KELLY v R [2019] NZCA 75

KELLY v R [2019] NZCA 75 [1 April 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGEOF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDUREACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA769/2018[2019] NZCA 75BETWEEN MONIKA RACHAEL KELLYAppellantAND THE QUEENRespondentHearing: 28 February 2019Court: French, Dobson and Brewer JJCounsel: R M Mansfield for AppellantP D Marshall for RespondentJudgment: 1 April 2019 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] On 20 September 2018, the appellant (Ms Kelly) pleaded guilty to onerepresentative charge of dealing in a person under the age of 18 for sexualexploitation.1 On 7 December 2018, Ms Kelly was sentenced by Downs J inthe High Court at Auckland to a term of two years and six months' imprisonment.2[2] Ms Kelly has appealed against that sentence, contending that the relativeseriousness of the offending was overstated, the starting point was higher thanwarranted and insufficient discount was allowed for her guilty plea. The essence ofthe appeal was that Ms Kelly's circumstances make her an ideal candidate forhome detention, and that a re-assessment of the relevant considerations pointedcompellingly to home detention as the correct sentence.[3] Four charges were originally brought against Ms Kelly under s 98AA ofthe Crimes Act 1961. That provision was inserted into the Crimes Act by s 6 ofthe Crimes Amendment Act 2005, in response to the provisions of the United NationsOptional Protocol to the Convention on the Rights of the Child on the sale of children,child prostitution and child pornography. Section 98AA created offences for variousforms of conduct that procure the involvement of a person under the age of 18 in, interalia, their sexual exploitation and other conduct inconsistent with their well-being.The maximum sentence is 14 years' imprisonment.The offending[4] Throughout the period of approximately six weeks in which the offendingoccurred, the victim was 14 years old and Ms Kelly was 19. Ms Kelly was livingindependently of her family and the two were introduced by a mutual friend.The victim was also having difficulties at home in a period of her life Downs Jdescribed as "messy"; she was living independently and moved into the same flatoccupied by Ms Kelly. The victim's evidence at the disputed facts hearing was thatshe was in Year Nine at high school at the time.[5] Very soon after the pair met, Ms Kelly asked the victim if she would work asa prostitute for her. To promote the victim's services as a sex worker, Ms Kelly created1 Crimes Act 1961, s 98AA(1)(a)(i).2 R v Kelly [2018] NZHC 3183 (Sentencing Decision).a profile for her on a digital app, gave her an alias and recorded her age as 18 or19 years.[6] On four occasions between 19 March and 25 April 2017, Ms Kelly arrangedfor the victim to have sex with the same adult male, in return for money paid toMs Kelly. Ms Kelly negotiated the price for the services on each occasion. Althoughshe accounted to the victim for part of the payments received, she deducted moneywhich she claimed was for board.[7] Full penetrative sexual intercourse occurred on each of the four occasions. Ontwo occasions Ms Kelly indicated to the customer that other males would be permittedto have sex with the victim in the same session. She also gave her consent to sexualactivity with the victim being filmed, but it is not known whether that occurred. Oneach occasion, Ms Kelly arranged to deliver the victim to the male customer ataddresses in Auckland.[8] At the time of the first transaction, Ms Kelly thought that the victim was 15.Thereafter, and before the three later transactions, the victim and the mutual friendwho had introduced them both informed Ms Kelly that the victim was 14.The prosecution and the plea[9] When Ms Kelly became aware that the police were investigating herexploitation of the victim, she prevailed upon those who knew of the circumstances tolie to the police. In addition to the four charges under s 98AA, she was also chargedwith two counts of attempting to pervert the course of justice.[10] Ms Kelly initially pleaded not guilty and relatively extensive negotiations wereundertaken by counsel on her behalf. These included attempts to persuadethe prosecution to substitute the provision under which the more serious charges werelaid with a charge or charges under the Prostitution Reform Act 2003. Sections 20 to23 of that Act create offences having the same elements as s 98AA of the Crimes Actand carry a maximum penalty of a term of imprisonment not exceeding seven years.[11] Very shortly before the scheduled trial, Ms Kelly pleaded guilty to a singlerepresentative charge under s 98AA relating to the four transactions. The prosecutionwithdrew the charges of attempting to pervert the course of justice.