STAINTON v R [2023] NZHC 787

STAINTON v R [2023] NZHC 787 [6 April 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2022-463-151[2023] NZHC 787BETWEEN LUKE STAINTONAppellantAND THE KINGRespondentHearing: 3 April 2023Appearances: W T Nabney for AppellantD P Coulson for RespondentJudgment: 6 April 2023JUDGMENT OF JOHNSTONE JThis judgment was delivered by me on 6 April 2023 at 3pmRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, Tauranga[1] Luke Timothy Stainton pleaded guilty to a charge of having sexual connectionwith a young person aged 15 years of age.1 On 8 November 2022, he was sentencedin the Tauranga District Court to serve two years and three months' imprisonment.2[2] Mr Stainton appeals against that sentence. The Crown opposes.The offending[3] At the beginning of September 2016, Mr Stainton was a 24-year-old youthleader at the Otumoetai Baptist Church in Tauranga. The complainant was a 14-year-old attending its youth group.[4] Mr Stainton and the complainant began regular communication via textmessage. After a few weeks, Mr Stainton asked the complainant if she wished toengage in a relationship with him, and she agreed. The complainant had just turned15 years old, and Mr Stainton had just turned 25.[5] Mr Stainton and the complainant exchanged photographs of their genitalia.They proceeded to engage in sexual intercourse on a weekly basis during what thesummary of facts describes as "the preceding year" but was clarified during thehearing as the succeeding year. Some of these encounters occurred inside theOtumoetai Baptist Church in the middle of the night. The relationship ended withMr Stainton engaging in a relationship with another female.The District Court decision[6] Judge Cook sentenced Mr Stainton. Amongst other things, her Honour notedserious impacts on his victim, described in her victim impact statement. The victimtakes the view that a range of mental health issues she has since suffered can be tracedto her inappropriate relationship with Mr Stainton and its secrecy.[7] Her Honour adopted a starting point for Mr Stainton's offending of three yearsand six months' imprisonment.1 Crimes Act 1961, s 134(1). Maximum penalty: 10 years' imprisonment.2 R v Stainton [2022] NZDC 22079.[8] The Judge then made deductions of 25 per cent in light of Mr Stainton's guiltyplea, and 10 per cent for his good character, arriving at an end point of two years andthree months' imprisonment, which was the sentence imposed.Appellant's submissions[9] For Mr Stainton, Mr Nabney submitted that:(a) The Judge's three-year, six-month starting point was too high. TheCourt of Appeal's judgments in R v Hayward and Hawken v R can bedistinguished on their facts.3(b) The Judge's deduction of 10 per cent for Mr Stainton's otherwise goodcharacter was too low. A deduction in the range of 15 to 20 per centshould have been applied.(c) The Judge should not have declined a deduction for Mr Stainton'sgenuine remorse (citing Hessell v R).4(d) There should have been a small discount to reflect factors identified ina psychologist's report: Mr Stainton's naivety for his age, suggestingemotional maturity and relationship experience comparable to that ofhis victim; and Mr Stainton's very low risk of re-offending.(e) On this basis, the end sentence as calculated should have been belowtwo years' imprisonment, with the consequence that a sentence of homedetention should have been both available and necessary as the leastrestrictive, appropriate outcome. And registration on the Child SexOffender Register would have been both discretionary andappropriately declined due to the offending's circumstances andMr Stainton's low risk of reoffending.3 R v Hayward [2008] NZCA 172; and Hawken v R [2019] NZCA 450.4 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].Respondent's submissions[10] For the Crown, Mr Coulson submitted the Judge did not err, whether in respectof the selected starting point, or the deductions both as applied and rejected.Law on appeal[11] This Court must allow the appeal if there is an error in the sentence imposedand a different sentence should be imposed.5 Otherwise, the Court must dismiss theappeal.6[12] The sentence must be manifestly excessive before the appeal Court maysubstitute its own views as to the appropriate sentence. The Court will generally notintervene where the sentence is within the range that can properly be justified byaccepted sentencing principles.7 Whether a sentence is manifestly excessive is to beassessed in terms of the final sentence given rather than the process by which it wasreached.8AnalysisStarting point[13] The offender in R v Hayward, where the sentencing Judge adopted a three-yearand six-month starting point, occupied a more solemn position of trust than thatoccupied by Mr Stainton. He was a friend of his victim's mother, and lived at aproperty where his victim was left when the mother returned to Australia. There wasan understanding he would help look after the girl during the mother's absence.Further, the age disparity was more serious. He was 53 years old. His victim was 15.