RAEA v POLICE [2017] NZHC 800

RAEA v POLICE [2017] NZHC 800 [26 April 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000085[2017] NZHC 800IN THE MATTER OF an appeal against sentenceBETWEEN JUNIOR POKOINA RAEAAppellantAND NEW ZEALAND POLICERespondentHearing: 26 April 2017Counsel: S N B Wimsett for the AppellantA L McConachy for the RespondentJudgment: 26 April 2017(ORAL) JUDGMENT OF EDWARDS JCounsel: S N B Wimsett, AucklandSolicitors: Meredith Connell, AucklandIntroduction[1] The appellant pleaded guilty to one charge of indecent assault and wassentenced to 20 months' imprisonment on 15 March 2017.1[2] The appellant appeals this sentence on the grounds that the starting point wastoo high; the uplift was excessive; and the Judge erred in declining to impose asentence of home detention.The offending[3] The victim had known the appellant since she was a little girl through churchand considered him to be family. She voluntarily moved to stay with the appellantafter she had a heated argument with her sister at her home address. The victim was17 years old at the time of the offending.[4] Shortly after she moved in to stay with the appellant, he began to makeinappropriate comments towards her when she was alone. He would tell her thatpeople were saying he needed a wife, and that he wanted to marry her and have sexwith her. This continued over several months.[5] The index offending took place during November 2015. After returning fromclothes shopping with her family, the victim tried on some clothes and asked theappellant what he thought of her new outfit. The appellant grabbed the victim by thewaist, and pushed her back into the bedroom. He then moved his hands to herbreasts and groped her breasts aggressively. His mouth was on her face and as shetried to turn away, he grabbed the side of her face and held it still as he continuouslytried to force his tongue into her mouth. The appellant then moved his hands downto the victim's bottom and stroked it up and down with his hands. He moved onehand from her bottom to her vagina and moved his hand between those two areasseveral times in a stroking and tapping manner over the top of her skirt. While hewas doing this he made comments to the victim that he "wanted to get into her". Toget away from the appellant, the victim told him that she needed to go to the1 R v Raea [2017] NZDC 5392.bathroom and she locked the door and stayed there for a while. When she came out,there was no further mention of what had taken place.Personal circumstances[6] The appellant is a 62 year old male who has a number of convictions from1994 and earlier, but nothing since. Those convictions include two convictions forunlawful sexual connection with a female over 16, two convictions for indecentlyassaulting a female under 12, one conviction for attempting to rape a female under12 and a conviction for indecently assaulting a female between the ages of 12 and 16years. The appellant received an effective end sentence of seven years, six months'imprisonment for this offending.[7] As recorded in the pre-sentence report, the appellant is heavily involved inhis local Church and his local community. He works closely with vulnerable youththrough his Church.[8] The pre-sentence report writer recorded that the appellant had minimised hisoffending and placed blame on the victim during the course of the interview. Heshowed very little insight into his offending and no genuine empathy for the victim.The appellant was assessed as posing a medium risk of reoffending and a high risk ofemotional harm.District Court decision[9] The Judge noted that there was no tariff decision for this type of offendingand referred to a number of cases cited by the Crown. He adopted a starting point of20 months' imprisonment. The starting point was then uplifted by four months totake into account previous convictions, and reduced by 20 per cent to take intoaccount the guilty plea. That led to an end sentence of 20 months' imprisonment.[10] In relation to the possible sentence of home detention the Judge said:[7] In the ordinary course of events home detention would be a sentencethe Court would consider, as I do on this occasion. What counts against youis your criminal history. I acknowledge you do not have any recordedcriminal convictions since 1994 when you were given a lengthy sentence forsexual offending and you have a number of convictions for other offences,including indecent assaults for which you were sentenced in May 1994 butthe spread of those offences indicates offending over several years. And youhave an earlier conviction for indecent assault. I do not know why youoffended on this occasion but clearly your past is a pointer. The complainantcame into your care and there was to some degree planning andpremeditation given that shortly after she arrived in your home you beganmaking overtures of a sexual nature to her.[9] The issue for me is whether I should then sentence you to the lesserdeterrent sentence of home detention. A deterrent sentence is clearlyrequired, as is a sentence to denounce your conduct. In my view, havingregard to all of the factors including the fact that you were clearly preparingthe complainant for your sexual approaches, the high degree of trust andyour previous convictions, the only way the purposes of sentencing can bemet, in particular the need to impose a deterrent sentence and a sentencedenouncing your conduct, is a sentence of imprisonment, even bearing inmind the injunction to consider imposing the least restrictive outcome onyou where the sentence is less than two years' imprisonment. For you, Ithink the sentence must be imprisonment and accordingly you are sentencedto 20 months' imprisonment and with release conditions as set out in the pre-sentence report for a period of one year following your release.Approach to appeal[11] Section 250(2) of the Criminal Procedure Act 2011 provides that the Courtmust allow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.[12] In any other case, the Court must dismiss the appeal.2 An appeal court willnot intervene unless there is a material error, and if so, the appeal court will then goon to form its own view of an appropriate sentence.32 Section 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].Starting point[13] The appellant submits that the starting point of 20 months (one year, eightmonths) imprisonment was excessive when compared to the starting points adoptedin cases involving comparable offending.[14] In Hunt v R, the sentencing Judge adopted a starting point of one year, ninemonths' imprisonment on four charges of indecent assault.4 The victim in that casewas a teenage girl. The offender had entered the victim's bedroom in the early hoursof the morning after returning from an evening of heavy drinking. He lay on thevictim's bed and touched her stomach and breasts. The offender tried to lie on top ofthe victim and kiss her while rubbing the general area of his penis up and down theside of the victim's body. He placed her nipple inside his mouth, placed his hand onthe victim's bottom and around her genitalia. The offending involved Mr Huntleaving and returning to the victim's bedroom on numerous occasions and persistingwith the offending until the victim got out of bed and went to the lounge area atwhich time the assaults ceased.[15] In R v S, the appellant lived in a de facto relationship with the complainant'saunt.5 The 15 year old complainant visited them regularly. The offending involvedtouching the complainant's breasts and buttocks over the top of her clothing andtrying to touch her genital area. The incidents were fleeting in nature. There wereapproximately 10 such incidents. The Court of Appeal considered a starting point of18 months' imprisonment would have been appropriate for that offending.[16] The appellants' counsel cited two other Court of Appeal cases in support of alower starting point.6 Both involved different charges and were appeals againstconviction. The end sentence was not before the Court. I do not consider either caseto be directly comparable.[17] I consider Mr Raea's case to be broadly comparable to both Hunt and R v S.The extent of the violation was greater in Hunt than in the instant case, and the fact4 Hunt v R [2012] NZCA 469.5 R v S CA465/05, 11 April 2006.6 Walker v R [2012] NZCA 520; P v R [2012] NZCA 325that Mr Hunt returned on several occasions makes that offending more serious thanthis one. However, the breach of trust may be considered more serious in this caseas the appellant was in the role of a caregiver, and the victim was particularlyvulnerable having sought refuge with him due to a disagreement with family.Similarly, the sexualised comments made by the appellant over a number of monthssuggests a degree of premeditation which was absent in Hunt v R.[18] Those sexualised comments over a period of months narrows the gapbetween this case and the repetitive incidents at the centre of R v S. In any respect, Iconsider the appellant's offending in this case was more persistent and aggressivethan that described in R v S.[19] It follows that a starting point of 20 months was at the higher end of the rangebut not outside the applicable range based on comparable cases.Uplift for previous convictions[20] The Judge applied an uplift of four months' imprisonment for previousconvictions whilst acknowledging that the appellant did not have any convictionssince 1994. The appellant submits that given the 23 years that have elapsed sinceMr Raea's previous offending, a more modest uplift would have been appropriate.[21] In Reedy v New Zealand Police, Dunningham J set out the principles relevantto an uplift for prior convictions.7 Her Honour identified that the permissible lines ofreasoning justifying an uplift fell into the following three broad categories:(i) previous convictions bearing upon character and culpability;(ii) indication of predilection to offend in a specific way (an indicator ofreoffending);(iii) the need to protect society by the imposition of a deterrent sentence.[22] In this case, an uplift for the appellant's prior convictions falls within all threecategories and was therefore appropriate in the circumstances.7 Reedy v New Zealand Police [2015] NZHC 1069 at 19.[23] However, I consider an uplift in the order of 20 per cent was significant anddid not adequately reflect the age of the prior convictions. An uplift in that orderrisks punishing the appellant twice for previous offending. I accept counsel for theappellant's submissions that an uplift in the order of 10 per cent, or approximatelytwo months was appropriate.[24] Adopting the starting point of 20 months adopted by the District Court Judge,and applying an uplift of two months leads to a sentence of 22 months. Applying the20 per cent discount for the guilty plea leads to an end sentence of 18 months'imprisonment.