v v The King
[2023] NZHC 2989
•25 October 2023
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-485-045
[2023] NZHC 2989
BETWEEN V
Appellant
AND
THE KING
Respondent
Hearing: 10 October 2023
Joint Memorandum filed 19 October 2023
Appearances:
B J Munro and A Simperingham for Appellant T G Bain for Crown
Judgment:
25 October 2023
JUDGMENT OF GRICE J
(Appeal against sentence)
Background
[1] On 21, 22 and 23 November 2022, Mr V faced a judge-alone trial at the Wellington District Court on the following eight charges in relation to sexual offending against his stepdaughter:
V v R [2023] NZHC 2989 [25 October 2023]
(a)four charges of an indecent act on a young person;1
(b)one charge of sexual violation by unlawful sexual connection;2
(c)one charge of sexual violation by rape;3
(d)one charge of sexual connection with a young person (as an alternative charge to rape);4 and
(e)one charge of attempting to receive commercial sexual services for a person under 18.5
[2] At the beginning of the trial, Mr V pleaded guilty to five of the charges, being the four charges of doing an indecent act on a young person and the final charge of attempting to receive commercial sexual services. The remaining charges of sexual violation by unlawful sexual connection and sexual violation by rape were considered proven by Judge Mills (with the alternative charge being duly dismissed).6
[3] On 16 January 2023, Mr V was sentenced by Judge Mill to eight and a half years’ imprisonment in relation to the seven charges for which convictions were entered.7 Mr V now seeks to appeal the sentence imposed by Judge Mills on the basis that the end sentence is manifestly excessive. The primary ground of appeal is that a sufficient discount was not given for Mr V’s personal mitigating factors. Mr V also seeks to adduce new evidence on appeal, being his s 27 report, which was only produced following sentencing by Judge Mill (through no fault of any person involved).
1 Crimes Act 1961, s 134(3) (maximum penalty of seven years’ imprisonment) – charges 1 to 4, with charge 4 being a representative charge encompassing 3-4 discrete occasions of offending.
2 Crimes Act, s 128(1)(b) (maximum penalty of 20 years’ imprisonment) – charge 5.
3 Crimes Act, s 128(1)(a) (maximum penalty of 20 years’ imprisonment) – charge 6.
4 Crimes Act, s 134(1) (maximum penalty of 10 years’ imprisonment) – charge 7.
5 Prostitution Reform Act 2003, ss 22(2) and 23(1) (maximum penalty seven years’ imprisonment)
– charge 8.
6 Police v [V] [2022] NZDC 23078 [Results Decision].
7 R v [V] [2023] NZDC 498 [Sentencing Decision]; as a result of the convictions Mr V is now also subject to registration on the Child Sex Offender (CSO) Register on release from prison.
[4] As a complainant under 18, Mr V’s stepdaughter, ‘K’, is subject to automatic suppression under s 203 of the Criminal Procedure Act 2011 (the CPA). K is now 15 years old. Following the hearing, Counsel filed a joint memorandum concerning suppression and non-publication. As a result, both the complainant and the defendant’s names are suppressed as identification of the defendant would likely lead to identification of the complainant.
Factual background
[5] Regarding the four admitted charges of doing an indecent act on a young person, Mr V touched K’s genitalia over her clothing while she was in bed at various locations. K was aged between 11-13 years old at the relevant time.8
[6] In regard to the charge of attempting to receive commercial sexual services from K, Mr V offered K $100 to have sex with him while at their holiday house.9 Mr V admitted that he offered K this money because he was not ‘satisfied’ the first time he had sex with K, in reference to the incident being the subject of the sexual violation charges as detailed below.10
[7] The remaining two charges of sexual violation related to a night the family spent in the holiday house around September or October 2020. Mr V was drinking alcohol with K at the house, and while the two were drinking and talking in his bedroom, Mr V moved his hand up and down K’s leg. Once K had fallen asleep, Mr V removed her shorts and underwear. He then placed his head between K’s legs and performed oral sex on her. After this, Mr V proceeded to position himself on top of K and inserted his penis into her vagina, causing K to wake up. After having sexual intercourse with her for a short time, Mr V stood up. He then repositioned himself and inserted his penis into K’s vagina again.
[8] At trial, the connection between Mr V’s mouth and the genitalia of K was considered proved, as well as his penetration of her with his penis. The remaining
8 Sentencing Decision, above n 7, at [3].
9 Sentencing Decision, above n 7, at [5].
10 Results Decision, above n 6, at [50].
matters at trial were whether K had consented to the connections and whether Mr V did not reasonably believe she was consenting.11
[9] Judge Mill found that K was under the influence of alcohol at the time alleged sexual violations. His Honour found that any apparent acquiescence on K’s part was not a result of freely given consent as a result. The Judge was satisfied that K would not and did not knowingly have sexual intercourse with Mr V, and there was nothing in their relationship that would indicate that she would, under any circumstances, consent to such an interaction.12 The Judge was also satisfied that Mr V must have known that K would not agree to any form of sexual contact with him. His Honour found that the defendant was able to have K acquiesce because he manipulated her in the circumstances, “given her clear vulnerability and her clear inability to properly process the situation and the events”.13 The remaining charges were thus considered proved beyond reasonable doubt.
Sentencing decision
[10] After setting out the relevant factual findings, Judge Mill turned to consider the tariff case in regard to sentencing for sexual violation, R v AM.14 The rape charge was taken as the lead for sentencing. The Judge accepted the Crown’s submission that a starting point within the second band of R v AM was appropriate; being between seven to 13 years’ imprisonment.15 In terms of the aggravating factors of the offending, Judge Mills noted premeditation, the vulnerability of K, the harm to her and her family, and the fact that the intercourse was preceded by sexual violation by oral sex, meaning the degree of violation in this case was appreciable.16 The Judge adopted a nine year starting point, incorporating both of the sexual violation charges.17
[11] Turning to consider the necessary uplift for the indecent act charges, Judge Mill explained that he would have given a two-year starting point on those charges had they been advanced on their own. The Judge accepted that a guilty plea
11 Results Decision, above n 6, at [11]–[12].
12 Results Decision, above n 6, at [96]–[98].
13 Results Decision, above n 6, at [100].
14 R v AM (CA27/2019) [2010] NZCA 114, [2010] 2 NZLR 750.
15 Sentencing Decision, above n 7, at [9].
16 Sentencing Decision, above n 7, at [9].
17 Sentencing Decision, above n 7, at [10].
discount could only be applied to these four charges, and 10 per cent discount was applied, reducing the sentence to about 22 months’ imprisonment. The Judge took into account the attempt to receive sexual services charge in this calculation.18
[12] Stepping back and looking at the offending in its totality, the Judge concluded that there should be another uplift of one year, bringing the adjusted starting point to one of 10 years’ imprisonment.19
[13] Moving to Mr V’s personal mitigating factors, the Judge noted that although Mr V has no previous convictions, he had been offending against K for a number of years. This meant that only a 10 per cent discount was applied for previous good character.20 Next, the Judge noted Mr V’s guilty pleas and his letter of remorse. Mr V admitted that what he was doing was wrong, but the probation officer noted that Mr V discussed getting sexually aroused when discussing sex with K, and that he “did not understand the severity of his offending”. He was assessed as being at a high risk of re-offending. Mr V had, at one point, called his wife (K’s mother) and asked if he could live with her and the children on home detention.21 Taking this together, the Judge was found that there was not a lot of “actual remorse”.22 A small discount of five per cent was applied accordingly. No other personally mitigating circumstances were identified.23
[14] So, applying the relevant discounts, Mr V received a sentence of eight years and six months’ imprisonment for the two charges of sexual violation. On the indecent act charges, one year’s imprisonment was given. The attempt to receive sexual services from a young person charge resulted in a six-month period of imprisonment. All of the charges were to be served concurrently, which meant a total of eight and a half years’ imprisonment.24
18 Sentencing Decision, above n 7, at [11].
19 Sentencing Decision, above n 7, at [12].
20 Sentencing Decision, above n 7, at [13].
21 Sentencing Decision, above n 7, at [14].
22 Sentencing Decision, above n 7, at [15].
23 Sentencing Decision, above n 7, at [16].
24 Sentencing Decision, above n 7, at [17].
Approach on appeal
[15] Sentence appeals are governed by s 250 of the CPA. A first appeal Court must allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
The Court also retains no discretion in the event that these criteria are not satisfied and must dismiss the appeal.
[16] When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.25 It must be shown that there has been an error made by the sentencing Judge.26 The Court cannot ‘tinker’ with a sentence imposed where that end sentence is nevertheless in range.27
[17]If the Court allows an appeal under s 250, it must:28
(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b)vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or
(c)remit the sentence to the Court that imposed it and direct that Court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal Court.