[14] But the Court of Appeal in R v Hayward indicated that an appropriate startingpoint might have been one of four years' imprisonment. The three-year and six-monthstarting point adopted at first instance was described as "most generous."95 Criminal Procedure Act 2011, s 250(2).6 Section 250(3).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA47 at [30].8 Ripia v R [2011] NZCA 101 at [15].9 R v Hayward, above n 3, at [19].[15] And the Court of Appeal has since commented, in R v Johnson:10[17] We consider that the four year starting point in R v [Hayward] is stilla useful reference point in relation to sentencing for sexual connection withyoung persons, where the offending shares features present in that case.Particular aggravating features in R v [Hayward] were abuse of trust, asignificant age gap between the offender and the victim, full penetrative sexon a number of occasions, and significant adverse effects on the victim.Where aggravating features in R v [Hayward] are present, a starting point offour years may be appropriate. Other aggravating factors not present inR v [Hayward] may be seen as increasing culpability. Such features couldinclude grooming, or abusive and demeaning behaviour. Where there hasbeen no breach of trust as in R v [Hayward] but the same aggravating featuresare present, a lower starting point will be appropriate. A different combinationof aggravating and mitigating factors might produce yet another result. Itfollows that the starting point of four years should be seen as no more than amid-point in the range of offending where there is moderate culpability.[16] In Hawken v R, the Court of Appeal said that a three and a half year startingpoint "could not be said to be out of range." 11 Mr Nabney submitted that Hawkeninvolved a greater age disparity and a victim who was in a more vulnerable state, dueto having been homeless and from a difficult background. However, as Mr Coulsonpointed out, Mr Stainton's offending continued over a longer period than in both ofthose cases.[17] Taking into account the somewhat lesser degree of trust involved inMr Stainton's position as a youth group leader, and the lesser age gap, when comparedto the circumstances in both R v H and Hawken v R, and noting the duration ofMr Stainton's offending, Judge Cook's starting point of three years and six months'imprisonment was well justified.Good character[18] Mr Nabney's submission that a deduction for good character of 15 to20 per cent should have been applied draws from Mr Stainton's lack of priorconvictions, multiple character references, and from the Court of Appeal's judgments10 R v Johnson [2010] NZCA 168, citing R v Hayward, above n 3.11 Hawken v R, above n 3, at [24].in Parkin v R (where an effective 18 per cent discount was applied), and R v Carruthersand R v Webb (where 25 per cent discounts for good character were applied).12[19] However, in those cases, around 37 years, 12 years, and 12 years, respectively,had lapsed between the offending and the appellant's sentencing. And the appellantshad matured during those periods from ages of around 28, 36 and 28, respectively,demonstrating their good character in the meantime.[20] In Mr Stainton's case, around five years had lapsed from his offending, atage 25, to his sentencing. Judge Cook found him entitled to a discount, but one limitedto 10 per cent, in light of the fact Mr Stainton "is still a young man."13 In effect,Mr Stainton had not been in a position to demonstrate good character of the kindshown in Parkin, Carruthers and Webb to justify a more substantial discount.[21] In this respect, I do not consider the Judge fell into error.Remorse[22] In this regard, Mr Nabney submitted that Judge Cook overlooked a 'remorseletter' dated 28 October 2022. Instead, her Honour drew from the PAC report writer'sobservations that Mr Stainton lacked any genuine insight into the harm caused to hisvictim, with any statement of remorse relating to the consequences of his actions onhis own life and that of family members. Mr Nabney referred to the view of theSupreme Court in Hessell v R, that:[A] proper and robust evaluation of all the circumstances may demonstrate adefendant's remorse. Where remorse is shown by the defendant in such a way,sentencing credit should properly be given separately from that for plea.[23] Mr Stainton's letter was filed with a series of letters in support from his parents,from an employer and from friends in his church. His letter appears in the same fontand style as that of his parents, but in contrast to theirs is not signed. Towards thebeginning of its 800-plus words, it addresses "everyone involved" as follows:12 Parkin v R [2018] NZCA 404; R v Carruthers CA401/94, 10 April 1995; and R v Webb CA13/04,17 June 2004.13 R v Stainton, above n 2, at [33].[M]y actions have caused more harm than I realized. And my actions havefurther reaching consequences than I knew. So, to everyone involved, I amvery sorry. I'm sorry for breaking your trust, for harming you, fordisappointing you. I'm sorry for misusing my position. I'm sorry that I washypocritical - while I said one thing, I did another. I'm sorry I was deceitfuland wrong.[24] Towards the end it addresses an array of those affected by Mr Stainton'sactions:To the victim and the victim's family, I sincerely apologize (sic), I was wrong,and I have caused much harm and pain. I should have done things so muchdifferently. I am sorry.To my family, my wife and my wife's family, I am sorry that I have put youthrough this. I was raised to be a good person and my actions have caused agreat deal of stress and hurt so I am sorry. I hope that we can work towardsforgiveness.To my friends and church, I am sorry for bringing you into this, I hope we canmove forward and work towards forgiveness.[25] These are the only passages which might be thought to address theconsequences for Mr Stainton's victim of his offending. As is apparent, while theletter refers to causing her and others harm, it does not address the direct anddistinctive nature of the harm he caused her. In my view, Mr Stainton's letter tends toconfirm rather than contradict the PAC report writer's view outlined above.[26] In any event, discounts for remorse typically require further acts of contritionto warrant a discount.14 Letters of apology and other expressions of remorse are ofteninsufficient to warrant a discrete discount. In this case, proper and robust evaluationof all the circumstances did not require that sentencing credit be given for remorse.Psychological factors[27] Mr Nabney referred to the report of Hans Laven, a registered clinicalpsychologist, which was available to the Judge at the sentencing. The report noted:(a) Mr Stainton was naïve for his age and had poor insight into theexperience and risks for the victim.14 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].(b) Despite the age gap between Mr Stainton and the victim, theiremotional maturity and relationship experience was comparable at thetime of the offending.(c) Assessed by means of the STABLE-2007 instrument and moregenerally, Mr Stainton had a low risk of sexual reoffending.[28] It is not clear how Mr Laven considered himself equipped to make assumptionsas to the victim's emotional maturity and relationship experience so as to be ablecomment on its comparability with that of Mr Stainton. Be that as it may, his analysison the question of risk stood in contrast to the view of the PAC report writer, whoassessed Mr Stainton's risk as medium, given "the circumstances of the indexoffending and his rationalisation and minimisation of [it]."[29] Relevantly to this aspect, Judge Cook commented:15[34] I am left with some concerns in respect of your insight into youroffending and I am left with a really contradictory position in terms of thepre-sentence report and the psychologist report. In the round as I say I willgive you a discount for 10 per cent for your previous good character.[30] Mr Nabney submitted that Mr Laven's report reinforced Mr Stainton'smitigating features, gave some insight into causative factors of the offending, andrequired "a small discount."[31] For the Crown, Mr Coulson submitted that Mr Stainton described hisupbringing as "good", and that notwithstanding a lack of prior intimate relationshipsand confidence, there is no causal contribution between his background and hisoffending.[32] In my view, Mr Laven's report serves to confirm that Mr Stainton'sdevelopmental stage at the time of the offending was that of an 'emerging or youngadult', aged 18 to 25, as described in the Court of Appeal's recent judgment in Dickey15 R v Stainton, above n 2.v R.16 In that case, the Court summarised expert evidence it had received to similareffect to that outlined in its prior judgment in Churchward v R,17 including that:18Research from developmental and neuropsychology overwhelminglyconcludes that adolescents and emerging adults are different to adults.Even when young people's cognitive ability is similar to that of adults, theyare less able to make the same mature decisions [as adults], and are more likelyto engage in risky behaviour arising from that immaturity.