Trewavas v The King
[2023] NZHC 3533
•5 December 2023
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 NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2023-442-000019
[2023] NZHC 3533
BETWEEN HAYDEN GEOFFREY TREWAVAS
Appellant
AND
THE KING
Respondent
Hearing: 29 November 2023 Appearances:
C H Macklin for Appellant
A R Goodson for Respondent
Judgment:
5 December 2023
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 5 December 2023 at 4.05 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Nelson
TREWAVAS v R [2023] NZHC 3533 [5 December 2023]
[1] Hayden Trewavas met a 15-year-old at a mutual friend’s party in June 2021. Knowing her as a local schoolgirl and (from her Facebook profile) that she was under 18, Mr Trewavas commenced to sell her cannabis “every second day”1 from June 2021 until January 2022, leaving it in his letterbox for collection in return for either $20 or
$50.
[2] In January 2022, she visited Mr Trewavas’ home to buy cannabis. They had a spa and shared a joint. She said she needed to leave. They went to his bedroom where he kept his cannabis. He digitally and orally penetrated her genitalia before they engaged in full sexual intercourse. He gave her a bag of cannabis and she left.
[3] When police executed a search warrant at Mr Trewavas’ home in June 2022, they found around 191 grams of cannabis head in one container, 154 grams of cannabis stalk in another, and 41 grams of cannabis plant packaged into snap lock bags.
[4] Mr Trewavas pleaded guilty to charges of supplying cannabis to a young person,2 sexual connection with a young person (x 3),3 and possession of cannabis for sale.4 On 10 October 2023, Mr Trewavas was sentenced in the Nelson District Court to a total of 32 months’ imprisonment.5 He appeals to this Court against that sentence.
[5] I am required to allow Mr Trewavas’ appeal if satisfied that there is an error in the sentence and a different sentence should be imposed. Otherwise, I must dismiss the appeal.6 In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached. 7
[6] Mr Trewavas’ argument is that his sentence is manifestly excessive because the overall starting point for the offending was too high, the discount for personal
1 According to his statement to police.
2 Misuse of Drugs Act 1975, s 6(1)(d). Maximum penalty: eight years’ imprisonment.
3 Crimes Act 1961, s 134 (1). Maximum penalty:10 years’ imprisonment.
4 Misuse of Drugs Act, s 6(1)(f). Maximum penalty: eight years’ imprisonment.
5 R v Trewavas [2023] NZDC 22573.
6 Criminal Procedure Act 2011, s 250.
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].
circumstances was inadequate, and the resulting short-term sentence of imprisonment should have been converted to home detention.
Was the overall starting point too high?
[7] The sentencing Judge selected a starting point in respect of the sexual offending of two years and nine months’ imprisonment. In doing so, the Judge took account of the age difference between Mr Trewevas, aged 30, and his victim, still aged 15 after seven months of cannabis supply. The Judge also found, in light of the drug supply relationship, she was not an “equal partner” when engaging in sexual connection with Mr Trewavas. And that there was some unsophisticated premeditation involved in Mr Trewavas inviting her to have a spa and share a joint. The Judge inferred an adverse impact upon the victim following review of her victim impact statement, asserting that she had tried to block out what happened and moved away from the area to get on with her life.
[8] The Judge uplifted that starting point by 12 months for the cannabis offending, “on a totality approach”, arriving at an adjusted starting point for all the offending of 45 months’ imprisonment.
Mr Trewavas’ position
[9] For Mr Trewavas, Mr Macklin submits that the starting point for the sexual offending should have been no more than two years and three months. Mr Macklin submits the Judge was wrong to infer the drug supply relationship had any bearing on their sexual encounter, and that this gave rise to a risk of double-counting. Mr Macklin submits the Judge was also wrong to infer a degree of premeditation.
[10] Mr Macklin seeks to distinguish R v Misileki, where the Court of Appeal found a three-year, six-month starting point “towards the top of the range” but “not excessive”, where a 26-year-old man woke a 14-year-old girl staying with her aunt at his house and persuaded her to come to his room where they had intercourse, later texting her trying to avoid her disclosing what had happened.8 He does so on the basis
8 R v Misileki [2008] NZCA 513.
that this case did not involve premeditation, involved an older “and evidently more streetwise” victim, and did not involve pressuring the victim to stay silent.
[11] Mr Macklin refers to the starting point of two and a half years’ imprisonment adopted in King v Police, and implicitly submits the offending in this case was less serious.9
[12] Mr Macklin submits that the 12-month uplift for the cannabis offending was excessive, and involved double-counting because power imbalance had (wrongly) aggravated the sexual offending. He says the amount of cannabis found during the search was small, and that the prior sales were modest. And that the seriousness of the offending in R v Greer, where a 12-month uplift was applied for supplying cannabis to school-aged children, “stands in stark contrast” to the seriousness of Mr Trewavas’ offending.10
Discussion
[13] I consider the Judge well justified in taking account of the drug supply relationship when assessing the sexual offending. The relationship was clearly different to that between the lawful supplier of small goods and a regular customer. The 15-year-old could not obtain cannabis except by the commission of an offence. And the fact of her regular cannabis purchases as a young person implied that her personal circumstances were unsatisfactory. Contrary to the notion of her cannabis purchases rendering her “streetwise” and therefore less vulnerable to Mr Trewavas’ offending, they rendered her more vulnerable than another young person alone at his home.
[14] Relatedly, the Judge was entitled to infer that Mr Trewavas’ spa invitation and joint sharing involved unsophisticated premeditation. In any event, he initiated the sexual encounter by removing his victim’s towel and remaining clothing, after she had said she needed to leave.
9 King v Police HC Timaru CRI-2009-476-24, 15 December 2009.
10 R v Greer [2013] NZHC 3025.
[15] On this basis, the present case was appropriately compared to Misileki. Although the victim in that case was one year younger, the offender was four years younger, meaning the age disparity was less. The offending in each case involved a single occasion and was somewhat opportunistic, arising when the victim was present in a home for other reasons. Intercourse took place in each offender’s bedroom. The premeditation involved in persuading a victim from another room is little different to that involved in the spa/joint episode. There seems no other basis for that aspect of Mr Macklin’s submissions.
[16] The only distinction of substance is that in Misileki the offender sent text messages afterwards seeking to have his victim remain silent. Given this distinction, the sentencing Judge’s starting point of two years and nine months’ imprisonment bears appropriate relativity with the “not excessive but near top of the range”, three-year, nine-month starting point in Misileki.
[17] In contrast, King v Police involved a less substantial age disparity, with the offender aged 21 and his victim aged 14, and the offending arose when both had been consuming alcohol at a party. Given the background of drug supply enhancing the victim’s vulnerability and the limited premeditation in this case, the starting point here of two years and nine months imprisonment bears similarly appropriate relativity to the two-year, six-month starting point in that case.
[18] Turning to Mr Trewavas’ drug offending, acknowledging the power imbalance arising from the drug supply relationship when assessing the culpability of the sexual offending does not mean there is double-counting if there is then a discrete punishment applied for the cannabis offending. The issues are conceptually distinct.
[19] The amount of cannabis found was comparable to the amount found in Greer, where the possession of cannabis for supply charge (along with the possession of other controlled drugs) was treated as the lead offence and found to justify a two-year starting point. This means that the 12-month uplift in that case for cannabis sales to “more than 20 school age students” over a five-month period was applied only for that factor, and not (as here) for the entire cannabis offending combined. In my view, the culpability of the relatively frequent cannabis sales to a single purchaser here are
indistinguishable from that of similar sales to multiple purchasers in Greer, and on that basis the only way in which this case may “stand in stark contrast” is if this case is seen as more lenient.
[20] As the Court of Appeal said in R v Jones,11 and repeated in Misileki,12 a principal purpose of s 134 (and similar sections) is to protect young women from predation by, usually, older men and from their being seduced into compliance with male demands, with the consequences shown in the victim impact statements in a number of the cases. And although there was also other offending in Arnott v R, the Court of Appeal’s comments in that case, where a 22-year-old man had sexual intercourse with a 14-year-old girl to whom he had been supplying cannabis, confirm the seriousness with which the offending in this case required to be treated.13
[21]Overall, the adjusted starting point selected in this case was far from excessive.
Was the discount for personal factors inadequate?
[22] From the adjusted starting point of 45 months’ imprisonment, the sentencing Judge deducted 15 per cent to take account of Mr Trewavas’ steps to address his cannabis and alcohol consumption, his willingness to engage in restorative justice and his offer to pay $3,000 emotional harm reparation, and his previous good record (tempered by the duration of his offending).
[23] The Judge then took six months from the figure of 38 months’ imprisonment, describing this as a 15 per cent deduction to take account of Mr Trewavas’ guilty plea, arriving at the end sentence of 32 months’ imprisonment.
