AUPOURI v R [2019] NZCA 216

AUPOURI v R [2019] NZCA 216 [12 June 2019]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 AOTEAROACA134/2019[2019] NZCA 216BETWEEN ROWEN TUAUAU AUPOURIAppellantAND THE QUEENRespondentHearing: 22 May 2019Court: Kós P, Peters and Mander JJCounsel: H N Tunstall and A M Simperingham for AppellantA J Ewing for RespondentJudgment: 12 June 2019 at 11 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mr Aupouri pleaded guilty to one charge of sexual exploitation of a personwith a significant impairment, under s 138(4) and (5) of the Crimes Act 1961.Judge Cathcart sentenced him to 18 months' imprisonment.11 R v Aupouri [2019] NZDC 4858 [Sentencing notes]. It may be noted that the maximum sentenceimposed by statute for that offence is five years' imprisonment: Crimes Act 1961, s 138(4).[2] Mr Aupouri contends that that sentence is manifestly excessive. He says, inparticular, that he should have been given a greater discount for his guilty plea andexpression of remorse. He says, also, that he should have been sentenced to homedetention.Background[3] The complainant was a severely intellectually disabled young woman of16 years. She had an IQ of just 44 and the functioning mental age of a seven year-old.At the relevant time she was staying with her brother. Mr Aupouri visited that house.When other family members were distracted, he persuaded the complainant go withhim to his house, two kilometres away, leading her there by the hand. In a bedroomhe attempted to remove the complainant's pants. His motivation for his doing so wassexual.[4] He was charged, initially with rape. Before trial however the Crown concededthat that charge could not be sustained and downgraded the charge to one ofsexual exploitation by sexual connection.2[5] At trial the complainant was cross-examined. It was put to her that she hadsought to hold the accused's hand, and that they had not gone to his house at all. At theend of the Crown case Mr Aupouri pleaded guilty to a further downgraded charge ofsexual exploitation by an indecent act.[6] In sentencing the Judge described the defence run as a "false defence",an "improper line of enquiry" and an "attempt to pervert the course of justice".3We agree with Ms Tunstall that that is a mischaracterisation. Mr Aupouri was entitledto put the Crown to proof. Subject to the absence of contrary confession (and thepresence of "reasonable instructions"), defence counsel was entitled to put alternativefactual propositions to the complainant in cross-examination.4 If the witness acceptedthose factual propositions, and the jury were persuaded also, they would then have2 Crimes Act, s 138(1) and (3).3 Sentencing notes, above n 1, at [5], [13] and [18].4 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 13.10.2 and13.13.2. See Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibilityand the Lawyer (3rd ed, LexisNexis, Wellington, 2016) at 380–384.become the facts of the case. But, on the other hand, we agree with the Judge thatcross-examining the complainant on the basis that her evidence in chief was untrue,will likely impair any available discount for remorse. Furthermore, to the extent a lateguilty plea discount reflects some credit for remorse, it too is likely to be impaired forthe same reason.Sentence imposed[7] In setting a starting point of 20 months' imprisonment, the Judge consideredtwo decisions of this Court dealing with the same charge.5 They were R v Tapson andR v Stewart.6 Stewart was the most relevant. In that case the complainant was a19 year-old intellectually impaired male. But it was a more serious case, involvingphysical arousal of the complainant's genitalia. It attracted a starting point of two anda half years' imprisonment.[8] In this case the Judge acknowledged receipt of a letter expressing remorse andregret, which he found sincere.7 But he regarded it as neutralised by the conduct ofthe trial: the attempt to shift responsibility to the complainant and the suggestion shehad made a false complaint altogether, in light of the subsequent acceptance ofresponsibility.8[9] Finally, the Judge considered the defendant's guilty plea, which occurredduring the course of trial. The Judge considered that the "false defence" rundiminished the extent of discount available for a guilty plea. In the end he allowed adiscount of 10 per cent, resulting in a final sentence of 18 months' imprisonment.9[10] That sentence offered the possibility of home detention. But in this casethe Judge considered the need for special deterrence and Mr Aupouri's history ofnon-compliance with court orders and community-based sentences made himunsuitable for a home detention sentence.105 Sentencing notes, above n 1, at [7]–[8].6 R v Tapson [2008] NZCA 155, [2008] BCL 683; and R v Stewart [2009] NZCA 117.7 Sentencing notes, above n 1, at [12].8 At [13].9 At [18].10 At [19]–[22].Appeal[11] Ms Tunstall submitted that while the offending was inherently serious,involving an indecent act against a severely intellectually impaired young woman, s 16of the Sentencing Act 2002 still required due consideration of a sentence other thanimprisonment. Section 8(g) of the Act also required imposition of the least restrictiveoutcome appropriate in the circumstances. An available address for home detentionhad existed. Mr Aupouri had never previously had the benefit of anelectronically monitored sentence. Although Mr Aupouri had a history ofnon-compliance with community-based sentences, he had a clear incentive to complyhere because of difficulties he had in prison: he had been stabbed by other inmates,resulting in temporary hospitalisation.[12] Secondly, Ms Tunstall submitted that the sentencing Judge failed to givean adequate discount for the guilty plea. Mr Aupouri had been charged with rapeinitially, but before trial that had been downgraded to sexual exploitation bysexual connection. Mr Aupouri was entirely entitled to defend that charge. It wasmaterially more serious than the charge of sexual exploitation by doing an indecentact to which he eventually pleaded guilty after the conclusion of the complainant'sevidence. Further, the remarks made by the Judge about the running of a false defencewere wrong and in any event irrelevant to the issue of the guilty plea discount.They unfairly coloured the Judge's assessment.[13] Thirdly, Ms Tunstall submitted that the Judge should have given a discount forremorse. The Judge found that there was genuine remorse. Mr Aupouri was willingto engage in restorative justice and willing to make an emotional harm payment. Afull discount for remorse should therefore have been offered.Discussion[14] We will deal first with the question of the appropriate sentence length, and thenturn to the question of home detention. That requires us to consider, first, the issuesof the credit given for the guilty plea, and non-credit for remorse.[15] We are satisfied that little if any credit for remorse should have been given inthis case. While the Judge misdirected himself in describing the defence as a"false defence", the fact remained that the complainant, with all her disadvantages,was put through the distressing experience of having to give evidence and becross-examined, in the course of which she was in effect branded a liar. Remorse inthis case was therefore wholly after the event. We do not consider the Judge erred indeclining to give credit for remorse.[16] We turn then to the question of the guilty plea. We agree with Ms Ewing thatalthough Mr Aupouri pleaded guilty promptly once the reduced charge was offered,that did not justify a full discount. Mr Aupouri took no earlier step to express awillingness to plead to a lesser offence on the basis of lesser offending. Had that actionbeen taken, we consider that Mr Aupouri might have been entitled to a full 25 per centdiscount. The belated acceptance of responsibility here means the maximum discountavailable is no more than 15 per cent. That would result in a reduction of the sentenceby only one month, and we are not prepared to conclude that this modest differencemeans the original sentence is manifestly excessive.[17] We turn now to the question of whether a sentence of home detention shouldhave been imposed. The Judge was right to say that specific deterrence was requiredhere. Mr Aupouri had received repeated prison sentences, this was a serious offenceagainst an extremely vulnerable young woman and one that plainly might have beeneven more serious again. Mr Aupouri's risk of reoffending was assessed as moderateto high. His criminal history is extensive, but confined to minor dishonesty and violentoffending. However, he has 17 convictions for escaping from custody, disregardingcourt orders, breaching release conditions, breach of supervision and failing to complywith police and District Court bail.[18] The Sentencing Act neither presumes for nor against commutation ofimprisonment to home detention. The margin of appreciation given by this Court tosentencing Judges will be substantial, because of the array of considerations requiringevaluation and the advantage the Judge has in having conducted the trial and formedan educated appreciation of the character of the defendant.11[19] In combination the need for deterrence and the woeful record of Mr Aupouriin complying with court orders stand firmly in the way of a sentence of home detentionon this occasion. Although that would be a less restrictive sentence, we are notultimately persuaded the Judge erred in declining to impose it.Result[20] The appeal against sentence is dismissed.Solicitors:Woodward Chrisp, Gisborne for AppellantCrown Law, Wellington for Respondent11 Palmer v R [2016] NZCA 541 at [19].