BURROWS v R [2023] NZCA 115

BURROWS v R [2023] NZCA 115 [20 April 2023]ORDER PROHIBITING PUBLICATION OF THE NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMSPURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA167/2022[2023] NZCA 115BETWEEN RYAN MARK BURROWSAppellantAND THE KINGRespondentHearing: 28 March 2023Court: Collins, Venning and Gendall JJCounsel: K H Cook for AppellantR B Annandale and T A Needham for RespondentJudgment: 20 April 2023 at 9.30 amJUDGMENT OF THE COURTA The appeal against sentence is allowed in part.B The sentence in relation to the sexual connection charge against Victim Ais quashed and substituted with a sentence of five years six months'imprisonment.C The cumulative sentences for the sexual connection charges againstVictims F and G are quashed and substituted with concurrent sentencesof four years' imprisonment in relation to each charge.D The sentence of six months' imprisonment for perverting the course ofjustice is cumulative on the sentence of five years six months'imprisonment in relation to the sexual connection charge in relation toVictim A. All other sentences imposed by the High Court are upheld.E The end sentence is six years' imprisonment.F We impose a minimum period of imprisonment of two-thirds (three yearsseven months) in relation to the sexual connection charge against VictimA.G We make an order prohibiting publication of the names, addresses,occupations or identifying particulars of victims pursuant to s 202 of theCriminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Burrows pleaded guilty to 21 sexual charges, one charge of attempting topervert the course of justice and one charge of offering to supply cannabis to a personunder 18 years of age. The most serious of the sexual charges were three charges ofsexual connection with a person under 16 years of age (sexual connection charges).[2] Mr Burrows was sentenced by Gordon J in the High Court at Whangārei.1 TheJudge sentenced Mr Burrows to:(a) three years' imprisonment in relation to one sexual connection charge;(b) two years' imprisonment in relation to the second sexual connectioncharge; and(c) one year imprisonment in relation to the third sexual connection charge.[3] Those sentences were cumulative and produced a total of six years'imprisonment.1 R v Burrows [2022] NZHC 389 [Sentencing notes].[4] The Judge sentenced Mr Burrows to six months' imprisonment in relation tothe charge of attempting to pervert the course of justice. That sentence was cumulativeupon the three sexual connection sentences. This produced an end sentence of sixyears and six months' imprisonment.2[5] The remaining sexual offence charges were dealt with by way of concurrentterms of imprisonment, ranging from nine to 18 months' imprisonment. The chargeof offering to supply cannabis was dealt with by imposing a concurrent term of18 months' imprisonment.3[6] The Judge set a minimum term of imprisonment (MPI) that Mr Burrows mustserve before he is eligible to be considered for parole. The Judge articulated the MPIin the following way:4I order that you are to serve a minimum term of two-thirds of your six yearsand six months sentence before you are eligible for parole pursuant to s 86 ofthe [Sentencing] Act [2002].[7] Mr Burrows appeals the sentence on three grounds:(a) The starting point of nine years and six months' imprisonment for thesexual connection charges was manifestly excessive.(b) Insufficient credit was given for factors personal to Mr Burrows.(c) The MPI was wrong in law because it could not be imposed oncumulative sentences and, in any event, was unwarranted.Facts[8] Mr Burrows' offending occurred between January 2012 and November 2018,when he was between 24 and 30 years of age.2 At [130].3 At [130].4 At [131].[9] There were 15 victims, all of whom were boys or teenagers. Their ages rangedfrom 10 to 17 years.[10] Mr Burrows' first tranche of offending occurred in Christchurch when he wasemployed as a youth group leader and outdoor education teacher. It was in thatcapacity Mr Burrows met the Christchurch victims. The second tranche of offendingtook place in Northland. Mr Burrows met most of the Northland victims throughsocial connections.[11] In conveying the scale and seriousness of Mr Burrows' offending, the Judgeidentified that the offending was characterised through the use of bribery and rewards.5He used gifts and favours to bargain with his victims for sexual services. The Judgeexplained that on a number of occasions Mr Burrows provided the victims withcannabis, alcohol, cigarettes and other items of value. Examples of this sort ofmanipulation included:(a) Making deposits totalling $3,710 into one victim's bank account.Mr Burrows also brought the victim alcohol, a ticket to a concert andother gifts. In exchange, the victim had to let Mr Burrows masturbateand perform oral sex on him. The victim was also required to sendpictures of his penis to Mr Burrows.