25 Tutakangahau v R [2014] NZCA 279 at [32]-[35].
26 Tutakangahau v R, above n 25, at [27].
27 R v Boyd (2004) 21 CRNZ 169 at [38].
28 Criminal Procedure Act 2011, s 251.
Leave to adduce fresh evidence
[18] As noted above, Mr V’s sole ground of appeal is that the end sentence imposed by Judge Mill was manifestly excessive. This is on the basis that a great enough discount was not given for Mr V’s personal background. In support of this argument, Ms Munro seeks to adduce a s 27 report regarding Mr V. This report was not available at the time of sentencing, and so leave of the Court is now required to admit the evidence on appeal. The Crown opposes admission of the report but appropriately accepts that the Court will be inclined to admit evidence that could meaningfully inform its task.
[19] Mr V’s s 27 report provides extensive detail as regarding his background. Some particularly salient points are as follows:
(a)Mr V was born overseas but fled the country at a young age with his family. He subsequently spent four years in refugee camps.
(b)Mr V reports being sexually molested by an elderly man on multiple occasions in the camp. He also had sexual experiences with an older girl, and older men forced him and his brother to perform sexual acts on each other. This meant that he was sexualised at a young age.
[20] When Mr V and his family eventually settled in New Zealand when he was eight years old. His family continued to struggle financially, and he often went without food. He reports being physically and verbally abused by his mother during his childhood.
[21] Section 27 reports should generally not be produced for the first time on appeal.29 However, s 335 of the CPA allows new evidence to be presented on appeal if the Court thinks it necessary or expedient in the interest of justice.30 The principles for admissibility of fresh evidence for appeals against conviction are well-established,
29 Salt v R [2022] NZCA 611 at [17].
30 Criminal Procedure Act, s 335(2).
and the Court of Appeal in Mark v R confirmed that the same principles apply for an appeal against sentence:31
… if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate Court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate Court should assess its strength and its potential impact on the sentence. If the appellate Court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.
[22] An s 27 report is clearly relevant to a sentencing exercise and the consideration of any personal factors incumbent on the defendant at the time of sentencing. Mr V’s report is also certainly fresh and credible, having been recently produced (in September 2023) by expert report writers.
[23] In this case, Mr V did not disclose to his counsel until after his sentencing that he had a difficult upbringing including that he himself was sexually abused as a child. In these circumstances, I am persuaded by Ms Munro’s submissions, and satisfied that the report could not have been presented to the sentencing Court with reasonable diligence, given that counsel at that point (through no fault of their own) would not have known to consider an s 27 report necessary or helpful to Mr V’s case.
[24] Moreover, I would accept the submission of Ms Munro that the sentencing Judge had very limited information regarding Mr V’s personal background at the time of sentencing. There is limited discussion of Mr V’s upbringing in his PAC report. This supports admissibility of the s 27 report.32 Similarly, I would also accept that Mr V’s s 27 report provides sufficient evidence to conclude that his background contributed to the current offending. As discussed in Mr V’s s 27 report, research suggests that victims of sexual abuse often grow up in generally adverse environments, and that the totality of these circumstances are predictive of later criminality. As is evident above, Mr V grew up in a tremendously adverse environment and it is clear that he has struggled with intense sexual urges ever since being unwillingly sexualised
31 Mark v R [2019] NZCA 121 at [16].
32 See, for example, Salt v R, above n 29.
at a very young age. In other words, I am satisfied that there is a causative contribution between Mr V’s upbringing and the offending.33
[25] The question thus remains as to whether the information contained in the s 27 report would have any effect on Mr V’s sentence; that is, whether the report is cogent to the substantive issue on appeal. For the reasons set out below, I do not believe this to be the case. As such, I decline leave for the s 27 report to be adduced as fresh evidence on appeal
Positions of the parties
Mr V
[26] Ms Munro argues that, if the Court agrees to adduce the s 27 report as fresh evidence, Mr V is entitled to a reduction of his sentence by a further 20 per cent (meaning a 35 per cent discount in total). This would mean a final sentence of around six and a half years’ imprisonment. Ms Munro says that any presentation by Mr V lacking empathy or his being unrealistic in assessing the impact of his offending (as noted by Judge Mill) can be directly attributed to his experience of sexual abuse growing up. She says that his perception of sexual behaviour was warped from a young age, and he was not equipped with the support or skills to change this.
[27] Mr Bain, in his oral submissions, accepted that the section 27 report was a quality report and provided the Court with a useful background to Mr V’s offending. He noted that the sexual abuse suffered by Mr V as a child might well be connected to the present offending but questioned the connection between the present offending and the deprivation that he accepted Mr V suffered as a refugee. Mr Bain also pointed out that the report is based on Mr V’s self-reporting and Mr V’s credibility, particularly about the circumstances of the offending and it being sued consensual was clearly rejected by the judge. Therefore, there may be some scepticism about some of the information provided by Mr V in the report. Nevertheless he did not take that matter further.
33 Adopting the wording in Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
The Crown
[28] The Crown submits that the end sentence reached by Judge Mill is nevertheless not manifestly excessive. This is for three main reasons. First, the Crown says that the adjusted starting point taken by Judge Mill ought to have been higher, at around 12–13 years’ imprisonment (being in the upper end of band two in R v AM).34 Second, Mr Bain argues that no credit should have been given for previous good character. Mr Bain’s third submission is that the information contained in the s 27 report is not enough to offset the first two points raised, meaning that the end sentence is therefore not manifestly excessive given that a proper approach to the sentencing exercise would have led to a higher sentence for Mr V.
Discussion
[29] I begin by addressing Mr Bain’s argument that a higher starting point should have been adopted by Judge Mill for the sexual violation charges. As noted, the tariff case in regard to sexual offending is the decision in R v AM.35 There, the Court of Appeal set out a non-exhaustive list of culpability assessment factors common in sexual offending,36 and also sets out four bands of offending where the lead offence is rape.37 An evaluative judgement is required of all the circumstances of a case when determining the appropriate band of offending.38
[30] For the purposes of this evaluation, I adopt the Crown’s articulation of the relevant culpability assessment factors in this case, as follows:
(a)Breach of trust: K was Mr V’s step-daughter. She was dependent on him for care and was entitled to expect trust and support.
(b)Premeditation: the offending was premeditated and not opportunistic.
34 R v AM, above n 14.
35 R v AM, above n 14.
36 At [35]–[64].
37 At [90].
38 At [36].
(c)Vulnerability: as well as the vulnerability inherent in the breach of trust, K was also vulnerable because of her young age (being between 11–15 at the time of the relevant offending). She was not in a position to resist Mr V and could not easily escape him.
(d)Scale of offending and degree of violation: the offending involved full, unprotected penile penetration, with the attendant risks of pregnancy and sexually transmitted disease. K explained she feared she was pregnant and that this magnified the harm done to her.
(e)Harm to the victim: the victim impact statement provided to the Court makes clear the persistent harm suffered by K as a result of this offending. K is very articulate in explaining the effect this offending has continued to have on her. I agree with the Crown that the harm occurring here to K is particularly significant (such as by inducing K’s subsequent drive to self-harm).
[31] Taking these factors into account, I accept the Crown’s submission that a higher starting point would have been warranted in this case, at the upper end of band two. As noted by the Court of Appeal in R v AM, band two will be appropriate where there are two or three of the culpability factors present to a moderate degree.39 Here, I find the factors regarding the breach of trust and harm to the victim meet this requirement.
[32] I also refer to the following cases that confirm placement within band two as being appropriate here:
(a)In R v L,40 Mr L was received a starting point of 11 years’ imprisonment on one charge of sexual violation by rape. The victim was his 14-year-old biological daughter. Mr L insisted that his daughter sleep on an air bed in his room and removed the door handle from inside the room. Once in bed (under the false pretence that the two were to watch
39 R v AM, above n 14, at [98].
40 R v L [2022] NZHC 2364.
a movie together) Mr L pushed the victim down, rolled on top of her, and proceeded to rape her.
(b)In R v Thompson,41 Mr Thompson received a starting point of nine years’ imprisonment for one charge of sexual violation by rape. Following a family function, Mr Thompson drove the victim and another two family members to a bar in central Auckland. During the journey, the victim fell asleep. Mr Thompson left with the other two family members, but came back and began raping the victim, causing her to wake up. The victim was 26 years old at the time of the offending.
