SHANNON v R [2019] NZCA 165

SHANNON v R [2019] NZCA 165 [17 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 AOTEAROACA62/2018[2019] NZCA 165BETWEEN JOHN DAVID SHANNONAppellantAND THE QUEENRespondentHearing: 23 July 2018Court: Williams, Brewer and Thomas JJCounsel: C J Tennet for AppellantR K Thomson for RespondentJudgment: 17 May 2019 at 9.30 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)[1] Following a jury trial in the District Court at Rotorua, the appellant was foundguilty of 11 sexual offences against four complainants aged between six and nineyears. They included multiple counts of rape, unlawful sexual connection andindecent assault.[2] On conviction, the appellant was sentenced to 18 years and six months'imprisonment with a minimum period of imprisonment (MPI) of nine years.1[3] The appellant appeals against that sentence.[4] The first six charges related to a single complainant SG, who was betweenseven and nine at the time. The offending covered a three-year period between 2007and 2010, during which the appellant was between 51 and 55 years old.[5] The remaining five charges related to three girls — SA aged six years, TA agedseven years and ST who was nine. These charges covered a four and a half monthperiod between 2015 and 2016 during which the appellant was 60.[6] The appellant's notice of appeal was filed over a month out of time.He requires an extension of time for filing his notice of appeal. While the appellanthas not provided an explanation for the delay, given the length of the sentence in issue,we grant the application.Offending against SG: 2007–2010[7] This offending involved four counts of rape; one of unlawful sexual connectionby the appellant inserting his penis into SG's mouth; and one representative count ofindecent assault. The representative count involved repeated touching and rubbing ofthe inside of SG's legs over the majority of the timeframe of these charges.As Judge MacKenzie noted:2[4] All the offending took place at [the appellant's] home. [SG] wouldgo to visit or stay with [him]. She felt unable to tell anyone about whathappened, as she said she had been threatened by [him]. As a consequence,she dealt with this in her own childlike way. This was by not showering andsoiling herself so that [he] would stay away from her.1 R v Shannon [2017] NZDC 25202.2 R v Shannon, above n 1.Offending against SA, TA and ST: 2015–2016[8] There were three charges in relation to SA:(a) one representative indecent assault charge for multiple occasions onwhich the appellant placed his penis on SA's bottom;(b) one charge of unlawful sexual connection by penile penetration of hermouth; and(c) one representative charge of rape encompassing about eight separateevents, all of which occurred in the appellant's bedroom.[9] There was one charge of indecent assault in relation to TA. She did not giveevidence. Rather the conviction was based on the evidence of SA who said she walkedinto the appellant's bedroom one day and saw him with his penis on TA's bare bottom.[10] Finally, there was one further charge of indecent assault in relation to ST, whospent a night in the appellant's bed and woke to find his hands down her pants"touch[ing] her privately".SentencingStarting point[11] The Judge identified a starting point in relation to the lead offending which shetook to be the rape and unlawful sexual connection offending against SG and SA.3Aggravating factors included:4(a) the scale of the offending — multiple sexual violations over twoseparate extended periods;(b) the degree of violation;3 R v Shannon, above n 1, at [19].4 At [20]–[26].(c) breach of trust in a quasi-familial context;(d) victim vulnerability due to their young age and the wide age gapbetween the victims and the appellant;(e) premeditation to a "certain extent", as the complainants were awayfrom their families and alone in the appellant's home;(f) threats of repercussions to SG if she reported the offending; and(g) profound harm to all complainants.[12] The Judge located the offending in rape band four in R v AM (CA27/2009) andadopted a starting point of 16 years imprisonment accordingly. 5Uplift and totality[13] The Judge then considered the appropriate uplift for the indecent assaultsagainst all four complainants, but with particular reference to the offending in relationto SA for whom the incidents were numerous and relatively serious.6 While the Judgeconsidered that an appropriate starting point for the offending against SA could havebeen three years if sentenced separately from the lead offending, and overall uplift forall indecent assaults could have exceeded three years, to uplift to that extent wouldhave offended the totality principle. 7 An uplift for all indecent assault offending oftwo and a half years was adopted.8Mitigating factors[14] The Judge considered two possible mitigating factors: lack of relevant prioroffences and remorse.9 She concluded no discounts could be justified on either basis.10As to prior offences, the Judge noted that the appellant had a prior historical5 At [32]; and R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.6 At [34].7 At [38].8 At [38].9 At [40].10 At [40]–[42].sex offending conviction and so could not qualify for a discount (although no upliftcould be justified).11 In relation to remorse, the pre-sentence report noted that theappellant continued to deny the more serious charges ("I touched with my hands, butI did not rape") and denied any offending of any kind against one of the fourcomplainants.12 No remorse discount could therefore be justified.13[15] The Judge therefore imposed a final sentence of 18 years and six months'imprisonment.14MPI[16] The Judge found that all four of the s 86(2) of the Sentencing Act 2002 factorswere engaged in this case: accountability for harm, denunciation, deterrence (bothspecific and general) and community protection.15 She adopted an MPI just short of50 per cent at nine years.16Submissions[17] The appellant advanced three arguments:(a) the starting point for the lead offending was manifestly excessive byreference to comparative cases and in relation to the facts of hisoffending;(b) the uplift for the indecent assaults was manifestly excessive; and(c) the final sentence was manifestly excessive due to (a) and/or (b), or onthe basis of totality.[18] There was no appeal against the MPI but it was submitted that if sentence isreduced, then the MPI should be reduced proportionately.11 At [40].12 At [42].13 At [42].14 At [42].15 At [45].16 At [47].AnalysisStarting point[19] There can be no doubt that this was a case in which fixing the starting point byreference to R v AM rape band four was appropriate. As this Court said in R v AM:[109] Perhaps the paradigm case of offending within [band four] is that ofrepeated rapes of one or more family members over a period of years Offending of this nature, especially that involving children and teenagers willattract starting points at the higher end of this band [20] A starting point of 16 years on facts broadly analogous to those in the presentcase has been adopted in sentencing decisions in the High Court and confirmed onappeal by this Court on a number of occasions.17 Here the victims were all youngchildren, the lead offending involved repeated rapes and serious unlawful sexualconnections over a period of years in one case and months in another. The mix offactors in each case will always be unique, but the elements in this case made a 16-yearstarting point relatively orthodox. The description in R v AM, cited above at [19], ofband four offending suggests in fact the starting point could have been higher withoutcriticism.Uplift[21] We do not consider the uplift adopted to have been excessive either in its ownright on or a totality basis. As the Crown submitted, the significant indecent assaultson SA could alone have justified a three-year sentence and the indecent assaults onthe other three complainants might have carried sentences of one or perhaps twoyears.18[22] Overall, a two and a half year uplift could not be described as excessive, andstill only produces a final sentence at the mid-point of band four. Another judge mighthave adopted a slightly lower uplift for the additional offending, but that does notmake the choice the Judge made in this case wrong in principle.17 See for example R v Martin [2017] NZHC 1571; Roberson v R [2013] NZCA 642; and R v Gordon[2009] NZCA 145 at [8].18 See O (CA643/2009) v R [2010] NZCA 609; and F (CA844/2013) v R [2014] NZCA 390.Sentence structure[23] We do not, however, endorse the way the Judge structured the sentence.Subdividing the offending against SG and SA by considering the indecent assaultcharges separately, and in conjunction with the indecent assault charges in relation toTA and ST, risked either understating the seriousness of the overall offending againsteach of SG and SA or, conversely, overstating it through double-counting. It alsorisked failing to appreciate properly the significance of the separate offending againstTA and ST.[24] A more orthodox approach, especially considering the approximatelyfive years between the offending against SG and the offending against SA, would havebeen to assess separately the offending against those victims, decide the combinedstarting point allowing for totality, and then consider the extent to which offendingagainst TA and ST should add to the starting point.[25] Under this approach, the offending against each victim is assessed in itsentirety and the overall offending is properly assessed against the totality principle.[26] Nevertheless, in this case the experienced Judge reached an end sentencewithin the range available to her. There was no error in the sentence imposed.Result[27] The application for an extension of time is granted.[28] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent