VARONA MACHADO v R [2020] NZCA 374

VARONA MACHADO v R [2020] NZCA 374 [31 August 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA197/2020[2020] NZCA 374BETWEEN AGUSTIN VARONA MACHADOAppellantAND THE QUEENRespondentHearing: 28 July 2020Court: Collins, Peters and Whata JJCounsel: T Sutcliffe for AppellantB D Tantrum and C R Purdon for RespondentJudgment: 31 August 2020 at 10.00 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] Following a jury trial in July 2019 before Judge Spear in the District Court atHamilton, the appellant, Mr Varona Machado, was convicted of one charge of sexualviolation by unlawful sexual connection.1 In March 2020, the Judge sentenced1 Crimes Act 1961, ss 128(1)(b) and 128B.Mr Varona Machado to two years and eight months' imprisonment for the offending.2Mr Varona Machado appeals against sentence on the ground it is manifestly excessive.Extension of time[2] Mr Varona Machado's appeal is brought out of time. We grant the necessaryextension of time, there being no objection from the Crown to us doing so.Background[3] At the time of the offending, Mr Varona Machado was 18 years of age.The victim was 16 years of age. The two had previously been in a sexual relationshipfor about nine months, and although that aspect of the relationship had ended, theyremained friends. On the evening in question, Mr Varona Machado and the victimwere returning home on a bus from a day in Auckland. Mr Varona Machado askedthe victim to give him oral sex. The victim declining to do so, Mr Varona Machadopushed her head down to his lap, forced his penis into her mouth, and subsequentlyejaculated.Sentencing[4] The Judge adopted a starting point of six years' imprisonment, and it is thiswhich is the focus of the appeal. The Judge then reduced the starting point by a totalof 55 per cent, this comprising 20 per cent for Mr Varona Machado's youth; 10per cent for prior good character; 10 per cent for steps Mr Varona Machado had takento educate himself on the nature and possible triggers of violent sexual offending; and15 per cent for Mr Varona Machado's family and cultural background.3 This broughtthe end sentence to two years and eight months' imprisonment.Submissions[5] It was accepted at sentencing that the guidelines for sexual violation by rape(which also include penile penetration of the mouth) identified in R v AM (CA24/2009)were applicable and that this was a band one case, being offending at the lower end of2 R v Varona Machado [2020] NZDC 4009 [Sentencing notes].3 At [17]–[20].the spectrum.4 In the usual course of events, offending in band one attracts a startingpoint of six to eight years' imprisonment.5[6] However, this Court also said what is required is an evaluative judgement ofculpability and there would be "unusual" cases requiring a starting point below thebottom of band one, that is, less than six years.6[7] Mr Sutcliffe, counsel for Mr Varona Machado, submitted to the Judge, and tous, that this was such a case. This is because the offending occurred within the contextof an ongoing, highly sexual, yet immature relationship, and the offending was brief.The submission that the sexual relationship was ongoing is different from the otherinformation before us but is of no particular consequence.[8] Mr Sutcliffe submitted a starting point of four to four and a half years wouldhave been commensurate with the culpability inherent in the offending.[9] The Judge did not accept these submissions. Although he accepted theoffending was impulsive, the Judge considered Mr Varona Machado's act to be one ofserious sexual violence and, in addition, one committed in public and which hadcontinued until Mr Varona Machado ejaculated in the victim's mouth.7 The Judgeconsidered these latter two factors increased the already substantial indignity inherentin the offending.8 The Judge also considered the offending to be in breach of trustbecause Mr Varona Machado and the victim had previously been in a relationship, thevictim's family had extended considerable hospitality to him, and the victim and herfamily had been seriously and adversely affected by the offending.9Discussion[10] Mr Sutcliffe is correct that this Court said in R v AM there may be unusualcases where a lesser starting point than six years may be appropriate, and the relatively4 At [12], citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [93].5 R v AM (CA27/2009), above n 4, at [90].6 At [79] and [83].7 Sentencing notes, above n 2, at [10]–[11].8 At [11].9 At [7]–[9] and [11].brief nature of the offending in this case was certainly a factor in favour of Mr VaronaMachado on this issue. Equally, and as the Judge said, the victim had made it veryclear to Mr Varona Machado that she did not wish to engage in sexual activity withhim in those circumstances, let alone of that nature, and in proceeding as he didMr Varona Machado evidenced a determination to have what he wanted, regardless ofthe victim's wishes. The other factors the Judge mentioned are also relevant.[11] Crown counsel, Mr Tantrum, submitted that the Judge's starting point wasentirely appropriate and this case was not unusual, so as to warrant any reduction onappeal. Mr Tantrum also submitted the percentage discounts the Judge gave weregenerous and offset any excess we might consider there to be in the starting point.In response, Mr Sutcliffe submitted the discounts were no more than appropriate.[12] Whatever the arguments that something less than a six year starting point waswarranted, we accept Mr Tantrum's submission the Judge's discounts were generousand more than offset any modest reduction to the starting point which might have beenthought appropriate. Ultimately, the end sentence is not manifestly excessive.Result[13] The application for an extension of time to appeal is granted.[14] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent