CHYASE POSTLETHWAITE v R [2023] NZCA 49

CHYASE POSTLETHWAITE v R [2023] NZCA 49 [8 March 2023]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 AOTEAROACA473/2022[2023] NZCA 49BETWEEN CHYASE POSTLETHWAITEAppellantAND THE KINGRespondentHearing: 22 February 2023Court: Gilbert, Ellis and Davison JJCounsel: C D Bean for AppellantB So and Z R Johnston for RespondentJudgment: 8 March 2023 at 3 pmJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal is allowed. The sentence of 11 years and nine months'imprisonment is quashed and replaced with a sentence of 11 years'imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] Following a trial before Judge Mabey and a jury, Mr Postlethwaite togetherwith his co-offenders, Mr Biddle and Mr Thacker, were convicted on charges of sexualviolation by rape. Mr Biddle had faced, and was found guilty of, four charges whilstMr Postlethwaite and Mr Thacker had faced and were found guilty of three.1[2] On 24 April 2020, the Judge sentenced Mr Biddle to 14 years and nine months'imprisonment and Mr Postlethwaite and Mr Thacker to 11 years and nine months'imprisonment.2 Those latter sentences were arrived at by taking a starting point of12 and a half years,3 discounted by six per cent (nine months) for rehabilitativeprospects.4[3] Mr Thacker successfully appealed his sentence. On 10 March 2021 this Courtheld that a further six per cent (nine month) discount was appropriate for culturalmatters canvassed in a report prepared under s 27 of the Sentencing Act 2002, givinghim a new end sentence of 11 years' imprisonment.5[4] In September 2022, Mr Postlethwaite filed a sentence appeal in which he seeksthe same discount for s 27 matters.Extension of time[5] Mr Postlethwaite's appeal was filed some two years and five months out oftime.6 Leave to extend the time for filing the notice of appeal is therefore required.7[6] Leave was opposed by the Crown on the grounds that the delay had not beenadequately explained. In her oral submissions before us, however, Ms So acceptedthat if we concluded the substantive appeal had merit, then the grant of leave shouldfollow.8 So, in light of our conclusions below, we grant leave accordingly.1 The extra charge faced by Mr Biddle relate to another occasion not involving Mr Postlethwaite orMr Thacker.2 R v Biddle [2020] NZDC 6993 [Sentencing notes].3 At [48].4 At [76].5 Biddle v R [2021] NZCA 57 at [96] and [98].6 While his notice of appeal is dated 5 May 2022, it was not filed until 12 September 2022, followingthe grant of legal aid to Mr Postlethwaite.7 Court of Appeal (Criminal) Rules 2001, r 11.8 See Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [53].The offending[7] On her 18th birthday (in 2012) the complainant received a text message fromMr Biddle saying he wanted to give her a birthday present; he asked to meet heroutside the party. She walked to Mr Biddle's car where Messrs Postlethwaite andThacker were also waiting. They drove a short distance to Coastlands Beach inWhakatāne.[8] Once outside, Mr Biddle said to the complainant "[t]ake your shit off and geton the ground". He removed his own pants. Out of fear, the complainant removedher clothes and lay on the ground. Mr Biddle had sexual intercourse with her, despiteher protests. He then encouraged Mr Postlethwaite and Mr Thacker, who werewatching nearby, to have sex with the complainant, which they did. The complainantdid not consent and protested throughout.[9] The complainant had no way of getting home and was scared of being left aloneat the beach, so she followed the offenders back to the vehicle. When they arrivednear her home, they told her to "get out". She went home. She eventually disclosedthe offending to her mother about two years later.[10] Each of the three men were later charged with one count of rape as a principaland two charges of rape as a secondary party.What the sentencing Judge said about Mr Postlethwaite's s 27 report[11] No issue is taken with the starting point adopted by the Judge so we need sayno more about it here. In terms of the relevance of Mr Postlethwaite's s 27 report, herecorded:9[56] The report provided for Mr Postle[th]waite was prepared by VanessaMoody of Cade & Co in Tauranga. It refers to intergenerational disconnectfrom Māori culture and says that applies directly to Mr Postle[th]waite.He too was the subject of a troubled and violent childhood particularly atthe hands of his own father.9 Sentencing notes, above, n 2.[57] It is positive in its comments for Mr Postle[th]waite's rehabilitationand summarises by saying that social, economic and cultural loss has beencatastrophic for the people of Tūhoe from where all three of you come.[58] Section 27(1)(a) refers to the personal family, whānau, communityand cultural background of an offender. Those terms are not limited to strictlycultural considerations but are broader and it is the experience of the Courtthat reports presented under s 27 supplement what is often a brief pre-sentencereport prepared under trying conditions by Corrections.[59] However, s 27 reports are mostly relied upon for a sentencing creditbased on cultural factors. It is often the case, although not here, that culturalfactors are only briefly touched upon in s 27 reports. In this case there is muchcultural information but it is a question of how I can use it.[60] As the authors of Adams on Crime record at SA27.02, the relevanceof cultural issues to sentence is that it may demonstrate the existence of anoffender's background of pervasive and persistent social disadvantage orsystemic and intergenerational Māori deprivation that will result in impairedchoice and therefore be a relevant factor to the overall assessment ofculpability.[12] The Judge referred to dicta from this Court's decision in R v Zhang aboutthe need for a causal nexus between the matters canvassed in a s 27 report andthe offending in question.10 The Judge then noted that Mr Postlethwaite's then counselhad accepted that his report did not identify any such causal connection. And althoughcounsel for both Mr Biddell and Mr Thacker had made no such concession, the Judgeconcluded that none of the reports before him disclosed the relevant linkage.11He said:[69] What happened in the group offences is that three adult men imposedthemselves upon an 18 year old woman and had sexual intercourse with heragainst her will. They made a deliberate decision and exercised theirindividual freedoms of choice to rape her. Their crimes are not linked tocultural or other issues raised in the reports. It could not be reasonably saidthat such a linkage exists.[70] Furthermore their crimes involve serious sexual offending wherethe dominant sentencing purposes are denunciation, deterrence andaccountability and even if a link did exist it would be given little or noweight.[13] The Judge did not, however, wholly put the s 27 reports to one side. Rather, heconcluded:1210 At [61]–[62], considering R v Zhang [2019] NZCA 507, [2019] 3 NZLR 648 at [159] and [139].11 At [63] and [68].12 At [76].For each of you I see prospects of rehabilitation which require considerationon information derived principally from the reports provided under theumbrella of s 27 but which supplement the brief information inthe pre-sentence reports. I am prepared to give 9 months reduction to the startpoints to recognise those factors.Mr Thacker's sentence appeal is allowed[14] As noted earlier, Mr Thacker subsequently successfully appealed his sentence.In that context, this Court said:13[90] A report provided to the Judge under s 27 of the Sentencing Actcontained a considerable amount of information about Mr Thacker's familyand cultural background. The Judge did not discern any connection betweenthese matters and the present offending. He considered, however, thatthe report indicated Mr Thacker had prospects for rehabilitation. He wasprepared to give Mr Thacker a discount of nine months to recognise this factor.Mr Dutch contended the Judge was wrong to conclude there was noconnection between the factors identified in the report and the circumstancesleading to the present offending. He says that, in line with current sentencingprinciples, the Judge ought to have given Mr Thacker a greater discount thannine months to recognise this factor.[15] After detailing the contents of the report (which included growing up in a gangenvironment, childhood neglect, sexual abuse, methamphetamine use and the absenceof any connection with his Māori heritage) the Court concluded:[95] The Judge was unable to discern any connection between the factorsidentified in the cultural report and the present offending because heconsidered Mr Thacker ultimately made a choice to participate in the incidentthat occurred on the beach. We consider that, viewed more broadly,Mr Thacker's path through life has been driven largely by the factorsidentified in the s 27 report. This has led him to associate with personsinvolved in drugs and gang-related activities.[96] We consider the same factors ultimately contributed to Mr Thacker'sdecision to become involved in the incident on the beach. We thereforeconsider there was a connection between those factors and the offending, andtherefore that a discount of greater than that applied by the Judge waswarranted. We consider a total discount of 18 months, or approximately12 per cent of the starting point, was appropriate to recognise all factorsidentified in the cultural report, including the prospects for rehabilitationalready recognised by the Judge.13 Biddle v R, above n 5 (footnote omitted).The Supreme Court's decision in R v Berkland[16] The need for a causal nexus between s 27 matters and the offending for whicha defendant is being sentenced has also more recently been considered by theSupreme Court in R v Berkland.14 The plurality said:[107] There will always be connections between the different dimensions ofan offender's background and their choice to offend, although the nature andstrength of those connections will vary. As the cases have said, backgroundfactors can be the "operative" or "proximate" cause of offending or they canmake a less direct "causative contribution".[108] Where it can be established that background was an operative orproximate cause of the offending it is likely to be a potent sentencing factor.Proximate afflictions such as addiction or mental illness may be examples.There may be other background factors that invite similar inferences inparticular cases. As we have said, restrictive rules or heuristics that tend toexclude factors at the outset without assessing their potential relevance haveno place in the making of factual assessments. They create analytical blindspots.[109] But requiring operative or proximate cause in every case sets the bartoo high. We prefer the Carr standard of causative contribution. It capturesbackground factors that are, as we explain below, the more diffuse driversor the intergenerational sources of offending; factors that would beexcluded as insufficiently connected under a stricter causation standard.These contributory factors are important because they can provide rationalexplanations for why an offender has come to offend. Contributory mentalillness can still explain why an offender is living in the chaotic orconflictual circumstances that made the offending more likely.Contributory addiction can help to explain why an offender was drawn intothe commercial drug dealing environment. Contributory deprivation,including that precipitated by historical dispossession and sustained bypoor educational and other intergenerational outcomes, can help to explainan offender's limited life options, poor coping skills or other criminogeniccircumstances that made the offending more likely. Where these factorsdo help to explain how the offender came to offend, they will amount tocausative contribution and so will be relevant for the purpose ofsentencing.[110] Although causative contribution is a lower standard than operative orproximate cause, it must still be satisfied. There will be a point at whichbackground factors can no longer assist in explaining the offending.For example, the link between historical deprivation and the offending can besevered. To illustrate this, not all Māori still live in circumstances of relativeeconomic, social or cultural deprivation today. For some, the cycle ofdeprivation has been broken or, at least, much weakened. This too is importantto understand, because any mitigatory effects of historical deprivation must bebased on explanatory facts, not ethnic assumptions. As we will come to,the evidence of Mr Harding's background raises these issues.14 R v Berkland [2022] NZSC 143 (footnotes omitted).[17] The Court went on to note that causative contribution may also be displacedby other factors:[111] The causative contribution of background may also be displaced, inwhole or in part, where the offending is particularly serious. Complex andorchestrated offending is likely to involve careful assessment of the risks ofdetection and therefore increased agency. The contribution of background tooffending with this level of agency may therefore be significantly reduced oreven negated and other sentencing goals, such as community protection, maybecome more important. Such assessment will depend very much on the facts,however.Mr Postlethwaite's s 27 report[18] Mr Postlethwaite's s 27 report does not, perhaps, disclose a childhoodinvolving the quite the same level of deprivation as Mr Thacker's. For example, hewas initially immersed in his Māori heritage (on his father's side), through attendanceat kōhanga reo and a bilingual primary school as a child. That said, his connectionwith that world seems to have been severed at a relatively early stage as a result ofMr Postlethwaite's complete estrangement from his father due to his father's extremefamily violence — directed against Mr Postlethwaite's mother in particular, but alsoMr Postlethwaite and his siblings — and his gang affiliation. The accounts given byMr Postlethwaite's mother of the extreme violence meted out to her — sometimes infront of the children — are deeply disturbing.[19] Although, as Ms So pointed out, Mr Postlethwaite's PAC report appears topaint a more benign picture of his childhood, it seems tolerably clear thatMr Postlethwaite was not wholly co-operative with the report writer because he wasat that time maintaining his innocence.15 Nor was his mother interviewed forthe purposes of the report and it is her account that evidences Mr Postlethwaite'sexposure and subjection to significant family violence as a child.[20] The s 27 report discloses that Mr Postlethwaite grew up in a family whereviolence against his mother was as commonplace as it was extreme. Family violenceand sexual violence overlap; abusive power and control are key elements common toboth. Offending of the kind committed by Mr Postlethwaite and his associates was15 Mr Postlethwaite did, however, refer to the complete absence of, and his estrangement from, hisfather.violence directed at women and an expression of power over women. We do not findit difficult to discern a link — or a causative contribution — between that and hisupbringing. Despite the seriousness of his offending, we consider account should havebeen taken at sentencing of that. As in Mr Thacker's case we consider a furthernine months' discount should be allowed.Result[21] The application for an extension of time to bring the appeal is granted.[22] The appeal is allowed. The sentence of 11 years and nine months'imprisonment is set aside and replaced with a sentence of 11 years' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent