MOORE v R [2018] NZCA 551

MOORE v R [2018] NZCA 551 [4 December 2018]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA382/2018[2018] NZCA 551BETWEEN KEIRON MOOREAppellantAND THE QUEENRespondentHearing: 7 November 2018Court: Clifford, Dobson and Mander JJCounsel: P J Kaye for AppellantD G Johnstone for RespondentJudgment: 4 December 2018 at 10 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of two years and three months' imprisonment is quashed andsubstituted with a sentence of 10 months' home detention on the conditionsset out in [31] and [32].____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] In May 2018, at the conclusion of a jury trial in the District Court, the appellant(Mr Moore) was found guilty on nine of 13 charges of indecent assault.On 6 July 2018, the trial Judge, Judge Cunningham, sentenced Mr Moore to two yearsand three months' imprisonment.1[2] At the conclusion of the sentencing, Mr Moore's counsel (Mr Kaye) indicatedthat the sentence of imprisonment would be appealed and sought bail pendingdetermination of the appeal. Judge Cunningham granted bail and the appeal hasfollowed.Circumstances of the offending[3] Mr Moore managed a gym business and operated as a personal trainer fornumerous customers who exercised there. He held himself out as having expertise inexercise regimes for customers with concerns about weight loss, and described himselfto one of the complainants in terms that he was effectively a counsellor.[4] With each of the seven complainants, Mr Moore either directed or requestedthe women, with varying levels of pressure, to remove all clothing from theirupper bodies, ostensibly to get more accurate measurements in the course of physicalassessments of them. The pattern was for Mr Moore to tell the complainants that bettermeasurements could be obtained by having the tape measure stretched between theirnipples. In one case, he sought measurements from the complainant's shoulder downher chest to the nipple. In a majority of the cases, he invited the complainant to faceaway from him so that he was observing the measurement from behindthe complainant.[5] Six of the complaints gave rise to single convictions with some variations onthe activities as we have described. Mr Moore's conduct with a seventh complainant(PS) gave rise to three convictions. PS was an 18-year-old European woman visitingNew Zealand. In an initial consultation about her wish to lose weight, Mr Moore hadher remove all her upper clothing and took measurements whilst standing behind herwith a tape measure, both across the middle of her breasts and under them.1 R v Moore [2018] NZDC 13717 [sentencing notes] at [84].[6] Six weeks later, in the course of a similar assessment, Mr Moore also requestedthat PS take a measurement passing the tape across her nipples whilst she was topless.That was the subject of the second charge in relation to PS. During that secondassessment, Mr Moore touched the upper part of each of her breasts with two fingerson the pretext of having her tense the muscles in her upper chest and showing her howher muscles there had improved. The touching on the upper part of her breasts wasthe subject of the third of the charges involving PS.[7] The offending had occurred over a period of approximately 22 months.At trial, Mr Moore denied that any of the conduct complained of had occurred.[8] The prosecution called evidence from a witness with extensive experience ofthe operation of gyms and the role of a personal trainer, who stated there was norecognised practice of requiring a woman to be naked in order for accuratemeasurements to be taken of her upper body.The sentencing decision[9] Judge Cunningham took the offending against PS as the most serious. Sheattributed a starting point for those three convictions of 12 months' imprisonment,2then applied an uplift of 18 months to reflect the pattern of offending against the sixother complainants,3 producing a sentence of two and a half years' imprisonment.[10] Mr Moore was 45 years old at the time of sentencing, with no previousconvictions. He produced a substantial number of letters vouching for his goodcharacter. The charges had led to Mr Moore being unable to work at his gym businessand, on sentencing, the business had been sold.[11] The Judge granted a 10 per cent discount for previous good character, resultingin an end sentence of two years and three months' imprisonment.42 At [66].3 At [67].4 At [71].Arguments on appeal[12] The sentence appeal is governed by s 250 of the Criminal Procedure Act 2011,which requires the Court to allow an appeal if satisfied that for any reason there wasan error in the sentence and that a different sentence should be imposed. Otherwise,the appeal is to be dismissed.[13] Mr Kaye submitted that the Judge nominated a starting point which was toohigh and that she gave insufficient credit for Mr Moore's good character and personalcircumstances. As a result, he submitted that the end sentence was manifestlyexcessive. Mr Kaye also challenged an indication from the Judge that, had the endsentence been two years' imprisonment or less, she would likely not have substituteda sentence of home detention.[14] In responding for the Crown, Mr Johnstone submitted that the starting pointand extent of uplift were not excessive. In addition, he submitted that the Judge,having observed Mr Moore throughout the trial and considered all the materials abouthim, was entitled to come to the view she did on the appropriate extent of discount forprevious good character and personal circumstances. If the appeal succeeded to theextent of reducing the prison sentence to two years or less, Mr Johnstone indicatedthat the Crown would not oppose the substitution of a sentence of home detention.Analysis[15] The maximum sentence for an indecent assault conviction is seven years'imprisonment.5 Given the extremely wide range of circumstances and levels ofindecent assault that can result in such convictions, it is understandable that there isno guidance by way of a tariff judgment for sentencing. An assessment of the relativeseriousness of such offending often depends on idiosyncratic combinations of unusualfeatures, which also makes it less likely that a range of useful comparators can befound in other sentences for indecent assault.5 Crimes Act 1961, s 135.[16] The relevant features here include breaches of trust and the vulnerability ofthe complainants. Most, if not all, of the complainants had psychological or physicalhealth issues that were relevant to the reasons they attended the gym. Mr Moore heldhimself out as a personal trainer with expertise in how to improve their various healthconditions. The victim impact statements reflect serious embarrassment andhumiliation. The conduct occurred in a separate space at the gym where they werealone. On some occasions, the door to the room was locked. Such predatorybehaviour is likely to cause ongoing emotional harm, particularly in young womenwhose vulnerability is increased because they have acknowledged health difficultiesas a reason for seeking his advice.[17] It is material that the offending occurred over a period of some 22 months.The complainants' victim impact statements reveal a modus operandi againstvulnerable users of Mr Moore's gym over that period, and not merely on a smallnumber of occasions in a short period.[18] As against those features, the extent of touching of the complainants was nearthe lowest end of the spectrum covered by indecent assault. There is no suggestionthat Mr Moore attempted more intrusive touching of the complainants' bodies. Nor isthere any suggestion that the complainants feared physical violence of any sort. Suchoffending is nevertheless insidious and likely to cause a measure of psychologicalharm to the complainants.[19] Although acknowledging that the cases were not closely comparable, Mr Kayecontrasted the starting point and uplift adopted in this sentencing with that inR v Dorn.6 In that case, the defendant was a masseur convicted of two indecentassaults on a single complainant for massaging her breasts and massaging under herunderwear. The sentencing judge had adopted a starting point of nine months'imprisonment, which did not attract criticism from this Court on appeal.76 R v Dorn DC Palmerston North CRI-2008-054-3131, 13 May 2010.7 Dorn v R [2010] NZCA 461. The sentence was however reduced when the conviction on one ofthe charges was quashed.[20] Mr Kaye submitted that, although there were a larger number of complainantsin Mr Moore's case, the level of physical contact between him and the complainantswas materially less. This made a combined starting point of two and a half years'imprisonment too high. On Mr Kaye's analysis, relativity should suggest a startingpoint here in the vicinity of 12 to 15 months' imprisonment.[21] Mr Johnstone for the Crown submitted there was greater disparity betweenMr Moore's more serious offending when compared with the less seriouscircumstances in Dorn. He emphasised the larger number of complainants and theirrelatively greater vulnerability given the context in which they consulted Mr Moore.[22] Mr Johnstone also submitted that the Judge had sought a more seriouscomparator by also considering R v Fernando.8 The defendant in that case was amedical practitioner who was convicted on 26 charges of indecent assault against10 complainants, occurring over 21 years. The offending included digital penetration.The starting point of two and a half years' imprisonment was uplifted by 18 monthsfor other aggravating features, resulting in a total sentence (before mitigating factors)of four years' imprisonment.[23] Although it cannot provide an accurate guide, we see the relative seriousnessof Mr Moore's offending as substantially closer to that in Dorn than the more seriousoffending in Fernando. The sentence in Fernando might now be consideredsomewhat light. Rating all the features of the present offending on a broad scale fromthe least to the most serious where the conduct would warrant a sentence at or near themaximum of seven years' imprisonment, we consider that an overall starting point ofless than two and a half years' imprisonment is sufficient. Attempting a relativeranking of this offending between Dorn and Fernando tends to confirm this view.We consider that a starting point of two years' imprisonment adequately reflects thetotality of Mr Moore's offending.