[12] Agreement was not reached on the terms of the summary of facts and adisputed facts hearing was convened before Downs J to deal with the extent ofMs Kelly's knowledge of the victim's real age. Ms Kelly elected not to give evidenceherself at the disputed facts hearing, but the victim was called by the Crown and thencross-examined on behalf of Ms Kelly. Having also observed the victim's evidentialinterview, Downs J was satisfied beyond reasonable doubt that Ms Kelly had knownthe victim was 14 throughout the period of the offending, except at the time of the firsttransaction, at which time she believed the victim was 15.3 The Judge found thatMs Kelly had twice transported the victim to and from school, when the victim waswearing a high school uniform worn by junior students.4The sentencing[13] The Judge identified certain aggravating features of the offending:• First, that it was calculated in the sense that it had required time, effort andplanning on Ms Kelly's part and, related to that, that she had pressured thevictim when she expressed reluctance to carry out the assignmentsarranged for her.5• Second, the offending was not an isolated incident but involved repeatedexploitation.6• Third, the victim was, by virtue of her young age, vulnerable.73 R v Kelly [2018] NZHC 3161 at [26].4 At [28].5 Sentencing Decision, above n 2, at [15].6 At [16].7 At [17].• Fourth, the seriousness of the sexual activity involved full penetrative sexwith the prospect of also exposing the victim to more degrading acts byway of group sex and being filmed.8[14] The Judge also cited Ms Kelly's steps to obstruct the police investigation as anaggravating factor.9 He was critical of Ms Kelly's attempts to shift responsibility forthe arrangements that had been made onto the victim.[15] The Crown contended for a starting point of three or three and a half years'imprisonment, while Mr Mansfield, for Ms Kelly, had argued for two years.10[16] The Judge noted the absence of helpful case law and found the maximumpenalty of 14 years' imprisonment to be instructive.11 The Judge considered thatthe offence provided for in s 98AA was serious and that Ms Kelly's offending wasa relatively serious example of its kind. The Judge adopted a four year starting pointwhich he considered to be conservative.12[17] The Judge acknowledged Ms Kelly had experienced difficulties during her life,referring to her being estranged from her parents, becoming pregnant in the last yearof high school and not having support from her child's father.13 Since being chargedshe had returned to live with her parents for a time, and then with her grandmotherwhilst on electronically monitored bail.14[18] The Judge considered three reports, including a comprehensive pre-sentencereport, that had been prepared for the sentencing.15 He also took into account lettersof support from family members.168 Sentencing Decision, above n 2, at [18].9 At [19].10 At [14].11 At [21].12 At [22].13 At [23]–[24].14 At [25].15 At [27].16 At [25].[19] In considering discounts for mitigating factors, the Judge observed that youthdid not automatically justify leniency and that discounts on account of youth mayrecognise immaturity or the impulsive nature of offending, as well as greater prospectsfor rehabilitation on the part of younger offenders. This offending was neitherimpulsive nor a reflection of immaturity. Nonetheless, the Judge gave a significantreduction on account of youth, namely 20 per cent.17[20] The Judge considered Ms Kelly's background to be "more explanatory thanmitigatory", but allowed a discount of five per cent for the circumstances of herupbringing and background.18 A further five per cent discount was allowed inrecognition of the likely impact of a sentence of imprisonment on her son, who wasnearly three by the time of sentencing.19[21] Whilst on ordinary bail following this offending, Ms Kelly breached bail ona number of occasions and was charged with shoplifting. She was then placed onelectronically monitored bail. The Judge allowed a discount of two months for therestrictive period of six and a half months served on electronically monitored bail.20[22] Finally, the Judge allowed a further five per cent discount for Ms Kelly's guiltyplea.21 The plea came on the second to last working day before trial. After pleadingguilty, Ms Kelly's disputed knowledge of the victim's age required a disputed factshearing. The Judge found the victim's evidence truthful and accurate.He acknowledged that the guilty plea had saved the taxpayer the expense of a trial, butthat was all. The five per cent discount was smaller than the Crown had concededmight be available.22 The Judge rejected Mr Mansfield's submission that Ms Kellydemonstrated remorse justifying an additional discount. He was not persuaded thatremorse was genuine, but rather it was an attempt to present herself in the best possiblelight.2317 Sentencing Decision, above n 2, at [35].18 At [35].19 At [39].20 At [40].21 At [42]–[43].22 At [43].23 At [44].[23] Accordingly, the final sentence imposed was two and a half years'imprisonment.24[24] The Judge observed that, even if home detention had been an availablealternative sentence, he would not have imposed it because the offending was tooserious and denunciation was required.25Arguments on appeal[25] The essence of Mr Mansfield's arguments on appeal was that this wasa sentencing predicament that cried out for home detention as the appropriate solution.He emphasised Ms Kelly's youth, her difficult background, her responsibilities for apre-school infant, and her prospects for rehabilitation, which he argued would beseverely dented by serving a sentence of imprisonment.[26] In arguing for a reduction in the appropriate length of sentence which wouldbring it within the range where it could or should be substituted with a sentence ofhome detention, Mr Mansfield made the following submissions:(a) The Judge had mischaracterised the relationship between Ms Kelly andthe victim. Mr Mansfield produced samples of text and Facebookcommunications between them suggesting that they were friends, in ashared predicament of alienation from their families and lack of othermeans of support. He emphasised that although chronologically14 years old, the victim was clearly "worldly", as demonstrated byphotos she had posted of herself on social media and her contributionsto text exchanges with Ms Kelly.(b) The Judge ought not to have chosen the starting point by ranking therelative seriousness of this conduct against a maximum sentence of14 years' imprisonment. The matter of prosecutorial discretion hadapplied in laying the charge under s 98AA of the Crimes Act rather thanthe equivalent provisions under the Prostitution Reform Act, where24 Sentencing Decision, above n 2, at [50].25 At [48].Ms Kelly's conduct would have been measured against a maximum ofseven years' imprisonment.(c) To the extent that a comparison could be made to the United Kingdomsentencing guidelines for the same offending,26 accuratecharacterisation of the features of this offending should have suggesteda reduced starting point.(d) The Judge erred in limiting the final discount for Ms Kelly's guilty pleato five per cent.Ms Kelly's relationship with the victim[27] The November 2018 victim impact statement was highly critical of Ms Kelly.The victim stated that Ms Kelly took advantage of her being in a rough patch inher life, practised manipulation to keep her close and then commenced the sexualarrangements with strangers. She states that she was constantly put in situations ofextreme discomfort in places she did not want to be. The victim refers to consequencesincluding struggling to trust people and being unable to be alone in the same room asa male.[28] Mr Mansfield submitted that a victim impact statement in these terms isunderstandable when a young woman, now 16, is invited to recall the impact of theevents after the nature of the offending had been expressed to her by the policepersonnel with whom she was dealing. The views of others she dealt with about theevents could well have contributed to the victim seeing it in retrospect in a quitedifferent and more serious light.[29] Mr Mansfield submitted that the later reconstruction of the impact onthe victim should be tested against the nature of the relationship reflected in the socialmedia communications between the two during the period of the offending.Mr Mansfield suggested that those communications revealed exchanges between two26 See [35] below.young people who are much nearer to equals, rather than an older person suborningthe will of a younger one.[30] We accept that the victim impact statement portrays an extent of manipulationand pressure on the victim greater than that which the victim would haveacknowledged during the period of the offending. We also accept that at least someof the social media communications suggest that the victim was not consistentlyobjecting to the arrangements for her to have sex with a male she initially did notknow.[31] However, the dominant feature of Ms Kelly's interaction with the victim is thatthe victim was a 14 year old estranged from her parents, having run away from home.However much her physical appearance enabled her to pass herself off as a youngwoman several years older, she was, in terms of intellectual and emotionaldevelopment, a 14 year old high school student. The conduct of a young womanfive years her senior, who had tried working as a prostitute herself but preferred toprostitute a 14 year old girl, must inevitably be seen as manipulative exploitation.In this respect, we agree with the Judge's characterisation of the relationship, whichcontributes significantly to ranking this offending as a relatively serious example ofits type.Setting the starting point[32] As the sentencing Judge observed, there are relatively few decisions that mightprovide guidance for sentencing on convictions under s 98AA of the Crimes Act. Noris there anything in the way of a guideline judgment, which is understandable giventhe extremely wide range of circumstances in which offending against the sectionmight occur.[33] In a recent Crown appeal in R v Lata, this Court considered the approach tosentencing for offences under s 98AA.27 That appeal was allowed and a sentence forsignificantly more serious offending than occurred in the present case was increasedto 10 years and three months' imprisonment. In Lata, a woman had facilitated the27 R v Lata [2018] NZCA 615.prostitution of her daughter for a period of 18 months from the daughter's 15thbirthday, extending to sexual activity with paying clients on approximately 1,000occasions.28 This Court disagreed with the approach that had been adopted onsentencing to leave "headroom" for the most serious of cases. If a case presented asamong the most serious examples of the offence in question, then the Court shouldadopt a starting point near to the maximum for that type of offending.29[34] A starting point of four years places this offending at somewhat less than30 per cent on the scale from least to most serious examples of offending unders 98AA. An arithmetical analysis is not useful but nor can this perspective on thechosen starting point suggest that it was out of kilter.[35] In Lata, counsel for the Solicitor-General referred the Court tothe Sexual Offences Definitive Guideline (the Guideline) produced bythe Sentencing Council for England and Wales.30 Both counsel in the present appealalso made reference to the Guideline but placed Ms Kelly's offending at differentpoints within the categories for which it provides.[36] The statutory provisions to which the Guideline is applied have also beenenacted to reflect the commitment in that jurisdiction to theUnited Nations Convention on the Rights of the Child. To the extent that otherconsiderations allow, there is an interest in achieving conformity of approach tosentencing for such offences and, given the relatively small number of sentencingdecisions in New Zealand, we consider it valid to use it as a comparator.[37] Mr Marshall, for the Crown, submitted that the present case would have falleninto category one of the two categories of offending defined in the Guideline becausethe victim had been involved in penetrative sexual activity and potentially because ofMs Kelly's preparedness to pass the victim around to other "customers". In terms ofthe three bands of relative culpability of the offender, Mr Marshall submitted thatMs Kelly's fell within band B, which was defined as close involvement with inciting,28 At [1].29 At [42].30 Sentencing Council Sexual Offences Definitive Guideline (effective from 1 April 2014).controlling, arranging or facilitating sexual exploitation of a child. On the Crown'sallocation of category and level of culpability, the starting point for offending wherethe victim was between 13 and 15 years old would be five years in custody.[38] In contrast, Mr Mansfield submitted that the forms of harm to the victimbrought Ms Kelly's offending within category two because category one factors werenot present. He agreed that the level of culpability in terms of the definitions inthe Guideline would have this falling within band B. The starting point inthe Guideline would, on that analysis, be three years' imprisonment.[39] Mr Marshall drew our attention to a list of aggravating factors set out inthe Guideline that might be taken into account to uplift the starting point. That list offactors included attempts to dispose of or conceal evidence, which occurred in thiscase. We consider that Mr Marshall was correct in placing the offending incategory one, culpability band B, so that on the Guideline the starting point here wouldbe five years' imprisonment.[40] Mr Marshall also invited comparison with the appeal in Hastie v R as providingsome support for the appropriateness of a four year starting point.31 The principaloffending in that case was sexual conduct with a young person under 16 years pursuantto s 134(1) of the Crimes Act. There had also been convictions on five counts relatingto the procuring of underage prostitution under the Prostitution Reform Act.In considering the sentencing analysis, this Court observed that the sentence for theprostitution offences could well have been much higher than the sentence of two anda half years' imprisonment the District Court Judge said might have beenappropriate.32[41] Hastie is of limited utility because of the different factual circumstances.The victim was materially older, being nearly 16 years old when the offendingoccurred. The offender's culpability was influenced by his being substantially olderand therefore in a position to readily suborn the victim's will. Although of limitedrelevance, we agree that the observation of a starting point well above two and a half31 Hastie v R [2011] NZCA 498.32 At [33].years on those facts suggests that a starting point in the present circumstances of fouryears is clearly within range.