HISHON v R [2016] NZCA 558

HISHON v R [2016] NZCA 558 [30 November 2016]PUBLICATION OF NAMES, ADDRESSES, OCCUPATION(S) ORIDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA282/2016[2016] NZCA 558BETWEEN ANTHONY JOHN KENNEDY HISHONAppellantAND THE QUEENRespondentHearing: 17 November 2016Court: Kós P, French and Venning JJCounsel: F E Guy Kidd and JAT Ross for AppellantP A Currie for RespondentJudgment: 30 November 2016 at 10 amJUDGMENT OF THE COURTA An extension of time is granted to bring the appeal.B The appeal is allowed. The sentence of three years, six months'imprisonment is quashed. It is replaced with a sentence of three years, three months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Mr Hishon was sentenced to three years, six months' imprisonment forcommitting indecent assaults against five victims.1 He appeals the sentence. He says a lesser sentence of three years should have been imposed.1 R v Hishon [2016] NZDC 8586.[2] An extension of time to bring the appeal is required as it was brought out of time. It was originally filed under the Criminal Proceedings Act 2011 when it should have been filed under the Crimes Act 1961.2 The notice of appeal ultimately filed under the Crimes Act 1961 was therefore out of time. There is no prejudice to the respondent. An extension of time to bring the appeal is granted.Background[3] Mr Hishon was found guilty at trial of eight offences of indecent assault between January 2004 and 31 August 2009. At the time he was between 40 and 45 years old. The offending was against four adult victims. Following the trial Mr Hishon pleaded guilty to a further representative charge of indecent assault in relation to a fifth victim during the same time period.[4] The indecent assaults involved the following offending:(a) Touching Complainant 1's vagina over the top of her underwear asshe bent down to put a tea bag in the rubbish bin, slipping his hand down the back of her jeans and touching her bottom as she bent forward; and touching her breast over her clothing.(b) Complainant 2 was a babysitter for Complainant 3's (the then-partner of the appellant) two children. Complainant 2 was in her twenties. Mr Hishon went to the bedroom where she was staying, said he would show her a good time, and put his arm around her waist over the top of some bedcovers.(c) After separating from Complainant 3, Mr Hishon went to her home. She said he tried to hug her, she tried to push him away and they ended up on the ground. He sat on her. She could not move and he groped her down her body and in her crotch area over her clothing.32 The appeal provisions of the Crimes Act 1961 continue to apply to proceedings which were commenced prior to 1 July 2013 when the Criminal Procedure Act 2011 came into force: Criminal Procedure Act 2011, s 397.3 In her sentencing notes the Judge described this incident as the appellant pushing the complainant to the ground, and it included groping her breasts (consistent with the summary of facts). But in her evidence the complainant did not say that he pushed her to the ground. Nor did she say he groped her breasts.(d) Complainant 4 was the daughter of the appellant's former partner.She was aged 23 or 24 at the time of the offending which occurred over three days of a trip to the South Island in 2009. On one occasion Mr Hishon pulled the victim close and pushed his erect penis against the small of her back and brushed his hand against her pelvis near her vagina. On the next occasion, when he was still naked after a shower, Mr Hishon pushed his penis against her back in a thrusting motion. Shortly after that he pushed her to the bed, and positioned his body between her legs.4 He was only wearing shorts at this time. On a third occasion he touched the victim's vagina and anus through hergym gear.(e) The defendant kissed Complainant 5, who at the time was 37 and induced her to touch his penis through his clothing, lay on her and exposed his penis to her.[5] Two of the charges were laid as representative counts. Two of the charges involved the appellant using his physical size to pin the victims down, at least for a short time.The District Court sentence[6] Judge Farnan took the offending against Complainant 4 as the lead offending.The Judge assessed Mr Hishon's offending against Complainant 4 as moderate to serious. She fixed a starting point of two years for that offending. She then uplifted the starting point to reflect the other offending, arriving at five years, three months which she reduced to four years to have regard to the totality principle. The Judge then said she took account of the guilty plea entered in relation to the offending against Complainant 5 (but noted it would be minimal) and then adjusted thesentence to take account of Mr Hishon's personal circumstances, lack of previous convictions and offer to make amends. She considered the remorse to be too little and too late. The Judge then said she would reduce the sentence by between five to4 The Judge recorded this as the appellant pinning the complainant down, consistent with thesummary of facts. Again, the complainant's evidence was rather that he positioned his bodybetween her legs.seven months for the factors other than the guilty plea. Taking all those matters into account she gave Mr Hishon a total discount of a little over 12 per cent, arriving at an end sentence of three years, six months. In addition, the Judge directed Mr Hishon to make the emotional harm payments of $2,400 to each of the victims as he had offered.The appeal[7] Mr Hishon does not challenge the payments of $2,400 to each of the victims but challenges the length of the term of imprisonment.[8] Relying on a number of High Court authorities Ms Guy Kidd submitted the starting point taken of two years for the offending involving complainant 4 was too high.5 She suggested that the observations of this Court in R v H,6 that a range of between six months and two years was appropriate, should be taken to only apply to offending against young complainants. The victim in that case was one day short of 17 years old. Ms Guy Kidd submitted that a lower range would be appropriate in cases involving adult complainants.[9] There is no tariff case for offending of this nature. The observations of this Court in R v H should not be regarded as restricted to offending against victims under the age of 17. R v H also involved a charge of indecent assault. While the young age of a victim may be an aggravating feature, other features of the offending may also support a starting point towards two years. The offending against complainant 4 in particular was persistent and included a number of aggravating features, including that on one occasion Mr Hishon was naked when he pressed his erect penis against the complainant.[10] The appellant's reliance on the High Court authorities overlooks the extent ofthe offending in the present case. The offending involved multiple instances of offending against five separate victims and included two representative charges. The5 R v Slater CA211/04, 15 December 2004; R v Murphy HC Whangarei CRI-2005-092-5226, 5 June 2007; R v Ismail [2016] NZHC 79; R v Linton [2014] NZHC 2111; Mayo v R [2016] NZCA 34; Ludlow v Police HC Dunedin CRI-2011-412-28, 28 September 2011; Carline v R[2016] NZCA 451; R v McCord [2013] NZHC 3261; and Berryman v R HC Hamilton A91/98, 28 August 1998.6 R v H CA221/05, 17 October 2005 at [12].offending against complainant 4 in particular was concerning. We are satisfied thatthe totality of Mr Hishon's offending in this case supported a starting point of fouryears.[11] The appellant also submits that the Judge failed to take into account and give proper consideration to mitigating factors. He has filed an affidavit in which he refers to his depression and says that he suffers from sciatica. He has also filed an affidavit from Mr Shirley, a clinical psychologist to support his submission that he is suffering from depression. But the Judge was aware Mr Hishon had those issues. Mr Hishon and his supporters provided that information in general terms to the sentencing Judge in their letters to her. No further reduction is required for those factors.[12] However, the Judge does appear to have fallen into error when applying the deduction for mitigating factors and the guilty plea. While she said that it would be appropriate to provide a credit in the range of five to seven months for factors "other than a guilty plea" she then imposed an end sentence of three years, six months.[13] Even applying the mid range of six months it appears the Judge overlooked providing a discount for the guilty plea involving the fifth complainant. It is apparent from her sentencing notes that she intended to apply a discount for that, but failed to do so.[14] The discount for pleading guilty to the representative charge against the fifth complainant would necessarily be modest but should have been at least two months, given the Judge initially applied an uplift of 18 months for that offending (before reducing it for totality).[15] We agree with the Judge's assessment that a reduction of up to seven monthswas appropriate for all mitigating factors apart from the guilty plea. Applying the further reduction of two months for the guilty plea leads to an end sentence of three years, three months' imprisonment. While the end sentence of three yearssix months cannot be said to be out of range, the Judge's failure to apply the intendeddiscount for the guilty plea requires correction to give effect to her intention:Tutakangahau v R.7Result[16] An extension of time to bring the appeal is granted. The appeal against sentence is allowed. The sentence of three years, six months' imprisonment is quashed. It is replaced with a sentence of three years, three months' imprisonment.Solicitors:AWS Legal, Invercargill for AppellantCrown Solicitor, Christchurch for Respondent7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].