[25] I have considered whether substituting a sentence of 18 months'imprisonment for 20 months' imprisonment is mere tinkering. I have concluded thatit does not. The combination of the high (but within range) starting point, with anexcessive uplift for previous convictions, pushes the end sentence beyond theapplicable range and makes it manifestly excessive. An end sentence of 18 months'imprisonment will therefore be substituted on appeal.Home detention[26] The appellant submits that the Judge erred in failing to give adequateconsideration to a sentence of home detention. In particular, the appellant submitsthat the Judge should have taken into account the following factors:(a) Mr Raea is an elderly man in poor health. He has significant lung andheart conditions and walks with a cane.(b) Mr Raea does not speak fluent English. He required an interpreter forthe pre-sentence report and at Court.(c) Home detention was recommended by the writer of the pre-sentencereport, and the address was assessed as suitable for electronicmonitoring.(d) The Crown raised no objection to home detention noting that it woulddepend upon the Court's view as to likely compliance with a homedetention sentence. There was nothing to indicate that Mr Raeawould not comply with a sentence of home detention.(e) Home detention would better serve the sentencing principles relatingto Mr Raea's rehabilitation and reintegration, which were not directlyconsidered by the Judge. The short prison sentence he received wouldnot allow any participation in an appropriate sex offender programmewhilst in custody.[27] In Palmer v The Queen, the Court of Appeal set out the approach to be takenon appeal where the issue is commutation of a sentence of imprisonment to homedetention.8 The Court of Appeal confirmed that the Tutakangahau approach appliedequally to that decision and went on to say:[19] This change of approach is unlikely to make a difference in theresult, because it is frequently difficult for an appellant to identify an error ina refusal to commute a short sentence of imprisonment to an equivalent termof home detention, and any material error would normally have justifiedintervention under the former approach. As William Young P pointed out inR v Vhavha, there is nothing in the Sentencing Act 2002 to suggest apresumption for or against commutation, either generally or for particulartypes of offence. The decision calls for the case by case exercise of judgmentagainst the statutory principles and purposes of sentencing. Those principlesand purposes sometimes point, as here, in opposing directions, meaning thatthe sentencing judge is called upon to assess whether home detention canrespond adequately to the seriousness of the offending. As the Courtexplained in R v D (CA253/2008), it can be very difficult in a marginal caseto articulate reasons for preferring one approach to another. In consequence,the margin of appreciation extended to sentencing judges is usuallysignificant.(footnotes omitted)[28] In this case, the Judge took into account the relevant sentencing principlesand in particular the requirement to impose the least restrictive sentence. The Judgealso took into account the need for deterrence and denouncement which wasparticularly evident given the appellant's previous criminal history and the need toprotect the public.8 Palmer v The Queen [2016] NZCA 541 at [19].[29] However, the Judge did not expressly refer to the appellant's personalcircumstances, and in particular his serious health conditions. The pre-sentencereport notes that contact was made with the appellant's general practitioner whoconfirmed that he had significant lung and heart medical conditions which requiredhim to attend hospital and GP appointments as required. The importance of theappellant being able to seek medical attention urgently should the need arise wasalso stressed and it was as a result of these multiple health problems that theappellant was deemed not suitable by the report writer for a sentence of communitywork.[30] These health concerns and the appellant's age (62 years) were relevant factorsto be taken into account as they have the potential to make imprisonmentdisproportionately severe for the appellant. Furthermore, the appellant'srehabilitation and reintegration also needed to be taken into account. A homedetention sentence would no doubt meet those needs in a way in which a sentence ofimprisonment cannot.[31] However, I do not consider the failure to consider the appellant's personalcircumstances would have altered the balance in this case. The appellant's lack ofremorse and insight into his offending, the serious breach of trust, and the need toprotect against the risk of reoffending in this case against vulnerable young women,tips the balance in favour of a custodial sentence. In my view, a sentence ofimprisonment is the least restrictive sentence for the appellant's offending.[32] In any event, an appellate Court will usually defer to the sentencing Judge incases where an offender is on the cusp of home detention.9 That is the appropriateapproach to be followed in this case and I decline to commute the sentence ofimprisonment to one of home detention.9 R v D (CA 253/2008) [2008] NZCA 254 at [66]; Otufangavalue v R [2010] NZCA 585.Result[33] The appeal is allowed. The sentence of 20 months' imprisonment is quashedand substituted with a sentence of 18 months' imprisonment. The application tocommute the sentence to one of home detention is declined.___________________Edwards J