PATTISON v R [2019] NZCA 103

PATTISON v R [2019] NZCA 103 [10 April 2019]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 AOTEAROACA359/2018[2019] NZCA 103BETWEEN DEAN FREDERICK PATTISONAppellantAND THE QUEENRespondentHearing: 3 April 2019Court: Gilbert, Wylie and Thomas JJCounsel: G Walsh for AppellantJ J Rhodes and A Al-Janabi for RespondentJudgment: 10 April 2019 at 2 pmJUDGMENT OF THE COURTA Leave to appeal out of time is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] On 1 March 2018, following a jury trial in the District Court at Hamilton beforeJudge Spear, the appellant, Mr Pattison, was found guilty and was convicted offour charges of doing an indecent act on a young person, and on one charge ofsupplying alcohol to a minor.[2] On 18 May 2018, Mr Pattison was sentenced by Judge Spear.1 On one ofthe charges of indecent assault, which was treated as the lead charge, he was sentencedto two years and five months' imprisonment. On each of the remaining charges ofindecent assault, he was sentenced to concurrent terms of 18 months' imprisonment;on the charge of supplying alcohol to a minor, he was convicted and discharged.This latter charge was taken into account in relation to the indecent assault charges asan aggravating factor.[3] Mr Pattison now appeals his sentence, arguing it was manifestly excessive.[4] The appeal was filed eight days out of time. Notwithstanding that no affidavithas been filed to explain the delay, Mr Rhodes, for the Crown, did not oppose leavebeing granted to bring the appeal out of time. We grant leave accordingly.Background facts[5] The victim and Mr Pattison's daughter met at a respite centre for children withmental health issues. They became friends and they in turn befriended another youngfemale, also involved with the respite centre. It was decided that all three girls wouldspend a weekend away with Mr Pattison at his home.[6] Mr Pattison spoke to the victim's parents, to reassure them about the proposedarrangements. He told the victim's parents that he was a counsellor. This statementwas untrue. With some reservations, the victim's parents permitted their daughter togo on the weekend.[7] On the Friday evening, after the victim and Mr Pattison's daughter had arrivedat Mr Pattison's home, he began mixing drinks and providing them to the girls.The three of them played a drinking game, which involved undressing. The victimbecame intoxicated. She ran out of the house and down the street. She was followed1 R v Pattison [2018] NZDC 9994.and stopped by Mr Pattison and his daughter. She then vomited and was returned toMr Pattison's house. Her underwear was then removed and she was put into a bath sothat she could clean herself up. After the bath, she was dried and placed on a toilet.After she had urinated, Mr Pattison used toilet paper to wipe her genitalia. This formedthe basis for the first indecency charge.[8] The victim was then placed naked into Mr Pattison's bed. She went to sleep.He got into bed and spent the night with her. He was found not guilty on two chargesalleging offending during the night. When the victim woke up in the morning,she found Mr Pattison kissing the side of her neck and then kissing down her bodytowards her breasts. Mr Pattison was found guilty of this indecency.[9] Later in the day, the third friend arrived and a party ensued. At one stage duringthe party, Mr Pattison got behind the victim, grabbed her hips and ground his pelvisinto her buttocks. This resulted in another charge of indecency. Later, in the courseof the party, Mr Pattison produced a sex toy – a double ended dildo. He had the victimand his daughter face each other, put one end of the dildo into their mouths and thentake it into their mouths as far as they could, until they were able to kiss. This wasthe basis for the fourth indecency charge.District Court decision[10] Judge Spear outlined the relevant facts and identified the following aggravatingfeatures of the offending:2(a) the predatory nature of Mr Pattison's behaviour;(b) that Mr Pattison took advantage of a particularly vulnerable young girl;(c) the age difference — the victim was 14 and Mr Pattison, 51;(d) that Mr Pattison exacerbated the victim's vulnerability by supplying herwith alcohol and involving her in a drinking game;2 At [15]–[19].(e) the breach of trust involved, in that Mr Pattison had persuadedthe victim's parents that he was someone who could be trusted; and(f) the harm suffered by the victim.