R (CA217/2018) v R [2018] NZCA 582

R (CA217/2018) v R [2018] NZCA 582 [13 December 2018]NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANTREMAINS IN FORCE.NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF THELOCATION OF THE OFFENDING, AGE AND GENDER OF THE VICTIM,THE RELATIONSHIP BETWEEN THE APPELLANT AND THE VICTIMAND THE CONTENTS OF THE VICTIM IMPACT STATEMENT REMAINSIN FORCE.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF VICTIM PROHIBITED BY SS 203 AND204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA217/2018[2018] NZCA 582BETWEEN R (CA217/2018)AppellantAND THE QUEENRespondentHearing: 12 November 2018Court: Asher, Lang and Moore JJCounsel: A M McCormick for AppellantE J Hoskin for RespondentJudgment: 13 December 2018 at 10 amReissued: 5 March 2019Effective dateof Judgment: 13 December 2018JUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The application to amend the grounds of appeal is declined.C The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] On 8 March 2018 R was sentenced to six years' imprisonment after pleadingguilty to five charges1 of sexually abusing a 10-year-old boy.2[2] R appeals the sentence on the ground that Judge R E Neave adopted a startingpoint which was too stern, resulting in an end sentence which was manifestlyexcessive.The offending[3] In late December 2016 R, then aged 17, was experiencing difficulties livingwith his father. This led to the victim's family inviting him to live with them in theirhome as a boarder.[4] When he first moved in, R slept in the victim's bedroom. The offending startedshortly afterwards. Ostensibly innocent, the conduct initially included good nighthugs but progressed to R kissing the victim on the lips and later touching his genitals.This conduct formed the basis of a charge of committing an indecent assault on achild.3[5] After R moved into his own bedroom at the other end of the house theoffending increased in frequency and seriousness.1 The five charges included one charge of indecent assault and four charges of sexual violation byunlawful sexual connection.2 R v [R] [2018] NZDC 4473.3 Crimes Act 1961, s 132(3); the maximum penalty is 10 years' imprisonment.[6] During the weekends R would have movie nights with the victim followingwhich the victim would sleep in R's bed. On approximately 20 occasions R pushedthe victim's head under the blankets and made the victim suck his penis. On at leastone occasion he ejaculated into the victim's mouth. On 10 to 15 occasions R suckedthe victim's penis. This offending is reflected in two representative charges of sexualviolation by unlawful sexual connection.4[7] On other occasions, estimated to be between 25 and 30, R engaged in analintercourse with the victim. This caused the victim substantial pain and rectalbleeding. A representative charge of sexual violation by unlawful sexual connectioncovers this offending.[8] The fourth charge of sexual violation relates to a specific event. R andthe victim were walking the victim's dog in a nearby park not long after R's 18thbirthday. R directed the victim to bend over a fallen log. He pulled the victim's pantsdown and had anal intercourse with him. His request to ejaculate in the victim's mouthwas refused.[9] The offending described above spanned a six-month period. It stopped onlywhen the victim's parents grew uncomfortable about the nature of the relationship andasked R to leave. The victim disclosed the offending shortly after.[10] R first appeared in the District Court at Christchurch on 2 August 2017.On 13 September 2017 he pleaded not guilty and elected trial by jury.On 29 November 2017 he vacated his not guilty pleas and pleaded guilty to allcharges.The appeal[11] Due to a misapprehension as to the proper appeal court, R's appeal was filedin the High Court at Christchurch. When counsel realised his error the notice of appealwas re-filed in this Court but by then out of time. An application for leave to appeal4 Sections 128 and 128B; the maximum penalty is 20 years' imprisonment.out of time was not opposed by the Crown. Given the circumstances and in theabsence of prejudice we grant leave.[12] Originally R advanced two grounds of appeal; first that the starting pointadopted by the Judge was too high and secondly insufficient credit was given for R'smitigating features. At the hearing before us, Mr McCormick, for R, abandoned thesecond ground but sought leave to advance a new ground. This was that the Judgeought to have adopted a different sentencing methodology which would have had theeffect of reducing the final sentence by one year. For reasons set out later inthis judgment we are not satisfied this is a case where leave should be granted toamend the grounds of appeal.[13] Thus the only issue remaining on this appeal is whether the starting pointadopted by the Judge was too high.Was the starting point too high?[14] As aggravating factors, the Judge identified the victim's vulnerability, the scaleof the offending (being the length of time over which the offending occurred and thevariety of sexual acts involved), the significant breach of trust and the harm caused.5He also noted the progressive nature of the culpable conduct, although he concludedit did not amount to sexual grooming.6 Neither did he treat the degree of violation asa separate aggravating factor given the emphasis he placed on the nature and extent ofthe indecencies when considering the scale of the offending.[15] Finding there were no mitigating features of the offending, the Judge acceptedthe Crown's submission that the conduct fell within the upper end of band two or thelower end of band three identified in R v AM (CA27/2009).7 He fixed a starting pointof 12 years' imprisonment.85 R v [R], above n 2, at [20]–[22].6 At [19].7 At [23], citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.8 R v [R], above n 2, at [23].[16] On this appeal Mr McCormick submitted the adopted starting point was toohigh. He said the offending warranted a starting point in the middle of band two, thatis between nine and 11 years' imprisonment. In support he relied on M v Police wherea starting point of eight years' imprisonment was fixed.9[17] Despite Mr McCormick's submissions on where the starting point should befixed, he did not dispute that the four aggravating factors identified by the Judge werepresent. We agree that each of the factors is present to a moderate degree.[18] First, it cannot be disputed that the victim was vulnerable. He was 10 yearsold at the time of the offending which took place in the home he shared with his family.[19] Secondly, R breached the trust he owed to the victim and his family. He wasnot a member of the victim's family, although he was treated as if he was while stayingwith them. It was a generous gesture by the victim's parents to invite R to share theirhome. Additionally, R was seven years older than the victim.[20] Thirdly, the scale of the offending was rightly classified as an aggravatingfeature. Starting with indecent touching, the offending evolved into regular andrepetitive serious sexual offending over a six-month period. It involved at least30 instances of oral sex and 26 instances of anal sex. Indeed we would go further.In our view, it was open to the Judge to treat the length of time during which theoffending occurred and the degree of violation as separate aggravating factors.[21] Fourthly, while harm is inherent in offending of this type, the victim sufferedphysical injuries in addition to emotional harm. Victim impact statements from thevictim and his parents reveal real and serious emotional consequences to the victimincluding suicidal ideation, anxiety, fear, and confusion over his sexual identity.[22] Offending within band two for sexual violation where the lead offence is penilepenetration of the mouth or anus attracts a starting point of between seven and13 years' imprisonment. Such a starting point is appropriate in cases involving two or9 M v Police HC Wellington CRI-2011-485-72, 21 September 2011 at [15].three aggravating factors which increase culpability to a moderate degree.10Offending falling within band three attracts a starting point of between 12 and18 years' imprisonment. Band three encompasses offending involving two or moreaggravating factors to a high degree such as where there is a particularly vulnerablevictim and serious additional violence.11 Recently, this Court has determined thatthose who sexually violate a young child repeatedly over a period of years shouldexpect to be dealt with under band three.12 We agree with the Crown's submissionthat by analogy R's offending, which occurred over a six-month period, is properlyplaced at the low end of band three or the high end of band two. That supportsthe Judge's conclusion that a starting point of 12 years was appropriate.[23] As noted earlier, Mr McCormick relied M v Police. That case involvedtwo discrete incidents when M sexually violated the victim he was babysitting.She was a member of his extended family. Mallon J placed the offending at the bottomof band two because, while she noted the victim was vulnerable, there was an absenceof other aggravating features such as a breach of trust, and the offending occurred ononly two isolated occasions.13 Plainly the circumstances in M are markedly differentand a good deal less serious than the present.[24] In our view a starting point of 12 years' imprisonment was well within thesentencing range available to the Judge.Should a different sentencing methodology have been adopted?[25] This issue may be dealt with in short order.[26] Mr McCormick relied on Reweti v R.14 There Simon France J, whilerecognising the conventional methodology set out in this Court's decision in Hessell vR is generally followed for reasons of consistency and transparency,15 observed itsapplication may have unintended consequences in some cases. In Reweti the adoption10 R v AM (CA27/2009), above n 7, at [98].11 At [105].12 C (CA100/2016) v R [2017] NZCA 58 at [14].13 M v Police, above n 9, at [14].14 Reweti v R [2018] NZHC 809 at [22].15 Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [21], discussed on appeal in Hessell v R[2010] NZSC 135, [2011] 1 NZLR 607 at [72]–[77].of the Hessell approach had the effect of reducing the sentence to two years andthree months' imprisonment, thereby removing the defendant's eligibility for acommunity-based sentence which Simon France J regarded as appropriate.[27] It was for this reason Simon France J decided to apply the guilty plea discountat the same time as other discounts. As a consequence, he arrived at an end sentenceof 22 months and imposed a sentence of home detention.[28] That situation is quite different from the present case. Given the seriousnessof the offending, eligibility for an alternative and lesser form of sentence is not inquestion. A substantial term of imprisonment is inevitable. We can see no justificationto depart from the conventional Hessell methodology, which has more recently beenendorsed by this Court in R v Clifford.16[29] Moreover, as the Supreme Court noted in Hessell, "in the end, [the sentencingjudge] must stand back and decide whether the outcome of the process followed is theright sentence".17 This reflects the requirements of s 85 of the Sentencing Act 2002.We are satisfied the outcome of the process the Judge followed led to the correctsentence being imposed.[30] For these reasons, we are not satisfied that leave to amend the grounds ofappeal should be granted.Result[31] The application for an extension of time to appeal is granted.[32] The application to amend the grounds of appeal is declined.[33] The appeal against sentence is dismissed.[34] For the avoidance of doubt, any District Court suppression orders are varied topermit the publication of the details in this judgment.16 R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].17 At [77].Solicitors:Crown Law Office, Wellington for Respondent