PERRIN v R [2023] NZCA 94

PERRIN v R [2023] NZCA 94 [5 April 2023]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 AOTEAROACA592/2022[2023] NZCA 94BETWEEN MERVYN PERRINAppellantAND THE KINGRespondentHearing: 28 March 2023Court: Collins, Venning and Gendall JJCounsel: J A Westgate for AppellantR P Bates and C J Flatley for RespondentJudgment: 5 April 2023 at 9.30 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Following a trial by jury in the Dunedin District Court, Mr Perrin was foundguilty in relation to two charges of sexual violation by unlawful sexual connection.He was sentenced by Judge Robinson to 22 months' imprisonment and his name wasentered on the Child Sex Offender Register.1[2] Mr Perrin appeals his sentence. He maintains he should have been sentencedto home detention and that imprisonment is a manifestly excessive response to hisoffending.Facts[3] The offending took place approximately 16 years ago. The victim (V) wassix years of age. Mr Perrin was then aged 18 or 19.[4] On the day of the offending, V and her siblings went to Mr Perrin's home. Thepurpose of the visit was to enable V to show her new tutu to Mr Perrin's mother.Mrs Perrin was not at home. Mr Perrin ushered V's siblings into his bedroom andarranged for them to play a computer game. Mr Perrin took V into the lounge andplaced her on a couch. He digitally penetrated her vagina and thereafter placed her onthe floor and performed oral sex on her. Mr Perrin warned V not to tell anyone aboutwhat he had done to her.[5] The impact of Mr Perrin's offending upon V cannot be overstated. Sheexplained in her victim impact statement how Mr Perrin took her innocence and causedher to spiral into a state in which she blamed herself for not having told her parentsearlier about what had happened. In her teenage years V became increasingly anxiousand depressed. She engaged in self-harm and made multiple attempts to take her ownlife. She has not had the ability to pursue her study and career goals. Now aged 22,V continues to be severely affected by Mr Perrin's offending.Section 128B Crimes Act 1961[6] Section 128B(2) and (3) of the Crimes Act states:(2) A person convicted of sexual violation must be sentenced toimprisonment unless, having regard to the matters stated insubsection (3), the court thinks that the person should not besentenced to imprisonment.1 R v Perrin [2022] NZDC 21627 [Sentencing notes].(3) The matters are—(a) the particular circumstances of the person convicted; and(b) the particular circumstances of the offence, including thenature of the conduct constituting it.[7] The presumption of imprisonment in s 128B of the Crimes Act reflects theseriousness of the violence inherent in cases of sexual violation. This Court explainedin R v Stoddart:2Even if the degree of force is not great, the violation of the victim's body canonly be described, in any ordinary case, as in itself serious violence. Thatalone would be enough to call normally for a prison sentence.Sentencing decisionStarting point[8] The Judge compared Mr Perrin's offending with a number of other cases andadopted a starting point of three years and 10 months' imprisonment.3Deductions[9] When considering discount factors the Judge accepted:4(a) Mr Perrin's age at the time of the offending suggested the offendingwas impulsive and that Mr Perrin lacked appreciation of the gravity ofhis offending and its consequences.(b) Mr Perrin's previous good conduct and that at the time he offendedagainst V, Mr Perrin had no other convictions.(c) A discount was warranted to reflect the fact Mr Perrin had beenremanded on electronically monitored bail.2 R v Stoddart [1986] 1 NZLR 264 (CA) at 267.3 Sentencing notes, above n 1, at [37].4 At [38]–[42].[10] The Judge deducted 19 months to reflect the matters we have summarised at[9(a)–(b)] and a further five months to reflect the matters summarised at [9(c)]. Thisproduced an end sentence of 22 months' imprisonment.5[11] When considering whether or not Mr Perrin should be sentenced to a term ofhome detention rather than imprisonment, the Judge considered s 128B of theCrimes Act and the commentary in relation to that section in Adams on Criminal Law.The Judge said:[45] The commentary to [s 128B] reminds me that even where substantialmitigating factors exist, some term of imprisonment will normally be required.The commentary goes on to note that, in exceptional cases, another penaltymay be justified. However, the circumstances where another penalty can bejustified are few in nature and far between and, indeed, the Court is careful toemphasise that the particular circumstances, not be artificially strained orextended to negate the intention behind the presumption of imprisonment.6[12] The Judge concluded that the presumption in s 128B had not been displacedand that, as a consequence, Mr Perrin was sentenced to a term of 22 months'imprisonment.7 A sentence of home detention that had been imposed on Mr Perrin forwounding with intent to injure was cancelled as a consequence of him being sentencedto a term of imprisonment.8Grounds of appeal[13] Four discrete grounds of appeal have been advanced on behalf of Mr Perrin:(a) The Judge erred when he suggested that home detention wasappropriate only in exceptional cases.(b) The appellant's continuing denials were overemphasised in thesentencing decision.5 At [42].6 Simon France (ed) Adams on Criminal Law – Evidence (online looseleaf ed, Thomson Reuters) at[CA128B.02].7 Sentencing notes, above n 1, at [48]–[49].8 At [51].(c) Mr Perrin's youth at the time of sentencing did not receive adequateconsideration.(d) Comparable cases suggest a sentence of home detention wasappropriate.AnalysisThe reference to home detention being exceptional[14] The Judge's reference to a sentence of home detention being exceptional incases of sexual violation probably reflected his understanding that imprisonment isnormally imposed for such offending.[15] It was, however, not necessary to say that home detention is imposed for sexualviolation in exceptional cases. All that was necessary was for the Judge to determinewhether or not the presumption in s 128B was displaced after considering Mr Perrin'sparticular circumstances, and the circumstances of the offending.[16] This misstatement does not reflect a misapplication of the law relating to thes 128B presumption. We are satisfied that the Judge correctly applied the s 128Bpresumption. This misstatement does not, however, reflect in this application.Mr Perrin's particular circumstances[17] We acknowledge that at the time of the offending Mr Perrin was either 18 or19 years old and that in all likelihood he lacked the cognitive maturity to resist hisimpulses and to appreciate the gravity of his offending. Judge Robinson fullyunderstood these considerations when sentencing Mr Perrin.[18] The Judge also took into account Mr Perrin's otherwise good character at thetime of the offending and that he had not offended in a similar way during the ensuingyears.[19] We agree with the Crown however, that Mr Perrin's continuing denial of anywrongdoing and his unwillingness to accept responsibility for his conduct is a factorthat weighs in favour of the presumption set out in s 128B of the Crimes Act.[20] In this respect Mr Perrin's case can be contrasted with R v Symons, a case citedin support of Mr Perrin's appeal.9 In that case, Dobson J imposed a sentence of homedetention on an offender who sexually violated a girl aged nine or 10 years. UnlikeMr Perrin, however, Mr Symons accepted his offending and pleaded guilty.[21] The significance of an appellant's denial of offending was explained by thisCourt in Hopkins v R. The Court said:10[22] While an offender is entitled to credit for curbing their predilectionsand leading a constructive life, it needs to be borne in mind that the impact onthe complainant of Mr Hopkins' offending has been profound. WhileMr Hopkins has moved on to experience a productive and enjoyable life, thecomplainant's has been blighted by the emotional harm that resulted from himbeing sexually abused by Mr Hopkins. It is relevant to observe that an integralelement of sexual offending against children is the offender's confidence thatthe child will not disclose the sexual abuse and it is common for complainantsto be unable to disclose offending against them until they are adults, after thepassage of many years. That delay does not dilute the seriousness of theoffending, nor the impact on the complainant from being sexually violated asa young child.[23] In addressing whether Mr Hopkins had rebutted the presumption ofimprisonment, the Judge observed that, unlike some cases where offendershad accepted responsibility and sought to atone for their offending, there wasnothing of that nature present in Mr Hopkins' case. Mr Hopkins was entitledto make assertions of innocence without penalty and we are satisfied that hewas not penalised for doing so. The Judge's comments simply reflected thefact that where a defendant has admitted the offending, there may be less needto give effect to the sentencing objectives of holding an offender to accountand promoting in them a sense of responsibility. In other words, Mr Hopkinswas not penalised for his position but nor was there a basis for any reductionthat might otherwise have been made to recognise that those sentencingobjectives have been satisfied.[22] As in Hopkins, Mr Perrin did not admit the offending and therefore there wasno basis for a reduction that might otherwise have been made.9 R v Symons HC Wellington CRI-2007-091-424, 11 April 2008.10 Hopkins v R [2022] NZCA 317 (footnote omitted).[23] We are satisfied Judge Robinson properly evaluated Mr Perrin's particularcircumstances when deciding that the presumption of imprisonment in s 128B was notdisplaced.Circumstances of the offending[24] The Judge appreciated Mr Perrin's offending was opportunistic.[25] That consideration, however, does not negate the principal aggravatingcircumstances of Mr Perrin's offending, namely:(a) the age and vulnerability of V; and(b) the significant harm caused to V by Mr Perrin's offending.[26] In Hopkins, this Court emphasised that harm to a victim is integral whenassessing whether or not the presumption in s 128B has been displaced.11[27] The age and vulnerability of V at the time of the offending and the enormousimpact of Mr Perrin's offending on V significantly outweigh the mitigating factorsadvanced on behalf of Mr Perrin.[28] The circumstances of Mr Perrin's offending were serious. The presumption ins 128B of the Crimes Act has not been displaced.[29] The sentence of imprisonment imposed upon Mr Perrin was not manifestlyunjust or excessive. On the contrary, it was an orthodox sentence that properlyreflected the gravity of Mr Perrin's offending.Result[30] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Dunedin for Respondent11 At [22].