CROWLEY-LEWIS v R [2022] NZCA 235

CROWLEY-LEWIS v R [2022] NZCA 235 [9 June 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA484/2021[2022] NZCA 235BETWEEN ASHLEIGH CROWLEY-LEWISAppellantAND THE QUEENRespondentHearing: 29 March 2022Court: Brown, Lang and Mallon JJCounsel: F D Steedman for AppellantJ E Mildenhall for RespondentJudgment: 9 June 2022 at 10.30 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of nine years' imprisonment without parole on therepresentative charge of rape is quashed. In its place we substitute a sentenceof eight years and six months' imprisonment with a minimum period ofimprisonment of four years and three months.C The other sentences and the protection and disqualification orders areunaffected.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] The appellant pleaded guilty to and was convicted of sexual offendinginvolving two women: B and G. Judge Carter sentenced him to nine years'imprisonment without parole.1 The order to serve his sentence without parole wasmade because the offending was a "second strike" under the "three strikes" sentencingregime.[2] The appellant appeals this sentence. He says it was manifestly excessivebecause the starting point adopted by the Judge was too high, the discounts allowedwere inadequate and the order that he serve his sentence without parole rendered thesentence disproportionately severe.The offending[3] The appellant was in a relationship with B from October 2009 when he was 17and she was 15 years' old. The couple were living together in 2010 and B was pregnantwith their first child. They married in March 2017 and separated on 11 July 2018.The offending against B involved:(a) Male assaults female.2 The appellant bit B's face in 2009 after sheaccidentally hit his testicles when they were "fooling around". The bitedrew blood, but no medical attention was needed, nor was there anylong-term scarring.(b) Intentional damage.3 In 2010, when B was driving the appellant tocommunity work, they were arguing and the appellant put his feet onthe dashboard and kicked the windscreen with his steel capped bootscausing it to shatter.1 R v Crowley-Lewis [2021] NZDC 20049.2 Crimes Act 1961, s 194(b), maximum term of two years' imprisonment3 Section 269(2)(a), maximum term of seven years' imprisonment.(c) Rape.4 In 2010, when B was 16 years' old and 20 weeks pregnant, thecouple were having consensual sexual intercourse which becamepainful for B. She asked the appellant to stop but he continued with theintercourse despite her pain.(d) Intentional damage.5 In 2011 or 2012, when B was driving theappellant and they were having an argument, B stopped the car and toldthe appellant to walk home. The appellant responded by kicking anddamaging the door panel.(e) Male assaults female.6 In early July 2018 the appellant tipped B off thecouch and poured a beer over her head after kicking a wooden teatrolley. She was pregnant with their second child at the time.[4] The appellant was in a relationship with G between July 2018 andJanuary 2020. They have one child together, who was born in June 2019.The offending against G involved:(a) A representative charge of rape.7 The appellant raped G onthree occasions. The first two occasions were in September 2018 andMarch 2019. The third occasion came a few days after the birth oftheir child. On each of these occasions, G was asleep in the bed sheshared with the appellant and awoke to find she had semen or a rag withsemen between her legs. On the first occasion the appellant admittedhe had sex with her and claimed it was consensual. On the thirdoccasion the appellant denied that any had sex occurred.(b) Unlawful sexual connection.8 In December 2018, G went to bed andawoke to find the appellant performing oral sex on her without her4 Sections 128(1)(a) and 128B, maximum term of 20 years' imprisonment.5 Section 269(2)(a), maximum term of seven years' imprisonment.6 Section 194(b), maximum term of two years' imprisonment.7 Sections 128(1)(a) and 128B, maximum term of 20 years' imprisonment.8 Sections 128(1)(b) and 128B, maximum term of 20 years' imprisonment.consent. B told the appellant to stop but he ignored this request andcontinued to perform oral sex.(c) Reckless driving.9 In November 2019, G was driving a car with theappellant in the front passenger seat and their baby in the back seat,when the appellant became angry with G because he thought she hadtaken too long to do some shopping. As they entered a 100km/h zone,he pulled the handbrake on, causing the car to veer across the yellowcentre lines into oncoming traffic. G managed to steer heavily to theleft but one of the oncoming vehicles collided with the rear of their car.No one was injured in the incident.(d) A representative charge of breaching a protection order.10 G obtaineda temporary protection order on 8 January 2020. The appellantbreached this by sending letters to G from prison.[5] B and G both suffered trauma from the appellant's offending. B described thetrauma as being so bad that it felt like her brain was injured. They both suffer fromanxiety and post-traumatic stress disorder, and have difficulty sleeping. B describedhaving lived in "survival mode" for ten years not knowing what the appellant woulddo next. G described nights waking up in a panic and remembering all the horriblethings the appellant did.The first strike[6] The appellant was convicted of aggravated robbery in 2011. The appellant was18 years old and was with his co-offender, T, who was 20 years old. They had spentthe afternoon drinking alcohol. When they ran out of alcohol, they approached a16-year-old boy who was walking along a central city street in his school uniform.The appellant asked the boy for money. He only had a 10-cent coin on him. T askedthe boy what else he had. He showed them his iPod. T told the boy to give them theiPod or he would beat him up. Fearing for his safety, the boy handed over his iPod.9 Land Transport Act 1998, s 35(1)(a), maximum term of three months' imprisonment, maximumfine of $4,500.10 Family Violence Act 2018, ss 90(b) and 112(1)(a), maximum term of three years' imprisonment.The appellant demanded that the boy also hand over his wallet and his backpack,which he did. The appellant admitted the offending. He was sentenced to 300 hours'community work and to pay reparation. He received a first strike warning.11Personal circumstances[7] The appellant was 28 years old when he was sentenced on the offendinginvolving B and G. The appellant has other previous convictions in addition to thatfor aggravated robbery, the majority of which are for breaches of sentences ofcommunity work and driving offences. He also has a 2009 conviction for sexualconnection with a child.[8] The appellant told the pre-sentence report writer that he was raised by hisgrandmother from when he was two years old until he was 17 as a result of beingremoved from his parents' care. He described his childhood as "good and bad".While he never "went without", he was the victim of sexual abuse "as far back" as hecould remember.[9] The appellant described his relationship with B as having its "ups and downs",but that B was a "good partner" and "deserved better" than him. He was low in moodwhen their relationship ended and soon afterwards he commenced his relationshipwith G. He expressed his regret for his actions, saying he felt like a "piece of shit",and that he was aware he could not treat women like this. He expressed no animositytowards them and did not attempt to blame them in any way. He wished to reconnectwith his children through supervised visits when released from prison.[10] He told the report writer that he liked to work and had previously hadlabouring, building and automotive jobs. He was in contact with his parents.[11] The information in the pre-sentence report was supplemented by detaileddefence submissions about the appellant. These submissions were a product ofdetailed instructions counsel obtained from the appellant in lieu of a report preparedunder s 27 of the Sentencing Act 2002, that could not be commissioned in time for the11 Sentencing Act 2002, s 86B(1).sentencing. The submissions provided detail about the sexual abuse the appellant hadsuffered, his problematic time at school including his suspensions and ultimateexpulsion, his ADHD diagnosis, the fact that his mother and her partner let him smokecannabis and drink alcohol with them, and his early trouble with the Police. The onepositive feature of his life was his relationship with B, who provided him with supportover a long period.[12] The appellant also wrote articulate letters of apology to B and G. In theseletters he acknowledged the harm his behaviour had caused, saying that B and Gdeserved better and that he was truly sorry for his actions.The District Court sentence[13] The Judge adopted a starting point of 10 years' imprisonment for therepresentative rape and the unlawful sexual connection. He did so because he regardedthe offending as falling in the middle of band 2 in R v AM (CA27/2009).12 The Judgeidentified the aggravating features as being planning and premeditation, thevulnerability of G because she was asleep, the harm G suffered, the scale of theoffending (three rapes and unlawful sexual connection), and the breach of trust. Hecompared the case with van der Merwe v R and R v Chetty, which each involved asingle incident of rape of a sleeping victim, and in which starting points of seven yearsand seven years and six months, respectively, were adopted.13[14] The Judge considered the rape of B fell below band 1 in R v AM and hadsimilarities with Crump v R, where a starting point of two years and three months'imprisonment was adopted.14 The Judge added one year and six months to the 10-yearstarting point for the rape of B.1512 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [90].13 R v Crowley-Lewis, above n 1, at [33]–[36]; van der Merwe v R [2021] NZHC 1108; and R v Chetty[2016] NZHC 1957.14 R v Crowley-Lewis, above n 1, at [37]; and Crump v R [2020] NZCA 287, (2020) 29 CRNZ 402.15 R v Crowley-Lewis, above n 1, at [37].[15] For the remaining charges the Judge uplifted the sentence by a furthersix months. This produced an overall starting point of 12 years' imprisonment, beforeconsideration of personal aggravating and mitigating factors.16[16] The Judge observed that the appellant's previous convictions would ordinarilylead to an uplift but, because the appellant was subject to the three strikes regime, nouplift was appropriate.17 He allowed a 20 per cent discount for the appellant's guiltyplea and a five per cent discount for the appellant's family background and upbringing,as discussed in the submissions for the appellant. This meant an end sentence ofnine years' imprisonment.18[17] The Judge said there was no right to parole because this offending involved asecond-strike offence.19 Had it been otherwise, he would have imposed a minimumperiod of imprisonment of two-thirds of the end sentence, amounting to a minimumperiod of six years. He considered this was appropriate because of the need foraccountability, denunciation and deterrence, and protection of the community.20The appealStarting point[18] The appellant submits the starting point for the representative charge of rapewas too high. He submits that the offending was more opportunistic than planned andpremeditated, and that there was an overlap between the vulnerability and breach oftrust factors that the Judge identified. He submits van der Merwe had different featuresto those present here, including that the offender filmed part of the sexual violationwhile the victim was unconscious, had a history of engaging in sexualised online chatsand stored objectional publications on his phone. The appellant also submits the Judgeerred in his analysis of Chetty because the starting point of seven years and six months'imprisonment adopted in that case was for a second rape that the offender committedwhen on bail for charges relating to an earlier rape of an unconscious woman.16 At [38].17 At [39]; and Anderson v R [2019] NZCA 294 at [46].18 R v Crowley-Lewis, above n 1, at [42]–[44].19 Sentencing Act 2002, s 86C(4).20 R v Crowley-Lewis, above n 1, at [45]–[47].[19] For these reasons, the appellant says his offending was on the cusp of band 1and band 2 of R v AM and a starting point of seven years would have been appropriate.He does not take issue with the uplifts for the other offending. That would mean anoverall sentence of nine years' imprisonment, subject to any totality adjustment andbefore considering personal aggravating and mitigating factors.[20] We agree with the appellant that the offending was more opportunistic thanplanned (the number of instances is better accounted for under the "scale of theoffending" aggravating factor identified in R v AM).21 Apart from that, we considerthe Judge correctly identified the aggravating factors. Vulnerability was presentbecause G was sleeping. Breach of trust was present because G and the appellant werepartners who shared the same bed. There were three instances of rape and a furtherinstance of unlawful sexual connection and G has suffered ongoing mental healthissues as a result of the offending.[21] This means that that there are three to four aggravating factors present to amoderate degree. That puts the offending towards the middle of band 2. The 10-yearstarting point is consistent with that. The offending was more serious thanvan der Merwe and Chetty because of the number of incidents, and the breach of trustwas greater because those cases did not involve offending in the context of arelationship. And, contrary to the appellant's submission, a starting point of sevenyears and six months was taken in Chetty for a single incident of rape of a sleepingwoman. The offending was also more serious than in Tahiri v R, where this Courtupheld a starting point of eight years' imprisonment for a single incident of rape of asleeping woman in her home.22 This Court considered that the starting point was nearthe top of the available range for the type of offending in question, however it was stillavailable to the Judge.23[22] We conclude that the 10-year starting point for the representative charge ofrape was within the available range. While a slightly lower starting point might alsohave been available, this is balanced out by the uplifts for the other charges.21 R v AM (CA27/2009), above n 12, at [47].22 Tahiri v R [2013] NZCA 73 at [15].23 At [15].The appellant queries whether the Judge applied the totality principle because he didnot expressly refer to it. However, it is apparent from his uplifts that totality wasincorporated in them. They were at the lower end of the available range, taking intoaccount totality, given the number and range of incidents and their features: the rapedisplayed entitlement and disregard for B; the two male assaults female incidents weredemeaning of B; and the reckless driving incident displayed an alarming disregard forthe safety of G, their child and other road users.[23] We therefore reject this ground of appeal.Discount for family background and upbringing[24] The appellant submits that the five per cent discount for family backgroundand upbringing was insufficient. He says it should have been 10 per cent, particularlyas no separate allowance was made for remorse. A comparison is made withWaikato-Tuhega v R in which this Court increased a 10 percent total discount for youthand personal factors to separate discounts of 15 per cent for each of those elements.24The respondent accepts the discount for the appellant's personal circumstances was onthe low side but says the guilty plea discount was generous.[25] We agree that the five per cent discount was too low. While there was nos 27 report, the detailed submissions from experienced counsel provided the Courtwith the relevant information. This Court has approved discounts in the range of 10to 15 per cent for similar features as those present here.25[26] We acknowledge, as does the appellant's counsel, that the guilty plea discountwas arguably generous. The pleas were entered on 2 June 2021 and the trial was setto commence on 28 June 2021. However, the discount recognised that new counsel24 Waikato-Tuhega v R [2021] NZCA 503 at [57], [71] and [73].25 See for example Nuku v R [2022] NZCA 11 at [37] (where a 15 per cent discount was appropriatefor factors including family dysfunction and ADHD); Minogue v R [2020] NZCA 515 at [52](where a 15 per cent discount was appropriate for background factors including limited educationand drugs and alcohol in the childhood home); Woodstock v R [2020] NZCA 472 at [35] (where a15 per cent discount was appropriate for factors including childhood physical abuse and expulsionfrom school at a young age); Davidson v R [2020] NZCA 230 at [34] (where a 14 per cent discountwas appropriate for factors including exposure to drugs and alcohol at a young age, anddeprivation); and Carr v R [2020] NZCA 357 at [67] (where a 15 per cent discount was appropriatefor factors including sexual abuse by a family member and early exit from the education system).had been engaged and there had been some adjustment to the charges, and theprosecutor agreed at sentencing that 20 per cent was appropriate. We do not think thediscount was too generous in these circumstances so as to make up for the inadequatediscount for the appellant's background.[27] We therefore accept this ground of appeal. We consider that a discount of10 per cent for the appellant's family background and upbringing is appropriate.Second strike[28] The last ground of appeal is the one on which the appellant primarily relies.Because the offending was a "second-strike" offence, s 86C(4)(a) of theSentencing Act applied. That section provides that the court "must order that theoffender serve the full term of the sentence without parole". The Judge's order toserve the sentence without parole was made pursuant to that section.[29] Since the delivery of the Judge's sentencing decision, the Supreme Court'sdecision in Fitzgerald v R and this Court's decision in Matara v R have been given.26Fitzgerald v R concerned an offender being sentenced for his "third strike" offenceunder s 86D(2) of the Sentencing Act, which required the High Court to impose themaximum term of imprisonment prescribed for that offence.27 The Supreme Courtheld that the three strikes regime was not intended to prevail over s 9 of theNew Zealand Bill of Rights Act 1990 (NZBORA).28 That section affirms the right thateveryone has not to be subjected to disproportionately severe punishment. The Courtheld that, where imposing the maximum sentence under s 86D would breach s 9, theoffender was to be sentenced in accordance with ordinary sentencing principles.29In Matara v R this Court held that the same approach must apply to s 86C, such thata court is not required to make a non-parole order under s 86C(4) if this would resultin a disproportionately severe sentence for the purposes of s 9 of NZBORA.3026 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551; and Matara v R [2021] NZCA 692,(2021) HRNZ 944.27 Fitzgerald v R, above n 26, at [25] per Winkelmann CJ.28 At [112], [121], [124], [128]–[130] and [135] per Winkelmann CJ.29 At [137] and [139] per Winkelmann CJ, [231] per O'Regan and Arnold JJ and [252] perGlazebrook J.30 Matara v R, above n 26, at [58] and [62].[30] Sentencing the appellant in accordance with s 86C(4), and allowing a10 per cent discount for the appellant's background in addition to the 20 per centguilty plea discount, would result in an end sentence of eight years and five months'imprisonment without parole.[31] If he was sentenced in accordance with ordinary principles, the term ofimprisonment imposed would be higher. That is because the total starting point of12 years' imprisonment would be uplifted because of the appellant's previousconvictions. Most relevant is the appellant's conviction for sexual connection witha child. An uplift of three months would be appropriate because of that. Deducting30 per cent for the guilty plea and background factors would mean an end sentence(rounded down) of eight years and six months' imprisonment.[32] On ordinary principles, a minimum period of imprisonment would also beappropriate. We take a different view from the Judge about the appropriate length ofthe minimum period.31 The pre-sentence report writer regarded the appellant as posinga medium risk of reoffending. The appellant's comments to the report writer showedsome insight into his offending, in that he understands he struggles with anger and isaware that he cannot treat women in the manner he has treated them in the past.His guilty pleas demonstrated an acceptance of responsibility. His letters of apologyto B and G also showed some insight, acceptance of responsibility and remorse.These are factors that point away from a minimum period set at two-thirds of theend sentence. We regard the more usual 50 per cent period to be appropriate.32This would mean a minimum period of imprisonment of four years and three months.[33] This means that under s 86C(4) the appellant would be required to spend eightyears and five months in prison. In contrast, under ordinary principles he would havethe opportunity to seek release from prison after four years and three months.31 R v Crowley-Lewis, above n 1, at [47].32 See for example S v R (CA676/2018) [2019] NZCA 395 at [11] where this Court noted that thecases reviewed by the sentencing Judge "showed that indicated minimum terms of between 50and 64 per cent had been imposed for sustained sexual offending"; R v AM (CA27/2009), above n12, at [156] noting "the imposition of an MPI of at least half of the nominal sentence is veryroutine" in cases of sexual offending against children; and Rippey v R [2018] NZCA 306 at [39]noting that minimum periods of imprisonment are "commonplace for sexual offending" but notmandatory.Removing that opportunity from him is disproportionate and engages the principlesidentified in Fitzgerald and Matara, particularly in view of the nature of his first strikeoffence. As reflected in the sentence he received for that offence, it was at the low endof the range of aggravated robbery offending: it involved no planning, no weapons oractual violence and the appellant was young and from a difficult background.This offending could have been charged as demanding with menaces33 and as suchwould not have attracted a first strike.[34] We conclude that, interpreting s 86C(4) consistently with s 9 of NZBORA,the Judge was not required to make an order that the appellant serve his sentencewithout parole. The Judge was without the benefit of the guidance provided byFitzgerald and Matara when he made that order.Result[35] The appeal against sentence is allowed.[36] The sentence on charge six (the representative charge of rape) of nine years'imprisonment is quashed and replaced with a sentence of eight years and six months'imprisonment. The order that the appellant serve his sentence without parole isquashed. It is replaced with a minimum period of imprisonment of four years andthree months.[37] The sentences on the other charges and the protection and disqualificationorders are not altered by this judgment.Solicitors:Crown Law Office, Wellington for Respondent33 Crimes Act 1961, s 239(2).