MCDONALD v R [2021] NZCA 531

MCDONALD v R [2021] NZCA 531 [14 October 2021]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 AOTEAROACA43/2021[2021] NZCA 531BETWEEN CRAIG LEE MCDONALDAppellantAND THE QUEENRespondentHearing: 1 September 2021Court: Gilbert, Duffy and Peters JJCounsel: A J Bailey and R J T George for AppellantM G McClenaghan for RespondentJudgment: 14 October 2021 at 10 amJUDGMENT OF THE COURTA The appeal against sentence on the six sexual violation by unlawful sexualconnection offences is allowed.B The concurrent sentences of 10 years' imprisonment for those offences areset aside and substituted with concurrent sentences of eight and a halfyears' imprisonment.C The sentences on the remaining offences remain as they are.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] Craig Lee McDonald pleaded guilty in the District Court at Christchurch to12 charges of historic sexual offending against two victims, MG and AK.They comprised four charges of sexual violation by unlawful sexual connection (USC)with MG and two such charges with AK.1 The remaining six charges were indecencywith a girl under 12 — involving four charges of doing an indecent act2 and twocharges of inducing a girl under 12 years to do an indecent act3 in relation to both MGand AK.[2] On 20 January 2021, Judge Neave sentenced Mr McDonald to an end sentenceof 10 years' imprisonment with no minimum term of imprisonment (MPI).4Mr McDonald now appeals against that sentence on the ground that it is manifestlyexcessive.Background[3] The guilty pleas were entered on the morning of the scheduled trial, followingthe withdrawal of three charges of sexual violation by rape of AK,5 and the amendmentof one charge of sexual violation by unlawful sexual connection with AK froma representative charge to a specific charge.[4] Three of the four charges of unlawful sexual connection with MG involveddigital penetration of MG's genitalia. Two of these charges were representative andthe third was specific. The fourth was a representative charge of unlawful sexualconnection which involved Mr McDonald performing oral sex on MG's genitalia.He also committed two indecent acts on MG and induced her to commit one indecentact on him. The charges for one of the indecent acts and the inducement wererepresentative and the remaining indecent act was a specific charge.1 Crimes Act 1961, ss 128(1)(b) and 128B: maximum penalty of 20 years' imprisonment.2 Section 133(1)(b) [repealed in 2005]: maximum penalty of 10 years' imprisonment.3 Section 133(1)(c): maximum penalty of 10 years' imprisonment.4 R v McDonald [2021] NZDC 839 [Sentencing judgment].5 Crimes Act, s 128(1)(a) and 128B: maximum penalty of 20 years' imprisonment.[5] One of the two charges of unlawful sexual connection with AK involved digitalpenetration of AK's genitalia and the other involved Mr McDonald performing oralsex on AK's genitalia. Both were specific charges. He also committed two indecentacts on AK and induced her to commit one indecent act on him. One of the indecentacts was a representative charge. The other charges were specific.[6] MG was aged between eight and 12 years and AK between 10 and 11 years atthe time of the offending. Both were young relatives of Mr McDonald. The offendingoccurred between 1 January 2000 and 1 January 2005, at times when the appellant wasliving with one or the other victim and her family. During this time, Mr McDonaldwas frequently trusted as their relative to babysit the victims and their siblings whiletheir parents were out of the home.[7] Mr McDonald lived with MG and her family between January 2000 andJune 2002. On one evening, after MG had bathed and changed into her pyjamas andwas watching television in the living room with her siblings, Mr McDonald was sittingon a couch behind her. He began touching, tickling and massaging MG's back.He then moved his hands under her top and massaged her breast area.[8] During August 2002 MG's mother held a fancy-dress birthday party inthe garage at the family home. Mr McDonald was present. During the evening heentered MG's bedroom and approached her while she was asleep in bed.Having woken her up, he put his hands under the pants she was wearing and rubbedher vagina and clitoris.[9] Between 1 September 2002 and 31 December 2004, on about 30 occasions,Mr McDonald babysat MG. On those occasions he would supply her with herfavourite ice cream. He would then lie her on her back on the couch and commenceremoving her clothing. Whenever she protested, he told her it was okay and wouldoffer her money, before continuing to remove her clothing. He would touch her breastswith his hands, rub his fingers on the inside and outside of her vaginal area and lickthis area with his tongue. He would also place her hand around his penis and induceher to masturbate him until he ejaculated. Afterwards he would tell MG it was their"little secret".[10] Also, at multiple times during the babysitting occasions Mr McDonald wouldenter the bedroom of MG and her siblings while they were in bed. While he wassaying goodnight to her and the other children, he would put his hand down MG'spyjama pants and rub her vagina and clitoris.[11] Mr McDonald lived with AK and her family between June 2004 andNovember 2004 when AK was aged between 10 and 11 years. He lived in a sleep-outat the family home. On an occasion when AK was lying on her mother's bedMr McDonald entered the bedroom and rubbed her genital region on the outside ofher clothing.[12] In November 2004 the family moved to a new address, at which timeMr McDonald would visit and stay over most weekends. Around this time AK hadbroken her leg and it was in a cast. Between November 2004 and January 2005Mr McDonald looked after AK while her mother was away from the home. He wouldenter AK's bedroom naked and, while she lay on her bed, he would take her hand andinduce her to masturbate his penis. He then removed her clothes and touched herbreasts, after which he placed his finger inside her vagina.[13] Also, between November 2004 and January 2005, Mr McDonald entered AK'sbedroom at night, lowered the sheets and removed her pyjama pants and underwear.He spread her legs apart and licked the outside and inside of her vagina.District Court sentencing[14] The Judge began his judgment by recognising the offending involveda significant abuse of trust and authority, and that it had occurred over a long periodof time.6[15] With reference to this Court's guideline judgment in R v AM, for sexualviolation offences,7 the Judge placed the offending in band three, which warrantsa starting point of between nine and 18 years' imprisonment.8 The Judge identified6 Sentencing judgment, above n 4, at [2].7 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.8 Sentencing judgment, above n 4, at [12].the relevant culpability factors as being the range of the offending, its repetition andscale, the number of victims, the significant breach of trust from someone in a positionof responsibility within the family, and the vulnerability of the victims, including theirages and AK's inability to escape while her leg was in a cast. The offending hada significant effect on the victims and had caused them ongoing harm. The Judgefound there was an element of grooming present.9 However, he rejected the notionthat planning and premeditation were involved. Instead he characterised the offendingas "highly opportunistic" and described Mr McDonald as someone who had takenadvantage of the numerous opportunities given to him through the role he played inthe victims' lives.10 Overall, the Judge found there were a significant number ofaggravating factors that were "present to a high degree".11 He adopted a starting pointof 12 years' imprisonment for all the USC offending against both victims.12[16] Next the Judge gave three separate discounts for mitigating factors. First, hegave a discount of three months for Mr McDonald's willingness to participate ina restorative justice process.13 The Judge subtracted this figure from the starting pointof 144 months and arrived at a sentence of 141 months.14 Second, he gave a 10 percent discount (which he rounded up to 15 months) for an "eleventh hour" guilty plea.15He reasoned that a low discount was appropriate given that the complainants hadalready travelled to Christchurch in expectation of giving evidence at a trial.However, he acknowledged the value of a guilty plea in that it validated the victims'allegations, indicated a sense of responsibility for harm caused and saved the victimsfrom the ordeal of a trial.16 Third, a "modest credit" (unspecified) was given forMr McDonald's lack of previous convictions at the time of offending.17 This resultedin an end sentence of 10 years' imprisonment on the USC charges.9 At [10]–[11].10 At [14].11 At [18].12 At [21].13 This equates to approximately two per cent of the 12-year starting point.14 Sentencing judgment, above n 4, at [21].15 At [16] and [22].16 At [16]–[17].17 If the Judge followed the approach that he took with the first discount he would have then deductedthe 15 months discount from 141 months, which would have brought the sentence down to126 months. Given he ultimately arrived at a sentence of 120 months this suggests the lastdiscount was six months, which is approximately five per cent of 126 months.[17] Concurrent sentences of three years' imprisonment were imposed onthe six indecency charges.18 The Judge declined to impose an MPI, on the groundsthat the sentence imposed was sufficient to denounce the conduct and to holdMr McDonald accountable.19Appellant's submissions[18] Mr Bailey, for Mr McDonald, submits that the starting point of 12 years'imprisonment set by the Judge was manifestly excessive. He refers this Court toR v Alletson and C (CA66/2015) v R as cases involving comparable offending.20In C (CA66/2015) v R this Court placed the offending in the middle range of band twoof R v AM, adopting a starting point of six years. R v Alletson pre-dated R v AM but isreferred to in the latter decision as providing an example of the type of offending thatfalls within the lower range of band two.21Respondent's submissions[19] The Crown submits that the starting point and end sentence were withinthe available range.[20] Referring to R v AM and the Sentencing Act 2002, the Crown submits that thefollowing aggravating factors are present here: (a) planning and premeditation22 — toa moderate degree; (b) vulnerability of victims23 — to a high degree; (c) scale ofoffending24 — to a high degree; (d) breach of trust25 — to a high degree; and (e) effecton the victims26 — to a high degree. The Crown distinguishes C (CA66/2015) v R andinstead relies on R (CA730/2014) v R in which similar offending attracted a startingpoint at sentencing of 12 years' imprisonment, which was not disturbed on appeal.2718 Sentencing judgment, above n 4, at [23].19 At [20].20 R v Alletson [2009] NZCA 205 and C (CA66/2015) v R [2016] NZCA 342.21 R v Alletson, above n 17; referred to in R v AM, above n 7, at [117].22 Sentencing Act 2002, s 9(1)(i) and R v AM, above n 7, at [37].23 Section 9(1)(g) and R v AM, above n 7, at [42]–[43].24 R v AM, above n 7, at [47]–[49].25 Sentencing Act, s 9(1)(f) and R v AM, above n 7, at [50].26 Section 9(1)(d) and R v AM, above n 7, at [44].27 R (CA730/2014) v R [2015] NZCA 388.[21] The Crown further submits that the discounts imposed for mitigating factors— the late guilty plea, willingness to engage in restorative justice processes, and lackof previous convictions — were generous in the circumstances.Analysis[22] R v AM is the tariff case for sentencing for sexual violation offending.Relevant here are the three bands of offending for cases in which the lead charge issexual violation by unlawful sexual connection. Also relevant are the culpabilityfactors which enable a sentencing Judge to place the offending within the appropriateband.[23] The key issue here is whether the Judge was right to place the offending at justbelow the mid-range of band three rather than the lower end of band two of R v AM.[24] Band two attracts a starting point of between four and 10 years' imprisonment,and is described as follows:28This USC band is appropriate for cases of relatively moderate seriousness.It will encompass cases which involve two or three of the factors increasingculpability to a moderate degree.[25] In comparison, band three sets a starting point of nine to 18 years'imprisonment, and is described as follows:[120] This band is appropriate for the most serious offending of this type.USC band three will encompass cases which involve two or more of thefactors increasing culpability to a high degree, for example, a particularlyyoung victim or an extensive period of offending. Similarly, the band will beappropriate where more than three of those factors are present to a moderatedegree.[26] Here the Judge placed the offending in band three and adopted a starting pointof 12 years' imprisonment that related to all the USC offending against both victims.We see nothing wrong with the Judge taking this approach. It is consistent withR v AM. First, the examples given in R v AM of cases that fit within the lower andupper ends of USC band three include cases involving multiple victims.29 Second, in28 R v AM, above n 7, at [117].29 At [120]–[121].R v AM this Court expressly addressed whether the inclusion of multiple victimoffending in the rape band guidelines risked inadequate recognition being given to theharm caused to each victim.30 Two solutions were identified, one of which is relevanthere. This Court considered that prolonged offending involving multiple victims,particularly in a familial context, warranted higher starting points in rape band four.We see no reason why this logic should not also apply to USC offending. These factorssupport using the totality of USC offending against all victims as a basis fordetermining where to place the offending within the USC bands.[27] We also consider the Judge was right to place the offending in band three.The scale of the offending, the age of the two young victims and their familialrelationship with Mr McDonald, made this serious offending. In this regard we rejectMr McDonald's contentions that his offending was comparable to that in R v Alletsonand C (CA66/2015) v R.31[28] R v Alletson pre-dates R v AM. Alletson is relevant only because it is given asan example in R v AM of lower end band two offending. However, the circumstancesin Alletson did not involve the close familial relationship that is present here.This makes all the difference. It is the familial relationship between the victims andMr McDonald that gives rise to the breach of trust in this case, and exacerbatesthe victims' vulnerability and the harm they have suffered as a result of the offending.[29] In C (CA66/2015) v R there was the same familial relationship betweenthe offender and two victims as here. All charges related to two victims, one of whomwas under 12 for all of the offending and the other was under 12 at the time of the firstindecent assault, and aged between 12 and 16 for the balance of the offending againsther. There was only one specific USC offence and one specific attempted rape offence.Both these offences involved a victim then aged between 12 and 16 years.The sentence appeal proceeded on the accepted basis the Judge had not applied R v AMcorrectly because he had taken the attempted rape as the lead offence and attemptedto place that alongside band two in R v AM. This Court found that the lead offence30 At [48].31 R v Alletson, above n 17, and C (CA66/2015) v R, above n 17.should have been the USC charge, which it considered fell within band two.32This Court identified the aggravating features as including a level of grooming(provision of alcohol and cigarettes), a breach of trust as the young girls were inthe appellant's temporary care, harm suffered by both victims as a result andthe extended period of the offending. Those features led this Court to place the USCoffending in the middle of band two, adopting a starting point of six years'imprisonment with an uplift of two years to reflect the other offending and totality.33[30] The outcome of the appeal in C(CA66/2015) v R was very much affected bythe fact there was one specific USC offence and one specific offence of attempted rapewith a victim between 12 and 16 years. We accept the level of indecency offending(11 charges in total) is marginally comparable to the present case, given that one ofthe victims in that case was in an older age group at the time of the offending.The gravity of the lead offending was not as serious as the present case. Here, thereare six USC offences, three of which are representative charges, and all involvingvictims under 12 years.[31] We consider the Judge was wrong to adopt a starting point of 12 years'imprisonment. In our view he took an overly individualised approach to the fiveaggravating features he identified, and in doing so placed too much weight on each ofthem.[32] R v AM provides a reminder that sentencing requires an evaluation of allthe circumstances and that a "mechanistic approach is not appropriate".34The circumstances of this offending reveal three aggravating features of concern:the scale of the offending; the age of the victims; and their familial relationship withMr McDonald. We have not separately recognised the vulnerability of the victims orthe breach of trust involved because these are matters that are already encompassedby their young ages and their relationship with Mr McDonald. The limited degree ofpremeditation involved in Mr McDonald grooming MG with gifts of her favouriteice cream does not warrant discrete attention; it is inherent in the decision to place32 C (CA66/2015) v R, above n 17, at [55]–[56].33 At [57].34 R v AM, above n 7, at [36].the offending in band three. Similarly, the harm the offending has caused the victimsis properly reflected in the band three placement. As was recognised in R v AM, harmis inherent in sexual offending.35 Here the psychological harm was exacerbated bythe family dissension which followed the victims' complaints and Mr McDonald'sinitial denials. The victim impact reports show that there were family members whodid not believe the complaints were true. We return to this later when dealing withthe guilty plea discount.[33] R v AM gives two examples of cases at the lower end of USC band three.36In R v K (CA 558/2008) the offender touched and penetrated his stepdaughter'sgenitalia with his fingers and licked her genitalia on about 50 occasions overa two-year period when she was aged nine to 10 years.37 In R v P the appellantoffended against three victims aged three, four and five years.38 The offender boardedin the home of the four and five year old victims. On four occasions he kissed the fiveyear old victim's buttocks, anus and vagina. He exposed himself to the four year oldvictim, having first tried unsuccessfully to remove her clothing. With the three yearold victim, in a secluded area the offender pulled down her pants, touched her bottomand licked her vagina. He then rubbed his penis against her buttocks and genitalia. InR v AM, R v K (CA 558/2008) was given as an example of a case at the lower end ofband three because of the numerous occasions of offending and the breach of trust. InR v P the concerning features increasing culpability were the number of victims andtheir very young ages.39[34] When we consider the above examples given in R v AM for band threeoffending, we are satisfied that this offending, with its particular aggravating features,also falls at the lower end of band three. The scale of the offending is less than wasthe case in R v K (CA558/2008), although the victims' ages are comparable, andthe time frame of the offending is much the same. The scale of the offending is greaterhere than was the case in R v P, but in that case the number of victims was greater, andthey were younger than the victims here. So, one factor weighs against the other.35 At [44].36 R v AM, above n 7, at [120].37 R v K (CA558/2008) [2009] NZCA 107.38 R v P CA86/95, 10 August 1995.39 R v AM, above n 7, at [121].What the example cases do tell us is that there is nothing about the present case thatwould warrant us placing it at the higher end of band three.[35] Accordingly, in light of the reasons given above and the requirement inthe Sentencing Act that the least restrictive outcome appropriate in the circumstancesmust be imposed, we consider the appropriate starting point is between nine and10 years' imprisonment. We propose to adopt a starting point of nine years for allthe USC offending and to uplift it by a year to take account of the indecency offending.That leads to a sentence of 10 years' imprisonment.[36] We see nothing wrong with the mitigating factors the Judge identified,although his way of applying the discounts was contrary to that methodology set outin Moses v R.40 We propose to take the same factors into account but to allocate eacha percentage which will then be aggregated — in line with Moses — and deductedfrom the starting point.[37] We consider the Judge's 10 per cent discount for the guilty plea wasappropriate. Despite being given so late it avoided the victims having to give evidenceat trial and saved court time and resources. More importantly, in this case it gavethe victims a degree of closure that was more effective than if guilty verdicts had beenobtained following trial. In her victim impact statement AK reports that there was anestrangement in the extended family with some relatives believing Mr McDonald'sdenial of the offending. AK states that "now the truth has finally come out, anda massive burden has been lifted off my shoulders since the guilty plea. I can finallystart to slowly move on." For those members of Mr McDonald's family who hadearlier placed their trust in his denials, the guilty pleas remove any room for them todoubt the convictions that followed. Guilty verdicts returned by a jury may still berejected by family members who blindly believe in their relative's innocence.Accordingly, the guilty pleas were significant despite their late entry and thereforewarranted proper recognition, which is the effect of the 10 per cent discount.[38] We consider the Judge was correct to recognise Mr McDonald's attendance ata restorative justice conference, and his lack of previous convictions at the time of40 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].the offending. For both factors we give a total discount of five per cent, which bringsthe total discount to 15 per cent (18 months).[39] The result is an end sentence of eight and a half years' imprisonment on eachof the offences of sexual violation by unlawful sexual connection. The sentences forthe other offending remain as they are.Result[40] The appeal against sentence on the six sexual violation by unlawful sexualconnection offences is allowed.[41] The concurrent sentences of 10 years' imprisonment for those offences are setaside and substituted with concurrent sentences of eight and a half years'imprisonment.[42] The sentences on the remaining offences remain as they are.Solicitors:Crown Solicitor, Christchurch for Respondent