M (CA314/2016) V R [2017] NZCA 395

M (CA314/2016) V R [2017] NZCA 395 [7 September 2017]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OR OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA314/2016[2017] NZCA 395BETWEEN M (CA314/2016)AppellantAND THE QUEENRespondentHearing: 25 July 2017Court: Gilbert, Brewer and Peters JJCounsel: K W Barron-Afeaki for AppellantE J Hoskin for RespondentJudgment: 7 September 2017 at 4.00 pmJUDGMENT OF THE COURTA The appeal against sentence is dismissed.B Order prohibiting publication of name, address, occupation or identifying particulars of appellant pursuant to s 200 of the Criminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] Following a four day judge-alone trial in the District Court at Christchurch, Judge Kellar found the appellant guilty of seven charges of assault with a weapon and one charge each of indecent assault, threatening to kill and common assault.1The appellant had also pleaded guilty to three additional charges of assault with a weapon at the outset of trial. The offending was against two children, D and M.[2] On 9 June 2016, Judge Kellar sentenced the appellant to four years'imprisonment.2 The Judge arrived at this end sentence by adopting cumulative starting points totalling five and a half years' imprisonment, reducing the startingpoint by 10 months for the appellant's prior good character; by a further threemonths in recognition of the guilty pleas to which we have referred; and by a further five months to ensure the sentence was proportionate to the gravity of the offending, as required by s 85 Sentencing Act 2002.[3] The appellant appeals against his sentence on the ground that it was manifestly excessive. In particular, he submits that:(a) the starting point the Judge adopted was excessive;(b) there was an unjustified lack of parity between the appellant'ssentence and that of his co-offender, being the appellant's wife;(c) the discounts the Judge gave for the appellant's guilty pleas and for"totality" were insufficient; and(d) the sentence was wholly out of proportion to the gravity of the offending.1 R v [M] [2016] NZDC 1167.2 R v [M] [2016] NZDC 10713 at [35].Facts[4] D and M, from Samoa, were sent to live with the appellant and his wife in Christchurch. The appellant is the brother of the children's stepfather.[5] The children arrived in New Zealand in 2012. The appellant and his wife'soffending against the children began shortly thereafter and continued for 18 months until April 2014. D and M were aged 15 and 11 respectively when the offending began. The offending came to a halt when D called the police.[6] Including the charges to which he pleaded guilty, the appellant's offending:(a) Against M comprised seven charges, including two representative, of assault with a weapon.3 The Judge adopted a starting point of two years, six months' imprisonment for this offending.(b) Against D comprised:(i) One charge each of indecent assault,4 assault5 and threatening to kill.6 The Judge adopted a starting point of two years for this offending.(ii) Three charges, one of which was representative, of assault with a weapon. The Judge adopted a starting point of one year for this offending.[7] The weapons with which the appellant assaulted the children were an electric extension cord and a belt and, in the case of M, a salt shaker thrown at his face and chest. The Judge found that the appellant and his wife gave the children frequent"hidings", leaving welts and bruises, for minor breaches of household discipline, such as eating too quickly or being late home from school.3 The maximum penalty for assault with a weapon is five years' imprisonment.4 The maximum penalty for indecent assault is seven years' imprisonment.5 The maximum penalty for assault is 12 months' imprisonment.6 The maximum penalty for threatening to kill is seven years' imprisonment.[8] The indecent assault occurred when the appellant pulled D onto her bed and tried to push her knees apart. The appellant then threatened to kill D, holding a knife in his hand, and punched her in the face when D informed the appellant's wife of what had occurred.[9] The Judge identified the following aggravating features of the offending. D and M were vulnerable by reason of their age, because they were living with the appellant and his wife, and because they were a long way from home and without other support. The offending also involved a significant breach of trust and had caused harm to the children. These matters were exacerbated in M's case because hewas younger than 14 years for the duration of the offending. Also, the offending was frequent and occurred for minor matters.[10] Victim Impact Reports prepared by a clinical psychologist, Ms Susan Mafi, described at length the damaging and long-term psychological consequences of the offending for each child. In D's case, the consequences included frequentrecollections of the assaults accompanied by fear and anxiety, affecting D's generalstability. Ms Mafi's opinion was that M displayed signs of brain injury or psychological effects from trauma, had been very much affected by the violence inflicted on him and that which he had witnessed, and that he was likely to remain so affected for many years. Each of the children's education and therefore future opportunities had been adversely affected.[11] Having considered these matters, three authorities to which he had been referred (see below), and relevant principles and purposes of sentencing, the Judge identified the starting points set out above.7Were the starting points excessive?[12] Counsel for the appellant acknowledged, correctly, that the Judge was required to adopt individual starting points for the assault with a weapon offending7 R v Matafeo (1996) 14 CRNZ 276 (CA); C (CA155/2014) v R [2015] NZCA 33; and Teilauea v R [2014] NZCA 391.against each of D and M. The indecent assault and associated offending against D also required separate consideration as it was different in kind.8[13] Counsel submitted, however, that the Judge's component starting points wereexcessive, contending that the starting points for the:(a) assault with weapon offending (in relation to both D and M) should not have totalled more than two to two and a half years, as opposed to three and a half years; and(b) indecent assault should have been nine months with an uplift of six to nine months for the associated offending, so 15 to 18 months in total.[14] The issue on an appeal against sentence is whether the end sentence itself was manifestly excessive, in this case four years.9 That said, we shall discuss the various authorities to which counsel referred us in support of their respective submissions on the starting points the Judge adopted.[15] Counsel for the appellant referred us to R v Matafeo, S (CA801/2010) v R, R v P, JMT v R, and R v Haggar, submitting that the violence in the present case was at a lower level than in these cases, in some instances was of shorter duration and that the damage to D and M was not as extensive nor as long term.10 We are unable to assess the accuracy of the last submission. Suffice to say the clinicalpsychologist's opinion is that the offending has had serious effects on these children.[16] S (CA801/2010) v R, R v P, JMT v R and R v Haggar do not assist us, for these reasons:(a) In S (CA801/2010) v R, the appellant was sentenced on five counts of assault on a child and one of assault with a weapon. This Court upheld the cumulative starting points that the District Court Judge8 Sentencing Act 2002, s 84(1).9 Ripia v R [2011] NZCA 101.10 R v Matafeo, above n 7; S (CA801/2010) v R [2011] NZCA 178; R v P [2008] NZCA 476; JMT v R [2015] NZHC 1936; and R v Haggar [2014] NZHC 3082.adopted and which totalled 18 months. The case says nothing as to the range open to a Judge in sentencing for offending of this nature.(b) Likewise R v Haggar, in which the appellant pleaded guilty to numerous charges, including 17 charges of assault on a child, after receiving a sentence indication. The three-year starting point the Judge adopted was that sought by Crown counsel.(c) The appellant in R v P was for sentence on three representative counts of assault on a child, the maximum penalty for which is two years'imprisonment.(d) In JMT v R, the appellants had been sentenced to community detention and community work following guilty pleas to six representative counts of assault on a child. The appellants appealed tothe High Court against the Judge's refusal to discharge them withoutconviction.[17] Nor are we assisted by Teilauea v R, to which the Judge was referred.11 The counts in that case were largely assaults on children as opposed to assaults with a weapon. This Court confirmed that the starting point adopted was within range.[18] Of the cases relied on by the appellant, this leaves Matafeo, which was decided before the adoption of current sentencing methodology. Mrs Matafeo was sentenced to two years, nine months' imprisonment after pleading guilty to two charges of assault with a weapon and two charges of assault, all representative. The victim was a 13-year-old girl who had been living with Mr and Mrs Matafeo, and who had been severely beaten over nine months. The principal issue for this Court was whether the sentencing Judge had given sufficient credit for the appellants'guilty pleas and the effect of the sentences on the appellants' children. No useful comparison can be made to the present case.11 Teilauea v R, above n 7.[19] Turning to the cases relied on by the Crown, in C (CA155/2014) v R thisCourt upheld the Judge's starting point of two years, eight months' imprisonment for a charge of injuring with intent to injure and two representative charges of assault with a weapon, and an 18 month uplift for two representative charges of assault on a child.12 The case is comparable because injuring with intent also has a maximum penalty of five years. The two victims were younger than 10, and the appellant had hit them with a hose and a closed fist. The Court said the end sentence of four years, two months' imprisonment was at the upper end of the available range.[20] In M (CA823/2009) v R, the appellant was sentenced on nine charges of assault with a weapon, several representative, and one charge of assault on a child.13The three victims were the appellant's children, the offending occurred over two years and commenced when the youngest was one. On a "like for like" basis, the starting point in that case was four years to the appellant's three and a half years (in relation to the assault with weapon offending). This Court upheld the end sentence saying it appropriately reflected the gravity of the offending.[21] These last two cases are the most relevant to the assessment of the starting point in this case, as all involved repeated instances of serious violence with weapons, against two or more young children and committed over a prolonged period. The combined starting points this Court upheld were four years'imprisonment, or slightly more. Given this, the starting points that the Judge adopted for M and D, individually and together, are within the available range.Additional offending against D[22] In support of his submission as to the starting point on the indecent assault charge, counsel for the appellant referred us to R v Hohaia, R v McCord and King v Police.14 These cases do not assist us. The victim in Hohaia was almost 17 and not entrusted to the care of the offender; the victim in McCord was elderly; and the facts of King are far removed from the present case.12 C (CA155/20 14) v R, above n 7.13 M (CA823/2009) v R [2010] NZCA 94.14 R v Hohaia CA221/05, 17 October 2005; R v McCord [2013] NZHC 3261; and King v Police[2012] NZHC 1922.[23] Crown counsel referred us to Paora v R, in which this Court upheld the end sentence of two years, three months.15 The Judge adopted a starting point of two and a half years on one charge of doing an indecent act on a 12-year-old. The appellant had also threatened the victim. The assault was vastly more serious than in the present case but even if we were to accept that a starting point of nine months was appropriate for the indecent assault — as the appellant argues — the fact remains that the appellant, knife in hand, threatened to kill D and then punched her in the face. A starting point of two years for such offending is not manifestly excessive.Was there an unjustified lack of parity between the appellant's sentence and that of his co-offender?[24] The appellant's wife was sentenced on:(a) Two charges of assault with a weapon, one of which was representative, and one representative charge of assault against M. The Judge adopted a starting point of 18 months in respect of this offending.(b) One representative charge of assault with a weapon, one charge of threatening to kill, and one representative charge of assault against D. The Judge also adopted a starting point of 18 months in respect of this offending.[25] This gave a combined starting point of three years. The Judge then reduced the sentence by 12 months on account of several matters, giving an end sentence of two years imprisonment. The Judge imposed a sentence of 12 months' home detention.[26] Counsel for the appellant submits that the disparity between the starting points and end sentences cannot be justified. We accept the Crown's submission, however, that the difference is explained and justified by the additional charges the appellant faced.15 Paora v R [2011] NZCA 472.Did the Judge give insufficient discounts for the guilty pleas and totality and was the sentence wholly out of proportion to the gravity of the offending?[27] The appellant's guilty pleas were entered at the outset of trial, and did not result in a saving of time or expense. In those circumstances, a discount of three months is unremarkable.[28] Following the further reduction of 10 months for the appellant's goodcharacter, the Judge was required to ensure the sentence imposed was proportionate to the gravity of the offending as a whole.16 The Judge considered that a sentence of four years was proportionate, hence the additional five-month reduction. None of the cases to which we have been referred provide support for a submission that such a sentence is disproportionate to the gravity of the appellant's offending.Is any further reduction warranted on account of events post sentencing?[29] Tragically, the appellant's wife died shortly after sentencing. Arrangements should have been, but were not, made to enable the appellant to attend her funeral. Counsel for the appellant submitted that we could and should reduce the sentence to reflect this highly regrettable error. As discussed with counsel, however, we have no jurisdiction to make such a reduction.17Result[30] The appeal against sentence is dismissed.[31] In the interests of protecting the identify of D and M we make an order prohibiting publication of the name, address, occupation or identifying particulars of the appellant pursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Respondent16 Sentencing Act 2002, s 85.17 Criminal Procedure Act 2011, s 250.