RYMER v R [2023] NZCA 120

RYMER v R [2023] NZCA 120 [21 April 2023]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA360/2022[2023] NZCA 120BETWEEN CLYDE FRANCIS RYMERAppellantAND THE KINGRespondentHearing: 20 March 2023Court: Courtney, Venning and Downs JJCounsel: D A Kemp for AppellantJ V Barry and L Dalton for RespondentJudgment: 21 April 2023 at 11.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Downs J)The appeal[1] Clyde Rymer pleaded guilty to serious sexual charges, including six ofsexual violation.1 The District Court imposed a sentence of nine years and sevenmonths' imprisonment, with a minimum period of imprisonment of five years.21 Sexual violation by unlawful sexual connection (x 6); indecent assault on a boy 12–16 (x 13);sexual conduct with a young person (x 2); and indecent assault.2 R v Rymer [2022] NZDC 10056.Mr Rymer appeals.3 His primary contention is that the Judge adopted an excessivestarting point, so that his sentence is too severe.[2] An appeal in this context must be allowed if there is an error in the sentenceand a different one should be imposed.4 As in any sentence appeal, the ultimateconcern is outcome, not methodology.5Background[3] The offending is largely historical and concerns two victims, whom we call A(the first complainant) and B (the second complainant). Mr Rymer was a friend of thevictims' respective families. His offending against A occurred from July 2000 untilJuly 2004, when A was 12–16 years old. That against B occurred from November2005 until November 2009, when B was 12–16 years old. On 13 September 2021,Mr Rymer committed a further sexual offence against B. He was then on bail. Wereturn to this chapter after outlining the earlier offending, which is best captured in thesentencing Judge's words:6[4] Between July 2000 and July 2001 you and the first complainant wereat your home address ... The first complainant was aged 12 years of age at thetime. He was staying at the house after a barbecue. His parents had gonehome. You woke up the first complainant while he was asleep on the couchin the lounge. You sat him up and put him on your lap and asked if he wantedto watch porn. You then scrolled through television channels looking for pornbut were unsuccessful in finding any. You then started touching the firstcomplainant in the groin area over his clothing. You took his pants andunderwear off and started stroking his penis with your hand. During that timeyou would state: "You're doing well," to the first complainant until the firstcomplainant ejaculated. He was confused as he had never ejaculated before.You kept repeating: "It's okay," and cleaned up with a towel before telling thefirst complainant to keep this a secret and go to sleep.[5] Between July 2002 and July 2004 you and the first complainantvisited Tāwharanui rock pools near Warkworth. The first complainant wasaged 14 years of age at the time. You touched him over his wetsuit in the groinarea when no one was looking. The offending was brief and there were noother family members around.[6] In the summer between December 2003 and March 2004 when thefirst complainant was about 15 years of age he was at your address ... During3 Mr Rymer's appeal was filed 12 working days out of time. An extension of time was granted byKatz J in a minute of 17 November 2022.4 Criminal Procedure Act 2011, s 250.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 R v Rymer, above n 2.the night after a barbecue he went to sleep on a mattress on the floor of thelounge. You entered the lounge and started to touch him over his clothes inthe groin area. He lay on his stomach and pretended to be asleep to try andprevent you from touching him. That did not stop you. It led to you placingyour hands down his pants and stroking his penis. You whispered: "It's okay,"and he was "a good boy" during the act. You did this until he ejaculated. Youthen told the first complainant not to tell anyone otherwise you would get intotrouble.[7] On various occasions when the first complainant was aged between12 and 16 years of age, barbecues would be held at his parents' address ...You would often be at those barbecues and ask the first complainant to get youalcohol from a beer fridge in the garage. You would then follow the firstcomplainant into the garage where you were alone and you would touch himover the clothes and in the groin area. No one else would be in the garage atthose times.[8] On various occasions when the first complainant was aged between12 and 16 years of age, he would attend barbecues at your address ... Youwould ask him to get drinks from the beer fridge in the shed outside the maindwelling but when the first complainant would go to the fridge you wouldfollow him out and touch him in the groin area over his clothes. Again, noone else would be around when you would do this.[9] Between July 2002 and July 2004 when the first complainant was 15years of age, he would accompany you to your work address ... When youwere at that location there were no other persons present. Your work area wasin the basement of the business and it was a studio used for makingphotographs for advertising. The first complainant would help with tasksaround the office. During the time at this studio you took the first complainantto a side room and took his pants off and his underwear and you alsoundressed. You stroked the first complainant's genitalia and made him grabyour genitalia. You went on your knees and placed his penis in your mouthmoving your head back and forth. You then asked if the first complainantwould do that to you. He shrugged and was confused at that time. He wasconvinced to go on his knees upon which time you told him to open his mouthand pushed your penis into his mouth. You then went back to stroking yourpenis and the first complainant's penis until you both ejaculated. Throughoutthe offending you would encourage the first complainant by telling him thathe was "doing well". This happened three times at that location.[10] Between July 2002 and July 2003 the first complainant was 14 yearsof age. Between those dates you both attended a barbecue at the firstcomplainant's parents' address. There was a firework display on at the timein the distance. You asked the first complainant to accompany you so youcould view the fireworks together. You went to the end of the road to a smallpark near the mangroves area at the bottom of the path. While alone in thisarea with the first complainant you kissed him on the lips and felt him overhis clothing in the genital area. You undid his pants and yours as well andstarted stroking his penis. You stroked the first complainant's penis until heejaculated. You also made him grab your penis and stroke it until youejaculated. You both then returned to the address.[11] Between July 2000 and July 2004 when the first complainant wasbetween the ages of 12 and 15, it was a frequent occurrence that he would bewith you in your car driving around. You would place your hand on his thighand slide your fingers up his shorts if he was wearing them at the time. Youwould also touch him over his clothing in the groin area if he was wearingpants.[12] Between July 2000 and July 2004 the first complainant was agedbetween 12 and 15. He was cleaning up after a barbecue and was placingempty bottles into a recycling bin. You came up from behind and started tofeel him in the groin area over his clothes. You then slid your hand under hisclothing and started to feel his genitals. The first complainant eventuallywalked away because he felt uncomfortable.[13] On an occasion between July 2001 and July 2003 the first complainantwas either 13 or 14 years of age. He went on a trip to Uretiti Beach at Waipuwith you and other family members. During the trip you led him over the crestof sand dunes until you were alone and out of sight of others. When out ofsight, you then felt him in the groin area over his pants. You removed the firstcomplainant's pants and underwear and removed your own clothing. Youbegan touching the first complainant's penis then performed oral sex byplacing his penis in your mouth. You did this until he ejaculated.[14] Between July 2000 and July 2004 when the first complainant wasaged between 12 and 15, barbecues were often held at his home address ...You would attend those barbecues but you would stay the night if you hadconsumed alcohol and were intoxicated. You would then sneak into the firstcomplainant's room and perform oral sex on him by placing his penis in yourmouth. This happened on several occasions.[15] The second complainant was raised by his grandparents. You were afriend of the second complainant's grandfather and would be a regular visitorat their address ... You forged a close relationship with the second complainantwhich involved the provision of alcohol and repeatedly sexually offendingagainst him over several years.[16] On various occasions when the second complainant was aged between12 and 16 you would visit his grandparents' house often staying over the night.These overnight stays would sometimes be as much as three times a monthbut would vary. On many of these occasions when you stayed the night youwould sneak into the second complainant's room. You would wake him up byfeeling over his genital area over his clothes. You would reach under his pantsand stroke his penis as well as stroke your own penis. The second complainantwould freeze as he was confused by the situation being only a child. Heestimated this took place two to three times a month when he was agedbetween 12 and 14 and once a month at the age of 15.[17] Between 18 November 2005 and 17 November 2007 when the secondcomplainant was aged between 12 and 13, there was an occasion when he wasin a tent with a male friend of a similar age. You came into the tent withalcohol and proceeded to grope the second complainant over his clothing. Youdid a similar thing to the second complainant's friend.[18] You would stay over at the second complainant's grandparents' house.You snuck into his bedroom, approached the second complainant, proceededto unbutton his belt and pull down his zipper. You pulled your pants downand sucked the second complainant's penis. While doing this you would ask:"Do you want to come," or words to this effect. He would not reply but feltlike he did not want to make a scene by raising his grandparents. This tookplace between 15 to 20 seconds. The second complainant says this took placeregularly until the age of 12 to 14 and 15 years of age. It would take placeonce or twice a month when he was 12 and less frequently up to the ages of14 and 15.[19] On approximately three or four occasions when the secondcomplainant was aged between 12 and 15, you inserted a finger or fingers intohis anus. On these occasions the second complainant would be at your address... You would supply the second complainant with alcohol and he remembersbeing intoxicated. It was while under this state that you would use Vaselineon your fingers and insert your fingers into his anus. The second complainantcould feel your fingers in his anus, however he did not like it and his bodywould react and jump away from you.[20] When the second complainant was aged into his late teens he movedout of home and this stopped the amount of interactions he had with you.[4] Mr Rymer was charged 19 June 2021 and given bail. He was precluded fromcontacting the victims. On 12 September 2021, Mr Rymer visited B, uninvited.He encouraged B to drop the charges and said he did not mean to hurt him. Mr Rymerwas intoxicated.[5] Mr Rymer returned the next day, again uninvited. He brought alcohol, whichhe shared with B. Mr Rymer asked B when he had last ejaculated. He touched B'spenis over his clothing, then between his trousers and underwear. Mr Rymer huggedB repeatedly during the visit.[6] B alerted authorities and Mr Rymer was remanded in custody. He was latergranted electronically monitored bail.[7] Mr Rymer pleaded guilty on 17 March 2022. He remained on electronicallymonitored bail until sentencing on 27 May 2022.[8] Judge N R Dawson adopted a 16-year starting point on the basis the offendinglay within band four of this Court's guideline judgment in R v AM, in relation to "rape,penile penetration of the mouth or anus or violation involving objects".7 The Judgeadded six months for Mr Rymer's offending on bail and record: Mr Rymer committed7 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [90].an indecent assault in 1989, and another in 1996.8 The Judge deducted 25 per cent forMr Rymer's guilty pleas; five per cent for apparent remorse; and 12 per cent forpersonal circumstances, including age and health difficulties. Mr Rymer was then 72.[9] This produced a sentence of nine years and seven months' imprisonment. TheJudge imposed a minimum period of imprisonment of five years.Mr Rymer's case[10] Mr Rymer argues the global starting point should have been not more than12 years' imprisonment: 10 years for all but the offending on bail, and a two-year upliftfor that and his history. On Mr Rymer's behalf, Mr Kemp contends the offending lieswithin band two of AM, not band four, and this is consistent with other cases withinband two.[11] Mr Kemp also invites attention to the deductions, arguing that the deductionfor personal circumstances might have been greater, and five per cent given for timeon electronically monitored bail.Analysis[12] As this Court explained in AM, band two is concerned with "offending andlevels of violence and premeditation which are, in relative terms, moderate."9 Theband covers "offending involving a vulnerable victim, or an offender acting in concertwith others or some additional violence".10 Band two governs cases which involvetwo or three aggravating factors.11[13] Band three concerns "offending accompanied by aggravating features at a,relatively speaking, serious level".12 It is for cases that involve "two or more of thefactors increasing culpability to a high degree, such as a particularly vulnerable victim8 The 1989 offending attracted a six-month term of imprisonment; the 1996 offending a suspendedterm of imprisonment.9 R v AM, above n 7, at [98].10 At [98].11 At [98].12 At [105].and serious additional violence, or more than three of those factors to a moderatedegree."13[14] The Court in AM described band four this way:[108] The same sorts of factors that place offending towards the higher endof rape band three will apply here but it is likely that the offending in rape bandfour will involve multiple offending over considerable periods of time rather thansingle instances of rape.[109] Perhaps the paradigm case of offending within this band is that ofrepeated rapes of one or more family members over a period of years as isillustrated by the present case. [15] Mr Rymer's offending exhibits multiple aggravating factors, includinggrooming, hence premeditation; significant breaches of trust; victim vulnerability; and"profound and long-lasting" victim harm.14 This leaves another aggravating factor:scale. The offending lasted eight years and included repeated instances of penilepenetration of the mouth and digital penetration of the anus. The offending could notbe described as moderately serious only. It is, on any view, serious or very serious.For these reasons, band two placement would be inapt.[16] Whether the offending lay within band three or band four is not something thatneed detain us. The bands overlap: band three attracts starting points between 12 and18 years' imprisonment; band four, starting points between 16 and 20 years'imprisonment. Mr Rymer's offending lay either within the middle of band three ortoward the bottom of band four. That the Judge selected the latter is unimportant; hecould have adopted the same starting point and placed the offending within band three.Moreover, even if the Judge had adopted a lower starting point of 15 years'imprisonment, hence beyond band four's orbit, it would have been open to the Judgeto add at least another 18 months for the offending on bail and Mr Rymer's record ofsexual offending. So, nothing turns on whether band four was even engaged. All ofwhich is to say the starting point is unimpeachable.13 At [105].14 R v Rymer, above n 2, at [28].[17] Unsurprisingly then, the band two cases cited by Mr Kemp are not usefulcomparators.15 We confine our observations to two. R v Jeffries involved more,younger victims, but the defendant was intellectually impaired.16 The Crown filed anappeal against sentence, and the defendant became terminally unwell. This Court wasnot pressed to increase the sentence for this reason. R v PR also involved an additionalvictim.17 However, PR was decided according to the AM bands involving violationsother than penile penetration of the mouth, and in turn, a lower suite of starting points.Most of the offending lay within that lower suite.[18] This leaves deductions. The Judge had the benefit of a comprehensivepsychological report in which Jim van Rensburg postulated linkage between theoffending and sexual abuse Mr Rymer suffered as an adolescent. The Judge deducted12 per cent for personal circumstances, including those "set out in the psychologicalreport".18 Mr Kemp argues this factor warranted a little more discount; the deductionshould have been 15 rather than 12 per cent.[19] There are difficulties with this approach. First, the modesty of differencebetween 12 and 15 per cent, especially when sentencing is more art than science.Second, the Judge deducted five per cent for remorse. We discern little tangible tosupport that deduction. Indeed, aspects of the record tell against Mr Rymer being"genuinely remorseful".19 Mr Rymer committed a further sexual offence on bail,attempted to dissuade B from pursuing the charges, and said he did not mean to hurt B.Mr Rymer did express remorse to Mr van Rensburg and the pre-sentence report writer,but the latter says Mr Rymer seemed to minimise the offending by stating, "I thoughtit's what the boys wanted. I believed it to be mutual, the boys would call me and inviteme over when they were home alone".[20] Mr Kemp also contends the Judge should have deducted five per cent forMr Rymer's time on electronically monitored bail, a period of approximately15 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37; Bell v R [2017] NZCA 90; R v Milligan [2013]NZHC 118; W v R [2011] NZCA 135; R v PR [2016] NZHC 1192; and R v Jeffries [2012] NZCA608.16 R v Jeffries, above n 15.17 R v PR, above n 15.18 R v Rymer, above n 2, at [36].19 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].six months. Whether a deduction is given in this context is an evaluative decision,according to the totality of circumstances.20 Mr Rymer was on electronicallymonitored bail because he breached bail by visiting B — and worse. We, therefore,are unpersuaded the Judge erred by not affording a deduction. Furthermore, as willbe apparent, we are unpersuaded of error more generally in relation to the sentence.Result[21] The appeal is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent.20 Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348 at [61].