R (CA274/2018) v R [2018] NZCA 565

R (CA274/2018) v R [2018] NZCA 565 [6 December 2018]ORDER PROHIBITING PUBLICATION OF THE NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF THE APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF THE NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF THE COMPLAINANTSPROHIBITED BY S 203 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA274/2018[2018] NZCA 565BETWEEN R (CA274/2018)AppellantAND THE QUEENRespondentHearing: 2 October 2018 (further evidence received 5 November 2018)Court: Gilbert, Mallon and Dunningham JJCounsel: A M Simperingham and M J Lynch for AppellantJ A Eng for RespondentJudgment: 6 December 2018 at 4 pmJUDGMENT OF THE COURTA The application to adduce further evidence is granted.B The appeal against sentence is allowed.C The sentence of 10 years and six months' imprisonment with a minimumperiod of imprisonment of four years and six months is quashed and asentence of nine years and four months' imprisonment with no minimumperiod of imprisonment is substituted.D Order prohibiting publication of the name, address, occupation oridentifying particulars of the appellant pursuant to s 200 of the CriminalProcedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] The appellant pleaded guilty to 12 charges of sexual offending involving fiveyoung women, the youngest of whom was only 11 when the first charge of indecencyoccurred.[2] On 27 April 2018, the appellant was sentenced by Judge Cathcart to a term ofimprisonment of 10 years and six months on the lead charge of rape, with variousshorter sentences imposed on the other 11 charges, to be served concurrently.1[3] The appellant appeals against the sentence on the ground it is manifestlyexcessive because the Judge:(a) did not adequately take account of various mitigating factors and giveproper credit for these; and(b) did not give proper credit for the guilty pleas on all charges.BackgroundThe offending[4] Little needs to be said about the offending as there is no challenge to thestarting point, which was set having regard to the aggravating and mitigating featuresof the offending. The complainants were all young female relatives of the appellantor female friends of his relatives.1 R v[R] [2018] NZDC 8300.[5] The offending began in 1994 when the first complainant, the appellant's niece,was 11 years of age. He indecently assaulted her then and again two years later whenshe was 13 years old. When she was 16, he took her and a friend of hers away withhim to Hamilton. He gave the two girls alcohol, then indecently assaulted his niece ina variety of ways. He attempted to rape the friend of the niece as his niece watched,and then he raped his niece.[6] The appellant indecently assaulted the third complainant, a 15-year-old femalerelative, in 1994. After a social gathering, she awoke finding that her pants had beenpulled down and the appellant was rubbing her breasts and vaginal area.[7] In 1997 the appellant indecently assaulted the fourth complainant, his son's15-year-old girlfriend. After a family gathering she put her intoxicated boyfriend tobed and lay down beside him. The appellant entered the room and kissed her on themouth, only stopping when other people could be heard outside the room.[8] The fifth complainant was another friend of the appellant's niece (the firstcomplainant). The indecent assaults against her occurred in 2014, several years afterthe offending against the other four complainants. After a family funeral, the appellanthugged this complainant and then groped her buttocks and vagina. When she pushedhim away, he licked her neck up toward her face.The laying of charges[9] The charges, except for the rape and attempted rape charge, were laid on20 July 2016. The charge of attempted rape was not laid until 11 October 2017.The charge of rape was laid on 6 December 2017 following a further statement beingmade by that complainant on 22 November 2017. The trial was scheduled for12 February 2018.The entry of the guilty pleas[10] On 7 February 2018, counsel for the appellant filed a memorandum inthe District Court confirming that guilty pleas would be entered on all charges and that"accordingly, [the appellant] can be arraigned at the trial callover to be held onMonday 12 February at 9.30 am".[11] Following receipt of counsel's memorandum, the District Court apparentlydirected the appellant to appear and be arraigned on Friday 9 February 2018.Counsel for the appellant confirmed that the Court Registrar sent an email to his firmon 8 February 2018 stating "this is to confirm [the appellant's] matter will be calledon Friday 9 February 2018 for him to be arraigned".[12] The appellant did not attend when the proceedings were called on9 February 2018 and the Judge was critical of this decision. He issued a minuterecording that he "had passed on to the registry [his] direction that [he] had anticipated[the appellant] would be arraigned today and would plead guilty to avoid these costs,and inconvenience to the witnesses". However, the Judge noted that counsel did notconvey to the appellant that this was a direction of the Court and, in the circumstancesthe Judge was "not able to direct the Crown to stand down its witnesses".