TANUVASA v R [2019] NZCA 217

TANUVASA v R [2019] NZCA 217 [12 June 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 AOTEAROACA792/2018[2019] NZCA 217BETWEEN FREDRICK TANUVASAAppellantAND THE QUEENRespondentHearing: 21 May 2019Court: Kós P, Peters and Mander JJCounsel: M E Goodwin and J L Holden for AppellantG R Kayes and L J Sullivan for RespondentJudgment: 12 June 2019 at 11 amReissued: 17 June 2019Effective dateof Judgment: 12 June 2019JUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] The appellant, Fredrick Tanuvasa, was sentenced to 26 months' imprisonmentafter being convicted by a jury on a charge of sexual violation by unlawful sexualconnection.1 He has appealed that sentence, on the basis it was manifestly excessive.Background[2] Mr Tanuvasa and the complainant are related. One evening the complainantinvited relatives, including Mr Tanuvasa, to her house to socialise. At around 1.00 amthe other relatives left, leaving only Mr Tanuvasa and the complainant.The complainant had become quite intoxicated. She was tired and told Mr Tanuvasashe was going to bed. She told him that he could sleep in the other bedroom.[3] The complainant awoke around 5.20 am to find Mr Tanuvasa thrusting hisfingers into her vagina. She estimated that continued for five to seven seconds, but,as Judge Winter found, her estimate could not be taken literally.Initially, the complainant was not sure if what was happening to her was a dream.Once she appreciated that it was real and she gained full consciousness, she turnedover to face Mr Tanuvasa. Upon seeing him, she went directly to the bathroom.Mr Tanuvasa then left the address.District Court sentencing[4] The Judge identified a number of aggravating features.2 These includedthe complainant's vulnerability. She was intoxicated and asleep at the time she wasviolated. The Judge considered the actions of Mr Tanuvasa involved a breach of trustin the sense that his sexual offending was committed against a member of his ownfamily. The complainant suffers from ongoing trauma. She now avoids her family,and finds it difficult to trust anyone.[5] The Judge referred to the guideline sentencing decision of R v AM(CA27/2009).3 The unlawful sexual connection was placed at the lower end ofband one, which represents offending where there is one or more aggravating factors1 R v Tanuvasa [2018] NZDC 25293 [Sentencing notes].2 At [9]–[10].3 At [11], citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.present to a low or moderate degree, and in respect of which starting points of betweentwo to five years' imprisonment are considered appropriate.4 After referring to anumber of sentencing decisions which involved broadly similar offending, the Judgeadopted a starting point of two years and eight months' (32 months) imprisonment.5[6] Turning to personal mitigating factors, the Judge acknowledged the good workMr Tanuvasa had done in the community, his expressions of remorse, which the Judgeconsidered were genuine, and his determination to pursue rehabilitation.6The 14 months Mr Tanuvasa had spent on electronically monitored bail (EM bail)resulted in a four-month deduction. A further two-month credit was extended forremorse and rehabilitative prospects. This resulted in the end sentence of two yearsand two months' imprisonment.7The appeal[7] Mr Tanuvasa relied on three grounds in support of his challenge tothe sentence. It was submitted that:(a) the 32-month starting point was excessive when compared with othersentencing authorities;(b) the four-month discount to reflect the 14 months spent on EM bail wasinadequate; and(c) the sentencing Judge had failed to provide a discrete discount for thecontributions Mr Tanuvasa had made to the community.[8] We consider each of these grounds in turn.4 At [12]–[13].5 At [14]–[16], citing R v McNichol CA343/97, 5 March 1998; R v Fisher CA305/91, 18 November1991; Paia v R [2014] NZCA 107; and Gonzales v Police [2013] NZHC 1691.6 At [18]–[20].7 At [21]–[23].The starting point[9] The argument that the starting point was too high is constructed around ananalysis of two sentencing decisions which were referred to by the Judge in the courseof his sentencing remarks, Paia v R and Gonzales v R.8[10] In Paia, the appellant was found guilty of two charges of sexual violation byunlawful sexual connection. The complainant attended a party and became veryintoxicated. She was later found by the appellant in the early hours of the morningbeing sick in her vehicle. After falling asleep in the passenger's seat, she awoke tofind that the appellant had inserted his fingers into her vagina. He then proceeded tolick her vagina before the complainant pushed him away.9 On appeal, this Courtagreed with the appellant's concession that a three-year starting point could not bechallenged.10[11] In Gonzales, the appellant pleaded guilty to one charge of sexual violation byunlawful sexual connection. The complainant was a co-worker of the appellant whoattended a party at the complainant's home. Because of his state of intoxication,he was invited to sleep on a couch. Early the following morning, he enteredthe complainant's room, where she was sleeping next to her partner. He laid next toher and started to rub her breast, using his other hand to rub his penis. He then beganrubbing the complainant in the area of her vagina before using his tongue to lickthe complainant's genitalia. That action caused the complainant to wake.The complainant, realising that it was not her partner, immediately told the appellantto stop, at which point he left the room.11 A starting point of 32 months' imprisonmentwas adopted, which was not challenged on appeal.12[12] Having referred us to those cases, Mr Goodwin, who appeared forMr Tanuvasa, submitted that the offending in Gonzales and Paia was more extensiveand intrusive than in the present case because in the latter case it involved not just anact of digital penetration, but also oral connection with the complainant's genitalia8 Paia, above n 5; and Gonzales, above n 5.9 At [5]–[7].10 At [24].11 At [3]–[6].12 At [8].and, in the former case, other indecent touching as well as oral connection. It was alsosubmitted that in those cases the violations had not been fleeting or brief.