Mr Trewavas’ position
[24] For Mr Trewavas, Mr Macklin submits that at least a further five per cent was warranted for personal mitigating factors. He says that any tempering of the good character discount arising because of the duration of the offending should not apply to
11 R v Jones CA153/90 20, July 1990.
12 R v Misileki, above n 8, at [17].
13 Arnott v R [2010] NZCA 444.
sentencing for the sexual offending, and that a 10 per cent discount for good character alone could have been justified.
[25] On the guilty plea discount, Mr Macklin submits that early guilty pleas were entered to the cannabis charges. And he notes that the Crown added sexual violation charges of rape and unlawful sexual connection, upon Mr Trewavas’ election of trial by jury on the sexual connection with young person charges. It was when the sexual violation charges were withdrawn that Mr Trewavas entered guilty pleas “as part of a considered resolution by all parties”. Mr Macklin submits that an overall 20 per cent guilty plea discount should have been applied.
[26] Mr Macklin further notes that the guilty plea discount was calculated from the notional sentence of 38 months’ imprisonment arrived at by deducting seven months for personal factors from the adjusted starting point for the offending of 45 months. This is contrary to the sentencing methodology outlined by the Court of Appeal in Moses v R,14 as clarified in Stuart v R.15 Mr Macklin submits this error compounds the manifest excessiveness of the sentence imposed.
Discussion
[27] I consider the discount applied for personal factors to be appropriate. By the time of Mr Trewavas’ sexual offending, he had been engaged in regular cannabis sales to a 15-year-old for around seven months. Frequently sentences are not increased because an offender has a background of offending of different types. But it is not the case that defendants who have previously committed offences deserving of imprisonment over a period of time may nevertheless claim credit for good character when engaged for the first time in a new type of criminal offending. A discount for good character of any more than five per cent, applied to the sexual offending, would in my view have been inappropriate.
[28] The charges of sexual connection with a young person were not new charges, made available to Mr Trewavas as part of a resolution of the sexual violation charges.
14 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
15 Stuart v R [2021] NZCA 539.
They were initial charges, maintained in addition to the sexual violation charges that the Crown later added then withdrew. Given his initial statement to police admitting the acts of sexual connection alleged against him, and his apparent inability to meet the onus upon him to prove reasonable efforts to establish his victim’s age,16 the sexual violence charges should not have been treated as an impediment to guilty pleas on the underage sexual connection charges.
[29] As the Supreme Court observed in Hessell v R, the sentencing judge is required to evaluate all the relevant and variable circumstances of a guilty plea, and to give the most appropriate recognition of the guilty plea in fixing the sentence.17 I consider the sentencing Judge in this case did just that. Indeed, in my view an overall 15 per cent discount for Mr Trewavas’ guilty pleas, in circumstances where they were entered in respect of the sexual connection charges around two years’ after his admissions and one month prior to the trial set for July 2024, was generous.
[30] Finally, I observe that the sentencing Judge’s error, in applying the guilty plea discount to the notional 38-month sentence arrived at after the discount for personal circumstances, had only a modest impact once the Judge’s rounding is taken into account. Without rounding, 15 per cent from 45 months for personal factors would have been 38.25 months. And the full 30 per cent from 45 months would have been
31.5 months. Mr Macklin responsibly accepted that adjusting the sentencing outcome for this reason would involve unjustifiable tinkering.
[31] In light of my view that the 15 per cent guilty plea discount was generous, the overall 28.89 per cent discount for mitigating features (13 months deducted from 45 months) is not manifestly inadequate.
Should the sentence have been converted to home detention?
[32] Having arrived at an end sentence of 32 months’ imprisonment, the sentencing Judge observed that he was not in a position to consider home detention.18 As he
16 See Crimes Act, s 134A.
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62]
18 Sentencing Act 2002, s 15A(1).
acknowledges, Mr Macklin’s submission that home detention should have been ordered depends on the success of his prior arguments.
[33] As will be apparent, I do not consider there to have been an error in sentencing such that a short-term sentence of imprisonment should have been the outcome of the assessment process. On that basis, I am not required to consider whether conversion to home detention would have been appropriate.
Result
[34] The overall sentencing outcome of 32 months’ imprisonment not being shown to be manifestly excessive, Mr Trewavas’ appeal is dismissed.
Johnstone J
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