Van der Merwe v The Queen
[2021] NZHC 1108
•13 May 2021
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 CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000016
[2021] NZHC 1108
BETWEEN BRENDON SCOTT VAN DER MERWE
Appellant
AND
THE QUEEN
Respondent
Hearing: 13 May 2021 Appearances:
J Lucas for Appellant
A M Harvey for Respondent
Judgment:
13 May 2021
ORAL JUDGMENT OF GENDALL J
Introduction
[1] The appellant, Brendan van der Merwe, was convicted of rape,1 sexual violation by unlawful sexual connection,2 making an objectionable publication (3),3 possession of an objectionable publication (2),4 and indecent communication with a young person.5
1 Crimes Act 1961, ss 128(1)(a) and 128B.
2 Sections 128(1)(b) and 128B.
3 Films, Videos, and Publications Classification Act 1993, ss 123(1)(a) and 124(1).
4 Sections 131(1) and 131A.
5 Crimes Act, s 124A.
VAN DER MERWE v R [2021] NZHC 1108 [13 May 2021]
[2] On 10 February 2021, following a sentence indication, Mr van der Merwe was sentenced by Judge Farish in the District Court at Christchurch to two years and ten months’ imprisonment.6 He was ordered to pay emotional harm reparation of $3,000. He appeals to this Court against that sentence.
[3] Mr van der Merwe was granted bail pending appeal, pursuant to s 14 of the Bail Act 2000.7
Background facts
[4] I turn now to the background facts in this matter. On 11 January 2020 Mr van der Merwe and the victim had been communicating with each other on Facebook Messenger and it was decided that Mr van der Merwe would visit the victim’s home.
[5] At about 1 am on 12 January 2020, Mr van der Merwe went to the victim’s address. The victim met him at the door and they went up to her bedroom. They were the only people at the address.
[6] Mr van der Merwe and the victim listened to music and, as I understand it, drank some alcohol and smoked cannabis. The victim then fell asleep. Mr van der Merwe attempted to wake her by shaking her vigorously and pinching her face.
[7] When the victim did not wake, Mr van der Merwe pulled her pyjama pants to the side and digitally penetrated her while she was still unconscious; this happened at least twice.
[8] Mr van der Merwe then climbed on top of the victim and penetrated her vagina with his penis while she was still unconscious. At some point during the rape the victim woke to find Mr van der Merwe on top of her. Fearing what would happen if she said something to him, she pretended to be asleep until he stopped.
6 R v van der Merwe [2021] NZDC 2260.
7 R v van der Merwe [2021] NZDC 2223.
[9] Mr van der Merwe walked to the adjacent bathroom, got some tissues and wiped the victim’s vagina and surrounding area. Once again, the victim pretended to be asleep. Mr van der Merwe then left the address and returned to his home.
[10] The victim confronted Mr van der Merwe the next day, outlining that she had been sexually assaulted by him. The victim told a friend what had happened, and that friend contacted the police on 15 January 2020. On 17 January 2020 police attended Mr van der Merwe’s home address and asked whether he would like to make a statement about the alleged offending. Mr van der Merwe chose to make a statement to the police. He was then arrested and charged with sexual violation by unlawful sexual connection and sexual violation by rape shortly thereafter.
[11] Police seized Mr van der Merwe’s phone. An examination of that device showed Mr van der Merwe had filmed parts of the sexual violation offending, including taking three videos and 18 photographs of the victim. This offending resulted in the representative charges of making an objectionable publication and possessing an objectionable publication.
[12] Also located on the device were a number of objectionable publications which involved child exploitation material namely, 17 images and two videos falling within Category C of the Guidelines. Also found was one image and five videos falling within Category A of the Guidelines. This offending resulted in representative charges of possession of an objectionable publication.
[13] Between 4 January 2020 and 8 January 2020 Mr van der Merwe had engaged in a sexualised online chat with another party. The offending resulted in the other party sending a video of a female masturbating as well as a picture of female genitalia. This resulted in the charge against him of making an objectionable publication.
[14] On 8 January 2020 Mr van der Merwe had a conversation with a person who stated she was 15 and from the UK. Mr van der Merwe, again, engaged in a sexualised chat with that individual. This resulted in the charge of indecent communication with a young person.
