MASEI V R [2016] NZCA 481

MASEI V R [2016] NZCA 481 [5 October 2016]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA273/2016[2016] NZCA 481BETWEEN PHILIPPE MASEIAppellantAND THE QUEENRespondentHearing: 22 September 2016Court: Harrison, Brown and Brewer JJCounsel: S K Green for AppellantZ R Johnston for RespondentJudgment: 5 October 2016 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Philippe Masei appeals his sentence of 21 months' imprisonment for theindecent assault of a 15-year-old girl. He says that the sentence is manifestly excessive and should, in any event, have been commuted to one of home detention.The District Court decision[2] Mr Masei came before Judge RLB Spear on 19 May 2016 for sentencing, having been convicted at trial.1 The Judge set out the basis for sentencing as follows:[2] The facts of the offending are disturbing. You resided in the Temple View community with your wife and your two young daughters aged two and three years of age. The victim is a young Japanese girl who was 15 years of age at the time; that is, July 2014. She was part of a school group that had travelled to New Zealand for overseas experience and the members of that group were billeted with different families as they made their way around New Zealand. When they came to Hamilton this young girl was billeted with your family.[3] Regrettably, your wife had an obligation at your church that first evening and she left you in charge of not only your young daughters but also this young 15 year old girl. The evening unfolded by you placing a mattresson the floor of the living room. You put a DVD of a children's movie on theTV and with your two young children and the victim in this case sat down to watch the movie. The lights were turned off. At some stage, you arranged for your daughters to go out to the kitchen and used this opportunity to interfere with this young girl.[4] The complainant had very little English and you have English only as a second language. That required at the trial for you to have the assistance of an interpreter. You used the opportunity presented by the absence of your two young daughters to approach the complainant asking her whether you could make a secret and you then proceeded to touch her on various parts of her body. She said, during the course of her evidence (which was transmitted from Japan), that you touched her all over her body and that you tried to take her clothes off. You touched her breasts over her pyjamas top and put your hands down her pyjamas pants touching her around the genital area although over her underpants. This was just not brief touching but touching involving rubbing her using circular motions and with some pressure. As best she could, she told you not to touch her. You persisted until she said that she had a stomach ache and that she had to go to the toilet.[5] When in the toilet with the door locked, she sent a text to one of her classmates who was billeted at another home, told her what was happening and asked her for help. That other student contacted the teacher. Eventually, the police were informed and they arrived at your address with the complainant still locked in the toilet. You had endeavoured to persuade her to come out saying that one of your daughters needed to go. That indicates in my view your inability even now to understand the enormity of what you had done and the effect that it had on that young girl. She was heavily traumatised by this experience and of course it ruined her trip to New Zealand.[6] There is a victim impact statement that has been filed and translated. She says that before participating in this home stay programme by coming to1 R v Masei [2016] NZDC 8939.New Zealand she had hoped to study abroad for a year as her next step in her education but she has given up that plan. She has decided to restrict her University studies to subjects that do not have a study abroad option. Shesays, and this of course is a translation, "I want the defendant to repent for and expiate the crime and never repeat anything like this."[3] Judge Spear adopted a starting point of 15 months' imprisonment andincreased that by six months:[14] I consider that it is aggravated because of the breach of trustinvolved and her peculiar vulnerability because she was a young Japanese girl here on a school visit, billeted to your family with limited English in a foreign country and she has been harmed significantly because of what you did.[4] The final starting point of 21 months' imprisonment became the end sentencebecause the Judge rejected the defence submission that Mr Masei displayed any remorse. To the contrary, the Judge was concerned, as reported by the probation officer, that Mr Masei lacked empathy for the victim, did not believe he had caused her any harm and was sorry only for the predicament he was in because of the offending.2[5] Judge Spear rejected home detention as a sentencing option because heconsidered the offending to be "simply too serious to be permitted to be dealt with in the community".3Discussion[6] Ms Green for Mr Masei accepted that, on the cases, a starting point for the type of offending committed by Mr Masei is generally 18 months' imprisonment.However, in this case, Ms Green submitted that the starting point and the end point should be 15 months' imprisonment. Ms Green took us through a number of cases in2 At [15].3 At [16].support of her submission.4 Ms Green focused on the type of touching and emphasised that it was not skin-on-skin contact.[7] We did not find the comparison of the offending in this case with that in other cases to be particularly helpful. There is no sentencing tariff for indecent assault of a young person and, as is to be expected, none of the other cases referred to are particularly similar to the present one.[8] We agree, however, that the general starting point for indecent assault of a person aged 15 years with the characteristics of Mr Masei's offending is around18 months' imprisonment. Mr Masei's offending was not fleeting. The touching of the genitals, albeit over the complainant's underwear, was prolonged and active.[9] In addition, Judge Spear was not wrong in principle to emphasise the particular breach of trust and the particular vulnerability of this complainant. His final starting point of 21 months' imprisonment can be seen as stern, but not outsidethe range available to the Judge.Home detention[10] Judge Spear said that "imprisonment will usually be the only appropriate sentence for sexual offending against children".5 While imprisonment might frequently be required, we emphasise that there is no presumption that sexual offending against children will result in imprisonment.6[11] It is well settled that a sentence of home detention has significant characteristics of denunciation and deterrence.7 Here, the Judge focused on the seriousness of the offending in deciding that home detention was not an available4 R v S CA465/05, 11 April 2006; Berryman v R HC Hamilton A91/98, 28 August 1998; McKelvey v Police HC Palmerston North CRI-2004-454-69, 24 September 2004; R v McEwen CA135/03, 19 June 2003; R v M CA197/00, 19 July 2000; Singh v Police [2015] NZHC 2003; R G v Police[2015] NZHC 72; Logan v Police [2013] NZHC 1631; Halley v Police HC Auckland CRI-2006- 404-320, 20 October 2006; F v R CA169/03, 15 September 2003; R v Winton CA142/92, 9 July 1992; J (CA680/2013) v R [2014] NZCA 63; R v Parker [2007] NZCA 534; ZZ (CA369/2011) v R [2011] NZCA 662; Kennedy v R [2011] NZCA 569.5 R v Masei, above n 1, at [12].6 ZZ (CA369/2011) v R, above n 4, at [32]–[36].7 R v Iosefa [2008] NZCA 453 at [41].sentence. He did not, however, consider in the home detention context Mr Masei'sposition as a first offender.[12] Nevertheless, the Judge did not err in deciding not to exercise his discretion to commute the sentence to one of home detention. The offending was serious and the fact that this is Mr Masei's first conviction is offset by his lack of remorse. The Judge rightly considered lack of remorse as an important factor in the decision not to sentence Mr Masei to home detention:[13] I consider that the attitude you have or the lack of empathy, perhaps even the lack of understanding as to the effect of your offending on this young girl, is such that an electronically monitored sentence would be quiteinappropriate [13] We accept that home detention was an available option at sentencing. If Mr Masei had shown genuine remorse and there were real indications that home detention would foster his rehabilitation then, given that this was a first offence, it was an option that should perhaps have been chosen. In the absence of thosepositive factors, we cannot say that the Judge's decision not to sentence Mr Masei to home detention was wrong. The sentence of 21 months' imprisonment was notmanifestly excessive.Decision[14] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent