WILD v R [2019] NZCA 189

WILD v R [2019] NZCA 189 [29 May 2019]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 AOTEAROACA197/2018[2019] NZCA 189BETWEEN DONALD KEITH WILDAppellantAND THE QUEENRespondentHearing: 10 April 2019Court: Clifford, Katz and Thomas JJCounsel: E R Fairbrother QC for AppellantK A Lummis for RespondentJudgment: 29 May 2019 at 11.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence is quashed and substituted with a sentence of 18 months'imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)[1] On 15 March 2018 Donald Wild was sentenced1 to two years and two months'imprisonment on one charge of doing an indecent act on a girl under 162 and onerepresentative charge of doing an indecent act on a girl under 12.3[2] Mr Wild appeals on the ground the sentence was manifestly excessive becausethe Judge erred in adopting a starting point of two years and three months'imprisonment.The offending[3] On 28 January 2012, the first complainant, L, was 12 years old and was stayingat her grandmother's home. Mr Wild was also living there. L was lying on a hammockat the back of the property when Mr Wild approached her, rubbed his penis, which wasinside his pants, against the side of her body, leaned into her face and said, "I want toput my cock in you". She pushed him away and told him to "fuck off", but he held onforcefully. He left but came back shortly afterward. He told L to "come on" and triedkissing her. He eventually left. These events led to the conviction on the charge ofdoing an indecent act on a girl under 16.[4] The second complainant, Z, was friends with Mr Wild's daughter and wouldoften visit their home. Between 1 August 2013 and 31 August 2015, Z was agedbetween nine and 12. On two occasions Mr Wild touched her on her thighs, breastsand stomach over her clothes while she was on the couch. He also tried to put hishands in her shorts and take off her shirt. He told Z not to tell anyone or the touchingwould continue. On one occasion he stopped only when his daughter came into theroom. These events led to the conviction on the representative charge of doing anindecent act on a girl under 12.District Court decision[5] Judge Cathcart began his sentencing comments by discussing the impact of theoffending on both victims, saying their interests were paramount. He referred to1 R v Wild [2018] NZDC 5086.2 Crimes Act 1961, s 134(3); maximum penalty seven years' imprisonment.3 Section 132(3); maximum penalty of 10 years' imprisonment.Mr Wild's prior convictions for this type of offending and then recorded the essentialfacts as he viewed them, having been the trial Judge.4[6] The Judge considered the aggravating factors were that the offending againstZ occurred over a period of time and the offending against L on a single day;the complainants' young ages; and the nature of the touching.5[7] The Judge referred to what he considered to be comparator cases, includingWaiapu v R,6 Shaw v R7 and O (CA643/2009) v R.8 He concluded that, based on theaggravating factors, threats made to Z, the impact on the victims, and the totality ofthe offending, the appropriate starting point was two years and three months'imprisonment.9[8] The Judge imposed an uplift of two months' imprisonment for Mr Wild'srelevant prior convictions.10 Mr Wild was sentenced in 1992 to five years and11 months' imprisonment on three charges of unlawful sexual connection with afemale aged between 12 and 16 which had occurred between 1987 and 1990. On thesame day, he was sentenced to a concurrent term of one year on one charge of indecentassault of a female under 12 which had occurred in January 1982.[9] The Judge noted Mr Wild was the sole breadwinner for his family and hadpro-social support. He allowed a discount of three months' imprisonment inrecognition of these factors.11[10] This resulted in a sentence of two years and two months' imprisonment.The Judge noted that, by operation of law, Mr Wild would be subject to registrationunder the Child Protection (Child Sex Offender Government Agency Registration) Act2016.124 R v Wild, above n 1, at [1]–[4].5 At [10].6 Waiapu v R [2016] NZHC 2491, [2016] NZAR 1561.7 Shaw v R [2014] NZCA 322.8 O (CA643/2009) v R [2010] NZCA 609.9 At [14].10 At [17].11 At [19]–[20].12 At [22]–[23].Approach to appeal[11] An appeal against sentence is an appeal against a discretion and must only beallowed if the court is satisfied that there has been an intrinsic error in the sentenceand a different sentence should be imposed.13 The focus is on the final sentence andwhether it was within the available range, rather than the exact process by which itwas reached.14[12] If a sentence is the product of a starting point which is manifestly excessivebut is ameliorated by allowances made for mitigating factors, this Court will bedisinclined to intervene, so long as the final sentence is within range.15Was the starting point too high?