[13] On 12 February 2018, the day the trial was due to commence, the appellantappeared and entered guilty pleas to all charges. The timing of these events is relevantto the discount afforded to the appellant for his guilty pleas.District Court sentencing[14] The Judge adopted a starting point of nine and a half years' imprisonment forthe lead offence of rape.2 That was adjusted upwards to reflect the other offending toreach an overall starting point of 13 years' imprisonment.3[15] Twenty-one character references were supplied in support of the appellant and,although he did have two historic convictions for sexual assaults, the Judge allowed adiscount of four months for good character.4 He also allowed a discount of six monthsfor genuine remorse.52 At [23].3 At [26].4 At [29].5 At [31].[16] A discount was then sought for various features of the appellant's personalcircumstances. These included his assertion that he had been abused as a young man,the fact that he was in poor health and the effects on his family, including on his wifeof 41 years and on his elderly father who had health issues of his own. The Judgeapplied a cumulative discount for all these factors of a further six months.6[17] In discussing what discount to give for his guilty pleas, the Judge placedconsiderable weight on the appellant's failure to appear on the Friday before trial, andthe consequent effect that this had on the Crown and on witnesses who had to travelto Gisborne on Monday in case the appellant did not plead guilty. The Judge explained"the whole purpose of the earlier arraignment was to avoid that inconvenience,emotional stress and considerable costs to the State". He said "you chose not to dothat and I was critical of your decision".7 In consequence, the Judge gave a discountof only 10 per cent for the guilty pleas.8[18] Finally, the Judge imposed a minimum period of imprisonment of four yearssix months, requiring the appellant to serve just over 40 per cent of his sentence beforehe is eligible for parole.9Did the Judge fail to properly take account of mitigating factors?The appellant's submissions[19] Mr Simperingham submits that the Judge was unduly sceptical aboutthe appellant's claim to have been sexually abused when he was a younger man andthat there was sufficient material on which the Judge could have concluded thatthe appellant's experience of abuse was causative of the offending. The appellantreferred to the abuse in his interview with the Provision of Advice to Courts (PAC)report writer and also referred to it in explanation to the police when he was initiallyarrested on 20 July 2016. That was recorded in the summary of facts as follows:6 At [32]–[39].7 At [42].8 At [49].9 At [57].He said in explanation: "I was abused when I was younger. When I drink Iget flashbacks about what happened to me and it makes me angry ". Whenasked "Is that why you sexually abuse women?" he replied "Not all women".[20] The PAC report also touched on the appellant's history of abuse saying:[The appellant] said that he had "questioned himself" about what had led tohis offending over the years and would think about the trauma he hadexperienced when he was sexually abused at a similar age as his complainants He reported to have sought counselling for his own historic trauma inrecent years and it is understood he attended a number of sessions withPsychologist Mike Irving in Gisborne, demonstrating a proven ability toundertake rehabilitative interventions.[21] At sentencing, counsel referred to this history of abuse in his submissions butthe sentencing Judge remarked that there was no independent evidence to establishthat abuse and in any event, there was no evidence that the appellant's abuse wascausative of his offending.[22] At the hearing Mr Simperingham applied for leave to file further evidence onthis issue. We granted that application. A brief affidavit was subsequently filed froma psychologist who had met with the appellant in May 2016. He confirmed thatthe appellant disclosed that as a child/teenager he had been abused physically,mentally and sexually. He did not provide any evidence of a causal link betweenthe appellant's abuse as a complainant and his abuse as a perpetrator.[23] The appellant also contends that the sentencing Judge placed too little weighton the appellant's age and poor health. While the Judge noted that the appellant was67 and had high blood pressure, a heart condition, a thinning stomach lining and ananeurism, he concluded that they were not in the same category as offenders whosuffer "significant health issues which are advanced as a proper mitigatingcircumstance" and that there was nothing to suggest that the health problems could notbe adequately addressed by prison authorities and agencies.[24] Mr Simperingham also submitted that the appellant's medical condition haddeteriorated since he had been in custody. He provided a copy of the extensive medicalrecords retained by the prison which showed regular interactions with prison medicalstaff with a particular focus on difficulties with swollen legs causing him discomfort.Mr Simperingham contends that the totality of the appellant's medical conditionswarranted something more than the nominal discount included in the overallsix-month discount for personal circumstances.[25] In terms of the impact on his family, Mr Simperingham submitted that theeffects of the appellant's sentence on his wife of 41 years and his 88-year-old fatheralso meant that a long sentence of imprisonment was disproportionately severe.He provided additional evidence that the appellant's wife had suffered frombreast cancer for which she had undergone mastectomy operations in lateDecember 2016 and early January 2017, followed by radiation treatment in early 2017.She was still having regular check-ups to establish whether she was in remission.In respect of his father, the submission was that he relied heavily on the appellant tolook after him and to help him with everyday tasks such as cooking and shopping.The combined factors of the advanced stage of his father and his poor health andthe lengthy duration of his marriage and the illness of his wife, should have been givengreater recognition in the sentencing exercise.[26] Counsel for the appellant also takes issue with a discount of only four monthsto reflect the appellant's good character, saying this discount equates to only2.6 per cent of the starting point. He considers that the sentencing Judge reducedthe impact of the voluminous good character evidence, first by pointing to the fact thatthe appellant had two historic previous convictions for other sexual violation offenceswhich related to offending in 1971, some 47 years prior. These were committed whenthe appellant was 21-years-old and resulted in him being placed on probation fortwo years. Mr Simperingham submits that the sentence imposed is indicative of lowlevel offending and the sentencing Judge placed too much weight on them.[27] Mr Simperingham is also critical of the fact the Judge discounted the manycharacter references provided by the appellant saying "but Mrs Rielly is correct thatonly one of them appears to know about the level of offending here". In his view,the sentencing Judge was wrong to reach that conclusion simply becausethe references did not explicitly refer to the appellant's offending.[28] Finally, the sentencing Judge made two references to the appellant's offendingspanning a period of 20 years. However, the majority of the offending (and allthe serious offending) occurred between 1994 and 2000, a period of six years, andwhile he was sentenced on two offences arising from incidents in 2014, that offendingwas relatively low level and not in the same category as the offending between1994 and 2000. The appellant, therefore, submits that this is not a situation wherethe offending has occurred unabated over a prolonged period as the sentencing Judgesuggested. In all the circumstances, he submits that a greater discount should havebeen given to the appellant for his good character.Crown's submissions[29] The Crown submission was that, looked at in totality, the 16-month discountthe Judge gave for various personal mitigating factors was well within range andappropriately reflected the evidence before the Court on sentencing.[30] In the Crown's submission, the Judge was entitled to take a cautious approachto the appellant's reports of his own sexual abuse and their significance inthe sentencing exercise. Mr Eng noted that the appellant first alleged the abuse on hisarrest for the offending in the present appeal and there is no indication of a complaint,whether to police or otherwise, before that point, save for a non-specific reference tohim seeing a psychologist for "his own historic trauma". In any event, there was noexpert evidence provided as to the nature of the relationship between the allegedoffending against him and his offending. More cogent evidence is usually required tojustify a substantial discount.10[31] Mr Eng says the further evidence filed does not assist. It does not claim thereis a causal link between the reported abuse of the appellant and the admitted abuse byhim. It also suggests that the appellant was aware of the allegations being madeagainst him at the time he first alleged that he, too, had been abused.[32] In terms of the effects on the appellant's whānau, the Crown submits thatthe Court was entitled to put little weight on this as a mitigating circumstance.The Crown relies on the observation in McGregor v R where it was said:1110 See, for example, Hewitt v R [2018] NZCA 374 at [82]–[84].11 McGregor v R [2015] NZCA 565 at [46].It is well established that where the offending is serious and premeditated, andparticularly where it occurs over a lengthy period of time, the impact of thesentence on the family of the offender can play little, if any, role in sentence.[33] In respect of the appellant's age and ill health, the Crown accepts he suffersfrom a range of health conditions, including a thoracic aortic aneurism which requiresroutine monitoring, severe osteoarthritis of the left knee and various historicalconditions which have apparently been treated. However, the Crown's response tothe further medical evidence filed regarding the appellant's health since hisimprisonment is that nothing in those medical records disclosed a health issue thatmeant imprisonment would have a disproportionately severe effect on him.Indeed, when a Corrections Officer made an enquiry as to whether the appellant'shealth issues were a reason for him not to participate in any programmes, the responsefrom medical staff was that, apart for his knee condition which would explain hisnon-participation in sports, the appellant "does not have a health condition that wouldprevent him from partaking in the programmes your unit provides".Analysis[34] We accept the Crown's submission that, looked at in the round, the discountsafforded by the Judge were appropriate to reflect the appellant's personalcircumstances. In light of the appellant's two historic convictions for sexual assaults,and the time period over which the current offending occurred, we consider thatthe discount afforded for good character was generous. We also agree that his age andhealth issues are not factors which would make imprisonment a disproportionatelysevere experience or warrant a greater discount than that afforded by the Judge.