Whitcombe v Police
[2018] NZHC 1409
•14 June 2018
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2018-463-40
[2018] NZHC 1409
BETWEEN CALEB SEYMOUR WHITCOMBE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 May 2018 Counsel:
N P Chisnall for Appellant A J Gordon for Respondent
Judgment:
14 June 2018
JUDGMENT OF BREWER J
This judgment was delivered by me on 14 June 2018 at 2:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
N P Chisnall (Auckland) for Appellant Gordon Pilditch (Rotorua) for Respondent
WHITCOMBE v POLICE [2018] NZHC 1409 [14 June 2018]
Introduction
[1] Mr Whitcombe appeals his sentence of two years and six months’ imprisonment for sexual offending against two teenage girls.1 His argument is that because he was 17 years old at the time of his offending (and he is now only 18 years old), he should have been given a greater discount for his youth so that his end sentence was less than two years, and a sentence of home detention should have resulted.
Background
[2] Mr Whitcombe’s offending is set out in Judge M A MacKenzie’s sentencing notes:
[3] In a time sense, the offending which happened first was that which involved Miss D. That happened on 3 February 2017. The two of you had communicated via social media and arranged to go to McDonalds for lunch on 3 February. Instead, the two of you went to the Botanical Gardens. You went and sat in the gardens, the two of you kissed and you put your hands on the inside of Miss D’s thighs, moving them up under her skirt to her genitalia. You started rubbing her genitalia on the outside of her underwear. Miss D told you that this made her feel uncomfortable. She stood up and asked you to take her back to school. The two of you started walking back to the car. You then guided her into a bush where you pulled her to the ground and you pulled down her skirt and underwear. You knelt in front of Miss D and inserted your fingers into her vagina forcefully. Your actions caused Miss D’s genitalia to start bleeding. She repeatedly asked you to stop, as your actions were unwanted and causing her pain. You noticed the blood on your fingers and asked Miss D if she was on her period, but continued thrusting your fingers in and out of her genitalia nevertheless. Miss D said that she did not have her period and that you were hurting her and asked you to stop. After a period of time, you stopped and you got up and walked back to the car, leaving Miss D on her own to pull up her underwear.
[4] Miss D told a friend a few days later. The friend messaged you to say that you should stay away from Miss D or the friend would notify the police. You responded saying you wanted to apologise and you admitted being an idiot for doing it and knew that you should not have done what you did.
[5] Then one month later, you offended against Miss B. This was in the context of a social occasion. Miss B consumed a large quantity of alcohol during the evening. On any analysis, she became very intoxicated. You took it upon yourself to take care of Miss B and you recognised that she was trying to sneak back to places where the bulk of the party-goers were.
[6] The offending against Miss B involved a course of conduct of the initial indecent assault offending and then later on the digital penetration. The indecent assault comprised you on three or four occasions putting your hands
1 R v Whitcombe [2018] NZDC 9006.
on Miss B’s breasts and bottom and kissing her. You recognised that she was so intoxicated to the point where she was about to vomit and so you assisted her to the toilet and sat her on the floor. She vomited on two or three occasions. You went back into the toilet to find her semi-conscious, sitting in front of the toilet bowl and then you and a friend carried Miss B to a bedroom where you placed her on the bed and put a blanket over her. You left the bedroom but returned to check on her and noticed that she had vomited on the bed. You knelt on the bed and removed Miss B’s top and bra and you put your hand inside her underwear and put your fingers into her vagina. You were disturbed momentarily. You ceased your activity, but after the person had left the bedroom, you put your fingers back inside her vagina on the second occasion. You were disturbed for a second time and asked about what you were doing. You then left the bedroom and the party.
[7] The following morning, Miss B woke to find herself naked from the top part of her body and bleeding from her genitalia. She knew that something had happened to her.
[8]No long term injuries were sustained to either Miss D or Miss B.
[9] You said that the sexual contact between you and Miss D had happened, but that you had obtained consent to kiss, touch and poke her, but denied aspects of Miss D’s account. In relation to Miss B, you acknowledged the facts as outlined and that Miss B was in no position to consent due to her level of intoxication and that she was passed out when you had poked her in the bedroom.
The sentence
[3] Judge MacKenzie decided to adopt separate starting points for the offending against each victim and then to combine them, making an allowance for the totality of the offending.
[4] The Judge considered the aggravating factors of the offending to be the harm done to the victims, their vulnerability (particularly that of Miss B), premeditation, breach of trust in relation to Miss D and the scale of the offending (by which the Judge meant offending against two complainants within a month of each other).
[5] Judge MacKenzie considered the offending against each victim falls within band one of R v AM.2 For the offending against Miss B, the Judge adopted a starting point of three-and-a-half years’ imprisonment. For Miss D, the starting point adopted was two-and-a-half years’ imprisonment. From the combined provisional starting
2 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
point of six years’ imprisonment, the Judge deducted one year to take into account totality.
[6] The Judge turned to consider Mr Whitcombe’s personal mitigating factors to decide the extent to which the starting point of five years’ imprisonment should be adjusted downwards. The factors to be considered were youth, remorse and the pleas of guilty.
[7] Judge MacKenzie recognised that a discount for youth is appropriate for a number of reasons. Her Honour referred to the research that young people’s brains do not come to maturity until they are in their early twenties. They can make impulsive and bad decisions. This can affect the way a sentencing Court regards their culpability.
[8] Judge MacKenzie took into account also that the effect of imprisonment on young people can be crushing and that young people have a greater capacity for rehabilitation than do adults.
[9] Recognising there is no guiding rule for the quantum of a youth discount, Judge MacKenzie noted it can vary from 10 percent to 40 percent or more.
[10] Key points in the Judge’s assessment of the discount suitable were the fact there were two victims, only a month apart, and Mr Whitcombe’s age. He was not, say, 14 or 15 years old at the time of the offending. He had acknowledged, prior to offending against Miss B, that what he had done to Miss D was wrong.
[11] Judge MacKenzie reflected on the importance of rehabilitation and came to the conclusion that the youth discount should be 30 percent:
[38] Part and parcel of the issue of youth is, as I have referred to, the prospects of rehabilitation. There is a very helpful report from Mr Lascelles, an expert, and I have the SAFE summary which says that you are suitable for a SAFE programme and that there are good prospects of rehabilitation. Clearly there is a significant need for rehabilitation. You were open and honest with the psychologist at times to your own detriment and you are willing to undertake rehabilitation. The way I intend to deal with youth is to include prospects of rehabilitation as part and parcel of a discount for youth. The discount that I intend to give for youth, which includes, as I have said, the prospects of rehabilitation and is reflective of your lack of history, is 30 percent, which is 18 months off that five year start point.
[12] Judge MacKenzie then turned to consider a discount for remorse, which included Mr Whitcombe’s preparedness to attend a restorative justice conference. The issue of remorse was clouded because the psychological report obtained by the Defence from Mr Lascelles indicated a lack of acceptance of responsibility on Mr Whitcombe’s part for the offending against Miss D. Mr Whitcombe did say he was remorseful in relation to the offending against Miss B and the Judge accepted this was genuine remorse. However, the Judge was not prepared to give a significant discount for that expression of remorse and allowed two months. The Judge did not consider a willingness to participate in restorative justice added anything.
[13] As to the credit to be given for Mr Whitcombe’s pleas of guilty, the Judge accorded the full discount of 25 percent. That led to the end sentence of two-and-a- half years’ imprisonment.
The appeal
[14] Mr Chisnall, in careful submissions on behalf of Mr Whitcombe, focuses the appeal on Judge MacKenzie’s assessment of the discount for Mr Whitcombe’s youth:
4It is contended that three interlinked errors were made by the learned Judge that have resulted in a manifestly excessive sentence. These are:
(a)The conclusion, when assessing the mitigatory effect of the appellant’s age, that because Mr Whitcombe was in the adult jurisdiction, his youth could not be a dispositive factor when establishing the length of the sentence to be imposed;
(b)There was insufficient recognition of the appellant’s rehabilitative efforts, which was evidenced by the fact he sought an assessment of his rehabilitative needs from a clinical psychologist, Nick Lascelles, and enrolled in Safe before he entered his guilty pleas; and
(c)The Judge did not expressly address the information contained in the psychological report of Mr Lascelles, who assessed the appellant’s risk of reoffending and identified the ways in which that risk could best be reduced. Critically, the Judge did not address Mr Lascelles’ evidence regarding the limited treatment options available in prison for a person of Mr Whitcombe’s age.
[15] Mr Chisnall submits Judge MacKenzie should not have taken any account of Mr Whitcombe’s age leading him to be categorised as an adult offender. The research about the duration of adolescent brain development makes that factor irrelevant.
[16] Mr Chisnall then expands on his submission that the Judge did not pay sufficient regard to Mr Lascelles’s report. He submits Mr Whitcombe’s offending, and the attitudes behind it, are attributable to his lack of mental maturity and directly engages the findings of the research described by the Court of Appeal in Churchward:3
(a)Mr Lascelles’ report highlights factors that pulled extremely strongly in favour of both a significant youth discount, at the first stage of the enquiry, and the overriding of s 128B’s presumption at the next. These are that:
(a)Prison will not personally deter Mr Whitcombe and will only provide temporary community protection through incarceration.
(b)Mr Whitcombe’s rehabilitative needs will best be met in the community. Maintaining employment, close connection with his pro-social community support network and avoiding the influence of criminal peers is likely to reduce the appellant’s risk. Indeed, imprisoning Mr Whitcombe may increase the risk he poses to the community in the long-term.
(c)The treatment options in prison are extremely limited. The most suitable interventions are community-based: Safe and/or one-on-one psychological counselling. Mr Whitcombe’s age is likely to preclude the availability of other prison-based sex- offender programmes.
(b)There is a real doubt whether treatment in prison is a realistic prospect. Counsel observes that Mr Lascelles’ report responds to a point made by the Court of Appeal in Fleming v R – that it is important that judges be made aware of the Department of Corrections’ policies on the availability and timing of rehabilitative programmes; as such information may need to be taken into account at sentencing. Here, it is submitted that did not occur.
[17] Mr Chisnall goes on to criticise the discount of two months given for the remorse expressed by Mr Whitcombe for the way he treated Miss B. Mr Chisnall submits there needed to be a meaningful recognition of Mr Whitcombe’s efforts at rehabilitation. He has engaged candidly with Mr Lascelles and, before entering his pleas, self-referred to SAFE.
3 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
[18] In Mr Chisnall’s submission, the Judge should have given a separate discount to reflect these efforts at rehabilitation and the Judge should have given greater weight to the need for rehabilitation given the high probability that those needs will not be met in prison:
28 … Indeed, it is open to this Court to conclude that if imprisoning a young offender will defer or deny his or her access to rehabilitation, then that is a “circumstance” that renders the sentence disproportionately severe under s 8(h) of the Sentencing Act 2002.
[19] Mr Chisnall submits the fact there were two victims does not matter. It is the age-related neurological difference between a young person and an adult that goes to culpability. Whether there was one victim or more does not change the effect of imprisonment on young people or that young people have greater capacity for rehabilitation:
30Simply put, the fact that there Mr Whitcombe committed two offences increased the importance of meaningful rehabilitative intervention. Moreover, this is a case where the interests of the appellant and public align, as “there is benefit to the community in ensuring that the chance of rehabilitation is not shut out, and in reducing the prospect of a youthful offender emerging from prison a more hardened criminal than he went in.”
[20] In short, Mr Chisnall’s submission is that this is a “paradigm example” of a case where youth should be treated as “a mitigating factor of high, perhaps decisive, significance not to be circumscribed by any fixed outer percentage”.4 In Mr Chisnall’s submission, Mr Whitcombe’s rehabilitative prospects should have been met with a youth discount of 45 percent.
Discussion
[21] I must allow the appeal if I am satisfied that, for any reason, there is an error in Mr Whitcombe’s sentence and a different sentence should be imposed. Such an error will exist if Mr Whitcombe’s sentence of two years and six months is manifestly excessive. However, if that sentence is within the range available to the Judge, then any error in the analysis by which the Judge determined the sentence is unlikely to require a different sentence.
4 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [83].
[22] Mr Chisnall does not take issue with the starting point of five years’ imprisonment. In my view, the starting points adopted by the Judge for each offence were within the range available to her as set out in R v AM. The reduction of one year to account for totality was generous (17 percent). These were separate and unrelated offences, with the offending against Miss B representing a significant escalation in seriousness. I suspect Judge MacKenzie was unconsciously biased towards the youth factor. I will, nevertheless, take five years as an available overall starting point.
[23] The main issue is whether Judge MacKenzie, against the principles laid down by the Court of Appeal in cases such as Churchward and Pouwhare, gave sufficient weight to Mr Lascelles’s report in calculating the youth discount of 30 percent.
[24] I will dispose of two other issues before I discuss the main issue. First, I disagree with Mr Chisnall’s submission that Judge MacKenzie should not have had regard to Mr Whitcombe’s age putting him in the category of an adult, as opposed to a youth, offender. Judge MacKenzie did not use Mr Whitcombe’s age to exclude the principles applicable to the sentencing of young people. The Judge was making the point that an offender aged 14 or 15 years old, transferred to the District Court or the High Court for sentencing, will generally be treated more leniently than a 17-year old offender because there tends to be even less maturity, less understanding of consequences, and hence less culpability. There can also be greater chances of rehabilitation because antisocial attitudes may be less ingrained.
[25] Second, the Judge did not err in limiting her discount for remorse to two months in respect of expressed remorse for Mr Whitcombe’s offending against Miss B. Indeed, I do not think any discount was necessary.
[26] Mr Whitcombe’s overall attitude to his offending shows a lack of remorse. Mr Lascelles reports that in respect of Miss D, Mr Whitcombe gave an account quite at odds with the summary of facts. He said he had done nothing wrong and that Miss D was “a slut”. In respect of Miss B, he downplayed his culpability (for example, he said he did not believe he caused Miss B to bleed from her genitals). He accepted that what he did was wrong, that Miss B would have been distressed, and added “she didn’t seem like a slut”. Mr Lascelles records:
45. When asked how he felt about the offences, Mr Whitcombe described feeling bad due to “all this court stuff”, and the stress on his parents in particular. He did not mention victims until prompted, stating he felt very bad about what he had done to the second victim.
[27] An offender is not entitled to a separate discount for remorse merely for professing it. The discount is earned by showing that, because of an understanding of the wrongfulness of the conduct, a tangible acceptance of responsibility for that conduct, and its effects on any victims, has occurred. Mr Whitcombe engaged with Mr Lascelles and was assessed by SAFE, but that was because Mr Chisnall advised him to do so. That is not a criticism. It was proper advice and Mr Whitcombe needed it. The same can be said of his preparedness to engage in restorative justice. But, overall there is slender indication he accepted responsibility for his actions (and the contrary is true in respect of Miss D). His remorse was primarily for his predicament and for the effects on his parents.
[28] I come back to the main issue – the appropriateness of the youth discount. First, I see no failure by Judge MacKenzie to recognise the principles giving rise to the discount. The issue goes to whether, given Mr Lascelles’s report and the overall circumstances, they were applied appropriately.
[29] Churchward v R was a case of murder committed by two girls aged 14 years and 17 years, with Ms Churchward being the latter. The Court of Appeal gave leave for Dr Chaplow to provide evidence on the development of the adolescent brain.
[30] An issue for the Court of Appeal was how Ms Churchward’s youth should affect the minimum period of imprisonment she would serve:
[76] We accept the submission made on behalf of Ms Churchward that, although there is no automatic displacement of a 17-year minimum period on the basis of youth alone, the age of a defendant can be a mitigating factor and falls naturally for consideration under the broadly-worded test of “manifestly unjust”. We refer to s 8(g) of the Sentencing Act, and s 25(i) of the New Zealand Bill of Rights Act 1990 (Bill of Rights), which affirms:
“The right, in the case of a child, to be dealt with in a manner that takes account of the child's age.”
[77] Youth has been held to be relevant to sentencing in the following ways:
(a)There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.
(b)The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.
(c)Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.
[78] Additional factors recognised by the England and Wales Sentencing Guidelines Council are: offending by a young person is frequently a phase which passes fairly rapidly and thus a well-balanced reaction is required in order to avoid alienating the young person from society; and criminal convictions at this stage of a person’s life may have a disproportionate impact on the ability of the young person to gain meaningful employment and play a worthwhile role in society.
[79] Looking at these related factors in more detail, we note first the matters discussed by Dr Chaplow as to the differences between young people and adults. As he notes, there is a growing body of scientific evidence on adolescent brain development that demonstrates that young people are significantly different to adults.
[80] The New South Wales Department of Education and Training has stated that adolescence is a period of development, particularly in the ability to produce, establishing an individual identity and developing logical and rational thought processes. It summarises the research as follows:
(a)the ability to plan, consider, control impulses and make wise judgements is the last part of the brain to develop;
(b)adolescents are built to take risks and it is simply part of their biology;
(c)most adolescents know right from wrong, but the environment in which risk-taking and other behaviours occur can lead to inappropriate behaviour; and
(d)adolescents are more prone to react with gut instincts and impulsive and aggressive behaviour.
[81] These neurological factors can lead to a reduction in culpability of young people as compared to adults. This does not mean that young persons should not take responsibility for their actions: it is merely that their actions may be partly explicable (but not necessarily excusable) by their state of neurological development. In KT v R, the Supreme Court of New South Wales (Court of Criminal Appeal) stated that:
The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age.
…
[84] As was noted in R v Rapira, however, where the offending is grave, the scope to take account of youth may be greatly circumscribed. This is because the very factors that may lead young people to offend may cause concerns about future public safety. There is also the need for denunciation and deterrence, both specific to the offender and in general. This Court summarised the relevance of youth to sentencing in Pouwhare v R as follows:
… the fact than an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person’s part in it, anything aggravating and otherwise mitigating must also be weighed.
(Footnotes omitted)
[31]The Court of Appeal went on to discuss:
(a)The adverse effect of imprisonment on young people: “… adolescents experience high levels of depression, anxiety, suicidal ideation and self- injurious behaviour, and victimisation from other inmates whilst incarcerated”.5 This is relevant to s 8(h) of the Sentencing Act which requires any particular circumstances of the offender to be taken into account if they mean that a sentence that would otherwise be appropriate would be disproportionately severe.
(b)The rehabilitative prospects of young people: “… a young first offender should not be regarded as beyond help even after serious offending unless there is no escape from that conclusion”.6 The Court quoted from its earlier decision in R v K (CA345/02):7
The gravity of a young offender’s offending has necessarily to be balanced against the need to consider his rehabilitation and reintegration into society and the outcome should be the least restrictive in the circumstances of the case. Whilst these are not the only principles that require balancing in the case of a young offender, they are the principles to be given emphasis.
5 At [85].
6 At [88]; citing R v Cuckow CA312/91, 17 December 1991 at 10.
7 At [89]; R v K (CA345/02) (2003) 20 CRNZ 62 (CA) at [22].
[32] The Court addressed the balancing factor that the principle that youth may lead to a sentence reduction is not absolute. It may need to yield to the public interest. The Court quoted its earlier decision in R v Mahoni:8
The principle that for a variety of reasons, youth may lead to a reduction in an otherwise appropriate sentence is well established. See R v Titoko CA114/96, 11 August 1996 where this Court drew attention to s 7 of the Criminal Justice Act and art 37(b) of the United Nations Convention on the Rights of the Child. It should be noted that the principle is not founded solely on consideration for young persons; there is benefit to the community in ensuring that the chance of rehabilitation is not shut out, and in reducing the prospect of a youthful offender emerging from prison a more hardened criminal than he went in. However, the principle is not absolute and there are situations where it must yield to the public interest …
[33]Mr Chisnall relies also on the Court of Appeal’s 2010 decision of Pouwhare v
R.9 That case involved the discount for youth which could be given to a 16-year old whose case was transferred to the District Court from the Youth Court consequent to her pleading guilty to charges of aggravated robbery, robbery and possession of cannabis.
[34] The main issue in Pouwhare was whether youth justice sentencing principles required to be observed by the Youth Court accompanied a youth whose case was transferred to the District Court or the High Court. The Court of Appeal held they do not. The Sentencing Act applies. However, it went on to say:
[82] A “young person” under the CYPF Act is a “child” for the purposes of the UN Convention on the Rights of the Child, which New Zealand ratified in 1993. For its purposes a “child” is everyone below 18 years unless under domestic law majority is attained earlier. When sentencing a young person, therefore, a Judge should, to the extent that this is consistent with the letter of the Sentencing Act, act in accordance with the Convention and, in particular, should treat the young person’s “best interests” as a “primary consideration”. The Judge must treat the young person in a way that promotes his or her “sense of dignity and worth”; must reinforce, the young person’s “respect for the human rights and fundamental freedoms of others”; and must, as the Sentencing Act also expressly calls for, impose a sentence which “takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society”.
[83] In the end, a Judge sentencing a young person under the Sentencing Act must always weigh the young person’s age and the reasons why he or she offended, against the seriousness of his or her offending and prospects of
8 At [90]; R v Mahoni (1998) CRNZ 428 (CA) at 436-437.
9 Referred to in Churchward, above n 3, and quoted at [84].
rehabilitation. Sometimes the young person’s age will be a mitigating factor of high, perhaps decisive, significance not to be circumscribed by any fixed outer percentage. Equally, there can be no warrant for saying that youth, of itself, must always prevail as the paramount value on sentence, or that youth alone can justify radically reducing the sentence which would otherwise be proper.
(Footnotes omitted)
[35] Having discussed cases where significant discounts for youth had been given, the Court of Appeal said:
[96] As these decisions illustrate, the fact than an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person’s part in it, anything aggravating and otherwise mitigating must also be weighed. The analysis Mako calls for is always indispensable.
[36] Accordingly, there is no outer limit to the discount for youth. If the offender is a child as defined in the UN Convention on the Rights of the Child (and Mr Whitcombe was), then there can be no fixed discount and the type and length of sentence is not constrained by any percentage. It will depend on the case.