[24] Mr Kaye submitted that greater discounts for personal mitigatingcircumstances ought to have been applied. First, he submitted Mr Moore was entitledto more than 10 per cent for previous good character. We understand the Judge's8 R v Fernando HC New Plymouth CRI-2004-043-2794, 15 November 2006.reluctance to give credit for good character when Mr Moore persisted with occasionsof offending by exploiting vulnerable customers over a period of nearly two years.Such a pattern is the antithesis of spontaneous criminal behaviour as an aberrationfrom otherwise good character. The extent of such a discount is very much within thesentencing judge's discretion, especially where the judge has observed the defendantthroughout the trial and is thoroughly informed about his personal background as wasthe case here.[25] Mr Kaye also submitted that Mr Moore has been punished in other ways to anextent that does not usually follow. Mr Moore has lost his job and his business,revelation of the offending has caused substantial stress to his family and thepredicament has caused him to go into debt. The other adverse consequences may notbe as unusual for such offending as Mr Kaye suggested. However, the offending hascaused a fundamental upheaval in Mr Moore's life, even without facing a term ofimprisonment.[26] We are satisfied that, taken in combination, mitigating circumstancescomprising lack of previous convictions, the otherwise good character attested to bythe numerous letters of support, and the adverse consequences arising from the loss ofhis business and employment warrant no less than a 15 per cent deduction from thestarting point.[27] From a reduced starting point of 24 months, a deduction of 15 per centproduces an end sentence of 20 months' imprisonment. The next issue is whether aterm of imprisonment of that length should be substituted with a sentence ofhome detention.Substitute home detention?[28] The pre-sentence report recommended a sentence of home detention and anappendix confirmed the suitability of the nominated address. The report alsorecommended appropriate special conditions. As noted above at [14], Mr Johnstoneconfirmed that the Crown would not oppose a sentence of home detention beingsubstituted.[29] The Judge expressed her reservation about a sentence of home detention in thefollowing terms:9[74] Had the sentence been less than two years, and even if I was able tosay that this was an unusual case requiring a sentence of home detention, I am not sure I would have imposed home detention. In my view I shouldimpose a sentence at the top of the hierarchy, not just to denounce and deterwhat you did but to let every personal trainer out there know that if they crossthe line they also fall foul of the criminal law, they will be punished.[30] The need for deterrence and denunciation is a valid consideration as to whethera substitute sentence of home detention is appropriate in this case. He continues todeny the offending and shows no remorse. As against that need for deterrence,Mr Moore is a first offender with the strong support of family and friends. He hassuffered to the extent of losing his business and going into debt as a result of theoffending. We are satisfied that his overall rehabilitation interests and prospects canbe addressed more positively whilst serving a sentence of home detention.[31] We accordingly quash the sentence of two years and three months'imprisonment, and in lieu of a sentence of 20 months' imprisonment impose a sentenceof 10 months' home detention. We adopt the following conditions as recommendedin the pre-sentence report:(a) to remain at the bail address, being that stipulated in the appendix tothe pre-sentence report at which a sentence of home detention is to beserved, for installation of EM equipment from the time nominated bythose responsible for that installation;(b) to reside at the home detention address and not move to any newresidential address without the prior written approval of aprobation officer;(c) not to associate with or contact the victims of the current offendingwithout the prior written approval of a probation officer;9 Sentencing notes, above n 1.(d) to attend an assessment for an appropriate sex offender programme, orany other suitable programme, as directed by a probation officer and toattend and complete any counselling, treatment or programme asrecommended by the assessment as directed by and to the satisfactionof a probation officer.[32] Pending the Department of Corrections arranging home detention at thenominated address, Mr Moore is to remain on bail, subject to the conditions previouslyimposed. He is to make himself available at the nominated address as required bythe Department.Result[33] The appeal is allowed.[34] The sentence of two years and three months' imprisonment is quashed andsubstituted with a sentence of 10 months' home detention on the conditions set out in[31] and [32].Solicitors:Meredith Connell, Auckland for Respondent