FIFIELD v R [2017] NZCA 410

FIFIELD v R [2017] NZCA 410 [18 September 2017]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA1/2017[2017] NZCA 410BETWEEN CRISTIAN ALEXANDER FIFIELDAppellantAND THE QUEENRespondentHearing: 3 August 2017 (further submissions received 18 August 2017)Court: Cooper, Brewer and Peters JJCounsel: C J Tennet for AppellantR K Thomson for RespondentJudgment: 18 September 2017 at 3 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Fifield pleaded guilty to two charges of sexual connection with a young person (one being representative)1 and one charge of abduction of a young person.2On 19 October 2016, Judge Crayton sentenced Mr Fifield to two years, 11 months'imprisonment.3 Mr Fifield wishes to appeal his sentence.[2] The notice of appeal was filed out of time and an application is made to extend the time for bringing the appeal. We have read Mr Fifield's affidavit in whichhe adequately explains the delay (mostly, finalising the scope of instructions with counsel) and we grant the application accordingly.Background[3] Mr Fifield, then 27 years old, met the complainant through a dance group. The complainant was 15 years old.[4] The relationship between Mr Fifield and the complainant developed to a sexual one, despite Mr Fifield knowing the complainant was 15 years old and againstthe objections of the complainant's parents. The sexual contact included digital penetration of the complainant's vagina. This is the subject of the non-representative charge of sexual connection with a young person. There were also a number of occasions on which Mr Fifield and the complainant had sexual intercourse. The representative charge of sexual connection with a young person relates to these occasions.[5] On 15 February 2016, Mr Fifield, by arrangement, met the complainant while she was walking to school and took her to his house. He telephoned thecomplainant's school and, impersonating her father, told the school that the complainant had the flu and would be absent that day. The school was suspicious and the police were ultimately alerted. They went to Mr Fifield's address and foundhim with the complainant in compromising circumstances. This incident is the basis for the charge of abduction of a young person.1 Crimes Act 1961, s 134(1).2 Section 210(1).3 R v Fifield [2016] NZDC 20817.Sentencing[6] A significant consideration in sentencing Mr Fifield was that this was the second time he had offended sexually against a young person. On 20 November2013 he was sentenced to six months' imprisonment on charges of grooming a young person for sex and doing an indecent act upon a girl aged between 12 and 16 years.[7] Judge Crayton emphasised the age disparity, the multiple occasions of sexual contact and the associated premeditation. He was also conscious of the acts taken by Mr Fifield to deprive the complainant of the protection of her parents and her school. He took particular note of the victim impact statement and its comments on how the offending affected the complainant.[8] The Judge adopted a starting point of three years seven months'imprisonment. He increased this by four months to take account of the previous convictions. That took the sentence to three years, 11 months' imprisonment.The Judge then allowed "full credit" for the pleas of guilty and a further month for remorse.4 The end sentence was two years, 11 months' imprisonment.5The appeal[9] Mr Fifield's counsel, Mr Tennet, submitted that the starting point was manifestly excessive and that the Judge erred in considering the abduction charge was a separate aggravating feature. This amounted to double counting because it was part of the premeditation and manipulation the Judge had already taken into account.[10] Mr Tennet submitted also that the sentence was manifestly excessive because the victim impact statement was not that of the complainant but of her parents. Moreover, the effects on the complainant attributed to Mr Fifield in the victim impact statement were not caused by him alone but also by other men with whom the complainant was sexually intimate.4 At [34].5 Two years, 11 months' imprisonment on each of the charges of sexual connection with a young person and 12 months' imprisonment on the abduction charge, all to be served concurrently.Discussion[11] The maximum sentence under s 134 of the Crimes Act 1961 for sexual connection with a young person is 10 years' imprisonment. There is no tariff casesetting out sentencing guidelines. However, in R v H this Court discussed generally the starting point for offending under s 134.6 The Court took the view that a startingpoint could be fixed at four years' imprisonment "by reference to the orthodoxsentencing purposes of deterrence, denunciation, accountability and communityprotection".7 In R v Johnson, the Court commented:8This indication of a starting point [in R v H] has been followed in a number of decisions in this Court: R v Brunie,9 R v Burdett,10 R v Davidson11 and R v Misileki.12 In R v Burdett, R v H was described as a guide rather than a fetter.13[12] The Court in R v Johnson noted that, as per R v AM,14 the expression of a single starting point is out of step with present sentencing methodology.15 It went on to say:[17] We consider that the four year starting point in R v H is still a useful reference point in relation to sentencing for sexual connection with young persons, where the offending shares features present in that case. Particular aggravating features in R v H were abuse of trust, a significant age gap between the offender and the victim, full penetrative sex on a number of occasions, and significant adverse effects on the victim. Where aggravating features in R v H are present, a starting point of four years may be appropriate. Other aggravating factors not present in R v H may be seen as increasing culpability. Such features could include grooming, or abusive and demeaning behaviour. Where there has been no breach of trust as in R v Hbut the same aggravating features are present, a lower starting point will be appropriate. A different combination of aggravating and mitigating factors might produce yet another result. It follows that the starting point of four years should be seen as no more than a mid-point in the range of offending where there is moderate culpability.6 R v H(CA94/08) [2008] NZCA 237.7 At [17].8 R v Johnson [2010] NZCA 168 at [15].9 R v Brunie [2009] NZCA 300 at [11].10 R v Burdett [2009] NZCA 366 at [18].11 R v Davidson [2008] NZCA 484 at [27].12 R v Misileki [2008] NZCA 513 at [18].13 R v Burdett, above n 10, at [24].14 R v AM [2010] NZCA 114 at [1].15 R v Johnson, above n 8, at [16].