[11] Judge Spear noted that the sentence must hold Mr Pattison accountable, markthe seriousness of the offending, deter him reoffending and send a message tothe community that offending the kind in issue will not be treated leniently.Judge Spear also recorded that he needed to impose the least restrictive outcomeavailable in the circumstances and to have regard to Mr Pattison's rehabilitation.3[12] Judge Spear adopted a starting point of three years' imprisonment in respect ofthe first indecency charge, which was adopted as the lead offence. He did not cite caselaw in so doing. He acknowledged that the starting point adopted by him was morethan the starting point of two years and six months' imprisonment sought by the Crownand far more than the 14-month sentence of imprisonment suggested by the defence.The Judge recorded that he considered that the starting point recorded in bothsubmissions were "light". The Judge stated as follows:[21] Because of the particular aspects to this case involvingthe vulnerability of the complainant and your dealings with her, I consider thatthree years' imprisonment should be adopted after taking account ofthe aggravating features that I have mentioned. If there was just one event,that would result in a starting point of 18 months to two years but with fourseparate offences and for those aggravating features that I have mentioned,three years seems appropriate.[13] The Judge allowed Mr Pattison a discount of three months' imprisonment forthe fact that he had spent 23 months on bail and a further discount of four months'imprisonment for remorse, and efforts he accepted Mr Pattison had made to stay outof trouble since being convicted of serious offending in the 1980s. The Judge alsomade reference to a number of letters of support he had received from Mr Pattison'sdaughters and ex-wife, and noted that he was at the time of sentencing engaged instudy.3 At [20].[14] The end sentence imposed was one of two years and five months'imprisonment.The appeal[15] Mr Pattison's appeal against sentence is brought pursuant to s 244 of theCriminal Procedure Act 2011 (the Act). As first appeal court, this Court's powers areset out in s 250 of the Act. This Court must allow the appeal if it is satisfied that, forany reason, there was an error in the sentence imposed on conviction and that adifferent sentence should have been imposed. In any other case, the appeal must bedismissed.[16] It must be shown that there was an error, whether intrinsically or as a result ofadditional material submitted. If there was an error of the requisite character, the Courtwill then form its own view of the appropriate sentence.4 The focus is on the sentenceitself, and not the process by which it was reached. Where the end sentence is withina justifiable range, according to accepted sentencing principles, it should remainundisturbed.5Submissions[17] Mr Walsh, who appeared on the hearing of the appeal, acknowledged that thereare no tariff decisions applicable to offending of the type in issue in this case. He didhowever note that the Judge reached his starting point without any reference tocomparable sentencing decisions. He submitted by reference to comparable decisions,that the lead offence required a sentence in the vicinity of 18 months' imprisonment,that an uplift was required to recognise the additional offending, and that once totalitywas factored in, a starting point of two and a half years was appropriate. He suggestedthat there were some mitigating factors which entitled Mr Pattison to a discount,although he did not place any great weight on the fact that Mr Pattison was on bail forsome 23 months, or for the claimed remorse. He did however refer to the variousletters of support and suggested that they carried some weight. He submitted that, at4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 At [36].best from Mr Pattison's perspective, the sentence imposed was too high byapproximately five months.[18] Mr Rhodes, for the Crown, noted that Judge Spear was the trial Judge andsuggested it is clear from his sentencing notes that he considered that the offendingwas serious. He noted the various aggravating features discussed by the Judge andsubmitted that the starting point adopted of three years, whilst stern, was within range.He also argued that the discounts for time spent on bail and for remorse were generousand that it could not be said that the end sentence imposed was manifestly excessive.Analysis[19] There is no tariff case for sexual offending of the kind at issue in this case.This reflects the wide range of conduct potentially caught by s 134(3) ofthe Crimes Act 1961. This Court has previously noted that sexual offending againstchildren will usually attract a starting point of imprisonment.6 A starting point forlower level indecency offending against children will, depending on the nature ofthe offending, generally be between six months and 24 months' imprisonment.7The appropriate starting point will of course increase for more serious offending.