The Queen v Stewart

[2009] NZCA 117

IN THE COURT OF APPEAL OF NEW ZEALAND

CA797/2008
[2009] NZCA 117

THE QUEEN

v

REX GRAHAM STEWART

Hearing:1 April 2009

Court:Robertson, Gendall and Keane JJ

Counsel:J C Hannam for Appellant

M D Downs for Crown

Judgment:6 April 2009 at 11.30 am

JUDGMENT OF THE COURT

A        THE APPEAL IS ALLOWED.

BThe sentence of two years’ imprisonment on counts 1 and 2 is quashed and substituted with a term of one year and nine months’ imprisonment.  The sentence of one year on count 3 is confirmed.   All sentences to be served concurrently.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       This is an appeal against an effective sentence of two years’ imprisonment imposed upon the appellant after he pleaded guilty to three offences involving sexual exploitation of a young man who is intellectually impaired.

[2]       The pleas were entered part way through a trial on an indictment which contained eight counts.  After the pleas of guilty to three of the counts, the Crown did not offer further evidence and Mr Stewart was discharged on the remainder.

[3]       Ronald Young J in sentencing described the facts thus:

[2]       The first charge, which was a representative charge, involved two occasions when you took photographs of the complainant’s genitals.  On that same occasion following, as I understand it the taking of photographs, on those two occasions you touched his penis by masturbating him.  And the third time and this is the third charge you convinced him to take a photograph of his penis and send it to you through his cellphone.

[3]       The victim at the time was nineteen yeas of age.  He is as I have said intellectually disabled.  He generally lives with his family and you have provided care support for him from time to time over five years.  He came to your house and he has been staying with you on occasions over weekends.  The offending came to light when the victim accidentally sent a photograph of his penis to a woman that he worked with.  The police investigated and found text messages from you encouraging him to send photos of his genitals to you.

[4]       You admitted taking the photographs of his penis when he came to stay with you.  Your camera’s memory card had these photographs recorded on them on the same occasion as I have said that you touched his penis.

The appeal

[4]       Four substantive issues arise:

(a)What is the proper approach to sentencing under s 138(4) of the Crimes Act 1961?  This appears to be the first time the provision has been considered by this Court.

(b)       What was the appropriate starting point for the actual offending?

(c)       A discount for a plea of guilty and personal circumstances.

(d)      The possibility of home detention.

The proper approach

[5]       Section 138 provides:

138 Sexual exploitation of person with significant impairment

(1)       Every one is liable to imprisonment for a term not exceeding 10 years who has exploitative sexual connection with a person with a significant impairment.

(2)       Every one is liable to imprisonment for a term not exceeding 10 years who attempts to have exploitative sexual connection with a person with a significant impairment.

(3)       For the purposes of subsections (1) and (2), a person has exploitative sexual connection with a person with a significant impairment (the “impaired person”) if he or she—

(a)has sexual connection with the impaired person knowing that the impaired person is a person with a significant impairment; and

(b)has obtained the impaired person's acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.

(4)       Every one is liable to imprisonment for a term not exceeding 5 years who exploitatively does an indecent act on a person with a significant impairment.

(5)       For the purposes of subsection (4), a person exploitatively does an indecent act on a person with a significant impairment (the “impaired person”) if he or she—

(a)does an indecent act on the impaired person knowing that the impaired person is a person with a significant impairment; and

(b)has obtained the impaired person's acquiescence in, submission to, participation in, or undertaking of the doing of the act by taking advantage of the impairment.

(6)       For the purposes of this section, a significant impairment is an intellectual, mental, or physical condition or impairment (or a combination of 2 or more intellectual, mental, or physical conditions or impairments) that affects a person to such an extent that it significantly impairs the person's capacity—

(a)to understand the nature of sexual conduct; or

(b)to understand the nature of decisions about sexual conduct; or

(c)       to foresee the consequences of decisions about sexual conduct; or

(d)       to communicate decisions about sexual conduct.]

[6]       The section is concerned with exploitative behaviour generally.  Under subs (4) the specific elements are the performance of an indecent act on a person with significant impairment, and its being done exploitatively as defined in subs 5.

[7]       This Court in R v Tapson [2008] NZCA 155, an appeal by way of case stated, noted that predatory conduct is inherent in the offence.

[8]       Although frequently a breach of trust will be involved, that is not necessarily the case.  We see some force in the Crown’s submission that, because of an impaired victim’s inherent vulnerability, some regard can be had to cases of sexual offending against a person under the age of 12 although allowance must be made for the fact that, under s 132(3) of the Crimes Act, the maximum penalty is ten years, not five years as under s 138(4).  In considering the inherent vulnerability of the victim in this case, the approach in decisions of this Court, such as R v Frost CA242/89 27 October 1989 and R v Meredith-Blyde CA245/95 19 July 1995, can be helpful.

[9]       Bearing in mind the type of activity against which s 138 is directed, the offending alleged will almost inevitably be serious.

The starting point in this case

[10]     Mr Hannam suggested that what occurred in this case was less serious than some offending which could arise under this provision and that too much emphasis was placed on the breach of trust.  We do not agree.  Although this sort of offending will often arise out of a situation in which there is a breach of trust, that is not necessarily the case.  But in this case it clearly was.  It is a classic example of a vulnerable person exploited by someone introduced into his life specifically to provide protection.  It was not a one-off opportunistic incident.  There were three quite discrete occasions eventually admitted which occurred over a period of some years.

[11]     Ronald Young J took a starting point of two and a half years for the two charges involving photographing the penis and masturbating.  That was plainly within the available sentencing range.  The effect on the victim and his family was substantial.  In sentencing principles, denunciation was of real significance.  At the hearing counsel accepted that the term could not be challenged.

The discount for a plea of guilty

[12]     Pleas of guilty in this case were entered after the complainant had given evidence and when it was clear that the Crown would not pursue the other more serious counts in the indictment.

[13]     The Court has, over many years, made clear that the level of discounts for guilty pleas are determined primarily on the timing of the entry: R v H [2009] NZCA 77.

[14]     Having discussed the history and range which has been applied, the Court noted:

[24]     We readily accept that there will be cases in which pleas of guilty could not reasonably be expected upon the first appearance of the accused, or for a time after that – for example where the list of charges is long or complex, or where there are co-offenders.  Nevertheless, in order to attract the maximum discount an accused person will ordinarily need to show that he or she has pleaded guilty at the earliest reasonably available opportunity.  Here that simply did not occur.  There is no suggestion that the discussions conducted with the Crown Solicitor could not have been undertaken at an earlier point in time.  They appear to have concerned matters of detail rather than questions going to the appellant’s guilt.  For a period of many months the complainant would have been in a state of uncertainty about the outcome of these charges, and would have anticipated having to give evidence.  The appellant could, we think, have provided a measure of comfort to her by pleading guilty significantly earlier than he did.  The Judge’s decision to allow 25% for the guilty plea was open to her.

[15]     That reflects the approach the Court took in R v Kain CA474/97 17 March 1998 where it said:

… This Court has frequently emphasised that, in the interests of sparing complainants the ordeal of a trial, a significant allowance is to be made for the plea of guilty.  Generally speaking, that allowance will be greater the earlier the plea of guilty is entered as the complainant is then also spared the anxiety and trauma of waiting for trial.  Consequently, the person accused of a sexual offence who is genuinely concerned to spare the complainant the ordeal of a trial and the trauma of waiting for trial can be expected to plead guilty or to indicate his readiness to so plead at the earliest possible date.  It will seldom be acceptable for an accused to sit back and wait for the Crown to adjust the charges immediately prior to trial.  To attract the full allowance, the Court may see fit to make for a guilty plea, the accused must plead guilty or take positive steps to ensure his position is known at the earliest possible opportunity.

[16]     The appellant, when confronted by the Police, admitted texting the victim and telling him to take a photo of his penis and to send it to him.  He also admitted that he would text the victim if he was in another room telling him to masturbate himself, but denied physically masturbating the victim himself.  He accepted it was “like his own sexual fantasy”.

[17] This is one of those difficult cases where the sentencing was carried out in respect of less serious offending than was initially alleged. We were told by both counsel that after depositions (where the complainant did not give evidence), Mr Stewart made it clear that he would plead guilty to the three counts upon which he was eventually convicted on the basis of the factual summation referred to above in [3]. There was apparently some indication from the Crown that removing the other counts could be acceptable, but only on the basis that Mr Stewart admitted that the photographing and masturbating had occurred on a regular, if not consistent, basis.

[18]     It was only after the complainant had given evidence (and we are told some concerns were expressed by the trial Judge with regard to an evidential foundation for the more serious charges of sexual violation and the frequency of the admitted conduct) that the Crown decided to accept pleas of guilty to the three counts on the basis of three specific occasions.

[19]     Substantial issues of principle as to how a Court should apply the discount regime in these sorts of circumstances can arise.  As it transpired, Mr Stewart was convicted, and was to be sentenced, only in respect of those issues which he had admitted pre-trial.

[20]     Mr Downs responsibly submitted that, had Mr Stewart’s admitted criminality been accepted at that stage, a discount in the order of 25 per cent would have been justified.  Without suggesting any principle of more general application, we are satisfied that must be the case in the present circumstances.

[21]     Although in his sentencing notes the Judge adverted to the fact that Mr Stewart had no previous convictions, he made no particular allowance for the fact he was appearing at the age of 47 with a creditable community record and in employment.

[22]     By the time he was sentenced, the appellant had convictions relating to abuse of cannabis upon which he had been sentenced to community work, but that is of little relevance in this exercise.

[23]     He had strong support from people who knew the details of the offending, including his current employer.  The pre-sentence report indicated there was little likelihood of further offending, although noted that was difficult to assess with regard to his sexual fantasy.

[24]     When these two factors, which can be relevant to a discount, are viewed in the round, we are satisfied that the six month discount from the starting point of two and a half years was inadequate.  Mr Stewart was entitled to a reduction of 30 per cent (which was nine months) to reflect the pleas having regard to the problems associated with their timing, and considering his life history until this offending.  We make such a relatively small reduction on the basis that a factor of relevance appears not to have been given recognition.

Home detention

[25]     Both the sentence imposed by the High Court Judge, and that which we have concluded should have been imposed, required a sentence of home detention to be considered.

[26]     The Judge declined to do so and noted particularly:

[10]     … I am not prepared to impose home detention.  It is simply too serious and a clear message needs to be given that offending against vulnerable people in your situation where you are in a position of trust is too serious to result in a sentence of home detention.

[27]     Mr Hannam submits that this approach is contrary to s 16 of the Sentencing Act 2002 and he refers particularly to a decision of Gendall J in R v JAP HC WANG CRI-2007-083-00186 9 June 2008.  That case is quite unhelpful as it involved sexual contact between a husband and his wife who was in an advanced state of dementia.  It is so far removed from the circumstances of this case as to be of no assistance.

[28]     We agree with the sentencing Judge that the breach of trust, the persistent nature of the offending and the total vulnerability of the complainant meant that the offending was too serious to be dealt with other than by way of a full time custodial sentence.  By his behaviour, he forfeited the right to remain within the community.

[29]     Among the factors which point so strongly in this direction are the damage which was caused to the complainant, the gross breach of trust in respect of a very vulnerable man within a place which he viewed as his home, the disparity in age between the appellant and the victim, and the period over which the offending occurred.

[30]     Home detention was not, therefore, an option.

Result

[31]     The appeal is allowed.  The sentence of two years’ imprisonment on each of the first two counts is quashed and substituted with a sentence of one year and nine months’ imprisonment on each of counts 1 and 2.  On the third count we confirm the sentence of one year’s imprisonment.  All sentences are to be served concurrently.

Solicitors:
Crown Law Office, Wellington