[13] Putting aside for the moment Mr Tennet's criticisms of the victim impact statement, our view is that the Judge's starting point of three years, seven months'imprisonment before considering factors personal to Mr Fifield is unexceptional. It is five months less than the four year starting point discussed in R v H andR v Johnson.[14] The aggravating features identified by Judge Crayton are relevant to fixing the starting point. The abduction charge was appropriately treated as encapsulating a distinct aggravating feature rather than warranting a discrete uplift. We do not accept Mr Tennet's submission that, by taking account of the abduction charge, the Judge double counted because he also took premeditation into account. The Judge specifically referred to the need to avoid double counting.16 Regardless, the starting point that the Judge settled on was well within the range open to him on the facts and, if anything, was generous to Mr Fifield.[15] The uplift of four months' imprisonment for Mr Fifield's previous offending(just over nine per cent) is also unexceptional. This is an area of offending where deterrence and denunciation must be stressed. Mr Fifield had been imprisoned for similar offending just over two years before he offended again. He had participated in a treatment programme intended to give him insight into his offending and the skills to avoid repeat offending, evidently to no avail. There is no error in the uplift.[16] The reductions in sentence of 11 months for the entering of guilty pleas and one month for remorse were generous. The guilty pleas were entered after the case review hearing and there is no indication of an extraordinary degree of remorse which might call for further recognition of that factor beyond that inherent in the discount for pleas of guilty.[17] We turn now to Mr Tennet's criticisms of the victim impact statement.[18] It is common ground the complainant refused to make a victim impact statement. But her parents helped compile one.17 The statement said (in summary)16 At [33].17 As they were entitled to do: Victims' Rights Act 2002, s 17AA(1)(a)(i)(B).the complainant suffered emotional harm from being groomed and had lost trust in members of the dancing community. Dancing was a prominent part of her life and"[b]oth local studios refused to teach [her] after the offence which devastated her".She put on weight. There was a reference to the sexual intercourse causing "spotting and increased bleeding".[19] Judge Crayton said this about the impact on the victim:18[26] One of the factors I have not yet addressed is of course the victim impact. Because the effect upon a complainant may vary greatly. Here what is clear from the victim impact statement is that the victim effect has been significant. She has had, and I summarise the Crown submissions upon this, physical issues which have been identified by the Crown. They are a direct consequence of the physical acts taking place. She has had emotional effects which are unsurprising and significant because she no doubt thought this was a relationship on an even footing. The difficulty is, of course, that this was not an even relationship. The consequences have affected her wellbeing, stress has significantly caused her both physical and emotional consequences. She has had to move the activity she enjoyed most, her dancing, because of what occurred. She has, of course, as a result, incurred greater financial stress and cost and time cost for her family.[27] However, underlying all of this is the fact that she as a 15 year old should have been going into a time of life where she gained greater responsibility, greater freedom, greater trust from her family. As a result of what has happened that has all been undermined. The clear consequence of the deceit which undoubtedly underlay the whole relationship is that trust has been lost with those who were there for her, those who someone of that age needs and of course at a time when she should be most enjoying becoming a young adult. She is suffering the physical and emotional consequences which have taken away that joy of maturity and finding one[']s emotional feet as one of that age commences the first relationships.[20] Mr Tennet's submissions were that another adult male, or males, had also been having sexual contact with the complainant and so it was not fair for Mr Fifield to take all the blame for the reported effects on the complainant.[21] Mr Tennet accepted that these matters were not put to the Judge on sentencing. He pointed to Mr Fifield's statement to the police as giving information on the subject. But that was not before the Judge. We pointed out that there was no evidence before us either. Mr Tennet said there exist text messages from the complainant which could provide an evidential foundation. We directed that further submissions be filed on the point.18 R v Fifield, above n 3.[22] In Mr Tennet's further memorandum, he quotes from text messages betweenthe complainant and Mr Fifield provided by the police. In them the complainant responds to requests by Mr Fifield for details of her sexual history. This, apparently, was part of Mr Fifield's grooming of the complainant prior to sexual contact betweenthem. The complainant gives details of her sexual history and sends a text message to the effect that Mr Fifield would be her "3rd guy".19[23] We are not persuaded that this ground of appeal can assist Mr Fifield. First, it was Mr Fifield's offending which was uncovered by the police. He was found with the complainant in compromising circumstances. It was then that the complainant had to face her parents and her school and that the complainant's social networkbecame involved.[24] Second, the reported effects on the complainant are centred on Mr Fifield'soffending and are readily explained by it.[25] Third, whether or not the complainant had prior sexual contact with another older man, or men, does not mitigate Mr Fifield's culpability.[26] Finally, even if not all of the effects on the complainant described in the victim impact statement should be blamed on Mr Fifield, that would not make the end sentence manifestly excessive. An end sentence of two years, 11 months'imprisonment is clearly within the range available to the sentencing Judge even if Mr Fifield's offending merely contributed to the effects suffered by the complainant.Result[27] The application for an extension of time to appeal is granted.[28] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent19 The Crown's further memorandum reports that the police investigated rumours that the complainant had been involved with another older man and did not find sufficient evidence to prosecute. Having received Mr Fifield's statement they re-opened the investigation and again did not find sufficient evidence to prosecute.