K (CA479/2019) v R [2020] NZCA 95

K (CA479/2019) v R [2020] NZCA 95 [8 April 2020]NOTE: PUBLICATION OF THE NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BYSECTION 201 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF THE NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSECTIONS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA479/2019[2020] NZCA 95BETWEEN K (CA479/2019)AppellantAND THE QUEENRespondentHearing: 3 March 2020Court: French, Dobson and Moore JJCounsel: G D Prentice for AppellantC Ure for RespondentJudgment: 8 April 2020 at 11 amJUDGMENT OF THE COURTA The appeal against sentence is allowed in part.B The minimum period of imprisonment is quashed and substituted witha minimum period of imprisonment of three years and six months.C The sentences imposed in the District Court are otherwise confirmed.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] After a jury trial in the District Court at Hamilton, the appellant, K, was foundguilty of three charges of sexual violation by unlawful sexual connection, three ofsexual conduct with a dependent family member and one charge of indecent assault.1[2] On 23 August 2019, K was sentenced by the trial Judge, Judge Spear, to sevenyears' imprisonment and ordered to serve a minimum period of imprisonment (MPI)of four years and eight months. This was the maximum that could be ordered unders 86 of the Sentencing Act 2002 (the Act) of two thirds of the determinate sentence.2[3] K has appealed against the imposition of an MPI and, if that is unsuccessful,against the length of the MPI imposed.The offending[4] The complainant was K's step-daughter, who was living in the same householdduring the period of the offending. She was aged between 14 and 16 years old and Kwas aged between 40 and 42. The offending involved a prolonged course of grooming,which began under the guise of K inspecting the complainant's body for insect bitesand cleanliness. The offending progressed from K smelling and touching thecomplainant's genitalia over her clothing whilst she was in bed to rubbing and kissingher breasts and penetrating the complainant's vagina with his finger. This offendingwas the subject of representative charges. There were also individual charges ofsucking the complainant's breasts and licking her vagina.[5] The complainant tolerated the offending for her mother's sake, the latter beingvery happy in her relationship with K after earlier difficulties in her life. The couple'srelationship ended after the revelation of the offending and the mother and daughterleft New Zealand. A victim impact statement records that the offending had a severeand lasting impact on the complainant's mental health.1 All the charges were representative except for one of charges of sexual violation and the chargeof indecent assault.2 R v K [2019] NZDC 16660.The sentencing[6] The Judge treated the offending as having persisted over a two to three yearperiod, involving the careful grooming of the complainant in a way that K knew wouldprevent her talking to her mother about what was happening. The Judge characterisedthis as a "shocking breach of trust".[7] At sentencing, K maintained his innocence.3 The pre-sentence report statedthat he blamed the complainant's mother for the allegations. The Judge observed thathe had moved on in his life, having formed another relationship and having enteredinto a positive work situation. He was described by his counsel as a man of deepreligious faith.4 The Judge considered it important that K had absolutely no remorseand showed no empathy for the harm he had done to both the complainant and hermother.5 Given his denial of any offending, the Judge was mindful that prisonauthorities would have difficulty finding courses for him to undertake.[8] In sentencing K, Judge Spear followed the guidelines in this Court's judgmentin R v AM.6 The Judge adopted an overall starting point for all of the offending ofseven and a half years and allowed a six month deduction for his previous goodcharacter.7 No challenge is advanced on appeal to those aspects of the sentencing.[9] The Judge dealt succinctly with the prospect of an MPI:[20] It is then a question as to whether a non-parole period should beimposed. The Court can impose a minimum period of imprisonment of up totwo thirds of the sentence that is imposed if the usual one third of the sentence,when you would be eligible for parole, would represent an insufficientresponse by way of denunciation, punishment and deterrence.[21] Mr Prentice argues against that but I consider that this is entirelyappropriate for offending of this type.[22] I direct that you serve a minimum period of four years, eightmonths' imprisonment.3 At [13].4 At [14].5 At [15].6 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.7 R v K, above n 2, at [19].The arguments on appeal[10] Mr Prentice, for K, submitted that an MPI was not warranted for three reasons:(a) First, that K was a first offender and, with no previous convictions, it could notbe said that previous sentences had not deterred his offending.