[13] Mr Fairbrother QC, for Mr Wild, submitted that the starting point of two yearsand three months' imprisonment overstated the gravity of the offending.16He contended that the Judge did not address Mr Wild's culpability in any great detail,and instead commented on it in the context of Mr Wild's criminal history.Mr Fairbrother submitted that, although the offending was morally repugnant, it wasat the lowest level in terms of indecent assaults of this nature.[14] Ms Lummis, for the Crown, accepted that the starting point was stern but, inher submission, it was within the available range. In any event, said Ms Lummis, theend sentence was not manifestly excessive given the Judge could have imposed agreater uplift for Mr Wild's prior convictions and gave a generous discount formitigating factors.[15] There are no guideline cases for sentencing in respect of charges of doing anindecent act on a young person. We have considered the cases to which counsel havereferred. Each case, of course, turns on its own particular facts, meaning care isrequired when drawing comparisons. We have taken note in particular of the followingcases:13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.14 Ripia v R [2011] NZCA 101 at [15].15 R v Peters CA12/03, 14 May 2003 at [13].16 Sentencing Act 2002, s 8(a).(a) Masei v R:17 the victim was a 15-year-old Japanese schoolgirl who wasbilleted to stay with Mr Masei's family. Mr Masei touched her breastsand genital area over clothing on one occasion. He rubbed her withsome pressure, using circular motions, and tried to remove her clothing.A starting point of 21 months' imprisonment was adopted.18 Althoughthe appeal was dismissed as the end sentence was considered stern butnot manifestly excessive, this Court noted a starting point of 18 months'imprisonment was the "general starting point" for an indecent assaultof this nature where the touching was described as prolonged andactive.19(b) R v M (CA387/2009):20 the victim was Mr M's four-year-old cousin.One night when watching television, M touched her genitalia with hishand, through skin on skin contact, removed his penis from his trousersand placed her hand on it. He made her "pinky promise" not to tell.21A starting point of 30 months' imprisonment was considered too highby this Court for the two charges of indecent assault and a starting pointof 24 months' imprisonment was adopted instead.(c) O (CA643/2009) v R:22 the victim was between 10 and 11 years oldwhen Mr O, her uncle, on two occasions touched the skin on the outsideof her vagina with his hand. On other occasions he touched her breaststhrough her clothes, kissed her lips, and touched her genitals throughclothing. The offending occurred on four separate days over sevenmonths. This Court upheld a starting point of 36 months' imprisonmenton the six charges of doing an indecent act on a child, although thesentence was described as stern.17 Masei v R [2016] NZCA 481; Mr Masei was convicted of indecently assaulting a young person.18 At [3]; a starting point of 15 months' imprisonment was uplifted by six months by the Judge inrecognition of the considerable breach of trust involved.19 At [8].20 R v M (CA387/2009) [2009] NZCA 456; Mr M was convicted of two counts of indecent assault.21 At [3].22 O (CA643/2009) v R, above n 8; Mr O was convicted of six counts of doing indecent acts on achild under 12 under s 132(3) of the Crimes Act 1961.(d) Shaw v R:23 the victims were five girls aged under 13. On a single day,Mr Shaw touched a 12-year-old girl's bottom twice while ina supermarket and rubbed the crotches of a 10-year-old girl and asix-year-old girl while in a games arcade. On another day, Mr Shawput a six-year-old girl on his knee while in a swimming pool and puthis arms around her waist. On the same day he "tickled the bottom" ofa seven-year-old girl as she swam past.24 A starting point of 30 months'imprisonment on five charges of indecent assault on a child was upheldon appeal to this Court.(e) Waiapu v R:25 the victims were two girls under or of the age of 12.The first victim was Mr Waiapu's niece who was about 11 years old atthe time of the offending. Mr Waiapu rubbed the inside of her thighwhile babysitting her. When Mr Waiapu was staying with the secondvictim's family, he rubbed his hand up and down her inner thigh on topof her clothes just below her crotch. A starting point of 33 months'imprisonment for the two charges of indecent assault was consideredtoo high by the High Court on appeal and a starting point of 12 months'imprisonment adopted instead.