SHIMMIN v R [2022] NZCA 434

SHIMMIN v R [2022] NZCA 434 [14 September 2022]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 AOTEAROACA82/2022[2022] NZCA 434BETWEEN RHETT SHIMMINAppellantAND THE KINGRespondentHearing: 22 August 2022Court: Goddard, Brewer and Edwards JJCounsel: J F M O'Halloran and G H Vear for the AppellantA M McClintock for the RespondentJudgment: 14 September 2022 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] Following a jury trial in the District Court at Auckland, Mr Shimmin wasconvicted of a representative charge of sexual violation by rape; a charge of sexualviolation by unlawful sexual connection (connection between penis and mouth); anda representative charge of sexual violation by unlawful sexual connection(digital penetration). He had earlier entered a guilty plea to an unrelated charge ofcommon assault.[2] On 18 January 2022, Judge Bergseng, who had been the trial judge, sentencedMr Shimmin to five years and 11 months' imprisonment.1 Mr Shimmin appealsagainst that sentence on the basis that insufficient credit was given for personalmitigating factors, resulting in a manifestly excessive sentence.2The offending[3] The following description of the offending is taken from the sentencing notesof the trial Judge.3[4] The offending took place in the early hours of 16 February 2019. The nightbefore, the victim and her friends were waiting for cars to take them from a nightclubback to the victim's home. One of the victim's friends approached Mr Shimmin andasked him for a light. After talking with the victim's friend for a while, Mr Shimminwas invited back by her to the victim's address, where the group continued to socialise.[5] At around 4.00 or 5.00 am in the morning, the victim went into the kitchen tomake herself a cup of tea. Mr Shimmin followed her and there was consensual kissing.Both parties moved to her bedroom where consensual sex took place. At some pointthe victim's friend walked into the bedroom or opened the bedroom door. The victimfound this embarrassing and told Mr Shimmin she wanted the sex to come to an end.The victim went to sit up, but Mr Shimmin carried on kissing her. She stood up to puther underwear on, but he grabbed hold of her, and pulled her back onto the bed.The victim described Mr Shimmin effectively ripping her underwear off andcontinuing to have sex with her.[6] The victim was saying things such as, "No, that's enough", throughout. Shewould try to get up, only to be pulled back down onto the bed. The victim describedMr Shimmin flipping her over, putting her in different positions, and at one pointgrabbing her arms. The victim told Mr Shimmin to stop having sex with her. She wasrepeatedly thrown on to the bed. She was also bent over the bed, causing herconsiderable pain. On occasion, the victim would call out things such as, "Ow" or,1 R v Shimmin [2022] NZDC 591 at [103].2 A challenge to the starting point is no longer pursued.3 R v Shimmin, above n 1."You're hurting me, that's sore, don't do that". When Mr Shimmin wouldmomentarily stop for a rest, she would try to move to the end of the bed and say,"That's enough, I'm going back out", but Mr Shimmin would continue.[7] The offending involved Mr Shimmin forcing his penis into the victim's mouthfor about 20 seconds. At different times, he also put his fingers into her vagina havingspat on them first. The Judge sentenced Mr Shimmin on the basis that thenon- consensual sexual activity lasted somewhere in the range of 30 to 40 minutes.[8] Eventually, the victim was able to leave her room. Because of her behaviour,her friends became concerned about her and she told them that she wantedMr Shimmin to leave. Mr Shimmin refused to do so, made threats about getting agang to visit the address, and then ultimately left. The victim had injuries to her back,hand welts on her buttocks, and nail scratches and fingerprints on her body.[9] The common assault charge arose from events which occurred at around1.20 am on 14 March 2021. Mr Shimmin was on bail awaiting trial at the time.He was intoxicated and became involved in an altercation with a busker onQueen Street. He lunged towards the busker's guitar case and punched him to theback of the neck. Mr Shimmin continued to want to fight with the victim despite himgathering his belongings and readying himself to leave.The District Court sentence[10] The Judge canvassed the nature of the offending, Mr Shimmin's personalcircumstances, the victim impact statement, the pre-sentence report, letters of remorsefrom Mr Shimmin and letters from Mr Shimmin's supporters at the outset of thesentencing.[11] In setting the starting point, the Judge identified the aggravating features of theoffending as: the harm to the victim; the forceful nature of the offending; its duration(approximately 30 to 40 minutes); and the multiple occasions when the victim soughtto stop Mr Shimmin, including when she was in pain.44 R v Shimmin, above n 1, at [60].