PAGULAYAN v R [2022] NZCA 90

PAGULAYAN v R [2022] NZCA 90 [25 March 2022]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 AOTEAROACA520/2021[2022] NZCA 90BETWEEN GLENN AMBAS PAGULAYANAppellantAND THE QUEENRespondentHearing: 22 February 2022Court: Dobson, Brewer and Edwards JJCounsel: G A Walsh for AppellantR L Mann for RespondentJudgment: 25 March 2022 at 3.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] Mr Pagulayan pleaded guilty to two charges of sexual conduct with a childunder 12 years of age. He was convicted of a further 14 charges relating to sexualoffending against two other child complainants following a jury trial in theDistrict Court at Hamilton.[2] Mr Pagulayan was sentenced to eight years and seven months' imprisonment.He appeals against that sentence on the basis that it is manifestly excessive. The soleground of challenge is to the 20 per cent discount applied by Judge Mabey QC forprevious good character and matters contained in a cultural report prepared pursuantto s 27 of the Sentencing Act 2002.1Offending[3] The three child complainants (SP, NP and TP) were related to Mr Pagulayanand regarded him as an uncle. The offending against them spanned a two-year periodbetween 2017 and 2019. It took place in the homes of the children in both Aucklandand Huntly.[4] SP was aged between 10 and 12 years old at the relevant times. The offendingagainst him involved numerous incidents over a two-year period. It involvedMr Pagulayan touching SP's genitals, making SP touch his genitals, digitallypenetrating SP and using moisturiser as a lubricant to do so. Mr Pagulayan also suckedSP's penis, and on one occasion attempted to anally penetrate SP. Mr Pagulayan usedtreats and let SP use his computer to manipulate SP into engaging in this sexualconduct.[5] The offending against NP occurred on two separate occasions. He was agedbetween 10 and 11 years old at the time. Mr Pagulayan rubbed and massaged close toNP's genitals and touched his body underneath his underwear. He touched NP at thesame time as he was indecently touching SP while they were playing computer games.Similar touching using a pillow as a cover on NP's lap formed the basis of othercharges.[6] The offending against TP took place when she was 10 years old. Mr Pagulayanrubbed TP's breasts before massaging and then digitally penetrating her vagina.Mr Pagulayan asked TP if she liked what he was doing. Mr Pagulayan followed herto the bathroom, made her remove her underwear, and indecently touched her genitals1 R v Pagulayan [2021] NZDC 16277 [Sentencing notes].again. It was as a result of disclosures made by TP that the broader offending came tolight.[7] Mr Pagulayan faced 17 charges for this offending. On the first day of trial, hepleaded guilty to two charges of sexual conduct with a child under 12. Those twocharges related to offending against TP. Mr Pagulayan was discharged on anothercharge of sexual conduct with a child under 12, and was found guilty by a jury of thefollowing 14 charges:2(a) Sexual violation by unlawful sexual connection (x 4);(b) Sexual conduct with a child under 12 (x 7);(c) Sexual conduct with a young person under 16 (x 2); and(d) Attempted sexual violation.District Court sentencing[8] After summarising the offending, the victim impact statements and the relevantpurposes and principles of sentencing, the Judge turned to consider the starting pointfor the offending. He considered there were multiple aggravating factors, including abreach of trust, the young ages of the children, and the premeditated and persistentnature of the offending.3 The fact that the offending continued over a period of abouttwo years was also recorded by the Judge.4 A starting point of 10 years and ninemonths' imprisonment was set by reference to the guideline judgment in R v AM.5That starting point is not challenged on appeal.[9] The Judge turned next to personal aggravating and mitigating factors.Mr Pagulayan has no previous convictions, and the Judge considered he was entitled2 The District Court sentencing notes record that there were six additional charges of sexual conductwith a child under 12 and three additional charges of sexual conduct with a young person under16. Our summary is based on the Amended Crown Charge List. We do not consider that thediscrepancy alters the assessment of the starting point.3 Sentencing notes, above n 1, at [33]–[35].4 At [36].5 At [42], referring to R v AM [2010] NZCA 114, [2010] 2 NZLR 750.to credit for prior good character.6 As to remorse, Mr Pagulayan had only expressedregret for the conduct underlying the two charges to which he had pleaded guilty.There was no remorse expressed for the balance of the convictions which were notacknowledged or accepted by Mr Pagulayan.7[10] The Judge had before him a s 27 report. The Judge regarded the only relevantpart of the report to relate to Mr Pagulayan's own experience of sexual abuse as achild.8 Although this was entirely self-reported, the Judge did not consider it unusualfor Mr Pagulayan's own sexual abuse to have only recently come to light.9 Afterconsidering this Court's decision in Carr v R, the Judge accepted that Mr Pagulayan'sown experiences of sexual abuse explained why he might offend against children whoregarded him as an uncle.10[11] A discount of 20 per cent was applied for this factor and Mr Pagulayan's priorgood character.11 That resulted in an end sentence of eight years and seven months'imprisonment.12Was the sentence manifestly excessive?[12] Mr Pagulayan says the end sentence was manifestly excessive because the20 per cent discount applied for previous good character and the s 27 report was toolow. Counsel submitted that a 30 per cent discount should have been applied,comprising a 10 per cent discount for previous good character and a 20 per centdiscount for the factors raised in the s 27 report.[13] We start with good character. Mr Pagulayan was between 27 and 29 years oldat the time of the offending and was 31 years old at the time of sentencing. He did nothave any previous convictions either in New Zealand, or his home country of thePhilippines. We accept that his prior clean record was deserving of some recognitionby way of discount from the starting point.6 At [43].7 At [44]–[45].8 At [47] and [50].9 At [53].10 At [51]–[54], discussing Carr v R [2020] NZCA 357 at [65].11 At [55].12 At [57]–[58].[14] However, this was not a case where Mr Pagulayan's prior good characterincluded service to the community or positive contribution to society. The sole basisfor claiming a good character discount was the absence of convictions. As againstthat, the offending was serious and took place against three separate childcomplainants over a two-year period. Some judges may have regarded the durationand nature of the offending as negating Mr Pagulayan's prior good character altogetherand afforded no discount at all. At the very least, we consider these factors temperedthe quantum of any discount to be applied.[15] We turn next to the factors raised in the s 27 report. We agree with theDistrict Court Judge that the only matter of any moment raised in that report wasMr Pagulayan's experience of sexual abuse as a child. The District Court Judgeaccepted the credibility of that self-report. He also accepted that there was a causalnexus between Mr Pagulayan's experiences and the offending in this case.[16] We accept the Judge's findings for the purposes of this appeal. However, wedo not consider the matters raised in the report diminish Mr Pagulayan's culpability ormoral responsibility for very serious sexual offending in any substantial way.We therefore cannot accept counsel's submission that Mr Pagulayan's priorexperiences of sexual abuse warranted a standalone discount of 20 per cent.[17] Furthermore, both mitigating factors needed to be considered in light ofMr Pagulayan's lack of remorse. Although Mr Pagulayan pleaded guilty to two of the17 charges, these were amongst the least serious charges he faced. Both chargesrelated to TP, and there was no acknowledgement of his offending against the twoboys. We consider that lack of accountability and remorse for his actions moderatesthe discount otherwise available for personal mitigating factors.[18] Taking all these factors into account we do not consider the discount appliedby the Judge was too low or otherwise in error. Indeed, we consider the end sentenceto be well within the range that could have been imposed. It did not result in amanifestly excessive sentence. It follows that the appeal must be dismissed.Result[19] The appeal is dismissed.Solicitors:Hamilton Legal, Hamilton for Respondent