(f) Wells v R:26 Mr Wells touched the bottom of a nine-year-old boy overthe top of his clothes twice in a single interaction on the street in frontof his home. He gave the victim money before rubbing his bottom onthe second occasion. He knew the boy from passing by him on thestreet and had previously given him money. The High Court on appealconsidered a starting point of 18 months' imprisonment for the twocharges of indecent assault was warranted due to the level ofpremeditation and grooming, saying, without those features, 12 monthswould have been appropriate.23 Shaw v R, above n 7; Mr Shaw was convicted of five counts of indecent assault on a child.24 At [6].25 Waiapu v R, above n 6; Mr Waiapu was convicted of two counts of indecently assaulting girlsunder the age of 12.26 Wells v R [2015] NZHC 2075.[16] In the present case, both victims were touched over their clothing, which is lessintrusive than skin on skin contact. Mr Wild's comments to L and threats toZ increased the intrusiveness of the acts. The acts were of relatively short duration.There were two discrete occasions over a two-year period when the offending againstZ occurred, and a single instance of offending against L, suggesting spontaneous oropportunistic offending. We consider the particular aggravating factors to be:(a) Both victims were vulnerable due to their ages of between nine and12 and the disparity of their ages compared with Mr Wild's age of 55 to60 years at the time of the offending.(b) There was a degree of abuse of trust in respect of both victims asMr Wild was the father of Z's friend and was living with L'sgrandmother. Those circumstances enabled Mr Wild to be alone withthe victims.(c) Both victim impact statements describe the psychological harm felt bythe victims.(d) Mr Wild attempted to conceal the offending by threatening Z. He toldher not to tell anyone or the touching would continue.[17] We agree with Mr Fairbrother that the starting point adopted by the Judge wastoo high, even in light of the variation in these types of cases.27 In our assessment,Mr Wild's offending was less serious than R v M (CA387/2009) andO (CA643/2009) v R, where there was skin on skin contact with the victims' genitalia,the victim in R v M being only four years old. It was also less serious than Shaw v R,given the five victims in Shaw v R, the very young age of three of them and the act ofrubbing the victims' crotches. While the touching in the present case was moreintrusive than that in Wells v R, on which the Crown relied, there was lesspremeditation or grooming.28 The present case is perhaps most analogous to27 Waiapu v R, above n 6; Shaw v R, above n 7; R v M (CA387/2009), above n 20; O (CA643/2009)v R, above n 8; B (CA65/2011) v R [2011] NZCA 173; Masei v R, above n 17; and Wells v R, aboven 26.28 Wells v R, above n 26.Waiapu v R, where the High Court considered a starting point of 12 months'imprisonment appropriate. In saying that, this case is somewhat more serious, givenMr Wild's threats to Z and that there were two incidents of offending against her.Although there are obvious differences in the facts, we consider the 18 monthsdescribed by this Court in Masei v R to be appropriate for the present offending.[18] For these reasons, we conclude a starting point of 18 months, as opposed tothe 27 months adopted, was appropriate.Was the sentence manifestly excessive?[19] Ms Lummis submitted that the sentence cannot be considered manifestlyexcessive as a greater uplift was available for Mr Wild's previous offending of asimilar nature.[20] The Sentencing Act 2002 allows the consideration of previous convictions asan aggravating factor that may be taken into account if applicable to the case beforethe court.29 The court must consider the "number, seriousness, date, relevance, andnature" of the relevant convictions.30 Relevant prior convictions are typicallyconsidered by imposing an uplift on the starting point adopted.31 Generally the greaterthe period of time elapsed between the present and previous offending, the lesser theuplift that is appropriate.32[21] The decision of this Court in Wipa v R discussed the principles relevant touplifts for prior offending:33[26] a sentence ought to be based primarily on the facts of the offencefor which the offender is being sentenced;34 any uplift must be kept inproportion;35 and the sentence must not be increased merely because of aprevious conviction, for that would be to increase the sentence imposed on the29 Section 9(1).30 Section 9(1)(j).31 R v Taueki [2005] 3 NZLR 372 (CA) at [8]; and R v Mako [2000] 2 NZLR 170 (CA) at [34]; citedwith approval in Wipa v R [2018] NZCA 219 at [25], n 18.32 Cashmore v Police [2017] NZCA 508 at [11].33 Wipa v R, above n 31.34 R v Power [1973] 2 NZLR 617 (CA) at 618.35 R v Ward [1976] 1 NZLR 588 (CA) at 590–591; and Tiplady-Koroheke v R [2012] NZCA 477at [24].previous occasion.36 But although uplifts for recidivism are near-ubiquitousin western jurisdictions, the professional and academic literature struggles toaccount for them.37 Explanations divide broadly into two: progressive loss ofmitigation and recidivist premium. The progressive loss of mitigation accountholds that a first offender gets a discount from the appropriate sentence for theoffence and the discount is gradually removed for subsequent offences.38[28] New Zealand courts have adopted a recidivist premium approachwhen fixing uplifts under the Sentencing Act. ... In practice the premium istreated as a matter of sentencing discretion and the court focuses on theoffender rather than the offence. The usual justifications offered areretributive (past convictions evidence failure of past deterrence) or utilitarian(community protection is engaged because past offending is predictive offuture offending) in nature. [22] The uplift of two months in this case equates to seven per cent of the 27-monthstarting point and 11 per cent of 18 months. Mr Wild's prior offending occurred morethan 22 years before the offending the subject of this appeal. The prior offending wasalso much more serious than the present offending. Mr Wild served a lengthy sentenceof imprisonment for his prior offending. Apart from one conviction in 1998 for drivingwith excess breath alcohol, Mr Wild has since been conviction-free. In our view, theuplift of two months appropriately recognises these circumstances.[23] Mr Fairbrother responsibly accepted that the discount of three months forMr Wild's good work ethic and "pro-social support" could be described as generous.Even had that discount not been allowed, an end sentence of 20 months' imprisonment(taking the 18-month imprisonment starting point and two-month uplift we have foundto be appropriate) is well short of the final sentence of 26 months imposed in theDistrict Court. Such a disparity means the sentence was manifestly excessive and theappeal must be allowed.[24] It is therefore appropriate to undertake the sentencing exercise afresh.As discussed, the appropriate starting point was 18 months' imprisonment, to which36 The King v Casey [1931] NZLR 594 (CA) at 597.37 For a general discussion of the subject see Julian V Roberts and Andrew von Hirsch (ed) PreviousConvictions at Sentencing: Theoretical and Applied Perspectives (Hart Publishing, Oxford, 2014);and Andrew Ashworth Sentencing and Criminal Justice (6th ed, Cambridge University Press,Cambridge, 2015) at 207–216.38 It is well articulated in the judgment of Deane J in Veen v The Queen [No 2] (1988) 164 CLR 465at 491. See also Ashworth, above n 37 [in original], at 211–214.we add two months in light of Mr Wild's prior convictions. We regard the three-monthdiscount for Mr Wild's good work ethic and pro-social support as unduly generous,although we recognise that the Judge was clearly impressed by the material before himin this regard. In the circumstances, a two-month discount is appropriate. This resultsin an end sentence of 18 months' imprisonment.[25] As this is a short sentence of imprisonment, we need to address conditions ofrelease. We impose the two special conditions recommended in the pre-sentencereport, being:(a) Not to associate with or contact the victims of the offending withoutthe prior written approval of a probation officer.(b) Not to associate or otherwise have contact with any person under16 years of age except in the presence and under the supervision of anapproved informed adult. An approved informed adult means a personwho has been given prior approval in writing by a probation officer asbeing suitable for a purpose of this condition.[26] In the circumstances of Mr Wild's offending, we consider there should be afurther special condition requiring him to attend and complete any counselling orprogramme directed at the causes of his offending as required by his probation officer.[27] Finally, as Mr Wild has effectively served his sentence, the possibility of asentence of home detention does not need to be addressed.Result[28] For these reasons, the appeal is allowed. The sentence of two years andtwo months' imprisonment is quashed and substituted with a sentence of 18 months'imprisonment with standard release conditions, and the special conditions set out at[25] and [26] above. The conditions are to expire six months after the sentence expirydate.[29] Registration under the Child Protection (Child Sex Offender GovernmentAgency Registration) Act 2016 is unaffected.Solicitors:Crown Solicitor, Auckland for Respondent