[33] I agree with the Crown that Mr V displays a similar level of culpability to Mr L, although this is arguably increased by the fact that K was drunk at the time of his offending. Similarly, Mr V is clearly more culpable than Mr Thompson, given that K was younger than the victim in R v Thompson, and the degree of trust would have been higher given the immediate familial connection in this case. Therefore, I accept the Crown’s submission that a starting point of about 11 years would have been appropriate for the two unlawful sexual connection charges taken together.
[34] As noted above, the Crown also argues that the one-year uplift given by Judge Mill for the four concurrent indecent act charges and the attempting to receive sexual services charge was insufficient. Mr Bain referred to the case of Masei v R, in which the defendant touched the breasts and genitals of a 15-year-old exchange student, in what the Court described as “prolonged and active” touching.42 I accept Mr Bain’s submission that the general starting point for an indecent assault of this kind is around 18 months’ imprisonment, following the decision in Masei.43
[35] I also would accept Mr Bain’s submission that Mr V’s offending in this case is more serious than in Masei. This is because K was younger when the offending first began and there is a more significant breach of trust. On this basis, I agree that an
41 R v Thompson [2020] NZHC 195.
42 Masei v R [2016] NZCA 481.
43 At [8].
uplift of at least two years to encompass all five of the remaining charges would have thus been the minimum. Accordingly, I would accept the Crown’s submission that an adjusted starting point of about 13 years’ imprisonment would have been appropriate in this case (prior to applying the guilty plea discount, as discussed below).
[36] Turning to then consider the question of discounts, I also agree with Mr Bain that the Judge should have declined to give Mr V credit for prior good character. Prolonged offending necessarily calls good character into question. Good character is also a matter of impression.44 Here, the offending took place over a period of about two or so years and Mr V acknowledged that he felt the offending was wrong at the time he did it, but nevertheless continued to offend. This means it is harder for Mr V to characterise this offending as a momentary lapse of judgment. Even if a small discount for previous good character were appropriate, the 10 per cent given by Judge Mill is excessive.
[37] I would agree with Ms Munro that a discount of about 20 per cent would be appropriate for the personal mitigating factors set out in Mr V’s s 27 report. Although I can accept the Crown’s submission that a 15 per cent discount is the usual discount offered, Mr V’s background discloses influences on his upbringing that are particularly serious and unusual, in this regard I note in particular his experience as a refugee and the early sexualisation and offending that occurred against him during that time. Neither party disputes the five per cent discount given for remorse. This means an overall discount of about 25 per cent for s 27 factors and remorse would have been appropriate in this case.
[38] The Crown does not dispute the 10 per cent discount given for the guilty pleas on the indecent assault and attempting to receive sexual service charges, meaning a final sentence on these charges of around 21 months’ imprisonment (independent of any further discounts).
[39] Ms Munro submitted that too high a starting point would be a “crushing sentence”. I agree that consideration of the sentence must include consideration as to whether it is a “crushing” sentence in the circumstances. However, as Mr Bain pointed
44 Britow v R [2017] NZCA 229 at [10]–[11].
out, that is a consideration which occurs when evaluating the end sentence. What is “crushing” will depend on the circumstances – for instance an offender who acted with callous disregard and shows no remorse will receive a different level of sentence in most cases that an offender who shows insight into the offending, remorse and is unlikely to offend again.
[40] So, Mr V’s final sentence taking the approach above would have been calculated as follows:
(a)The starting point of 11 years’ imprisonment for the two sexual violation charges would be uplifted by 21 months for the concurrent indecent assault and attempting to receive sexual service charges, leading to an adjusted starting point of about 12 years and nine months’ imprisonment.
(b)A 25 per cent discount would then be applied (being a 20 per cent discount for the s 27 factors and a further 5 per cent for remorse) for a final sentence in the vicinity of nine and a half years’ imprisonment.
[41] Stepping back and taking the totality of the offending into account, I believe a final sentence of no less than nine years’ imprisonment would have been appropriate in this case. I do not consider that this would be a “crushing” sentence in the circumstances.
[42] It follows that Mr Bain is correct in submitting that Mr V’s s 27 report would not be able to support a finding the end sentence of eight and a half years’ imprisonment imposed was manifestly excessive. Accordingly, leave to adduce the report as fresh evidence must be declined. The substantive aspect of Mr V’s appeal must also be declined on this basis.
Conclusion
[43]For these reasons, Mr V’s appeal is dismissed.
Grice J
Solicitors:
Woodward Crisp, Gisborne
Luke Cunningham Clere, Wellington
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