O’SHAUGHNESSY v R [2018] NZCA 117

O'SHAUGHNESSY v R [2018] NZCA 117 [23 April 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA556/2017[2018] NZCA 117BETWEEN MATTHEW JAMES KEVINO'SHAUGHNESSYAppellantAND THE QUEENRespondentHearing: 17 April 2018Court: Kós P, French and Miller JJCounsel: J D Lucas for AppellantD L Elsmore and S J Mallett for RespondentJudgment: 23 April 2018 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] This is an appeal against a sentence of three years' imprisonment imposed,after trial, on one charge of sexual violation by unlawful sexual connection.11 R v O'Shaughnessy [2017] NZDC 19417. The appellant also received a sentence of one month'simprisonment for breach of community work, imposed cumulatively. Though he appealed thewhole sentence counsel focused entirely on the sexual violation charge.[2] The facts as recorded by Judge Garland were that the victim and the appellant,who were nodding acquaintances, were in the same bar in Christchurch on the eveningof 20 July 2016. Both were intoxicated, the victim heavily so. There was nointeraction between them, but when she and a male associate left the premisesthe appellant accompanied them by taxi to another bar. The victim vomited as she gotout of the taxi. The appellant arranged a glass of water for her, but otherwise had littlecontact with her. At about 3.40 am the victim went home by taxi. The appellantaccompanied her, the Judge finding this was not by arrangement but something he justdid.2 She vomited out the car window on the drive.[3] At her flat the appellant sought help from her male flatmate, who paid the taxidriver and helped clean up the vomit. The appellant helped her into the house and thetwo men put her into her bed, fully clothed, and left her there. The appellant and theflatmate then chatted for a while before the flatmate returned to some work he wasdoing. After a while he went looking for the appellant, and found him in the victim'sroom, sexually assaulting her. He ordered the appellant from the house.[4] The appellant later admitted that he had performed oral sex on the victim. Hesaid it was consensual and she was an active participant.[5] The jury must have concluded that the sexual activity was non-consensual. Forsentencing purposes, Judge Garland was prepared to accept that they may have foundthe appellant held a genuine but unreasonable belief that he had her consent.3[6] The Judge noted that the appellant was then 21 (he was 20 at the time of theoffence) and had no prior convictions for sexual offences, though he did have anescalating list of less serious convictions.4 He has not previously been imprisoned.The pre-sentence report noted that he maintained he had done no wrong and tended toblame the victim.2 At [8].3 At [17].4 At [18].[7] The Judge placed the offending squarely within the first of the R v AM bandsfor sexual violation offences.5 He noted clear evidence of premeditation and planning;the appellant had very little contact with the victim that evening but chose toaccompany her home in her grossly intoxicated condition; and once there, he waitedfor an opportunity to offend. She was extremely vulnerable. She was at home, whereshe ought to have been safe. And the impact on her had been severe. The Judgeadopted a starting point of three years' imprisonment.6 There were no relevantaggravating factors and none that mitigated. He rejected a plea for a discount foryouth.7[8] On appeal, Mr Lucas argued that the Judge erred by finding planning andpremeditation, by adopting a three-year starting point, and by giving no discount foryouth.[9] Counsel's principal argument was that having sentenced the appellant on thebasis of an honest but unreasonable belief in consent, the Judge could not also findthat the offending was premeditated. We reject this submission. We observe that itrests on the false premise that culpability is reduced by an honest belief in consentattributable to the defendant's own intoxication.8 This Court held in AM thatculpability may be lessened where the defendant held a mistaken but unreasonablebelief in consent,9 but it has since affirmed that that is not so where the belief isattributable to voluntary intoxication, which the Sentencing Act 2002 expresslyexcludes as a mitigating factor.10[10] Nor is it correct that there can be no premeditation where the defendantbelieved at the time of the offence that he had the victim's consent. Premeditation isa subjective concept, but it is applicable where, at the time of the conduct said toevidence premeditation, the defendant knew of the victim's impaired condition. Inthis case the appellant knew by the time they reached the second bar that she was5 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [114]–[116].6 R v O'Shaughnessy, above n 1, at [26].7 At [27].8 The appellant was also intoxicated, and he said in interview with the probation officer that itcontributed to the offending, which would not have happened had he been sober.9 R v AM (CA27/2009), above n 5, at [53].10 R v Clifford [2011] NZCA 360, (2011) 25 CRNZ 567 at [31].grossly intoxicated, and it was open to the Judge to conclude that he sought to exploither condition. His behaviour at the flat indicates that he knew the flatmate wouldlikely intervene had he been seen to go into the victim's bedroom.[11] Having regard to the number and degree of the aggravating factors, we are notpersuaded that the Judge was wrong to adopt the starting point that he did.[12] Finally, we do not accept that the Judge was wrong to deny a discount foryouth. There was nothing impetuous or naïve about the appellant's behaviour, and hewas 20 at the time.Result[13] The appeal is dismissed.Solicitors:Crown Solicitor, Christchurch for Respondent