[37] The dicta in Churchward and Pouwhare are to be applied within the framework of the Sentencing Act (the Act). The Act states eight purposes of equal weight10 and 10 principles.11 A sentencing Judge must take them all into account, although not all will be relevant. There is tension between some of them. Sentencing is not a mathematical exercise, it is an evaluative one. The purposes and principles of sentencing set out in the Act have to be considered against the circumstances of the offending and the offender, and in accordance with the applicable case law.
[38] I add that an appellate Court, when considering whether an error has been made such that a different sentence should be imposed, bears in mind that for any offending there is available to the sentencing Judge a sentence range. That is because Judges can reasonably differ in their evaluation of the relevant factors going to sentence. It is
10 Section 7.
11 Section 8.
only if a sentence is outside the range an appellate Court finds applicable to particular offending that it will intervene.
[39] The purposes of sentencing most applicable to Mr Whitcombe, and which call for his freedom to be restricted are:
(a)To hold him accountable for the harm done by him to Miss D and Miss B, and to the community.
(b)To denounce his conduct.
(c)To deter him and others from like offending.
(d)To protect the community.
(e)To provide for the interests of Miss D and Miss B.
[40] Other purposes which, as is apparent from the discussion on the discount for youth, should be given prominence in Mr Whitcombe’s case are:
(a)To promote in Mr Whitcombe a sense of responsibility for, and an acknowledgement of, the harm he has done.
(b)To assist in Mr Whitcombe’s rehabilitation and reintegration.
[41] In giving effect to these purposes, the following principles are particularly relevant and must be taken into account:
(a)The gravity of Mr Whitcombe’s offending, including his degree of culpability.
(b)The seriousness of the offence of sexual violation by unlawful sexual connection in comparison with other types of offending. The maximum penalty for the offence is 20 years’ imprisonment, which puts it among the most serious of offences.
(c)The general desirability of consistency with appropriate sentencing levels in similar cases.
(d)That the least restrictive outcome appropriate in the circumstances must be imposed.
(e)Any particular circumstances of Mr Whitcombe that mean a sentence that would otherwise be appropriate would, in his case, be disproportionately severe.
(f)Mr Whitcombe’s personal and family background in imposing a sentence with a partly or wholly rehabilitative purpose.
[42] The Act also specifies aggravating and mitigating factors that must be taken into account. I have referred to the aggravating factors Judge MacKenzie identified. It is important to note that Parliament stipulated that mitigating factors the Court must take into account on sentencing include the age of the offender, whether and when he pleaded guilty, any remorse and any previous good character.
[43] There is a further statutory provision relevant to Mr Whitcombe’s case. It is s 128B of the Crimes Act 1961. This provides:
(1)Every one who commits sexual violation is liable to imprisonment for a term not exceeding 20 years.
(2)A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks that the person should not be sentenced to imprisonment.
(3)The matters are—
(a)the particular circumstances of the person convicted; and
(b)the particular circumstances of the offence, including the nature of the conduct constituting it.
[44] I accept that where the particular circumstances of the person convicted include his or her young age, then for the reasons already discussed the presumption of imprisonment can be rebutted depending on all the circumstances.
[45] In assessing the discount applicable to Mr Whitcombe’s youth, I observe that his offending does not have the hallmarks of impulsive risk-taking associated with adolescent brain development. The offending against Miss D occurred on 3 February 2017. Mr Lascelles records that Mr Whitcombe was the subject of a Police warning in 2016 after a sexual interaction with a female student. According to Mr Lascelles, the Police occurrence record stated a 17-year old female told Police she had met Mr Whitcombe in a park during school hours, and there had been consensual sexual contact. He repeatedly asked for oral sex, which she kept refusing. She did not allege any offending but wanted Mr Whitcombe to be told that “no means no”. Police spoke to Mr Whitcombe and told him to “take no for an answer and not to force anything to happen as if there was an offence, there could be a different outcome”. Mr Whitcombe acknowledged the incident to Mr Lascelles and that the Police spoke to him. He said it was “like a warning but not”.
[46] After the offending against Miss D, Mr Whitcombe responded to a message from a friend of Miss D, saying that he wanted to apologise, he was an idiot for doing it, and he knew he should not have done it. Nevertheless, a month later he offended against Miss B.
[47] Mr Whitcombe knew right from wrong. His offending was not impulsive and was for sexual gratification against an objectification of his female victims. I do not conclude his immaturity was not a factor in his offending. However, I do not see this as a case where rashness, risk-taking, peer-pressure susceptibility or situational misjudgement reduce culpability.
[48] There is a need for rehabilitation. Mr Lascelles assessed Mr Whitcombe as being at moderate risk of sexual offending during the next three years if he is unsupervised in the community:
He is most likely to offend against a similarly aged female known to him, either in the context of an initially consensual interaction which progresses beyond boundaries set by a victim, or when a woman is unable to consent due to intoxication.
[49] Mr Lascelles’s conclusions are summarised by Mr Chisnall and quoted at [16]. In short, it is not in Mr Whitcombe’s best interests to be sentenced to a term of
imprisonment. He is unlikely to receive effective rehabilitative intervention. There might be a greater risk of a “next victim” if Mr Whitcombe is exposed to criminal peers and does not do a SAFE course.
[50] On the other hand, the likelihood of participation by Mr Whitcombe in a SAFE course effecting a meaningful rehabilitation cannot be assessed. Mr Lascelles does not make a prediction. The Courts have recognised a real prospect of rehabilitation through demonstrated efforts to be a major factor in calculating a youth discount.12
[51] Mr Chisnall argues that Mr Whitcombe’s personal circumstances, particularly his youth, mandate a radical reduction of his sentence to allow for home detention. I understand Mr Chisnall’s desire to achieve that outcome for his client, but a sentencing Judge must not artificially tailor a sentence to achieve a desired outcome.13 A sentencing Judge must fix the provisional sentence in accordance with the law and if other options are available, consider them at that point.
[52] Since Mr Whitcombe’s sentence should be generally consistent with appropriate sentencing levels in similar cases, I look for such cases.
[53] R v Rehu involved a 15-16 year old sentenced for sexual offending against children.14 The nature of the offending was simulated intercourse on three victims.
[54]Justice Toogood applied a youth discount of 30 percent, noting:
[34] … I acknowledge that youth alone does not automatically justify leniency in cases of serious child abuse by a young offender, but I accept that, while you knew what you were doing was wrong, you did not fully understand its gravity.15 I make allowance for the likelihood that your actions involved some element of experimentation and a reduced appreciation of the seriousness of your actions.16
12 R v Griffiths [2018] NZHC 1104; R v Rehu [2015] NZHC 2178; R v Alletson [2009] NZCA 205; M (CA844/11) v R [2012] NZCA 352; Lennon v R [2012] NZCA 551; R v Parata CA72/01, 21 June 2001; V (CA400/12) v R [2012] NZCA 465; Overton v R [2011] NZCA 648.
13 R v Honan [2015] NZCA 94 at [34]; R v Edwards [2006] 3 NZLR 180 (CA) at [24] and [46].
14 R v Rehu, above n 12.
15 R v Accused (CA265/88) [1989] 1 NZLR 643 (CA).
16 R v Parata, above n 12.
[55] R v Alletson involved an appeal against conviction and sentence.17 The appellant was convicted of charges relating to sexual offending against two young girls, aged between six and 10. The most serious aspect of the offending involved instances of digital penetration. The appellant was between 15 and 17 years old at the time of the offending. He was sentenced to two years and 10 months’ imprisonment.
[56] The sentencing Judge identified youth as the prime mitigating feature. Taking this into account along with the appellant’s lack of previous convictions, prospects of rehabilitation, strong family support and good employment record, the Judge held that a discount of 30 percent was appropriate. In fact, due to what appears to have been a mathematical error, the Judge applied a discount of about 43 percent.
[57] The Court of Appeal agreed that a discount for youth was appropriate given “the immaturity and lack of judgment of a young person which may reduce his or her criminal responsibility”.18 The discount of 43 percent was termed “clearly more than adequate recognition of the appellant’s youth”.19
[58] In M (CA844/11) v R, the appellant was convicted of raping his profoundly disabled and bed-ridden aunt when he was between 14 and 15 years old.20 He was sentenced roughly eight years later. The Court of Appeal held that the discount of 30 percent applied by the sentencing Judge was appropriate, noting:
[25] The extent of a discount due to the age of the offender depends largely on factors that are specific to the facts of each particular case. A reduction in sentence is in part a recognition of the reduced culpability of a youthful offender, as compared to an adult offender. In part, it is a reflection of the significant disadvantage of spending part of the offender’s formative years in prison. It may also reflect the greater emphasis on rehabilitation that may be appropriate for a youthful offender. In this case, the two latter considerations must necessarily be tempered by the lengthy delay between the offending and the sentencing.
[59] In Edri v R, the Court of Appeal substituted a combined discount of 33 percent for youth and mental impairment in the form of foetal alcohol spectrum disorder.21
17 R v Alletson, above n 12.
18 At [66].
19 At [68].
20 M (CA844/11) v R, above n 12.
21 Edri v R [2013] NZCA 264.
The appellant had been convicted of rape and indecent assault, committed when he was 17 years old.
[60] In Lennon v R, the Court of Appeal allowed a discount of one third for youth in relation to charges of indecent assault and sexual violation of young children.22 The appellant was aged between 14 and 15 at the time of the offending.
[61] In R v Parata, a discount of 50 percent was allowed in relation to sexual offending by a 16-year old against an eight-year old.23 However, an important factor in the Court’s reasoning was the conduct of the appellant in the years following the offending:
[3] There are no indications that the appellant has re-offended since. Over the following ten years the appellant entered into married life and had three children. When apprehended he was leading a blameless and stable family life in another part of the country.
…
[10] In the present case no-one could suggest that this 16 year-old boy would not have appreciated the wrongfulness of interfering with the younger boy. Equally, however, some allowance could be made for the likelihood that there was some element of experimentation and reduced appreciation compared with the understandings of a mature adult. There is also some room for recognising the success that the appellant made of his life over the ensuing ten years. The pre-sentence report was entirely favourable.
[62] In V v R, a discount of 30 percent was allowed to reflect youth, rehabilitation and remorse.24 The offender, aged between 14 and 17, was convicted of sexual offending against his sister, aged between five and eight.
[63] In Overton v R, the Court allowed a discount of 22 percent for youth (including the possibility that the appellant had not appreciated the gravity of his offending) and rehabilitation prospects.25 The offender, aged between 15 and 16, was convicted of sexual offending against a young relative, aged between six and seven.
22 Lennon v R, above n 12.
23 R v Parata, above n 12.
24 V (CA400/12) v R, above n 12.
25 Overton v R, above n 12.
[64] R v Griffiths did not involve sexual offending, but it is a useful benchmark of the standard required to justify a youth discount of over 30 percent.26 Mr Griffiths pleaded guilty to dangerous driving causing death and dangerous driving causing injury. He was 18 years old at the time of the offending.
[65] Justice Toogood applied a discount of 40 percent to reflect Mr Griffiths’s youth, and importantly, his mental health. Mr Griffiths was diagnosed with ADHD, Autism Spectrum Disorder and Asperger’s Syndrome. Justice Toogood held:
[29] I consider that it is necessary in this case to apply significant discounts from the starting point… to reflect the operative effect of your psychological conditions on your behaviour on this fateful morning and, therefore, on your offending, and also to reflect that the impulsive and reckless nature of the offending can be attributed, at least in part, to youth and immaturity.
[66] It is clear from Toogood J’s judgment, that had the relevant mental disorders been absent, a far smaller discount would have been warranted.27
Decision
[67] I emphasise that sentencing a young first offender on serious charges is always difficult. In this case, Mr Whitcombe has a supportive family and his upbringing was not marred by the abuses and deprivations so often seen in the backgrounds of young offenders. At the time he saw Mr Lascelles, he was leading a normal and productive life. He had a job (commenced in June 2017) and was looking forward to starting an apprenticeship. He had a girlfriend and their relationship had progressed to include regular sexual intercourse. He chafed at the 10:00 pm curfew which was a part of his bail conditions and looked forward to being able to move out of his parents’ house:
In such circumstances the necessary balance between retribution, deterrence and rehabilitation, the need to mark society’s condemnation of the behaviour, coupled with compassion, is extremely difficult to achieve.28
[68] As the case law makes clear, the mere fact that Mr Whitcombe was 17 years old at the time of his offending does not automatically displace all sentencing purposes and principles other than those which favour Mr Whitcombe’s best interests. Those
26 R v Griffiths, above n 12.
27 See the discussion of Mr Griffiths’s mental health at [20]-[26].
28 McKerrow v Police HC Christchurch A74/02, 13 August 2002 at [23].
interests must be a “primary consideration” for the purposes of the UN Convention on the Rights of the Child, but the Sentencing Act still applies.
[69] In Mr Whitcombe’s case, weighing his age and the reasons why he offended, against the seriousness of his offending and prospects of rehabilitation I do not see that the interests of justice require a radical reduction from what would otherwise be a proper sentence.
[70] In my view, Judge MacKenzie took proper account of the youth discount factors and her allowance of 30 percent is appropriate and consistent with similar cases.
[71] The end sentence of two years and six months’ imprisonment is not a crushingly long one. Mr Whitcombe can expect to be considered for parole after serving 10 months. There is, as Mr Lascelles recognises, the possible option of rehabilitative intervention by a Department of Corrections psychologist, and I recommend to the Department that this option be considered.
[72]The appeal is dismissed.
Brewer J
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