(b) Offering to pay $1,000 to another victim, who was in debt for $10,000,in exchange for Mr Burrows performing oral sex upon him.Mr Burrows arranged to meet the victim on several occasions at apublic toilet and sometimes took him to a motel. He also gave thevictim cigarettes, alcohol and cash.[12] We shall explain in more detail the offending in relation to the victims of thesexual connection offending.5 At [15]–[16].Victim A[13] Victim A was 14–16 years old at the time Mr Burrows offended against him.The offending against Victim A occurred in Christchurch after the victim had beensent to an alternative education programme in response to his behavioural issues. Ata camp, Mr Burrows masturbated himself while touching Victim A's penis. During thecourse of the education programme, Mr Burrows gained the trust and confidence ofVictim A. This led to Mr Burrows offering Victim A money in exchange for the victimallowing Mr Burrows to touch his penis and bottom.[14] On one occasion, when Victim A was visiting Mr Burrows at his home,Mr Burrows offered Victim A $50 worth of cigarettes if the victim masturbatedMr Burrows during a shower. During this incident, Victim A reluctantly agreed toperform oral sex on Mr Burrows in exchange for money.[15] There were a number of incidents where Mr Burrows masturbated Victim Aand another occasion of sexual connection when Mr Burrows persuaded Victim A toperform oral sex on Mr Burrows while Mr Burrows was driving his van.Victim F[16] Victim F was 13 years old at the time Mr Burrows offended against him. Theoffending started off with Mr Burrows giving Victim F "a hand job" in exchange forcigarettes.[17] On another occasion, Victim F was staying at Mr Burrows' property inChristchurch. Mr Burrows took Victim F to a nearby school property and offered tobuy the victim cannabis if the victim would allow Mr Burrows to perform oral sex onhim. Mr Burrows took the victim to an attic in a school property and performed oralsex on the complainant.Victim G[18] Victim G was about 13 or 14 years old when Mr Burrows started offendingagainst him. Mr Burrows befriended the victim and allowed him to drive Mr Burrows'van, during which times Mr Burrows would rub the victim's leg. During the courseof their association, Mr Burrows performed "hand jobs" on the victim. On oneoccasion Mr Burrows offered the victim 50 grams of tobacco if the victim allowedMr Burrows to perform oral sex on him. The victim reluctantly agreed.Attempting to pervert the course of justice[19] After one victim reported Mr Burrows' offending to the police, Mr Burrows'attempted to persuade the victim to delete messages and photographs that mightincriminate him. Mr Burrows arranged to meet the victim and watched him deletemessages and photographs on the victim's phone. Unbeknown to Mr Burrows thevictim had created copies of the messages and photographs.Other offending[20] The sexual offending against the other 12 victims involved:(a) twelve charges of indecent assault against young persons;(b) three charges of receiving commercial sexual services from a personunder 18 years of age;(c) one charge of doing an indecent act with a child under 12 years of age;and(d) two charges of indecent assault.[21] Mr Burrows also pleaded guilty to offering to supply cannabis to a personunder 18 years of age.Victim impact statements[22] Seven of the victims provided victim impact statements. The common themesthat emerge from those statements are:(a) The sense of deep betrayal suffered by the victims, who Mr Burrowsbefriended to fulfil his sexual desires.(b) The psychological impact of Mr Burrows' offending on victims and itseffects on their wellbeing, education, relationships and careeropportunities. Some victims now have alcohol and drug dependenciesas a direct result of Mr Burrows having introduced them, at vulnerableages, to drugs and alcohol.(c) The sense of remorse and shame felt by some of Mr Burrows' earliervictims for not having reported Mr Burrows to authorities sooner intime. Many victims feel a sense of responsibility because they knowMr Burrows proceeded to offend against other victims and thatoffending might have been stopped had Mr Burrows' earlier offendingbeen brought to light.Sentencing notesStarting point[23] It was common ground that the sexual connection offending against Victim Ashould be treated as the lead offence. The Judge adopted a starting point of three yearsand six months' imprisonment for that offending. She then increased that provisionalstarting point by two years to reflect the sexual connection offending against Victims Fand G and a further one-year uplift to reflect the other sexual offending againstVictims A, F and G. This produced a provisional starting point of six years and sixmonths' imprisonment.6[24] A further three-year increase was added to the provisional start point to reflectthe offending against the other 12 victims. This produced an adjusted provisional startpoint of nine years and six months' imprisonment.7[25] The attempt to pervert the course of justice charge was addressed by imposinga further six-month increase to the adjusted starting point, thereby producing thestarting point of 10 years' imprisonment.86 At [59]–[75].7 At [76]–[79].8 At [86] and [89].