[20] There are various factors which can assist in fixing culpability for suchoffending. They include the age of the victim, the vulnerability of the victim,the degree of abuse of trust, the intrusiveness and intensity of the indecent act,the duration of the offending, whether there were repeated incidents of offendingagainst the victim, premeditation, the harm occasioned to the victim and attempts atconcealment. These features will often overlap and care must be taken to avoid doublecounting. Where a large number of factors are present, it will also be important toassess not only their presence but also the seriousness of each of them.8[21] In the present case, we agree with Judge Spear that there were a number ofaggravating factors. First, there is the discrepancy in age — the victim was aged only6 R v S CA465/05 at [17], 11 April 2006; and D (CA714/2015) v R [2016] NZCA 106 at [17].7 Stephens v Police HC Hamilton, CRI-2007-419-133, 11 December 2007; and R v Parker [2007]NZCA 534.8 See, R v Paki [2012] NZHC 3494 at [30]; upheld on appeal in Paki v R [2013] NZCA 279.14 years; Mr Pattison was 51 years old. Secondly, the victim was very vulnerable.She was at the time experiencing mental health difficulties. Mr Pattison exploited thatvulnerability and exacerbated it by plying her with alcohol. Thirdly, there was anabuse of trust — Mr Pattison met the victim through a respite centre which caters forchildren struggling with mental health issues. He represented to her parents, falsely,that he was a counsellor, and persuaded them to allow her to come to his house forthe weekend. Fourthly, there were repeated incidents of offending against the victim,over a period of two and a half days. Finally, there was significant harm to the victim,which is referred to in her victim impact statement. As against these various matters,we accept that the offending at issue was not the most serious of its kind. It wasnevertheless intrusive and highly sexualised behaviour.[22] Section 134(3) of the Crimes Act provides for a maximum penalty ofseven years' imprisonment. Having considered the cases referred to us9 and someadditional broadly comparable cases,10 we consider that the starting point adopted byJudge Spear was too high, given the circumstances of this case. In our view,the appropriate starting point for the offending committed by Mr Pattison wastwo years and six months' imprisonment.[23] We do not consider that Mr Pattison was entitled to a discount for remorse.He took the matter to trial. He told the probation officer who prepared the pre-sentencereport that he had no recollection of the events. He was unable to provide any insightin relation to this offending. He denied that he had acted inappropriately.The probation officer considered that that Mr Pattison demonstrated no insight intothe nature of his offending. Mr Pattison did write a letter to Judge Spear acceptingthe jury's verdicts and saying that he was "extremely ashamed". In that letter heaccepted that he ought to have done things differently, and that people who had trustedhim had been hurt. In our judgment, this was too little and too late. It was at bestlimited remorse, and we suspect it was more a reflection of the situation Mr Pattisonfound himself in.9 Davis v R [2017] NZCA 226 (broadly similar offending, two and a half-year starting point);Morgan v R [2013] NZCA 530 (more serious offending, three-year starting point).10 O'Reilly v R [2011] NZCA 541 (less but more serious offending, starting point of 18 months);R v M (CA387/2009) [2009] NZCA 456 (less serious offending, but a higher starting point oftwo years).[24] We also consider that the discount for time spent on bail was unduly generous.The bail was not EM bail on strict terms and conditions. Rather, it was ordinary bail.There was a curfew. It was varied but ultimately it required Mr Pattison to be atthe bail address between the hours of 9.00 pm and 6.00 am on each day. Given thatMr Pattison was 51 years old, we do not consider that this curfew was particularlyonerous. The bail terms were not otherwise unduly restrictive.[25] In our judgment, the discounts allowed by Judge Spear were unduly generous.[26] We are not persuaded that the end sentence imposed by Judge Spear wasmanifestly excessive.Result[27] Leave to appeal out of time is granted.[28] The appeal is dismissed.Solicitors:Kayes Fletcher Walker, Manukau for Respondent