[13] Mr Goodwin further submitted that the Judge's identification of a breach oftrust as an aggravating feature due to the familial relationship between Mr Tanuvasaand the complainant was misplaced. He noted that in Paia the complainant had beenextremely vulnerable and in Gonzales there had been a breach of trust betweenco-workers. It was his submission that upon a comparative analysis of those two caseswith the circumstances of the present offending a starting point of between 24 and27 months' imprisonment should have been adopted.Discussion[14] We do not consider the Judge erred in adopting a starting point of 32 months'imprisonment, which accurately reflected the placement of the offending at the lowerend of band one.13 The reliance on two discrete cases in an effort to attempt todemonstrate the Judge exceeded his sentencing discretion does not take Mr Tanuvasavery far in challenging the length of the sentence.[15] The Judge acknowledged that the offending in Paia was more serious andcalibrated his starting point accordingly. It was also acknowledged by Mr Kayes, onbehalf of the Crown, that the offending in Gonzales was more extensive. However, ashe submitted, when regard is had to the relative vulnerability of the complainant in thepresent case, who was intoxicated and alone in her house, in addition to being asleep,and the circumstances of the complainant in that case, the respective culpability ofthe offenders is broadly comparable.[16] In rejecting this ground of appeal, we observe that sentencing involvesthe exercise of discretion and that guideline judgments like R v AM allow for a levelof flexibility in the approach to be taken to the imposition of an appropriate sentence.14In Setu v R, this Court, when declining leave to appeal, observed:1513 See R v AM, above n 3, at [113]–[116].14 R v Taueki [2005] 3 NZLR 372 (CA) at [42]–[43].15 Setu v R [2018] NZCA 127 (footnotes omitted).[10] Guideline judgments are just that — guidelines in the exercise of adiscretion. As this Court made clear in Taueki itself, the suggested bands andstarting points are to be used flexibly. Sentencing judges need to exercisejudgment in assessing not only the number of aggravating factors but also theirgravity. The placing of any particular case within a band is also very much anevaluative exercise, there being significant overlap at the margins.(footnotes omitted)[17] We consider the approaches taken in the cases cited together with that adoptedby the Judge in the present case and a further relevant sentencing decision, to whichwe will shortly refer, are illustrative of the legitimate margin of discretion which isavailable to sentencing judges when applying the sentencing guidance of this Court.There is no dispute that the Judge accurately identified the seriousness of the offendingin accordance with the guidance provided in R v AM, and appropriately placed it atthe lower end of band one.[18] We do not consider reliance on two particular cases in an endeavour to showsome relatively small inconsistency in the setting of a starting point will advance anappellant's case when that sentence comfortably accords with that part of the band ofsentences available for such offending. It is trite to observe that each case will turn onits own particular facts and that invariably each case will have its differences whichthe trial Judge will often be best placed to assess. In the context of the present case,the ambit of the discretion available to a sentencing judge is illustrated by another casebrought to our attention by the Crown.[19] In Hohua v R, the appellant was found guilty of one charge of sexual violationby unlawful sexual connection following trial.16 The appellant was a known visitor tothe female complainant's party. After the complainant went to bed, the appellant wentinto her bedroom uninvited and offered her cannabis. She declined and told him toleave. He eventually did so before she fell asleep. The complainant woke a few hourslater to find the appellant vigorously thrusting his fingers into her vagina and kissingher neck and breasts. She directed him to stop and to leave. A starting point ofthree and a half years' imprisonment was upheld by this Court as being "clearly in16 Hohua v R [2017] NZCA 89.range".17 This Court noted the vulnerability of the sleeping complainant and thatthe entry into her bedroom involved an element of invasion.18[20] When the approach taken in Hohua is added to the mix, it is clear on acomparative analysis that the 32-month starting point in the present case was notexcessive. Moreover, the starting point clearly fell within the bounds of the type ofstarting point anticipated for such offending in R v AM.[21] The second aspect to Mr Tanuvasa's challenge to the starting point was thecomplaint that the Judge's identification of a breach of trust as an aggravating featurewas misplaced. In support of that submission, Mr Goodwin referred us to a decisionof this Court, T (CA370/2018) v R, which involved sexual offending by a 19–20 yearold uncle against his 13–15 year old whāngai niece living in the same house.19This Court held the sentencing Judge was wrong to identify those circumstances asgiving rise to a breach of trust because of the relatively modest age difference andthe absence of the offender fulfilling anything akin to a parental role.20 Mr Goodwinsubmitted that the Judge here had made the same error.[22] Whether the circumstances of the present case can be categorised as giving riseto the orthodox understanding of a breach of trust as an aggravating feature is notparticularly material. We consider the advantage taken by Mr Tanuvasa ofthe complainant's permission to allow him to remain in her home in order to sleepovernight, no doubt because of her familial relationship with him, was an aggravatingfeature which the Judge was entitled to take into account. This aspect of the offendinghas specifically manifested itself in the effects on the complainant, who no longertrusts anyone "no matter how long or how close [she has] been with them" and avoidsher family.[23] The aggravating features of Mr Tanuvasa's sexual offending are readilydiscernible. Having been permitted to stay overnight, he sought to take advantage ofan intoxicated complainant who was asleep in her own bedroom. His entry and17 At [39].18 At [39].19 T (CA370/2018) v R [2019] NZCA 13.20 At [58].violation of the complainant involved an invasion of a place where she was entitled tobe safe. It has had an unsurprisingly deleterious effect on her wellbeing. When regardis had to the aggravating features of the offending and its accordant placement towardsthe lower end of band one of R v AM, we consider the 32-month starting point waswell within range.Credit for time spent on EM bail[24] In imposing sentence, a court is required to take into account time spent onEM bail.21 In calculating the credit to be afforded to an offender, the Court must takeinto account the period spent on bail with an electronic monitoring condition,the relative restrictiveness of that condition, and the offender's compliance with bailconditions, together with any other relevant matters.22[25] This ground of appeal was premised on the Judge having erred in expressingthe view that the time spent on EM bail was ameliorated by being allowed, on medicaladvice, to exercise at a public swimming pool three times per week, and to attendchurch each Sunday.23 However, we do not consider the Judge can be faulted in hisapproach to this part of the sentencing exercise.[26] The Judge was required to assess the relative restrictiveness of the electronicmonitoring condition. The Judge acknowledged that Mr Tanuvasa had been onrestrictive bail terms and his description of the time spent on EM bail being"ameliorated" by being able to travel to the swimming pool and to attend churchservices was factually accurate.[27] We reject the oral submission made by Mr Goodwin that this particular aspectof the EM bail arrangements resulted in the Judge reducing the credit that wouldotherwise have been extended to Mr Tanuvasa. There is nothing in the sentencingremarks beyond the description of the terms of Mr Tanuvasa's EM bail to indicate thathe was penalised for being able to go to the swimming pool and attend church or thatthe credit afforded to him would have been greater but for those features.21 Sentencing Act 2002, s 9(2)(h).22 Section 9(3A).23 Sentencing notes, above n 1, at [18].[28] As Mr Goodwin acknowledged, there is no arithmetical formula that is to beapplied in calculating the deduction for time spent on EM bail.24 The four monthdiscount allowed in the present case accords with the approach taken in othersentencing appeals in this Court.25 In those cases a credit of four months wasconsidered adequate to reflect periods spent on EM bail which ranged between 10 and18 months.Failure to provide a discrete discount for community contributions[29] Mr Goodwin submitted that a discount of two months should have been givento reflect Mr Tanuvasa's positive contributions to the community. Reference wasmade to his involvement in community-based projects and the support he has providedto young Pasifika men, including to those incarcerated in prison. Mr Tanuvasa has fora number of years disassociated himself from a gang and become involved in thecommunity. However, against that he has convictions in 2016 for threatening to killand failing to answer bail. He is unable to draw on credit for good character becauseof his history of criminal offending between 2003 and 2016.[30] The Judge expressly acknowledged that Mr Tanuvasa had "done good worksin the community" and was prepared to extend credit for the appellant's lateexpressions of remorse, which he found to be genuine notwithstanding Mr Tanuvasahaving been convicted following a jury trial.26 In extending the two-month credit forremorse and Mr Tanuvasa's "determination to pursue rehabilitative efforts",we consider it implicit that this included an acknowledgment of his recent positiveinteractions with his community.27 We do not consider the absence of any furthercredit for this aspect of Mr Tanuvasa's personal circumstances resulted in the sentencebeing manifestly excessive. Ultimately that must be the overarching focus.24 Rangi v R [2014] NZCA 524 at [10].25 Parata v R [2017] NZCA 48 at [15]; Chea v R [2016] NZCA 207 at [109]–[111]; and Keown v R[2010] NZCA 492 at [16].26 Sentencing notes, above n 1, at [18].27 At [20].Conclusion[31] Having reviewed the grounds of appeal, we do not consider the Judge erred inthe imposition of a sentence of 26 months' imprisonment. The end term ofimprisonment was within the range of sentence available to the Judge in the exerciseof his sentencing discretion and was not manifestly excessive.Result[32] The appeal is dismissed.Solicitors:Crown Solicitor, Manukau for Respondent