[42] Mr Mansfield criticised Ms Kelly being convicted on a charge wherethe maximum sentence was 14 years' imprisonment when all elements of heroffending could readily have been reflected in charges underthe Prostitution Reform Act, which carries a maximum sentence of half that severity.We do not accept that there was any error in the prosecutorial decision that was taken.The offences provided for in s 98AA reflect concern for exploitation of young persons,which was a primary feature in the nature of the criminality involved. We do notaccept that the prospect of convictions for offences that carried substantially shortermaximum penalties renders the analysis that was undertaken in this sentencing inerror.Discount for guilty plea[43] On sentencing, the Judge considered that the lateness of the guilty plea and therequirement for a disputed facts hearing largely vitiated the credit otherwise availableon account of the guilty plea.33 Mr Mansfield submitted that this approach was inerror. Given that the prosecutor had agreed to a discount in the range of 10 to15 per cent for the guilty plea, Mr Mansfield submitted that the discount ought to havebeen in the range of 20 per cent and certainly no less than 15 per cent.[44] Mr Mansfield explained the delay in reaching the point where Ms Kelly wouldenter a guilty plea as largely taken up with counsel's negotiations as to the nature ofthe charges. He suggested that the time taken to resolve the final form of the chargeought not to be held against her. The guilty plea still constituted an acknowledgementof responsibility.[45] Mr Mansfield submitted that the disputed facts hearing did obviate the needfor the victim to give evidence at trial, with the scope of evidence being narrowed byco-operation with the prosecutor.33 Sentencing Decision, above n 2, at [42].[46] Mr Marshall submitted that the Judge had taken a careful and thoroughlyreasoned approach to the extent of discount for Ms Kelly's guilty plea. He submittedthat the Crown case against her had been strong and that it was Ms Kelly's insistencethat she did not know the victim's real age which necessitated the disputed factshearing. The outcome on that issue vindicated the Crown position.[47] Mr Marshall referred to the observation in Hessell v R that if a defendant'sview of the facts is rejected, the appropriateness of the given reduction for the pleashould be reviewed.34[48] The factors cited by Mr Marshall do justify a reduction in the extent of discountfor guilty plea than might otherwise have been appropriate. Whilst other judges mayhave been somewhat more generous, the reasoned approach adopted by thesentencing Judge was clearly available to him and we do not consider appellateintervention is warranted.Standing back[49] In summarising his various arguments, Mr Mansfield submitted that, afterconsidering each of them, the Court ought to stand back and reflect on the overalloutcome for Ms Kelly. He re-emphasised the prospect of future harm from her servinga prison sentence and, on the other hand, the substantially enhanced prospects forrehabilitation should she be sentenced instead to a term of home detention.Mr Mansfield was persuasive on the concern for Ms Kelly's rehabilitation.[50] This was not an easy sentencing exercise, but it was one thoughtfullyconstructed where we have not found that any error occurred. The final sentencerepresented total reductions from the starting point of some 39 per cent.[51] We acknowledge that the starting point adopted by the Judge was higher, andthe extent of discount for guilty plea was lower, than those contended for on behalf ofthe Crown. However, that does not indicate any error. The critical point is thatthe relative seriousness of the offending cannot be reduced as Mr Mansfield urged.34 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [61].Once his categorisation of the offending as less serious is rejected, the result is thatthe starting point adopted by the Judge was clearly within range. The need fordeterrence and denunciation of such offending prevents a re-evaluation of theappropriate sentence that gives any greater weight to Ms Kelly's rehabilitation.Outcome[52] Accordingly, the appeal is dismissed.Solicitors:Crown Law, Wellington for Respondent