33] Mr Hubbard’s right of first appeal against his sentence is under s 244 of the Criminal Procedure Act. Under s 250, the appeal court must allow the appeal if it is satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.
[34] The requirement that the sentence be “manifestly excessive” for an appeal to succeed is well-established in the courts’ approach to sentence appeals.24 An appellate
17 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575, at [26]–[32]. See also Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
18 Sena v R, above n 17, at [38].
19 At [38]–[40].
20 Criminal Procedure Act, s 232(4).
21 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
22 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
23 At [110].
24 Ripia v R [2011] NZCA 101 at [15].
court must not tinker with the end sentence if the end sentence is within range25 because it must be shown that the sentence was manifestly excessive or wrong in principle.26 The focus is the end sentence rather than the process by which the Judge reached that end sentence.
Positions of the parties
[35] Counsel for Mr Hubbard, Mr Jefferson, submits the Judge erred in finding that the complainant gave an honest, plausible and reliable account from which the Court could conclude that the charges were proved beyond reasonable doubt, such that a miscarriage of justice occurred.
[36] Mr Jefferson further submits the sentence was manifestly excessive due the starting point of five years’ imprisonment being too high, and the discounts given being insufficient.
[37] Counsel for the Crown, Mr Murray, submits there was ample evidence for the Judge to conclude beyond a reasonable doubt that the charges were proved. He says that the Judge provided extensive reasons, which establish a sufficient basis for her findings of guilt.
[38] As regards the sentence, Mr Murray submits the starting point was within range, if stern, and the discounts for cultural factors, age and health circumstances were appropriate and no discount was required for the procedural history. He says therefore the sentence was not manifestly excessive.
Analysis: Did the Judge err in assessing the evidence such that a miscarriage of justice occurred?
[39] I have already noted that, in relation to both charges, the Judge undertook a careful evidential analysis. She presided over the Judge-alone trial, hearing oral evidence and receiving written evidence and exhibits. At the appellate court stage now, I must bear in mind that the evidence before this Court is a written record only. To the
25 At [15].
26 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].
extent that there is conflicting evidence, and issues of credibility, an appellate court will exercise its “’customary’ caution”.27
[40] Mr Jefferson identifies several matters that he says demonstrate that the complainant did not give an honest account.
Delay in complaint being made
[41] The first point is there was a delay of over 10 years between the alleged offending and the complainant’s first report to Police. Mr Jefferson emphasises that the complainant spoke to Police about different incidents five or six months after the alleged offending and did not mention Mr Hubbard’s alleged offending at that time.
[42] In her reasons, the Judge dealt with the delay in some detail.28 At the time of this discussion with Police, the complainant was speaking to Police about other incidents that involved a friend. The Judge found that the complainant’s reasons for not complaining to Police were not at all implausible. The Judge acknowledged the complainant’s focus on raising concerns with the Police about the safety of her friend, the good reasons that cause complainants to delay reporting and that the complainant’s life circumstances further explained the delay. I am satisfied that the Judge did not err in her assessment of these matters or in her conclusion that the timing of the complaint to Police is a neutral factor in assessing whether the complainant is an honest witness.
No caution under s 122 of the Evidence Act 2006
[43] Mr Jefferson submits that the Judge erred in not reminding herself of the need for caution before convicting Mr Hubbard in reliance on evidence that could be unreliable given its age.29
[44] I accept Mr Murray’s submission that the Judge not explicitly noting the need for caution in assessing the evidence of the case is not of concern. The need for caution means that the fact-finder must carefully assess all evidence to be satisfied that they
27 Sena v R, above n 17, at [38], citing Austin, Nichols, above n 17, at [13].
28 Conviction decision, above n 3, at [85]–[101].
29 Evidence Act 2006, s 122.
can rely on a complainant’s evidence. The need for caution is evident from the Judge’s detailed and careful reasoning process.
The complainant’s motivation to lie
[45] Mr Jefferson submits that the complainant had motivation to lie to get back at her mother, who she blamed for the incident and her appalling childhood. The Judge did not consider this criticism meritorious given that the rape charge against the complainant’s mother had been dismissed and her mother had pleaded guilty to the charge of supplying the complainant with methamphetamine. Mr Jefferson says that the answer to this is that the complainant had committed herself to this narrative when she first complained to Police and could not resile from it without consequences. I do not accept that this does establish motivation to lie, especially where, as the Judge noted, there was no evidence of any ongoing relationship between Mr Hubbard and the complainant’s mother. I am satisfied the Judge did not err in this regard.
The plausibility of the complainant’s account
[46] Mr Jefferson says that the plausibility of the complainant’s account is affected by her not knowing where she was when she said she telephoned her mother from the address, given the evidence that there were road and town signs on the way to the property.
[47] The Judge concluded that it was not implausible or unbelievable for the complainant to say she did not know where she was. The Judge said the complainant was 15 years old, she had been driven by Mr Hubbard for the previous hour, and was slightly anxious but not aware of what was going to happen. The Judge concluded it was not surprising that someone of the complainant’s age, in those circumstances, was not observing the road signs and committing them to memory. In my view, the Judge did not err in coming to this conclusion. The Judge went on to say that the unchallenged evidence that Mr Hubbard had been to the address before, had stayed in the caravan and taken other young people there supported her conclusion that the complainant’s account of Mr Hubbard taking her to the address on the day in question made the complainant’s account inherently plausible. I am satisfied the Judge did not err in this regard.
[48] I now address the matters Mr Jefferson says demonstrate that the complainant’s evidence was not reliable.
Layout of house; availability of the telephone
[49] Mr Jefferson submits that the complainant’s description of the layout of the house was inconsistent with the Police account. He also says that the complainant could not have called her mother on a landline at the address because there was a toll bar on the landline. Further, the telephone was not in the hallway because there was no hallway where she described.
[50] The complainant recognised the address when taken there by Police and was able to recall the layout of the property in general terms including the outdoor bath. The Judge concluded that the complainant’s evidence about the layout of the house was not so inconsistent with the Police evidence or the evidence of Ms M as to make it unreliable.
[51] As for whether the telephone call to the complainant’s mother could not have occurred because of a toll bar on the telephone, the Judge regarded this as the strongest challenge to the complainant’s overall reliability. The Judge recorded that she did not rely on the evidence from the complainant’s mother as corroborating the complainant’s account. Nonetheless the Judge preferred the complainant’s account over that of Ms M. This was supported by the Judge’s preference for the complainant’s evidence in relation to other aspects where there was inconsistency with Ms M’s evidence.
[52] The evidence about the hallway was not clear-cut but I agree with the Judge’s conclusion that the layout of the property was somewhat of a peripheral issue. The evidence was that there was a telephone at the address. The Judge was satisfied that given the chaotic circumstances at the address it was plausible that any toll bar that may have been on the telephone was not always in place. The significance of the events for the complainant but not for Ms M supports the Judge’s preference for the evidence of the complainant.
[53]I can see no basis on which the Judge erred in assessing these matters.
Other inconsistencies with Ms M’s evidence
[54] Mr Jefferson refers to two other inconsistencies between the evidence of the complainant and the evidence of Ms M. The complainant described poppies growing at the address and said that Ms M was naked when she opened the door of the house to her, both matters disputed in Ms M’s evidence. Further, Ms M gave evidence she had no memory of the complainant visiting. The Judge dealt directly with these points, finding that she could not rely on Ms M’s denial of growing poppies as truthful and that given the evidence was that Ms M walked around naked and showed visitors her garden, it would be an extraordinary coincidence if she was not the same person who answered the door of the house when the complainant knocked on it, or showed her around the garden. The Judge preferred the evidence of the complainant on these matters. The Judge observed that the sight of a mature woman naked would be a graphic image for a 15-year-old that she is highly likely to remember and regarded the complainant’s evidence on this point as a memorable detail to an honest account.
[55]I can see no basis on which the Judge erred in assessing these matters.
Inconsistent evidence about use of cell phone
[56] Mr Jefferson says the complainant gave inconsistent evidence by saying she could not use her cell phone due to a lack of credit, that no one in her family called the Police, and yet she asked her mother to call the Police.
[57] The Judge concluded that the complainant gave a consistent account about why she did not call the Police on her cell phone (even though she knew she could make such a call without credit on the phone). The key reasons were that she had a plausible explanation generally for not calling the Police—although she was fearful at that stage of the evening, nothing had happened to her, she had rung her mother who she had asked to call the Police, and she did not know her location. I do not accept that there is any inconsistency here. If her mother had called the Police, she could have provided the address as she knew what it was. The complainant was not in such a position.
Failure to identify Mr Hubbard in photo montage
[58] Mr Jefferson submits the complainant did not identify Mr Hubbard in a photo montage in 2015. The Judge concluded little turns on this, not only because the complainant has always known him by name and identified him by name, but because Mr Hubbard acknowledged in his brief interactions with the Police that he knew the complainant and her mother and that he had taken her for a drive in his car (evidence the complainant also gave). Mr Murray adds that there is other relevant evidence as to Mr Hubbard’s connection to the address and its owner, as well as the complainant having accurately described Mr Hubbard’s car.
[59]I can see no basis on which the Judge erred in assessing these matters.