(b) Secondly, although the offending was clearly serious, he argued that it was notof the worst kind.(c) Thirdly, that the MPI hindered rehabilitation because K could not be added tothe wait list of appropriate courses until shortly before the MPI expired.[11] In terms of the relative seriousness of the offending, Mr Prentice criticisedan observation made by the Judge to the effect that, unless the complainant haddisclosed the offending at the time she did, the offending would have escalated to rape.Arguably, that was too speculative an observation to have been taken into account.[12] In supporting the decision to impose an MPI, Ms Ure, for the Crown,emphasised that this was a sustained course of offending over more than two yearswhere the evidence justified the Judge concluding that it was fortuitous it had notprogressed further. The course of conduct meant that the lack of previous convictionsdid not lessen K's culpability. It was relevant that he was assessed as high risk of re-offending and of causing harm to others. All of the grounds for imposing an MPI wereavailable to the Judge.Analysis[13] The considerations relevant to whether an MPI is imposed are set out in s 86(2)of the Act:86 Imposition of minimum period of imprisonment in relation todeterminate sentence of imprisonment(2) The court may impose a minimum period of imprisonment that islonger than the period otherwise applicable under section 84(1) ofthe Parole Act 2002 if it is satisfied that that period is insufficient forall or any of the following purposes:(a) holding the offender accountable for the harm done tothe victim and the community by the offending:(b) denouncing the conduct in which the offender was involved:(c) deterring the offender or other persons from committingthe same or a similar offence:(d) protecting the community from the offender.[14] In the recent decision of Blackler v R, this Court has reiterated that an MPIought not to be imposed in any mechanistic way, it is not sufficient to simply recitethe statutory provisions of s 86(2) of the Act and a reasoned analysis is required ineach case.8[15] The Judge has not recorded a reasoned analysis in this case. In the absence ofreasons, we will undertake that task in light of the views the Judge expressed aboutthe offending and the offender, and in light of the submissions received on the appeal.[16] Under s 84(1) of the Parole Act 2002, K would be eligible for parole afterserving 28 months in prison if an MPI was not imposed.[17] The features of the offending and the offender as summarised above arerelevant in reflecting on whether potential release after a period of 28 months issufficient to hold K accountable for the harm done, both to the complainant and thecommunity, to denounce that conduct and to deter him and others from committingsimilar offences. In light of the continued denial of any wrongdoing, is was a case inwhich protection of the community is also a legitimate concern in assessing the needfor an MPI greater than 28 months.[18] We find that entitlement to release after 28 months would be inadequate todenounce this sustained and serious conduct. It would similarly be inadequate to holdK accountable for the harm he has done to the complainant. A longer MPI is warrantedto deter him and to deter others and, given the limited prospects of rehabilitation he8 Blackler v R [2019] NZCA 232 at [38]. See also Zhang v R [2019] NZCA 507, [2019] 3 NZLR64 at [169].displayed at sentencing, there is also an argument that a longer sentence should applyto protect the community from him. Accordingly, all four of the s 86(2) factors areengaged in this case.[19] For these reasons, we are satisfied that an MPI was appropriately imposed.[20] As to its length, the MPI of two thirds would require K to serve a minimum offour years and eight months in prison. An MPI of half his sentence would have himeligible for parole after three years and six months. Having regard to his lack ofprevious convictions, and what ought realistically to be the prospects of hisappreciating the seriousness of his offending within three and a half years, we aresatisfied that an MPI of half of K's sentence is sufficient. In this evaluation, we arenot persuaded by Mr Prentice's submission that an MPI of two thirds ought to bereserved for only the most serious of cases. There can be no rule of thumb, and thedecision on imposition of an MPI is a matter of judgement requiring an evaluativeconsideration of all relevant factors in every case.Outcome[21] The appeal against sentence is allowed in part.[22] The MPI is quashed and substituted with an MPI of three years and six months.[23] The sentences imposed in the District Court are otherwise confirmed.Solicitors:Crown Law Office, Wellington for Respondent