[12] The Judge considered the offending fell within band 1 of R v AM.5 That bandattracts a range of six to eight years' imprisonment. A starting point of seven years'imprisonment was adopted.6[13] Mr Shimmin's prior convictions were referred to by the Judge. These includedconvictions for one charge of assault with intent to injure, two charges of assault andone charge of speaks threateningly from March 2019.7 The Judge did not apply anuplift for these prior convictions and did not consider there to be any other personalaggravating factors.[14] As to personal mitigating factors, the Judge applied a discount of five per centfor Mr Shimmin's relative youth.8 Mr Shimmin was aged 24 years and nine monthsat the time of the offending and the Judge noted that this discount was "very much atthe outer reaches" of the circumstances that usually justify a discount for youth.9[15] The Judge then turned to consider the report prepared under s 27 of theSentencing Act 2002 and the psychological report prepared on behalf of Mr Shimmin.The Judge expressed concerns about the s 27 report and considered it to be of limitedvalue. Reliance was instead placed on the psychological report prepared byMr van Rensburg, a registered clinical psychologist. After referring to the factorscanvassed in that report, the Judge applied a 10 per cent discount for Mr Shimmin'sbackground, willingness to engage in ongoing rehabilitation, and remorse.10[16] Accordingly, the starting point of seven years was reduced by 15 per cent, and,with some rounding, resulted in an end sentence of five years and 11 months'imprisonment.11 A sentence of one month's imprisonment, concurrent on the sentencefor the sexual offending, was imposed for the common assault.125 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [93].6 R v Shimmin, above n 1, at [62].7 At [23].8 At [75].9 At [75].10 At [97]–[98].11 At [99].12 At [101].Is the sentence manifestly excessive?[17] Ms O'Halloran, counsel for Mr Shimmin, does not challenge the starting pointof seven years' imprisonment or the five per cent discount for youth. However, shesubmits that the aggregate 10 per cent discount applied for Mr Shimmin's background,prospects of rehabilitation, and remorse did not adequately account for each of thesethree mitigating features and led to a manifestly excessive sentence.[18] We start with Mr Shimmin's background. This was canvassed in thes 27 report and the psychological report filed with the Court. Like the Judge, we findthe psychological report prepared by Mr van Rensburg to be of greater value inassessing whether anything in Mr Shimmin's background diminishes his culpabilityfor the offending.[19] As detailed in the psychological report, Mr Shimmin was born in South Africaand immigrated to New Zealand when he was three years old. His childhood wasmarred by arguments between his parents, and a difficult relationship with his father.His parents divorced when he was about 11 or 12 years old and his mother remarriedabout 18 months later. There was conflict between Mr Shimmin and his stepfatherand stepbrother.[20] Mr Shimmin sustained a serious head injury when he was nine years old andsuffered further head knocks later on when taking part in boxing. Mr Shimmin showedsome signs of memory or other learning deficits which Mr van Rensburg consideredcould be explained by the head knocks and/or Mr Shimmin's heavy use of alcohol andMDMA. Despite these deficits, Mr Shimmin completed school, achieving NCEALevel 3. He pursued several employment opportunities after leaving school, and wasworking as a builder's apprentice at the time of the offending.[21] The psychological report records that Mr Shimmin started watching adultpornography and this was where he was introduced to "rough sex" which,Mr Shimmin said, appealed to many of his one-night stands and to sex workers withwhom he had sex. Mr van Rensburg notes in the report that the manner in whichMr Shimmin relayed that information left him with the impression that Mr Shimminactually believed that "rough sex" was what most women desired.[22] Mr van Rensburg concluded:46. Mr Shimmin has taken responsibility for the offending and appears tobe remorseful. While the offending cannot be condoned in any way,the context in which it took place as well as factors fromMr Shimmin's background, may be mitigating. It is common causethat the sexual encounter between him and his victim started on aconsensual basis, while both were seemingly intoxicated. It is likelythat his practice of "rough sex" was not acceptable to his victim andthat she wanted to extricate herself from the encounter. The fact thathe then continued to treat her "roughly" appears to have been afunction of his intoxication and his misguided idea about what womenwant from sex, an idea that had been reinforced through his experiencewith pornography, one-night stands and sex workers.47. I did not get the impression that Mr Shimmin had a hostile attitudetowards women, but rather that he had very poor intimacy skills andby his own admission, did not know how to make love in a mutuallygratifying and uplifting manner. While a head injury in his childhoodmay have played a role in impeding his academic performance andindirectly his social development, it is more likely that poor parentalmodelling and in particular his father's aggressive attitude towardshim, contributed to his poor self-image and lack of intimacy skills.His later excessive use of alcohol and MDMA would have led to himbeing vulnerable and suggestible towards impulsive decisions andinvolvement in activities such as pornography, gambling and aberrantsexual practices.