TREWAVAS v R [2023] NZHC 3533

TREWAVAS v R [2023] NZHC 3533 [5 December 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2023-442-000019[2023] NZHC 3533BETWEEN HAYDEN GEOFFREY TREWAVASAppellantAND THE KINGRespondentHearing: 29 November 2023Appearances: C H Macklin for AppellantA R Goodson for RespondentJudgment: 5 December 2023JUDGMENT OF JOHNSTONE JThis judgment was delivered by me on 5 December 2023 at 4.05 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, Nelson[1] Hayden Trewavas met a 15-year-old at a mutual friend's party in June 2021.Knowing her as a local schoolgirl and (from her Facebook profile) that she was under18, Mr Trewavas commenced to sell her cannabis "every second day"1 from June 2021until January 2022, leaving it in his letterbox for collection in return for either $20 or$50.[2] In January 2022, she visited Mr Trewavas' home to buy cannabis. They had aspa and shared a joint. She said she needed to leave. They went to his bedroom wherehe kept his cannabis. He digitally and orally penetrated her genitalia before theyengaged in full sexual intercourse. He gave her a bag of cannabis and she left.[3] When police executed a search warrant at Mr Trewavas' home in June 2022,they found around 191 grams of cannabis head in one container, 154 grams of cannabisstalk in another, and 41 grams of cannabis plant packaged into snap lock bags.[4] Mr Trewavas pleaded guilty to charges of supplying cannabis to a youngperson,2 sexual connection with a young person (x 3),3 and possession of cannabis forsale.4 On 10 October 2023, Mr Trewavas was sentenced in the Nelson District Courtto a total of 32 months' imprisonment.5 He appeals to this Court against that sentence.[5] I am required to allow Mr Trewavas' appeal if satisfied that there is an error inthe sentence and a different sentence should be imposed. Otherwise, I must dismissthe appeal.6 In most sentence appeals brought by a defendant, the appeal court willnot intervene unless the sentence is manifestly excessive. Whether the sentence ismanifestly excessive is to be assessed in terms of the final sentence imposed, ratherthan the process by which it was reached. 7[6] Mr Trewavas' argument is that his sentence is manifestly excessive because theoverall starting point for the offending was too high, the discount for personal1 According to his statement to police.2 Misuse of Drugs Act 1975, s 6(1)(d). Maximum penalty: eight years' imprisonment.3 Crimes Act 1961, s 134 (1). Maximum penalty:10 years' imprisonment.4 Misuse of Drugs Act, s 6(1)(f). Maximum penalty: eight years' imprisonment.5 R v Trewavas [2023] NZDC 22573.6 Criminal Procedure Act 2011, s 250.7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].circumstances was inadequate, and the resulting short-term sentence of imprisonmentshould have been converted to home detention.Was the overall starting point too high?[7] The sentencing Judge selected a starting point in respect of the sexualoffending of two years and nine months' imprisonment. In doing so, the Judge tookaccount of the age difference between Mr Trewevas, aged 30, and his victim, still aged15 after seven months of cannabis supply. The Judge also found, in light of the drugsupply relationship, she was not an "equal partner" when engaging in sexualconnection with Mr Trewavas. And that there was some unsophisticatedpremeditation involved in Mr Trewavas inviting her to have a spa and share a joint.The Judge inferred an adverse impact upon the victim following review of her victimimpact statement, asserting that she had tried to block out what happened and movedaway from the area to get on with her life.[8] The Judge uplifted that starting point by 12 months for the cannabis offending,"on a totality approach", arriving at an adjusted starting point for all the offending of45 months' imprisonment.Mr Trewavas' position[9] For Mr Trewavas, Mr Macklin submits that the starting point for the sexualoffending should have been no more than two years and three months. Mr Macklinsubmits the Judge was wrong to infer the drug supply relationship had any bearing ontheir sexual encounter, and that this gave rise to a risk of double-counting. Mr Macklinsubmits the Judge was also wrong to infer a degree of premeditation.[10] Mr Macklin seeks to distinguish R v Misileki, where the Court of Appeal founda three-year, six-month starting point "towards the top of the range" but "notexcessive", where a 26-year-old man woke a 14-year-old girl staying with her aunt athis house and persuaded her to come to his room where they had intercourse, latertexting her trying to avoid her disclosing what had happened.8 He does so on the basis8 R v Misileki [2008] NZCA 513.that this case did not involve premeditation, involved an older "and evidently morestreetwise" victim, and did not involve pressuring the victim to stay silent.[11] Mr Macklin refers to the starting point of two and a half years' imprisonmentadopted in King v Police, and implicitly submits the offending in this case was lessserious.9[12] Mr Macklin submits that the 12-month uplift for the cannabis offending wasexcessive, and involved double-counting because power imbalance had (wrongly)aggravated the sexual offending. He says the amount of cannabis found during thesearch was small, and that the prior sales were modest. And that the seriousness of theoffending in R v Greer, where a 12-month uplift was applied for supplying cannabisto school-aged children, "stands in stark contrast" to the seriousness of Mr Trewavas'offending.10Discussion[13] I consider the Judge well justified in taking account of the drug supplyrelationship when assessing the sexual offending. The relationship was clearlydifferent to that between the lawful supplier of small goods and a regular customer.The 15-year-old could not obtain cannabis except by the commission of an offence.And the fact of her regular cannabis purchases as a young person implied that herpersonal circumstances were unsatisfactory. Contrary to the notion of her cannabispurchases rendering her "streetwise" and therefore less vulnerable to Mr Trewavas'offending, they rendered her more vulnerable than another young person alone at hishome.[14] Relatedly, the Judge was entitled to infer that Mr Trewavas' spa invitation andjoint sharing involved unsophisticated premeditation. In any event, he initiated thesexual encounter by removing his victim's towel and remaining clothing, after she hadsaid she needed to leave.9 King v Police HC Timaru CRI-2009-476-24, 15 December 2009.10 R v Greer [2013] NZHC 3025.[15] On this basis, the present case was appropriately compared to Misileki.Although the victim in that case was one year younger, the offender was four yearsyounger, meaning the age disparity was less. The offending in each case involved asingle occasion and was somewhat opportunistic, arising when the victim was presentin a home for other reasons. Intercourse took place in each offender's bedroom. Thepremeditation involved in persuading a victim from another room is little different tothat involved in the spa/joint episode. There seems no other basis for that aspect ofMr Macklin's submissions.[16] The only distinction of substance is that in Misileki the offender sent textmessages afterwards seeking to have his victim remain silent. Given this distinction,the sentencing Judge's starting point of two years and nine months' imprisonmentbears appropriate relativity with the "not excessive but near top of the range",three-year, nine-month starting point in Misileki.[17] In contrast, King v Police involved a less substantial age disparity, with theoffender aged 21 and his victim aged 14, and the offending arose when both had beenconsuming alcohol at a party. Given the background of drug supply enhancing thevictim's vulnerability and the limited premeditation in this case, the starting point hereof two years and nine months imprisonment bears similarly appropriate relativity tothe two-year, six-month starting point in that case.[18] Turning to Mr Trewavas' drug offending, acknowledging the power imbalancearising from the drug supply relationship when assessing the culpability of the sexualoffending does not mean there is double-counting if there is then a discrete punishmentapplied for the cannabis offending. The issues are conceptually distinct.[19] The amount of cannabis found was comparable to the amount found in Greer,where the possession of cannabis for supply charge (along with the possession of othercontrolled drugs) was treated as the lead offence and found to justify a two-yearstarting point. This means that the 12-month uplift in that case for cannabis sales to"more than 20 school age students" over a five-month period was applied only for thatfactor, and not (as here) for the entire cannabis offending combined. In my view, theculpability of the relatively frequent cannabis sales to a single purchaser here areindistinguishable from that of similar sales to multiple purchasers in Greer, and onthat basis the only way in which this case may "stand in stark contrast" is if this caseis seen as more lenient.[20] As the Court of Appeal said in R v Jones,11 and repeated in Misileki,12 aprincipal purpose of s 134 (and similar sections) is to protect young women frompredation by, usually, older men and from their being seduced into compliance withmale demands, with the consequences shown in the victim impact statements in anumber of the cases. And although there was also other offending in Arnott v R, theCourt of Appeal's comments in that case, where a 22-year-old man had sexualintercourse with a 14-year-old girl to whom he had been supplying cannabis, confirmthe seriousness with which the offending in this case required to be treated.13[21] Overall, the adjusted starting point selected in this case was far from excessive.Was the discount for personal factors inadequate?[22] From the adjusted starting point of 45 months' imprisonment, the sentencingJudge deducted 15 per cent to take account of Mr Trewavas' steps to address hiscannabis and alcohol consumption, his willingness to engage in restorative justice andhis offer to pay $3,000 emotional harm reparation, and his previous good record(tempered by the duration of his offending).[23] The Judge then took six months from the figure of 38 months' imprisonment,describing this as a 15 per cent deduction to take account of Mr Trewavas' guilty plea,arriving at the end sentence of 32 months' imprisonment.Mr Trewavas' position[24] For Mr Trewavas, Mr Macklin submits that at least a further five per cent waswarranted for personal mitigating factors. He says that any tempering of the goodcharacter discount arising because of the duration of the offending should not apply to11 R v Jones CA153/90 20, July 1990.12 R v Misileki, above n 8, at [17].13 Arnott v R [2010] NZCA 444.sentencing for the sexual offending, and that a 10 per cent discount for good characteralone could have been justified.[25] On the guilty plea discount, Mr Macklin submits that early guilty pleas wereentered to the cannabis charges. And he notes that the Crown added sexual violationcharges of rape and unlawful sexual connection, upon Mr Trewavas' election of trialby jury on the sexual connection with young person charges. It was when the sexualviolation charges were withdrawn that Mr Trewavas entered guilty pleas "as part of aconsidered resolution by all parties". Mr Macklin submits that an overall 20 per centguilty plea discount should have been applied.[26] Mr Macklin further notes that the guilty plea discount was calculated from thenotional sentence of 38 months' imprisonment arrived at by deducting seven monthsfor personal factors from the adjusted starting point for the offending of 45 months.This is contrary to the sentencing methodology outlined by the Court of Appeal inMoses v R,14 as clarified in Stuart v R.15 Mr Macklin submits this error compoundsthe manifest excessiveness of the sentence imposed.Discussion[27] I consider the discount applied for personal factors to be appropriate. Bythe time of Mr Trewavas' sexual offending, he had been engaged in regular cannabissales to a 15-year-old for around seven months. Frequently sentences are not increasedbecause an offender has a background of offending of different types. But it is not thecase that defendants who have previously committed offences deserving ofimprisonment over a period of time may nevertheless claim credit for good characterwhen engaged for the first time in a new type of criminal offending. A discount forgood character of any more than five per cent, applied to the sexual offending, wouldin my view have been inappropriate.[28] The charges of sexual connection with a young person were not new charges,made available to Mr Trewavas as part of a resolution of the sexual violation charges.14 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.15 Stuart v R [2021] NZCA 539.They were initial charges, maintained in addition to the sexual violation charges thatthe Crown later added then withdrew. Given his initial statement to police admittingthe acts of sexual connection alleged against him, and his apparent inability to meetthe onus upon him to prove reasonable efforts to establish his victim's age,16 the sexualviolence charges should not have been treated as an impediment to guilty pleas on theunderage sexual connection charges.[29] As the Supreme Court observed in Hessell v R, the sentencing judge is requiredto evaluate all the relevant and variable circumstances of a guilty plea, and to give themost appropriate recognition of the guilty plea in fixing the sentence.17 I consider thesentencing Judge in this case did just that. Indeed, in my view an overall 15 per centdiscount for Mr Trewavas' guilty pleas, in circumstances where they were entered inrespect of the sexual connection charges around two years' after his admissions andone month prior to the trial set for July 2024, was generous.[30] Finally, I observe that the sentencing Judge's error, in applying the guilty pleadiscount to the notional 38-month sentence arrived at after the discount for personalcircumstances, had only a modest impact once the Judge's rounding is taken intoaccount. Without rounding, 15 per cent from 45 months for personal factors wouldhave been 38.25 months. And the full 30 per cent from 45 months would have been31.5 months. Mr Macklin responsibly accepted that adjusting the sentencing outcomefor this reason would involve unjustifiable tinkering.[31] In light of my view that the 15 per cent guilty plea discount was generous, theoverall 28.89 per cent discount for mitigating features (13 months deducted from 45months) is not manifestly inadequate.Should the sentence have been converted to home detention?[32] Having arrived at an end sentence of 32 months' imprisonment, the sentencingJudge observed that he was not in a position to consider home detention.18 As he16 See Crimes Act, s 134A.17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62]18 Sentencing Act 2002, s 15A(1).acknowledges, Mr Macklin's submission that home detention should have beenordered depends on the success of his prior arguments.[33] As will be apparent, I do not consider there to have been an error in sentencingsuch that a short-term sentence of imprisonment should have been the outcome of theassessment process. On that basis, I am not required to consider whether conversionto home detention would have been appropriate.Result[34] The overall sentencing outcome of 32 months' imprisonment not being shownto be manifestly excessive, Mr Trewavas' appeal is dismissed._____________Johnstone J