[60] Overall, I do not consider that the matters raised by Mr Jefferson demonstrate, in aggregate, that the complainant did not give an honest, plausible and reliable account and that there was insufficient evidence for the Judge to find that the Crown had proved the charges to the requisite standard.
[61]Having considered the evidence afresh, I am satisfied of the following:
(a)The Judge was correct to find that the penetration element of rape was not proved on the evidence available. Other explanations for the pain the complainant experienced in her genitalia could not be excluded beyond reasonable doubt. Accordingly, the Judge was correct to amend the charge to indecent assault on a girl aged between 12 years and 16 years.
(b)There was sufficient evidence establishing beyond reasonable doubt that Mr Hubbard indecently assaulted the complainant after rendering her unconscious. There was sufficient evidence that Mr Hubbard was well aware of the aspects of the indecent assault and the surrounding circumstances would make his offending indecent to right-minded members of the community.
(c)There was sufficient evidence proving beyond reasonable doubt Mr Hubbard wilfully, without lawful justification or excuse, rendered the complainant unconscious. The complainant gave reliable and honest evidence about the pills Mr Hubbard gave her in a drink, and the effect those pills had.
(d)The Judge gave thorough consideration to the defence argument that the complainant’s story was fabricated, in an attempt to get back at her mother, and that the complainant was an unreliable and dishonest witness. Each aspect of Mr Hubbard’s arguments about the pleaded reasons for the unreliability and dishonesty of the complainant’s evidence, including inconsistency with other evidence and plausibility, were expressly taken into account in the Judge’s reasoning. Mr Hubbard did not call or give evidence, which the Judge correctly noted does not indicate guilt or alter the burden or standard of proof.
[62] Accordingly, I am satisfied that the Judge did not err in her assessment of the evidence such that a miscarriage of justice occurred.
Analysis—is the sentence manifestly excessive?
[63] There is no tariff judgment for indecent assault or stupefaction. The Judge appears to have sentenced indecent assault on a girl aged 12 years and 16 years and stupefaction together (as opposed to setting a lead charge and uplifting for the lesser charge or sentencing separately and imposing concurrent or cumulative sentences)30, given the interlinked way in which those offences were committed.
[64] Mr Jefferson submits that the starting point of five years’ imprisonment was too high, noting that the Crown submitted at the sentencing hearing that approximately four years was an appropriate starting point. He argues that the Judge’s assessment of the seriousness of the offending (being close to sexual violation) wrongly influenced the starting point reached.
30 See Sentencing Act 2002, s 85.
[65] Mr Murray submits that the starting point of five years’ imprisonment was stern but within range, given the maximum sentence for the most serious charge, indecent assault, is seven years’ imprisonment. He says that it is for the sentencing Judge to apply first principles to identify the appropriate starting point given there is no guideline judgment. Mr Murray submits that it was open to the Judge to conclude that the offending fell only very slightly shy of rape.
[66] I have considered the cases referred to by counsel.31 As the Court of Appeal noted in Harris v R, only limited assistance in selecting a starting point can be gained from other sentencing decisions.32 Counsel disagree as to whether Mr Hubbard’s offending is more serious than that in R v G, where the starting point for the main complainant B in relation to the lead charge of an assault with intent to commit sexual violation was five years’ imprisonment (although this was increased to an end sentence of eight and a half years’ imprisonment for other offending and the stupefaction).
[67] I consider that the offending against B in R v G can be seen as comparable to the offending in this case, in terms of seriousness. The offending is not similar factually as such but there are common aggravating factors of the age and vulnerability of the complainant, abuse of trust, premeditation, intrusive and demeaning offending and the harm occasioned to the complainant.33
[68] As for the Judge referring to the offending being just shy of rape, I accept Mr Jefferson’s submission that care must be taken to focus on the evidence on this aspect. The Judge found that Mr Hubbard ejaculated on the complainant in the region of her genitalia and accepted her evidence that when she woke up her vaginal area was sore. Mr Jefferson accepts that ejaculating on the complainant aggravates the indecent assault but says it does not elevate the matter to being close to sexual violation. He notes that the Judge could have amended the charge to s 134(1) of the Crimes Act then in force, being an attempt to have sexual intercourse with a girl between 12 to 16 years but did not. I agree that the relevant factual findings are aggravating.
31 The cases cited by the parties are R v Lim [2017] NZDC 18594; R v G [2014] NZHC 2801; and
Harris v R [2018] NZCA 632.
Harris v R, above n 31, at [22].
33 R v Paki [2012] NZHC 3494 at [30].
[69] I prefer to characterise the offending as constituting a serious one-off indecent assault (also a description used by the Judge in her sentencing remarks). Although one- off, I note that the offending was not opportunistic. Mr Hubbard took the complainant on a long drive to an unfamiliar location, under the false pretence of door knocking. He was set on stupefying the complainant such that he gave her pills to take, went through her bag to find she had not taken them, and then surreptitiously administered those pills that the complainant had taken steps not to consume, by mixing them in a drink. That level of premeditation is a strong aggravating factor.
[70] Having considered these matters, I conclude that, although stern, a starting point of five years’ imprisonment was available to the Judge.
[71]I turn to consider the question of discounts.
[72] Mr Jefferson says that the total discount of 15 per cent for cultural deprivation, loss of a parent, age, ill health and time until disposition of the case was insufficient. Mr Murray says the discounts at this level were open to the sentencing Judge and can be seen as well within range if not generous.
[73] Discounts for cultural factors tend to range between 10 and 30 per cent. The quantum of the discount depends on the degree to which the relevant factor has contributed to the offending. The Supreme Court set out the test for such discounts in Berkland v R as one of causative contribution.34 The Court further observed that when the offending is particularly serious, causative contribution can be displaced.35 And, background factors will be most meaningful where the potential sentence is at the margin between imprisonment and a community based sentence.36
[74] Mr Jefferson notes that the cultural report writer observed that Mr Hubbard had experienced deprivation of culture which was pertinent to his offending. Mr Jefferson refers to the Court of Appeal’s recent observation that an offender denying their offending does not in itself prevent the Court from identifying a nexus
34 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109]–[110] (footnotes omitted).
35 At [111].
36 At [112].
between cultural factors and the offending (although any discount given is likely to be less generous when there is a continued denial of offending).37
[75] Taking account of the Berkland v R test, the nominal discount of seven per cent for cultural factors leading to a poor moral or social compass was modest, but in my view, appropriate. I agree with observation of the sentencing Judge that it is difficult to confidently identify a causative connection between the difficulties in Mr Hubbard’s upbringing and the death of his mother, and a serious indecent assault on a 15-year- old girl that he had drugged when he was approximately 48 years old.38 The sentence was not at the margin of custodial and community-based. The extent of the causative connection between those factors and the offending is properly regarded as low, and the seven per cent discount to reflect that was adequate.
[76] Age and ill health can be recognised by way of a discount if imposing a sentence without recognising those factors would require the court to impose a sentence which is disproportionately severe to the offender’s personal circumstances.39
[77] Mr Jefferson refers to M (CA91/12) v R, where the Court of Appeal upheld a reduction of two years to the appellant’s sentence in respect of ill health.40 The appellant in that case was 79 years old with diabetes, heart disease, angina, hypertensions and other health challenges. Mr Jefferson says that Mr Hubbard has similar concerns, being aged 69 years old and taking medication for gout, diabetes, hypertension and other diagnoses. In Smail v R the offender awaited resolution of the case for almost five years.41 The Court of Appeal reduced the minimum period of imprisonment by one year in respect of this factor.
37 McLean v R [2024] NZCA 298 at [19]. I observe that this decision was only released on 5 July 2024 so was not available to the Judge at the time Mr Hubbard was sentenced.
38 Sentencing decision, above n 4, at [24].
39 See R v Walker [2016] NZHC 1667 at [16], citing M (CA91/2012) v R [2013] NZCA 325 at [52];
and Hastie v R [2011] NZCA 498.
40 M (CA91/12) v R, above n 39, at [54].
41 Smail v R [2011] NZCA 403 at [94]–[103].
[78] In Mr Hubbard’s case, he waited seven years for resolution including three attempts at trial. Mr Jefferson submits, therefore, that a greater discount should have been applied. He does not propose any specific percentage or time period.
[79] The discount of eight per cent for age, ill health and the length of time until disposition of the matter was available to the Judge. It is perhaps unusual to include a discount for the length of time until disposition together with a discount for age and ill health. Length of time to disposition will not usually relate to the offender but the criminal justice process, whereas age and ill health are personal to the offender.
[80] This discount for these matters was low, but in my view, not so small that it was manifestly inadequate. There is no evidence that imprisonment would be so disproportionately severe to the appellant’s personal circumstances such that a larger discount would be just. Nor am I satisfied that the length of time to disposition is such that a greater discount is required.
[81] Once an end sentence has been calculated, the court must step back and consider the totality, ensuring the total sentence is proportionate to the gravity of the overall offending.42 I conclude that the sentence is not manifestly excessive, nor is there any error that justifies appellate intervention.
Result
[82]The appeal against conviction is dismissed.
[83]The appeal against sentence is dismissed.
McQueen J
Solicitors:
Harbour Chambers, Wellington for Respondent
42 Sentencing Act, s 85.
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