[35] The appellant was afforded the opportunity to address the Judge's concern thatthere was no cogent evidence to support the claim of a causal nexus betweenthe appellant's own reported abuse and the current offending. However, the evidencefiled does not take the matter further. While Mr Simperingham submits that even inthe absence of such causal evidence, it is nevertheless a mitigating factor thatthe appellant was himself a complainant of sexual abuse, we consider that we are inno better position than the Judge was to assess whether this was a mitigating factor.[36] In our view, the overall discount of 16 months afforded to the appellant wasappropriate to reflect the combination of personal mitigating factors.Did the Judge fail to give proper credit for the appellant's guilty pleas?The appellant's submissions[37] Mr Simperingham submits that much turns on the sentencing Judge's views ofthe appellant's failure to attend Court on Friday 9 February 2018 to be arraigned.While the Judge apparently directed that the appellant was to be arraigned on that date,that "direction" was not conveyed in the email sent from the Court Registry to counselon 8 February 2018. Counsel's understanding was that the appellant's remand on bailwas until 12 February 2018 and the appellant was under no obligation to attend Courton 9 February 2018. Thus, while it was advisable for the appellant to attend on9 February, and that would have some bearing on the discount for guilty plea, he wasnot disobeying a direction by not doing so. Furthermore, the appellant had madearrangements on that date to attend a doctor's appointment in relation to his aneurism,which was confirmed by a doctor's certificate, and he also visited his elderly fatherfor what was, in all likelihood, the last occasion that he would ever see him.These commitments explained why he chose not to attend what he understood was avoluntary Court appearance on the Friday.[38] Mr Simperingham also submitted that the Judge was wrong to accept thatdeferring the plea until Monday necessitated that all the complainants should travel toGisborne in case he did not plead guilty. The decision whether to stand witnessesdown was a decision to be made by the Crown, and there was a back-up fixturescheduled for that week which, as it transpired, proceeded without delayon 12 February 2018. In all the circumstances, an appropriate approach would havebeen to stand the witnesses down until after 12 February 2018, proceeding withthe back-up trial, and then dispensing with the witnesses completely assuming guiltypleas on arraignment. The cause of expense to the state should not be visited onthe appellant, who had advised his intention to enter guilty pleas in sufficient time forthe Crown to make arrangements to proceed with the back-up fixture.[39] Furthermore, while most of the charges had been laid in 2016, the lead chargeof sexual violation by rape was laid on 6 December 2017. There were no scheduledCourt appearances for the appellant between the date that the rape charge was laid andhis trial date. Although there was a s 147 application scheduled for 9 February 2018,the appellant's attendance was excused on that day and, in any event, the Court wasnotified by memorandum dated 1 February 2018 that the defence would not pursuethe s 147 application prior to trial.[40] For these reasons, the appellant submitted that 12 February 2018 (or, at best,9 February 2018), was his first reasonable opportunity to enter a plea tothe 6 December 2017 rape charge.[41] Having regard to the policy reasons for guilty plea discounts, and in particularthat a guilty plea can assist complainants and families through its acknowledgementof responsibility for the offending and spare complainants the stress of giving evidencein the adversarial context of a criminal trial, the lead charge of rape should havewarranted close to a full discount.Crown's submissions[42] The Crown submits that the value of the guilty pleas was limited to a modestsaving in Court time and saving the complainants from having to give live evidence.The complainants were not saved the trauma of preparing for trial and they weresubjected to real uncertainty in the final few days before the entry of the pleas.By deciding not to attend Court on Friday 9 February 2018, the appellant causedthe complainants to travel to Gisborne for the scheduled trial.[43] In the Crown's submission, the relatively recent laying of the rape charge didnot change the fact that, as a group, the pleas were entered very late, and only pleas toall of the charges were able to substantially benefit the Court and the complainants.In that context, a discount of 10 per cent on all of the charges was, in the Crown'ssubmission, well within the available range.Analysis[44] The rationale for giving credit for guilty pleas is recognised inthe Supreme Court's decision in Hessell v R, as follows:12The policy reflects the benefits that a guilty plea delivers to theadministration of justice and to those who otherwise must participate in thetrial process. Avoiding the need for a trial saves the government costsassociated with the judiciary and providing prosecution and defence services There are also savings in fees paid to witnesses and jurors and in costsassociated with the use of court facilities As well as such savings in publicexpenditure and demands on state resources, the social utility of guilty pleasincludes benefits for witnesses and, in particular, complainants who are sparedthe stress of giving evidence in the adversarial context of a criminal trial. Aguilty plea often also assists complainants and their families through itsacknowledgment of responsibility for the offending. Even very late pleas willusually generate some of these systemic and social benefits. Theseconsiderations are based on expediency and social utility but are of importanceto the effective operation of the criminal justice system. In consequence, it isnow generally recognised that providing encouragement for guilty persons toadmit their guilt is a necessary incident of criminal justice.[45] Hessell emphasises that the allowance given should be the result of anevaluation of all the circumstances in which the plea is entered. When the plea isentered is only one of those circumstances.13[46] While this Court would not intervene in the exercise of the Judge's sentencingdiscretion where it is clear he or she is properly appraised of the circumstances ofthe guilty plea, in this case we have the following concerns:(a) It is implicit in the judgment that the guilty pleas to all charges weretreated on the basis they were all late guilty pleas.(b) The appellant's entitlement to a discount is assessed on the basis he hasdisobeyed a direction of the Court and is thereby responsible foradditional costs being incurred and further trauma to witnesses.[47] However, in our view, the entry of guilty pleas on the two most serious charges,the attempted rape and the rape, would ordinarily be treated as early guilty pleas.12 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].13 At [70].Indeed, had the only charge been the charge of rape, which was laid on6 December 2017, the advice given on 7 February 2018 that a guilty plea would beentered, followed by entry of the guilty plea on 12 February, could not be characterisedas anything other than an early guilty plea. Likewise, the plea to the attemptedrape charge was, in relative terms, given close to the date the charge was laid.[48] We also accept that, although the Judge understood he was directing the guiltypleas be taken on 9 February, that was not what was conveyed to the appellant throughthe email from the Court Registry.[49] In these circumstances, we consider it appropriate to reconsider this discount.We accept that the appellant's plea could not be characterised as an early plea on allcharges but it was on the two charges that made up the majority of the total sentence.Importantly, that early plea on the two most serious charges not only sparedthe complainants the distress of having to give evidence at trial, it also conveyed tothem that the appellant accepted he had offended against them as they alleged.There was also a saving in Court resources as another trial proceeded as a back-upfixture. In the circumstances, we would allow a 20 per cent discount forthe appellant's guilty plea. That would reduce his sentence by an additional14 months, from 10 years and six months to nine years and four months'imprisonment.[50] The Judge imposed a minimum period of imprisonment of just over 40 per centof the total sentence. We consider no minimum period of imprisonment was necessaryin this case. The offending was dated, the appellant is aged and unwell, he hasacknowledged the offending and shown remorse for it, and he has begun taking stepsto seek help for the abuse he suffered which he had identified as a possible cause forhis own offending. In these circumstances, the sentence itself is sufficient to meet thepurposes and principles of sentencing.Conclusion on sentence appeal[51] We conclude that the sentence imposed of 10 years and six months'imprisonment with a minimum period of imprisonment of four years and six monthswas manifestly excessive, particularly having regard to all matters which bore onthe discount for the guilty pleas.[52] The sentence should be replaced with a sentence of nine years and four months'imprisonment with no minimum period of imprisonment.Result[53] The application to adduce further evidence is granted.[54] The appeal against sentence is allowed.[55] The sentence of 10 years and six months' imprisonment with a minimumperiod of imprisonment of four years and six months is quashed and a sentence ofnine years and four months' imprisonment with no minimum period of imprisonmentis substituted.[56] To protect the identity of the complainants we make an order prohibitingpublication of the name, address, occupation or identifying particulars of the appellantpursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Woodward Chrisp, Gisborne for AppellantCrown Law Office, Wellington for Respondent