District Court decision
[15] Turning now to the District Court decision, the subject of this appeal, in that decision Judge Farish in the District Court noted this was the first time Mr van der Merwe had been in contact with the criminal justice system.
[16] Referring to the tariff decision of R v AM (CA27/2009) the Judge considered Mr van der Merwe’s offending fell within the upper band of band one and the bottom of band two.8 The aggravating features included that the offending was persistent and involved a course of conduct over a relatively brief period of time. There was a significant breach of trust. The victim was extremely vulnerable and unconscious as a result of the cannabis she had ingested. The effect of the offending on the victim’s life was profound. The final factor that was present to a high degree was the degrading nature of Mr van der Merwe’s behaviour in filming the offending and keeping it on his phone.
[17] Taking into account those factors, Judge Farish adopted a starting point of seven years’ imprisonment in relation to the offending against the victim on 12 January 2020. The starting point was uplifted by six months with respect to the other charges. This brought the adjusted starting point to one of seven years and six months’ imprisonment.
[18] With respect to personal mitigating factors, the Judge applied a 20 per cent deduction for Mr van der Merwe’s youth and the matters raised in the counselling report, a ten per cent deduction for his demonstrated remorse and a 25 per cent discount for his guilty pleas.
[19] The Judge then applied an additional five month discount to reflect what she said were additional matters set out in the report from the clinical psychologist which was before her and what she said was the hardship of prison upon Mr van der Merwe. This brought the end sentence to one of two years and 10 months’ imprisonment.
8 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
Principles on appeal
[20] Turning now to the principles to be applied on appeal, appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should have been imposed.9 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.10 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.11
Submissions
Appellant’s submissions
[21] Turning now to the submissions advanced for the appellant, Mr van der Merwe here, Mr Lucas, on his behalf, submits an unjust sentence has been passed in all the circumstances. This submission, he contends, echoes the comments made by Judge Farish in the District Court who considered herself to be bound by the decision of R v AM and the bands outlined there.12 This appeal, Mr Lucas said before me, is brought also at the specific urging of Judge Farish in her decision in the District Court. Mr Lucas suggested that the Judge recognised an injustice could well occur in a case like this caused by a strict application of the various guideline bands outlined by the Court of Appeal in the AM decision. He noted that the Court of Appeal guideline decision, as Judge Farish indicated, was one by which she was bound, and Mr Lucas suggested this had the effect of hamstringing Judge Farish in what she otherwise would have done. Mr Lucas went on to say that, clearly, Judge Farish in her decision invited and envisaged that this was a case which was appropriate for, and should be, appealed. Accordingly, she granted Mr van der Merwe bail and invited the appeal, which has occurred. And Mr Lucas submits that notwithstanding these matters Judge Farish in
9 Criminal Procedure Act 2011, ss 250(2) and 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
11 Ripia v R [2011] NZCA 101 at [15].
12 R v AM, above n 8.
her decision, in any event, erred in her assessment of what was the appropriate end sentence when the facts of this case are carefully assessed.
[22] In this regard, Mr Lucas contended Judge Farish erred here in rigidly adhering to R v AM and the bands outlined there. Mr Lucas before me referred to a number of Court of Appeal authorities in support of that position.13 He says these cases specifically show there has been a significant sea-change in the approach of the Court of Appeal which has a supervisory authority over the criminal justice jurisdiction.
[23] Mr Lucas goes on to contend Judge Farish here adopted a starting point which, in any event, he maintains was wrong through rigid adherence to AM (notwithstanding what he says was Judge Farish’s unhappiness in applying the AM band method). In his submission, Mr Lucas suggests the correct approach would have been to apply an appropriate starting point to achieve justice in this case and that has not occurred.
[24] As to this, Mr Lucas submits a starting point of five years’ imprisonment is appropriate in this case, falling below band one of R v AM. He says this was opportunistic offending by Mr van der Merwe, and there was no planning or premeditation. He contends drugs and alcohol were a factor. Mr Lucas does accept the victim was vulnerable by virtue of her consumption of alcohol and drugs. However, he says this factor is not present in such a way that requires it to be considered an aggravating feature of the offending.
[25] He goes on to note there is no significant age disparity in this case, in particular when Mr van der Merwe’s mental health issues are considered. Mr van der Merwe and the victim, he notes, had been friends for some time and he contends this was a one-off incident that was not prolonged.
[26] No challenge is made by Mr Lucas to the discounts given for mitigating factors. He submits that if a starting point of five years’ imprisonment is adopted, an end sentence would be 23 and a half months’ imprisonment. Mr Lucas says home
13 Zhang v R [2019] 3 NZLR 648 (CA); Orchard v R [2020] 2 NZLR 37; Moses v R [2020] NZCA 296; Crump v R [2020] ZNCA 287.
detention would then be an available and appropriate sentencing option. He submits the just end sentence in this case is one, therefore, of twelve months’ home detention.
[27] Mr Lucas seeks too that Mr van der Merwe be granted bail pending the final outcome of the appeal process. If I am to dismiss this appeal, Mr Lucas says he seeks leave to apply for bail pending leave to appeal to the Court of Appeal being granted.
Respondent’s submissions
[28] I turn to the respondent’s submissions and my analysis in this matter. Mr Harvey, on behalf of the Crown, maintains the end sentence imposed in this case cannot be considered to be one that is manifestly excessive.
[29] The Crown’s position is the offending here is not such as would justify a starting point outside the available AM case guidelines. He submits that on a standalone basis Mr van der Merwe’s offending justified a starting point of at least seven years’ imprisonment and, indeed, this could have been higher.14
[30] Mr Harvey also submits that, if this Court accepts here Mr van der Merwe’s submission that the appropriate end sentence should be one of home detention, the Court would need to find reasons to depart from s 128B(2) of the Crimes Act 1961 which creates a presumption of imprisonment for the charge of sexual violation.
[31] As I have noted already, the Court of Appeal has released guideline judgments for particular offences and one of these is AM. These guidelines invite a structured approach and promote “transparency of analysis, which facilitates comparison and appellate review, and principled consistency of outcome.”15
[32] The charges of sexual violation by rape and sexual violation by unlawful sexual connection both carry maximum penalties of 20 years’ imprisonment.16 In AM the
14 Referring to Tahiri v R [2013] NZCA 73; R v Chetty [2016] NZHC 1957; Kumar v R [2017] NZCA 189; Paku v R [2012] NZCA 522.
15 Moses v R, above n 13, at [4].
16 Crimes Act, ss 128(1)(a), 128(1)(b) and 128B.
Court of Appeal set “rape bands” for sexual violation which includes rape, penile penetration of the mouth or anus or violation involving objects.17
[33] Band one sets a starting sentence of six to eight years’ imprisonment. This band applies where aggravating factors are either not present or present to a limited extent.18 Band two sets a starting sentence of seven to 13 years’ imprisonment. This band applies where the scale of the offending and levels of violence and premeditation are, in relative terms, moderate.19
[34] I agree with Judge Farish in the District Court that the aggravating features of Mr van der Merwe’s offending here are:
(a)the offending was persistent and not a one-off instance;
(b)there was a significant breach of trust;
(c)the victim was vulnerable;
(d)the effect of the offending upon her has been profound;
(e)the filming of the offending added to the degrading nature.
[35] I do not accept Mr Lucas’ submission here that Judge Farish erred in finding there was an element of degradation to the offending in that it was filmed. Considering the facts of the offending, this submission, in my view, is wrong. The Judge was correct to note that the complainant may have been concerned that Mr van der Merwe viewed this footage or that he may have intended to disseminate it.
[36]In R v AM the Court stated at para [83] stated:
There will also be cases which are so unusual that they will require a starting point outside of the guideline (that is, below the bottom of band one). Where a judge departs from the guidelines, reasons should be given for the departure.
17 R v AM, above n 8, at [88]-[90].
18 At [93].
19 At [98].
[37] Overall, I do not consider this is such an unusual case that would justify a starting point below band one of R v AM. Considering the aggravating features of the offending, in my view, Judge Farish in the District Court was correct to place the offending towards the upper end of band one and the bottom of band two.
[38] Before me, the Crown referred to R v Chetty, a decision of this Court where Muir J adopted a starting point of seven years and six months’ imprisonment for the rape of an intoxicated and asleep victim.20 There, the aggravating features were the vulnerability of the victim who was so intoxicated she was unable to consent, there was a breach of trust, and a degree of premeditation. The latter two factors were present to a low level. The Judge found that the degree of harm suffered by the victim was a serious aggravating factor.
[39] Before me, Mr Lucas has referred to this Court’s decision in Harris v Police, where a starting point of six years’ imprisonment was upheld on appeal.21 The Judge in that case was not satisfied the offending fell below band one.22 There, the offender was friends with the victim and had previously been in a casual relationship. The victim was 15 years old and the offender about 18 years old. They met at a park and ingested cannabis before returning to the offender’s house to sleep. The victim told the offender she did not wish to engage in sex with him. When the victim awoke, the offender was raping her. The aggravating factors of the offending were the vulnerability of the victim, the significant breach of trust, and the level of harm caused.
[40] Before me, Mr Lucas has submitted the present case is a less serious one than Harris. Here, he says there is no evidence Mr van der Merwe ejaculated into the victim’s vagina. Further, he says the actual penetration of the victim was of a much shorter duration.
[41] I agree, however, with the Crown’s comments in Mr Harvey’s submissions on this particular matter. First, it is unclear how the distinction regarding ejaculation could have led the District Court Judge into error. In R v AM the Court considered
20 R v Chetty [2016] NZHC 1957.
21 Harris v Police [2019] NZHC 2846.
22 At [21].
“unprotected sex with the risk of pregnancy or infection or if it has those effects these factors indicate more serious offending.”23 The penetrative acts in the present case, in my view, were more significant. Further, Mr van der Merwe took photographs and videos of the victim. I do not consider the decision in Harris to be of special assistance here, notwithstanding Mr Lucas’ comments to the contrary
Uplift for additional charges
[42] I turn now to consider the uplift for additional charges. Unrelated to the lead offending are two charges of possession of an objectionable publication for which the maximum penalty is 14 years’ imprisonment,24 a charge of making an objectionable publication, for which the maximum penalty is 10 years’ imprisonment25 and the charge of indecent communication with a young person which has a maximum penalty of three years’ imprisonment.26
[43] If I were, in this case, to conduct the sentencing exercise afresh, and considering here the totality of all the offending, I would impose an uplift of 12 months’ imprisonment on these charges. In my view, the six month uplift applied by Judge Farish in the District Court can only be seen as lenient.
Mitigating factors
[44] Turning now to mitigating factors, appropriately, the discounts for mitigating factors are not challenged by Mr van der Merwe, nor the Crown. In my view, the combined discounts were generous and I see no reason to disturb them on appeal. Overall, I am satisfied a merciful approach has been taken with respect to these matters in particular by the District Court Judge here.
[45] I turn now to Mr Lucas’ submission that the tariff decision in R v AM needs to be revisited. With respect to that submission, I make no comment. In any event, if it is thought to be appropriate, it is a matter for the Court of Appeal and not this Court. The matters raised in association with this ground of appeal might appropriately be
23 R v AM, above n 8, at [44].
24 Films, Videos and Objectionable Publications Classification Act, ss123(1)(a) and 124(1).
25 Sections 131(1) and 131(a).
26 Crimes Act, s 124A.
raised in the Court of Appeal, if leave to do so is granted but, again, that is a matter for that Court.27
Conclusion
[46] Turning now to my conclusion in this matter, I am satisfied here that no error occurred in the sentencing decision in the District Court given by Judge Farish. This appeal, therefore, is dismissed.
Bail
[47] Finally, I turn to the issue of Bail. Mr van der Merwe was granted bail pending the hearing of this sentence appeal, pursuant to s 13 of the Bail Act, as I have noted. An appellant will generally only be granted bail pending sentence in exceptional circumstances.28 Although now there may be no exceptional circumstances prevailing in this matter, nevertheless, I am prepared to continue bail in the particular circumstances Judge Farish chose to recognise in her decision. Bail is, therefore, granted to the appellant, Mr van der Merwe on a continuing basis, as I note below. This will be on his existing bail conditions pending the Court of Appeal’s decision determining one way or the other the application signalled by Mr van der Merwe to be made to that Court for leave to appeal this decision.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to:
Josh Lucas, Barrister, Christchurch – for Appellant
27 Criminal Procedure Act, s 253
28 Ellis v R [1998] 3 NZLR 555 (CA) at 560,599 applied in Iti v R [2012] NZCA 307, at [7].
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