[23] Finally, Mr van Rensburg noted that while Mr Shimmin's childhood wassubject to dysfunctional family relationships, the situation had now stabilised and heenjoyed positive support from his mother and stepfather. It was recommended thatMr Shimmin receive psychological treatment in order to prioritise addressing hisaddictive behaviour, and deficits in intimacy, learning and memory.[24] Ms O'Halloran submits that this psychological report identifies a causativerelationship between Mr Shimmin's upbringing and cognitive distortions in relation torelationships, intimacy and sexual behaviours. The report is also relied on to supportMr Shimmin's rehabilitative prospects. Ms O'Halloran submits that the identificationof deviant belief systems has allowed Mr Shimmin to reflect on his behaviour, theharm that has resulted from it, and commit to change. She says that a discount of15 per cent for personal background factors and the prospects of rehabilitation isjustified in this case and an additional five per cent discount for remorse should alsobe applied.[25] On the basis of Mr van Rensburg's report, we accept that Mr Shimmin's familybackground and personal experiences may have contributed to Mr Shimmin havingdistorted beliefs around sexual relationships and behaviours. But that alone is notenough to warrant a discount. What is required is a causal nexus between the personalbackground factors and the offending which operates to diminish Mr Shimmin'sculpability.13 That causal nexus is missing in this case. Whatever distorted beliefsMr Shimmin may have been harbouring at the time, they must have been quicklydispelled by the victim's repeated and express protestations that she no longer wantedto have sex. Nevertheless, Mr Shimmin persisted with forceful and painfulnon- consensual sex for 30 to 40 minutes.[26] Ms O'Halloran points to Mr van Rensburg's conclusions that Mr Shimminlacks hostility towards women. But this simply evidences the absence of anaggravating feature rather than the presence of a mitigating feature justifying adiscount from sentence.[27] Ultimately, we are not persuaded that the link between Mr Shimmin's personalbackground and the offending materially diminishes his culpability for the offending.[28] As to rehabilitative prospects, we agree that the psychological report evidencessome insight by Mr Shimmin into his offending-related behaviours. The ongoingsupport of his mother and stepfather, and the letters of support from friends and hisemployer, also bode well for Mr Shimmin's reintegration into society. But these arevery small steps on the path to rehabilitation and reintegration, and it is still early days.A modest recognition of these factors was justified in the circumstances.[29] Similar observations apply to the discount for remorse. The psychologist andthe Judge considered Mr Shimmin's remorse to be genuine and we have no reason todisagree. Nevertheless, the expression of remorse came relatively late in the piece,and it appears to have stemmed from Mr Shimmin's recognition of some of theunderlying contributors to his offending. To this extent, there is an overlap with anydiscount available for rehabilitative prospects, which must be reflected in the totaldiscount applied.13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].[30] The discount applied by the Judge for Mr Shimmin's relative youth must alsobe taken into account. Mr Shimmin was 24 years and nine months old at the time ofthe offending. As noted by the Judge, the five per cent discount applied was at the"outer reaches" of what would otherwise be available.14 It appears to have been basedon the factors canvassed in Mr van Rensburg's report, including a vulnerability toimpulsive decision making. The youth discount may also reflect the rehabilitativeprospects for young offenders. Here too there is an overlap between the factorscaptured by this discount and the others which are the subject of this appeal.[31] Looking at these factors in the round, we are not persuaded the Judge erred byaggregating the discount available for Mr Shimmin's background, rehabilitativeprospects, and remorse. A 10 per cent discount for these factors was within range, aswas the total discount of 15 per cent for personal mitigating factors. The end sentenceof five years and 11 months' imprisonment for the sexual offending was not manifestlyexcessive.Result[32] The appeal is dismissed.Solicitors:Public Defence Service, Auckland for AppellantCrown Solicitor, Auckland for Respondent14 R v Shimmin, above n 1, at [75].