Tini v Police

[2013] NZHC 2143

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-197 [2013] NZHC 2143

BETWEEN	TAGIILIMA TINI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 August 2013
Counsel:	W M Ryan for the Appellant A Boberg for the Respondent
Judgment:	22 August 2013

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 22 August 2013 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr W M Ryan, Barrister, Auckland

Ms A Boberg, Meredith Connell, Office of the Crown Solicitor, Auckland

TINI v POLICE [2013] NZHC 2143 [22 August 2013]

[1]      The  appellant  appeals  against  a  sentence of  7  months  imprisonment for indecent assault of a girl aged 12.1   The principal submissions for the appellant are that the starting point of 10 months imprisonment was too high and that the Judge’s decision declining home detention was wrong.

The facts

[2]      The appellant pleaded guilty.  The offence occurred in October 2011.   The

Judge summarised the facts, taken from the police summary of facts, as follows:

[2]       The summary of facts discloses that at the time of this offence you were 28 years of age and a part-time courier driver.  The victim was 12 years old at the time and attending intermediate school in Howick.  At 7.15 am on the day in question the victim was walking along the road to catch a bus to school.  She was in her school uniform and walking alone.  You stopped the courier van and went to talk to her.  You asked her if she would like a ride and she said, “No.”  You got out of your vehicle and approached her.  You placed your hand on her shoulder and said, “Come, I’ll drop you off.”  The victim was frightened and got into the front seat of your vehicle.  You commenced driving the victim towards her school in Howick. You asked for her hand, she put her hand out and you reached over to hold it.  She then pulled her hand away and placed her hands in the pockets of her skirt.  You reached out and touched her school logo on the left side of her sweatshirt, and then reached over and rubbed her right breast on the outside of her sweatshirt.   She asked you to stop which you did.   You then asked her a number of questions, some of which were of a personal nature, and as you dropped her at the school you asked her if she wanted you to pick her up after school.

[3]       When you were spoken to by the police you said the victim had got into your vehicle willingly, and that you thought she was older than she was.

[3]      The Judge summarised the victim impact statement as follows:

[4]       As a result, your offending has had a significant affect on the victim. She was scared and stressed, and is taking herbal supplements to assist with stress and anxiety.  She has had to attend counselling, and the victim impact statement refers to the affect that the incident has had on her relationship with her sisters, and that she has been suffering from depression.

1      Police v Tini DC Manukau CRI-2011-092-019243, 20 June 2013.   The offence was against s 134(3) of the Crimes Act 1961.

The District Court sentence

[4]      The Judge said that, in terms of the Sentencing Act 2002, he was required to hold the appellant accountable, deter him and others, and denounce the conduct.  He said:

[7]       I am … left with the inevitable view that I draw from the facts that I have already outlined that there are elements of predatory behaviour in this offending.  You have not only asked the victim for a lift, but having been told that she did not want a lift you got out of your vehicle and approached her and placed your hand on her shoulder.  The summary of facts gives me the distinct impression that your motives for giving the victim a lift were of a sexual nature.

[8]       There is also an aggravating feature that there is a vulnerable victim, namely a 12 year old girl, and the final aggravating feature that I find is the affect that your offending has had on this young victim.

[5]      The Judge noted that there had been some discussion of cases which had been provided to him relating to an appropriate starting point.  He then fixed a starting point of 10 months imprisonment. He reduced that by 1 month because the appellant had no previous convictions and a further 2 months because of his guilty plea, resulting in the end sentence of 7 months imprisonment subject to the question of home detention.

[6]      On the question of home detention the Judge said:

[10]      Because that is less than two years’ imprisonment I can consider whether or not I should impose a sentence of home detention.  I accept, as I indicated to your lawyer Mr Ryan, that the authorities in the higher Courts have indicated that there do not have to be exceptional circumstances for home detention to be imposed, in cases of sexual offending such as this; but that Courts in cases such [as] one called Kennedy v R [2011] NZCA 569 have made it clear that the likely sentencing outcome for sexual offending against children is imprisonment.

[7]      The Judge noted a submission for the appellant that home detention would be an appropriate sentence because the appellant was a first offender and remorseful, and there was a suitable home detention address. He then said:

[12]      I note that in the pre-sentence reports you deny there being any sexual motive to this offence, and there are therefore no rehabilitative interventions available to you given your denial of sexual motives.

[13]      I have given this case considerable thought.  In this case I find that a term of imprisonment is the least restrictive sentence which meets the Sentencing Act principles that I need take into account.  In particular, there is the predatory nature of the offending as outlined in the summary of facts and the significant affect that your offending has had on the victim, which leads me to reach the view that a sentence of home detention would not meet the Sentencing Act principles which I have indicated I need to apply.

[14]     Intermediate aged children walking to school need to be safe from such predatory behaviour, and I am of the view that the offending can only be met by way of a term of imprisonment.

Personal circumstances

[8]      As noted in the Judge’s summary, the appellant was 28 years old at the time of the offence and working as a part-time courier driver.  He came to New Zealand from Samoa in 2007 on a visitor’s visa which expired in July 2008.  He has been unlawfully in New Zealand since then.  He married, in New Zealand, in 2012.  As noted by the Judge the appellant has no previous convictions.

[9]      It is apparent from a pre-sentence report that the appellant’s English is not particularly good.   This has some relevance, although fairly limited, when considering the police interview of the appellant.  Mr Ryan, in his submissions for the appellant, placed some weight on statements made by the appellant in this interview.  I refer to this below.  The Judge also gave the appellant the benefit of the doubt on one particular matter because of possible language difficulties.

Discussion

[10]     The  essential  grounds  on  appeal  are  recorded  at  the  beginning  of  this judgment.  Both grounds – the starting point was too high and there was error in declining home detention – were developed in Mr Ryan’s submissions by reference to relevant principles and cases which I have taken into account.

[11]    One submission, on which Mr Ryan placed some emphasis, was that the evidence, taken as a whole, did not justify the Judge’s description of the appellant’s conduct as “predatory”.  The thrust of the submissions in this context were that the victim was not forced to get into the appellant’s van, the indecent act was fleeting

and at the lowest end of the scale in relation to such offences, the appellant did not persist, and he readily dropped the victim off at her school.

[12]     The Judge’s sentencing notes do not make reference to the statements made by the appellant in the police interview.  The appellant did not dispute the police summary of facts.  This was accepted by Mr Ryan.  Mr Ryan appeared for the appellant  in  the  District  Court  and  advised  that  he  had  not  drawn  the  Judge’s attention to statements by the appellant in his police interview.   In these circumstances there was no error by the Judge in relying only on the summary of facts to assess the gravity of the offence.

[13]     Notwithstanding this, I have read the appellant’s statements in the interview. There are some exculpatory statements which may be accepted because they are not in conflict with the summary of facts which can be accepted as plausible.  However, there is nothing in the statement which calls into question in any material way the Judge’s assessment of the gravity of the offence.  In particular, I am satisfied that the Judge was justified in describing the conduct as predatory. The victim, whatever age the appellant genuinely thought she was, was a young girl in a school uniform.  The fact that the appellant offered her a lift at all raises some questions negative to the appellant.   But, leaving that aside, the fact that the appellant did not accept the victim’s initial refusal of a lift, and the steps that he then took to get her into the van, are undisputed facts which are seriously aggravating.  In relative terms, the indecent assault was at the lowest end of the scale if the precise act constituting the offence is assessed in isolation.  But all of this needs to be put into relevant context and that is what the Judge did in attaching weight to the predatory nature of the offence.  I am satisfied there was no error in this regard.  I am also satisfied that the Judge did take account of countervailing factors in relation to the assault itself.

[14]    This is a case where the proper approach by an appellate court has some importance.  This applies not only to consideration of the starting point adopted by the Judge but also, and perhaps more significantly, to his discretion to determine whether there should be a sentence of imprisonment or a sentence of home detention. Although the principles are well established they bear repeating.

manifestly excessive or wrong in principle.2   The appellate court should not simply substitute its opinion for that of the sentencing Judge.3    Whether a sentence is manifestly excessive is to be considered by the sentence imposed, rather than the process by which the sentence was reached.4  As the Court of Appeal observed in R v Shipton:5

The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer.  There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an ‘error principle’.

Reference may also be made to Yorston v Police.6

[16]     When a sentencing Judge decides to impose a sentence of imprisonment rather than a sentence of home detention, when the latter would be available under s 15A of the Sentencing Act 2002, the Judge is exercising a discretion. The Court of Appeal has made plain that the sentencing judge’s discretion is not lightly to be

interfered with on appeal. In R v D the Court of Appeal said:7

In a case like this, the sentencing Judge is required to form a judgment on whether   imprisonment   is   necessary   or   home   detention   can   respond adequately to the seriousness of the offending.  The closer one gets to the dividing  line,  the  more  difficult  it  becomes  to  articulate  reasons  for preferring one approach to the other.  In such cases, the view of a sentencing Judge  from  the  jurisdiction  in  which  crimes  of  the  type  in  issue  are frequently tried assumes greater weight.  He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.  The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.

2      R v Brooks [1950] NZLR 658 CA at 659; R v Radich [1954] NZLR 86 (CA) at 87.

3      Wells v Police [1987] 2 NZLR 560 (HC) at 565.

4      R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].

5      R v Shipton [2007] 2 NZLR 218 (CA) at [138].

6      Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]-[15].

7      R v D [2008] NZCA 254 at [66].

terms:8

We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits.   The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?  Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree.   We are satisfied, in accordance with earlier  authority  in  this  Court,  that  the  decision  about  whether  home detention  will  meet  those  objectives  in  a  particular  case  is  a  strictly evaluative exercise.  It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[18]     In considering the question of home detention that arises on this appeal I have had regard to further discussions by the Court of Appeal relating not only to the approach on appeal but also to the general approach to deciding whether to impose imprisonment or home detention.9

[19]     Both counsel referred me to cases assessing starting points for indecent acts against young people under 16 and I have considered a few other cases.10    I have taken account of those cases.  The starting point of 10 months imprisonment would probably be manifestly excessive if this offending was to be assessed by reference only to the indecent act.  But sentencing does not occur by assessing facts in a vacuum.  The other matters referred to by the Judge were quite properly taken into

account.   A starting point of 10 months imprisonment cannot be regarded as manifestly excessive.

[20]     Having regard to the facts and the law already discussed  I am also not persuaded that there was any appealable error by the Judge in his conclusion that a

sentence of imprisonment rather than a sentence of home detention was appropriate.

8      James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].

9      R v Vhavha [2009] NZCA 588 at [29]-[37] per William Young P in the minority. These observations have been affirmed and followed by the Court of Appeal in Osman v R [2010]

NZCA 199 at [20]-[21]; Doolan v R [2011] NZCA 542 at [37]-[38]; ZZ v R [2011] NZCA 662 at

[32]-[36].

10     Logan v Police [2013] NZHC 1631; Kennedy v R [2011] NZCA 569; Tai v Police [2011] NZCA

270; R v Parker [2007] NZCA 534; R v Walsh HC Hamilton CRI-2008-419-77, 6 October 2008; Halley v Police HC Auckland CRI-2006-404-320, 20 October 2006 and Halley v Police HC Auckland CRI-2006-404-320, 25 October 2006.

Woodhouse J