MINES v R [2022] NZCA 113

MINES v R [2022] NZCA 113 [6 April 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARSOF WITNESSES/VICTIMS/CONNECTED PERSONS PURSUANT TOS 202 CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA454/2021[2022] NZCA 113BETWEEN MASON RAMIERAZ MINESAppellantAND THE QUEENRespondentHearing: 22 March 2022Court: Collins, Thomas and Mallon JJCounsel: K J Gray and N Pointer for AppellantM N Zarifeh and P N M Brown for RespondentJudgment: 6 April 2022 at 9.30 amJUDGMENT OF THE COURTA The application to adduce further evidence is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Mines appeals a sentence of three years and 10 months' imprisonmentimposed by Judge M J Callaghan in the District Court at Christchurch.1[2] The sentence was imposed after Mr Mines pleaded guilty, six days before trial,to:(a) three charges of sexual violation by unlawful sexual connection; and(b) three charges of performing an indecent act on a child under 12.Five of those charges were representative. Mr Mines was also sentenced to aconcurrent term of 15 months' imprisonment on two charges of committing anindecent act on a young person under 16.2 He was found guilty of those two chargesfollowing a trial in the District Court.Background[3] Mr Mines' offending against the first two victims, AH and SM, was set out inthe summary of facts that Mr Mines accepted when he pleaded guilty.Offending against AH[4] When AH was eight to nine years of age, she stayed during school holidays atthe address where Mr Mines lived. During those visits, Mr Mines would touch AH'svagina on an almost daily basis. This offending included digital penetration.Mr Mines also coerced AH into masturbating him and performing oral sex on him.Although the offending started when Mr Mines was 13 years old, the chargesconcerned events that occurred after he turned 14 years of age.1 R v Mines [2021] NZDC 14314 [Sentencing notes] at [44].2 At [44(c)].Offending against SM[5] SM also stayed during school holidays in the home where Mr Mines lived.When SM was between eight and 11 years of age, Mr Mines made her masturbate himapproximately 20 times. He also penetrated SM's vagina with his fingers on eachoccasion she stayed at his home. The offending against SM also started whenMr Mines was 13 years old, but the charges only concerned his offending after heturned 14.Offending against FM[6] The evidence at trial was that Mr Mines touched the breasts of FM, his relative,and on another occasion, he touched her genitalia. At the time, Mr Mines was 20 yearsold and the victim was 14 years old.Sentencing decision[7] The Judge assessed the offending against AH and SM as being at the lower endof band two in R v AM3 and warranted a starting point of seven and a half years'imprisonment.4 In reaching that assessment, the Judge took into account the effect ofMr Mines' offending on each of the victims. In their victim impact statements AH andSM spoke about the trauma and anxiety they have suffered as a consequence ofMr Mines' offending. The Judge said:5 the prolonged nature of the offending and the fact that it involved digitalpenetration and oral penetration, the effects that it has had on the victim andthe repeated nature of it, it clearly puts this into band two of AM. I howeveraccept the submission made by your counsel that it is at the lower end of thatband.[8] In relation to the offending against FM, the Judge referred to the fears andanxiety she has suffered as a result of Mr Mines' offending. The Judge adopted anadditional 15 months' starting point after taking account of the fact Mr Mines took3 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [90].4 Sentencing notes, above n 1, at [36].5 At [34].advantage of FM's vulnerability, that he persisted with his offending despite herprotests and the "skin on skin" nature of the offending.6[9] Judge Callaghan adjusted the overall starting point to seven years and ninemonths' imprisonment to reflect the principle of totality in s 85 of the Sentencing Act2002.7[10] From the adjusted overall starting point, the Judge made the followingdeductions:(a) 30 per cent to reflect Mr Mines' age at the time of the offending;8(b) 15 per cent to reflect the guilty pleas to the charges of offending againstAH and SM;9 and(c) five per cent to reflect Mr Mines' personal circumstances, including hispsychological disorder (ADHD) and his remorse.10[11] These deductions produced the end sentence of three years and 10 months'imprisonment.11Grounds of appeal[12] In her submissions in support of the appeal, Ms Gray argued that the Judgeerred when adopting a starting point of seven and a half years' imprisonment for theoffending against AH and SM and that a starting point of seven years' imprisonmentwas appropriate for that offending.[13] Ms Gray also submitted that the deductions made in this case were insufficientin light of fresh evidence set out in a psychological report prepared by Mr Neilson,6 At [37].7 At [38].8 At [39].9 At [42].10 At [41]. The sentencing notes are potentially ambiguous on whether remorse was a factor in thisdiscount, but both parties have accepted that it was a factor, and we will treat it accordingly.11 At [43].which Ms Gray submitted provided a credible explanation as to why Mr Mines'background caused him to have reduced moral culpability for his offending.Crown position[14] Ms Brown, who argued the case for the Crown, submitted that the starting pointadopted by the Judge was within range and that the discounts, which totalled50 per cent were also within range.[15] The Crown responsibly accepted the report from Mr Neilson ought now beconsidered by us, and we grant leave for it to be adduced.12 Ms Brown acknowledgedMr Neilson's report contained more information than was previously known by theDistrict Court about Mr Mines' background. Notwithstanding the further informationcontained in the psychological report, Ms Brown submitted that the overall discountof 50 per cent adopted by the District Court Judge was appropriate and that any furtheradjustments to reflect the contents of Mr Neilson's report would constitute "tinkering".AnalysisStarting point[16] We disagree with Ms Gray's criticisms of the starting point of seven and ahalf years' imprisonment adopted by the Judge in relation to the offending against AHand SM. We make the following points:(a) While the sexual abuse commenced when Mr Mines was 13, hisoffending continued through to when he was 16.(b) The victims were very young (AH aged eight to nine and SM aged eightto 11) and vulnerable, not only because of their ages but because theywere staying at Mr Mines' home, away from their own families.(c) The offending involved significant breaches of trust by Mr Mines.12 An application was made to the District Court to adjourn sentencing pending the obtaining ofMr Neilson's report. That application was declined because one or more of the complainants hadalready travelled to Christchurch to attend the sentencing hearing.(d) The offending was persistent, hence the representative charges, andoccurred over a timeframe that was close to two years.(e) The offending involved coercing AH into performing oral sex on him.(f) The offending that involved digital penetration occurred after Mr Mineshad turned 14.(g) The harm suffered by the victims was significant. They have sufferedanxiety and emotional trauma because of Mr Mines' offending.[17] Although there is only one charge that placed Mr Mines' offending into bandtwo of R v AM,13 that charge was a representative charge.[18] We also agree with the starting point of 15 months' imprisonment adopted inrelation to the offending against FM. At the time of that offending, Mr Mines was20 years old and his victim, who was 14, was very vulnerable.[19] No issue was taken with the adjustment to the starting point to reflect thetotality principle in s 85 of the Sentencing Act.Adjustments[20] We also disagree with Ms Gray's argument that the adjustment of 30 per centwas light given Mr Mines' age when most of the serious offending occurred.The adjustment of 30 per cent for Mr Mines' age was within the range that wasreasonably available, particularly as he went on to offend against FM when he was20 years old.[21] The deduction of 15 per cent to reflect Mr Mines' guilty plea was generousbecause:(a) The guilty pleas did not apply to the charges of offending against FM.13 R v AM, above n 3.(b) The guilty pleas were entered just six days before the trial date at a timewhen AH and SM would have been preparing themselves for the trial.A discount of 10 per cent in these circumstances would have been unimpeachable.[22] The key issue is whether any further deduction should be made in light of thematters contained in Mr Neilson's report after having regard to the five per centdiscount already given for Mr Mines' mental health issues and his remorse.[23] Mr Neilson has expanded upon the information that was available to theDistrict Court Judge and explained:(a) Mr Mines' father abused him and his mother abrogated herresponsibilities to properly care for Mr Mines.(b) In addition to suffering ADHD, Mr Mines suffers anxiety.(c) Mr Mines was sexually abused by an older brother and, in Mr Neilson'sview, this was likely to have played a role in Mr Mines' sexual abuseof the victim.[24] In our assessment, while the matters contained in Mr Neilson's report mighthave led to a greater discount being applied, had that report been available toJudge Callaghan, any additional discount would have been relatively minor. Adiscount of 10 per cent would have been the upper bounds of any discount that tookinto account all of Mr Mines' personal circumstances in addition to his guilty plea andyouth, but that would have resulted in an end sentence in the vicinity of three yearsand six months' imprisonment.[25] When assessing the end sentence, we have compared the sentence imposed onMr Mines with cases that are generally comparable, although, we acknowledge, notwo cases are ever identical. In V (CA400/2012) v R,14 a sentence of four years andnine months' imprisonment was adopted by this Court in relation to a young man who14 V (CA400/2012) v R [2012] NZCA 465.also pleaded guilty to offending that occurred when he was aged between 14 and 17.The offending in that case was against a very young victim, but involved very similaroffending to that perpetrated by Mr Mines against AH and SM. There are alsosimilarities between Mr Mines' offending and the case of BB (CA732/2012) v R,15where this Court considered to be generous a sentence of four years and five months'imprisonment for an appellant who was found guilty of offending against his twostepsisters. Again, the offending was similar to Mr Mines' offending against AH andSM.[26] This Court has consistently maintained that it is only appropriate to intervenein a sentence if the sentence under appeal is "manifestly excessive" and not justifiedby relevant sentencing principles.16[27] When we assess the actual sentence against the sentence that might otherwisehave been imposed, we are satisfied that the sentence of three years and 10 months'imprisonment was within the range reasonably available and not manifestly excessive.[28] When we assess Mr Mines' offending and take into account the deductions thatcan be properly made in this case, we are satisfied that the sentence imposed in thiscase was appropriate.Result[29] The application to adduce further evidence is granted.[30] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Christchurch for Respondent15 BB (CA732/2012) v R [2013] NZCA 139.16 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR482 at [36].