BLOMFIELD v R [2021] NZCA 102

BLOMFIELD v R [2021] NZCA 102 [31 March 2021]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 ZEALANDI TE KŌTI PĪRA O AOTEAROACA178/2020[2021] NZCA 102BETWEEN DANIEL ROSS BLOMFIELDAppellantAND THE QUEENRespondentHearing: 23 February 2021Court: Courtney, Mallon and Wylie JJCounsel: R M Mansfield for AppellantMRL Davie for RespondentJudgment: 31 March 2021 at 3.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In October 2019 Daniel Blomfield stood trial on two representative charges ofsexual conduct with a young person under 16 years.1 At the start of the trial he hadpleaded guilty to a representative charge of indecent communication with a young1 Crimes Act 1961, s 134. The maximum penalty is 10 years' imprisonment.person under 16 years.2 The jury found him guilty of the charges of sexual conduct.Judge Jelas imposed sentences of three years and 11 months' imprisonment on each ofthe sexual conduct charges and 12 months' imprisonment on the indecentcommunication charge, all to be served concurrently.3[2] Mr Blomfield appeals his sentence on the grounds that it is manifestlyexcessive as a result of the starting point being too high and the discount for mitigatingfeatures insufficient.The offending[3] The offending took place between July and December 2016, whenthe complainant was 14 years old and Mr Blomfield 38. [Redacted]. The sentencingJudge gave a brief general description of the offending:[3] The two charges of sexual conduct with the victim relate to a fivemonth period between 1 July 2016 and 5 December 2016 when you had sexualintercourse with the victim who was then aged 14 years on approximately fouroccasions and on approximately seven occasions during that same time periodthe victim performed oral sex upon you. Some of those sexual acts may haveoccurred on the same occasion.[4] You were known to the victim. [Redacted]. The offending happenedwhen you would visit her father at his work sites which were generally semi-rural locations. The victim sometimes went to the work sites with her father.She would sit in the car during the day while her father worked. You wouldoffer to go to the local dairy or a service station and purchase [Redacted]lunch. Sometimes she would accompany you on those trips. It was on thosetrips that these sexual acts would occur often on the roadside and in your car.[5] During the same period of time you exchanged indecentcommunications with the victim on Instagram and through Facebook.Examples of those communications included images of intimate body parts.[4] In setting the starting point, the Judge took into account the significant age gap,the fact that the offending occurred on a number of occasions over a six-month periodand the breach of trust [Redacted].4 The Judge also identified the fact that thecomplainant was "vulnerable by her age and by her past life experiences which Iaccept you had no knowledge of but nonetheless does create an element of2 Section 124A. The maximum penalty is three years' imprisonment.3 R v Blomfield [2020] NZDC 4543 [Sentencing notes].4 At [18]–[19].vulnerability for her".5 This last point was a reference to the fact that whileMr Blomfield was offending against the complainant, the complainant's father was,and had for some time, also been offending against her in a very serious way.[5] The Judge also noted the complainant's updated victim impact statement inwhich she explained that the sexual conduct with Mr Blomfield was not in fact thebiggest issue in her life at that point, though she found the trial process distracting.Her motivation for disclosing the offending and engaging in the trial was to avoidMr Blomfield offending against anyone else.6[6] At sentencing the Crown had contended for a starting point in the range ofthree years and nine months' to four years' imprisonment with an uplift to reflect theindecent communications charge. The Judge took a global starting point of four years'imprisonment, discounted by one month for time spent on bail. The result was an endsentence of three years and 11 months' imprisonment.7[7] The Judge refused to give any discount for remorse on the basis thatMr Blomfield did not accept the sexual conduct offending.8 Nor was any discountallowed for good character, notwithstanding the references attesting to Mr Blomfield'spersonal attributes, on the basis of his previous criminal history which included twocharges of male assaults female and two of breaching a protection order.9 The Judgeaccepted that a custodial sentence would have a detrimental effect on Mr Blomfield'sbusiness, but did not consider this was an appropriate factor for which credit shouldbe given in sentencing.10 Finally, the Judge did not allow any credit for Mr Blomfield'slate guilty plea to the indecent communication charge as it made little difference tohow the trial was prosecuted.115 At [19].6 At [20].7 At [21].8 At [16].9 At [13].10 At [14].11 At [17].Appeal[8] Mr Mansfield, for Mr Blomfield, submits that the global starting point oughtto have been three years, with reductions of five to six months for the personalmitigating factors, resulting in an end sentence of two years and six to seven months'imprisonment.Starting point[9] Mr Mansfield argued that the starting point taken was too high because theoffending did not involve any element of grooming, there was no breach of trust andMr Blomfield could not have known that the complainant's father had been abusingher, with the result that she was sexualised. Mr Mansfield drew our attention to casesthat were both more and less serious than the present, to show that the Judge's startingpoint was too high. The Crown does not accept that any of these cases are ofassistance. We agree.[10] Gillard v R concerned sexual offending against seven different girls under 18together with other related offences.12 Four charges related to sexual conduct with ayoung person under the age of 16 years, all involving the same complainant.The Judge took a starting point of four years' imprisonment. On appeal this Courtconsidered that because the offending had taken place over a 12-hour period, a startingpoint of three years' imprisonment was appropriate.13 The difference between thiscase and the present are obvious.[11] R v Stacey concerned two 14-year-old complainants.14 The offendingcontinued intermittently for over a year and involved alcohol and one incident of groupsex. The Judge took a starting point of two and a half years' imprisonment. This Courtupheld the sentence on appeal, describing it as favourable to the appellant given theoffending.1512 Gillard v R [2014] NZCA 610.13 At [30].14 R v Stacey [2008] NZCA 465.15 At [12].[12] Nor do we find R v H (CA94/08) of assistance.16 The appellant in that casewas about 37 years older than the 15-year-old complainant and had a caregiver-typerelationship with her. The sexual relationship while the girl was under 16 yearsinvolved sexual intercourse on 15 to 20 occasions. The starting point of three yearsand six months' imprisonment taken in the District Court was upheld on appeal,though this Court described it as "most generous".17[13] R v Johnson involved a 15-year-old complainant and 36-year old-appellant, acomparable age difference to the present case.18 There was sexual conduct over aperiod of three months, including both vaginal and anal intercourse. The offendinghad significant impact on the complainant. The sentencing Judge took a starting pointof three years' imprisonment. This Court described that starting point as being at the"bottom of the range" and held that three years and nine months' imprisonment wasthe correct starting point.19[14] The cases which Mr Mansfield identified as being "less serious", involvingstarting points of between two and three years' imprisonment, involved a much smallerage gap. In Berry v Police and in R v R, both the appellants were teenagers and thecomplainants 13 and 12 years old respectively. Each involved only two instances ofsex.20[15] There are no tariff cases for offending under s 134 of the Crimes Act 1961.However, in R v H, decided after the maximum sentence was increased to 10 years'imprisonment in 2005, this Court considered that a starting point for offending unders 134 could be fixed at four years' imprisonment.21 In R v Johnson this Courtconsidered that four years' imprisonment remains a useful reference point for this typeof offending where the particular aggravating features have resulted in moderateculpability:2216 R v H (CA94/08) [2008] NZCA 237.17 At [19].18 R v Johnson [2010] NZCA 168.19 At [22].20 Berry v Police [2014] NZHC 2852; and R v R [2015] NZHC 3305.21 R v H, above n 16, at [17].22 R v Johnson, above n 18.[17] We consider that the four year starting point in R v H is still a usefulreference point in relation to sentencing for sexual connection with youngpersons, where the offending shares features present in that case. Particularaggravating features in R v H were abuse of trust, a significant age gapbetween the offender and the victim, full penetrative sex on a number ofoccasions, and significant adverse effects on the victim. Where aggravatingfeatures 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 increasingculpability. Such features could include grooming, or abusive and demeaningbehaviour. Where there has been no breach of trust as in R v H but the sameaggravating features are present, a lower starting point will be appropriate. Adifferent combination of aggravating and mitigating factors might produce yetanother result. It follows that the starting point of four years should be seenas no more than a mid-point in the range of offending where there is moderateculpability.[16] We do not see any of the cases relied on as indicating that a four-year startingpoint was out of range for the sexual conduct charges, given the age difference, thenature of the sex involved and the circumstances in which Mr Blomfield gained accessto the complainant. We accept that there was no breach of trust of the type often seenin such cases, but Mr Blomfield took advantage of the access gained to thecomplainant through [Redacted], a situation in which she could have been expectedto have been safe. We accept that there was no period of grooming before the sexualrelationship began and that Mr Blomfield did not know of the complainant'sunfortunate experiences at the hands of her father. But the complainant was highlyvulnerable as result of that abuse and s 134 is protective; it seeks to address that factthat that young people are inherently vulnerable. Moreover, it is, regrettably, the casethat young victims of sexual abuse are vulnerable to being victimised more than once,often in part because they are already sexualised at a young age. So although this factwas unknown to Mr Blomfield, the situation nevertheless reinforces the reason andthe need for the protective effect of the legislation. Taking a broad view, we considerthat the combination of aggravating factors means that the offending is properlycharacterised as moderate.[17] Mr Mansfield also argued that there was no need for an uplift to also reflectthe indecent communications offence because it was simply part of the overallrelationship. He submitted such conduct may be a normal part of intimaterelationships these days. On the other hand, the fact that there are intimatephotographs of a young girl held by a much older man, beyond her control and notknowing what use has been made of them, adds a separate dimension that ought to beaccounted for. Even without a specific uplift we are satisfied that the global startingpoint of four years' imprisonment was within range.Mitigating factors[18] Mr Mansfield submitted that Mr Blomfield's personal circumstances ought tohave been recognised in a modest (10 per cent) discount in addition to the one-monthdiscount allowed to reflect time on bail. The mitigating factors were said to be thefact that he had no previous relevant convictions, was supporting two families and sixchildren and that his business, which provided employment for a number of otherpeople, had failed as a result of his imprisonment.[19] We do not see any significance in the fact that Mr Blomfield has no previousrelevant convictions. Leaving aside historical convictions prior to 2001, Mr Blomfieldhas convictions for family violence-related offending in 2009, 2010 and 2013. Thesedid not result in any uplift but nor can Mr Blomfield claim the benefit of a clean recordin seeking a discount.[20] We are more sympathetic to the fact that Mr Blomfield has previously been acontributing member of society through providing employment to others and clearlyhas substantial family obligations. However, these could only have justified a modestdiscount. The end sentence is not manifestly excessive and there is no basis on whichto interfere on account of this aspect.[21] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent