HAWKEN v R [2019] NZCA 450

HAWKEN v R [2019] NZCA 450 [24 September 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA653/2018[2019] NZCA 450BETWEEN KATRINA NICOLA HAWKENAppellantAND THE QUEENRespondentHearing: 6 August 2019Court: Kós P, Woolford and Dunningham JJCounsel: J K Mahuta-Coyle for AppellantP K Feltham and D M Helm for RespondentJudgment: 24 September 2019 at 9 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] The appellant, Katrina Hawken, was sentenced to three years and nine months'imprisonment on a single representative charge of having sexual connection witha person under the age of 16.1 She appeals her sentence on the ground that it wasmanifestly excessive.2Background[2] In October 2016, the appellant became sexually involved with the complainant,a 15-year-old male, when he attended a party at her home. The complainant waslooking for somewhere to live and she offered him a room in her house. At the timehe moved in, the appellant was 32 and he was 15.[3] The complainant was vulnerable. He had had a difficult background and wasunder Oranga Tamariki's care. He was not attending school and had little direction.The appellant allowed him to drink alcohol and consume drugs while at her house,including while he was there on bail.[4] There were repeated acts of penetrative intercourse between the two over theperiod from October to December 2016. While the Judge found that the appellant hadnot invited the complainant into her home for the purpose of having sex with him, theopportunity for further sexual interaction with him was "a benefit for you of your offerof help and support".3 That said, the appellant became "fully immersed and committedto that relationship".4 The complainant, too, was a willing partner and, although heterminated the relationship he gave evidence in support of the appellant.[5] The appellant had also been convicted of having sexual connection witha young person in 2006. On that occasion she had been sentenced to imprisonmentbut granted leave to apply for home detention.1 R v Hawken [2018] NZDC 20739 [Sentencing notes].2 The appeal was originally against both conviction and sentence but the appeal against convictionwas formally abandoned.3 Sentencing notes, above n 1, at [2].4 At [5].Sentencing in the District Court[6] In setting the starting point for sentencing, the Judge relied on this Court'sdecision in R v Johnson, which identified a number of factors relevant to determininga starting point for this type of offending.5[7] In this case, the Judge identified the following aggravating factors:6(a) the 17 year age gap between the complainant and the appellant, whichwas a "moderately serious factor";(b) while not strictly grooming behaviour, the fact that the offer ofaccommodation was, in part, with a view to the benefit of havingthe complainant living under the same roof;(c) the number of instances of sexual contact;(d) the fact that sexual contact was full penetrative intercourse occurringon frequent occasions;(e) the breach of trust in that the appellant had put herself in a caregiver orparental role for this young man, including while he was on bail, andthen took advantage of that role. She knew he was vulnerable, andneeded support and guidance, but she provided neither in order tomaintain the relationship; and(f) the appellant's efforts to maintain the relationship and efforts atsuppressing the material and evidence coming forward.[8] The Judge did note, however, that there was "no victim effect beyond thatwhich is inherent within the legislation and I do not speculate beyond that, it is not afactor in this sentencing".75 R v Johnson [2010] NZCA 168.6 Sentencing notes, above n 1, at [9].7 At [9(vii)].[9] The Judge observed that the appellant did not take responsibility for heroffending and that she struggled with appropriate aged relationships. He consideredthat, until she addressed that factor, she posed a significant risk going forward.8[10] Taking all these factors into account the Judge arrived at a starting point ofthree years and six months.9 The sentence was then uplifted by three months for theearlier conviction, which the appellant does not challenge.10The appeal[11] Mr Mahuta-Coyle submitted for the appellant that the starting point was toohigh, resulting in a sentence which was manifestly excessive. Specifically,Mr Mahuta-Coyle submitted that the Judge made the following errors:(a) conflating the concept of inherent harm, which underpins Parliament'sdecision to criminalise the particular behaviour, with the harm causedin this particular case;(b) giving undue weight to the concept of inherent harm linked to thisparticular type of offence; and(c) failing in the circumstances of the particular case to give suitableweight to the absence of evidence as to adverse harm tothe complainant.[12] In oral submissions, Mr Mahuta-Coyle expanded on those grounds.He submitted that the District Court Judge was wrong to characterise the offending asinvolving a breach of trust as the sexual relationship had commenced before sheoffered the complainant accommodation.[13] He also submitted that the sentence was inconsistent with R v A (CA194/07),which is one of the two recent appellate authorities on sentencing involving a female8 At [7].9 At [12].10 At [14].offender.11 In that case, there were two complainants, one aged 15 and one aged 14,and an age disparity of around 25 years. A number of sexual connections occurredover a period of approximately a month. There was also predatory behaviour and abreach of trust. The starting point in that case was three years and six months.Mr Mahuta-Coyle submits, by comparison, that the offending in the present case wasless serious so should have attracted a lower starting point.[14] Finally, Mr Mahuta-Coyle submitted that the Judge gave undue weight to theconcept of inherent harm linked to this type of offence. In sentencing the Judge said:12I have to hold you responsible for the offending and the harm caused by suchoffending. The message has to be clearly understood that this type ofoffending causes significant harm to those who are most vulnerable and areunable to make mature or informed decisions. Whether that harm materializesis inevitably a matter of luck not judgement and it is always speculative, whereno harm is identifiable at the time or near to the time that the offending isidentified, as to whether indeed as that person becomes a mature adult, as theybecome and have mature relationships that they look back on this occasion oroccasions and realise that they have been in fact a victim. [15] Mr Mahuta-Coyle submitted it was improper to assume such inherent harm inthis particular case. Mr Mahuta-Coyle accepted there is evidence that young girls whoconsent to sexual activity with considerably older men frequently become disturbedwhen they reach an age where they have full understanding of what they have beeninvolved in.13 However, in R v A (CA194/07) the Court noted that:14The evidence relating to young boys is not so well documented, perhapsbecause incidents involving older women and under-age boys are not socommon, or at least not so often reported.[16] In the present case Mr Mahuta-Coyle submitted that in the absence of evidenceas to the inherent harm of such offending when the victims are young men, the Courtwas wrong to place emphasis on the need to denounce the conduct.11 R v A (CA194/07) [2007] NZCA 448.12 Sentencing notes, above n 1, at [8].13 Attorney-General's Reference No 39 of 2003 (Wheeler) [2003] EWCA Crim 3068, [2004] 1 CrApp R (S) 79 at [51], cited in R v Boyd (2004) 21 CRNZ 169 (CA) at [41].14 R v A (CA194/07), above n 11, at [34].AnalysisWas the Judge wrong to characterise the offending as involving a breach of trust?[17] At sentencing, the Judge acknowledged that there had been a sexual encounterwith the complainant before the offer of accommodation at the appellant's house wasmade. However, we do not accept that this extinguishes the element of abuse of trust.The offending took place over a two to three month period during which the appellantaccepted that she was a "mother figure" to the complainant and "his caregiver", whichis why she agreed to provide him an address for bail.[18] The appellant was able to use her position as a seemingly responsible caregiverto cement the opportunity to continue a sexual relationship with the complainant, whowas vulnerable by reason of his age and troubled personal background. She thenbreached her responsibilities in other ways to the complainant, by allowing him todrink alcohol and consume drugs while at her house. As the Judge noted insentencing,15 the obvious conclusion was that she allowed this to occur because shedid not want to do anything which would mean he would leave and break therelationship. In our view, the Judge was correct to sentence the appellant on the basisthat the offending involved the aggravating feature of an abuse of trust.Did the Judge place too much weight on the inherent harm caused by such offending?[19] We accept Ms Feltham's submission for the Crown that the Judge was entitledto take into account the principle of inherent harm when assessing a starting point forthe offending. As this Court said in R v Herbert, "children of either gender [require]protection by the law from sexual exploitation by adult offenders of either gender",and no distinction should be drawn between male and female offenders in the contextof the relevant facts.16 Furthermore, the legislation itself draws no distinction betweenthe gender of the complainant or the offender.17 That said, we do not consider thatundue weight was given to that concept as the starting point was assessed principallyby reference to the aggravating features of the offending.15 Sentencing notes, above n 1, at [4].16 R v Herbert CA70/98, 21 May 1998 at 4.17 Crimes Act 1961, s 134(1).[20] We also do not consider that the Judge failed to give suitable weight tothe evidence of absence of actual harm to the male complainant. Indeed, he squarelyaddressed this by saying that the effect on the complainant was "not a factor in thissentencing".18Was the sentencing approach inconsistent with R v A (CA194/07)?[21] Mr Mahuta-Coyle submitted that the facts in this case are clearly less seriousthan those in R v A (CA194/07), where the same starting point of three years six monthswas adopted. One of the reasons advanced for distinguishing R v A (CA194/07) wasthat it involved an abuse of a position of trust as the offender was related by marriageto one of the two complainants. However, as we have already noted, the appellant wasin a parental role, which she acknowledged in evidence, and there is no markeddistinction between the cases on this point.[22] In any event, R v A (CA194/07) was decided before both R v H (CA94/08) andR v Johnson,19 two cases which carefully reviewed how a starting point should befixed on conviction for sexual connection with a young person under s 134 ofthe Crimes Act 1961, following the increase in maximum penalty for that offence fromseven years' imprisonment to 10 years' imprisonment.20 While R v A (CA194/07) wasdecided shortly after the amendment, there was no discussion of it. The Court simplynoted that the sentence imposed (based on a starting point of three and a half years)was "well within the range available to the sentencing Judge in this particularinstance".21 However, in R v H (CA94/08), the Court held that the legislative changes(which increased the maximum sentence and extended it to cover both male or femalevictims) were "part of a prophylactic regime designed to increase protection for youngpersons in positions of vulnerability".22 For that reason, this Court held "the startingpoint on conviction for sexual connection under s 134 could be fixed at four years'imprisonment".2318 Sentencing notes, above n 1, at [9(vii)].19 R v H (CA94/08) [2008] NZCA 237; and R v Johnson, above n 5.20 Crimes Amendment Act 2005, s 7, which came into force on 20 May 2005.21 R v A (CA194/07), above n 11, at [37].22 R v H (CA94/08), above n 19, at [17].23 At [17].[23] Similarly, in R v Johnson, there was a careful review of previous sentencingdecisions.24 That case involved an age discrepancy of 21 years, frequentsexual connection over a three month period, rough and demeaning conduct, adverseeffects on the victim and some element of targeting behaviour, albeit not grooming.The Court held the starting point of three years and nine months' imprisonmentimposed in the District Court in that case was "the bottom of the range".25[24] In light of the aggravating features here, and the four year starting pointsuggested in R v H (CA94/08), the three and a half year starting point could not be saidto be out of range. The appeal also fails on this ground.Conclusion[25] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Wellington for Respondent24 R v Johnson, above n 5, at [18].25 At [22].