[80] In addition to their susceptibility to engaging in serious criminaloffending, young people are more amenable to rehabilitation than adults."Their offending is less likely to be entrenched and they are very likely todesist from offending as adults, especially with appropriate intervention".[33] While Dickey and Churchward related to sentencing for murder, the Court ofAppeal's view that these particular aspects of youth and consequent prospects forrehabilitation are relevant is applicable to sentencing more generally.19 In Rolleston vR, the Court of Appeal referred to the mitigating factor of youth20 as summarised inPouwhare v R, and continued:21[35] The Pouwhare approach applies to sentencing for offending of thistype, meaning that youth can be a highly significant mitigating factor and thereis no fixed outer percentage. Teenagers aged between 14—16 years who havecommitted serious sexual offences have sometimes been extended discountsof between 30 and 50 per cent. In practice, there appears to be significantvariation in the approach taken to this aspect of sentencing. This variabilitymay recognise that, as the Court said in Pouwhare, youth alone cannot alwaysradically reduce the otherwise appropriate sentence.[36] In the present case, while we accept the Crown's submission that thisoffending was particularly bad, we consider that was reflected in the sentencestarting point and that the offenders' age should have attracted a greaterreduction. The sentencing Judge placed considerable weight on the failure ofeither young man to take responsibility for their offending. We accept thatfeature, together with their regrettable attitude and lack of understanding ofthe impact of their offending on the victim, is indicative of a lack of contritionor remorse. However, it is equally indicative of their immaturity.16 Dickey v R [2023] NZCA 2 at [76].17 At [77], citing Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.18 At [77(a)] and [77(c)]19 Sentencing Act, ss 7(1)(h) and 8(h) and (i).20 Rolleston v R (No 2) [2018] NZCA 611, [2019] NZAR 79 at [28] and [36]; and Churchward v R,above n 17, at [77].21 Rolleston v R (No 2), above n 20, citing Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868(footnotes omitted).[34] In the present case, I respectfully take a similar view. Mr Stainton's offending,the nature of his response, and his risk of re-offending should have been assessed bothby the PAC report writer and by the sentencing Judge against the context of his age atthe top end of 'emerging adulthood', together with his particular immaturity, which inhis case (as assessed by Mr Laven) appears to have continued beyond the age of 25.While Mr Stainton's attitude may have disqualified him from a deduction for remorse,it seems likely to reflect his delayed emotional development, favourable prospects forrehabilitation, and consequently low risk of reoffending.[35] In my view, a further discount to account for these factors should have beenallowed. In the absence of such a discount, I substitute my own assessment that adeduction of 10 per cent would have been appropriate.Conclusion[36] Applying an additional deduction of 10 per cent would have taken Judge Cookto a notional "short-term sentence of imprisonment", entitling her Honour to imposea sentence of home detention in terms of s 15A of the Sentencing Act. I consider thatsuch a sentence should have been imposed.[37] I have received advice from counsel that the address the subject of the PACreport dated 1 November 2022 remains available to him. On the basis of that report,I consider the conditions set out in s 80A are met.[38] I take into account that in granting this appeal and substituting a sentence ofhome detention, Mr Stainton's sentence will commence on the day that sentence isimposed.22 To date, he has served around five months of the sentence of imprisonmentimposed upon him in the Tauranga District Court. On that basis, rather than the periodof 12 months' home detention I would have imposed, I will substitute a sentence offour months home detention.22 Section 80X.[39] I note that as Mr Stainton no longer sentenced to imprisonment, his automaticregistration on the Child Sex Offender Register should be cancelled. In light of hislow risk of reoffending I will not direct discretionary registration.Orders[40] Accordingly, I make the following orders:(a) Mr Stainton's appeal is allowed.(b) His original sentence is quashed and replaced with four months' homedetention, to:(i) commence on 6 April 2023;(ii) be served at the address specified in the PAC report dated1 November 2022; and(iii) be subject to the proposed special conditions of home detentionset out in that report._____________Johnstone J