[26] The Judge assessed whether it was necessary to adjust the starting point of10 years' imprisonment, to take into account all charges and the totality principle. TheJudge concluded no further adjustment to the starting point was required.9Mr Burrows' personal circumstances[27] The Judge rejected the submission made on behalf of Mr Burrows that he wasentitled to deductions to reflect his age at the time of the offending and his previousgood character. As we have noted, Mr Burrows was between 24 and 30 years of ageat the time of his offending. He had no previous convictions but many of the chargeshe admitted were presented on a representative basis and the offending was over a longperiod of time. These considerations meant no deductions were warranted to reflectMr Burrows' age or prior good conduct.10[28] When assessing Mr Burrows' remorse and rehabilitative prospects, the Judge:11(a) noted that when he spoke to the pre-sentence report writer Mr Burrowsmade no mention of his victims and minimised his offending;(b) accepted the observations of Mr Vaughan, a counsellor, who saidMr Burrows was "making a good effort to accept and takeresponsibility for committing sexual acts "; and(c) considered a letter from Mr Burrows in which he expressed his remorse.[29] After weighing the factors we have summarised at [28], the Judge deducted10 per cent from the start point of 10 years' imprisonment.12[30] A further five per cent was deducted from the starting point to acknowledgethat Mr Burrows had suffered childhood sexual abuse and psychological conditions,which included Post Traumatic Stress Disorder (PTSD) and depression.139 At [90]–[93].10 At [94]–[99].11 At [100]–[107].12 At [108].13 At [109]–[111].[31] Mr Burrows was given credit for his guilty pleas when he received a deductionof 20 per cent from the starting point.14[32] No deduction was given for time Mr Burrows spent on EM bail with a 24-hourcurfew because that condition was imposed after Mr Burrows breached less restrictivebail conditions.15[33] Thus, the Judge deducted 35 per cent from the starting point of 10 years toproduce an end sentence of six years and six months' imprisonment.16[34] The Judge then divided the six-and-a-half-year prison sentence and allocatedportions of that sentence to the three sexual connection charges and the attempt topervert the course of justice charge. We have explained those allocations at [2] and[5].[35] Finally, the Judge imposed the MPI condition that we have set out at [6].The appealThe starting point[36] Mr Cook, counsel for Mr Burrows, submitted that the adjusted starting pointof nine and a half years for the sexual offending was manifestly excessive. Mr Cooktook no issue with the cumulative sentence of six months' imprisonment imposed inrelation to the charge of attempting to pervert the course of justice.[37] There were two prongs to the attack on the nine and a half year starting pointfor the sexual offending.[38] First, it was argued that because the Judge was imposing cumulative sentencesshe was obliged to consider the totality principle and determine whether the endsentence on the sexual charges was wholly out of proportion to the overall gravity ofthe offending. Mr Cook submitted that the Judge's decision not to reduce the overall14 At [112]–[116].15 At [117]–[121].16 At [122]–[123].starting point of nine and a half years' imprisonment resulted in a starting point whichwas not proportionate to the gravity of Mr Burrows' offending.[39] Second, it was contended that the starting point in this case was difficult toreconcile with other sentencing decisions, such as Herlund v R17 and Gillard v R.18Herlund involved an offender who was in his early 50s and who committed serioussexual offences against three victims, who were between 13 and 15 years of age. Onevictim was supplied with drugs and alcohol and the offending involved full penetrativesex. In Mr Herlund's case, a total starting point of seven and a half years'imprisonment was adopted.[40] Mr Gillard was a teacher who committed 10 sexual offences over an 18-yearperiod against seven victims. All of the victims were girls who were under 16 yearsof age. Some of the offending involved touching, kissing, masturbation, oral sex andin one instance, full penetrative sex. Mr Gillard paid one of his victims for sexualservices. This Court conducted a totality assessment and reduced the overall sentencefrom one of seven and a half years' imprisonment to six and a half years'imprisonment.Analysis[41] This Court has emphasised on many occasions that sentence appeals requirean assessment of the end sentence and that, although it is important to understand thecomponents that make up a sentence, it is the overall result that matters.19[42] We do not consider the overall start point of nine and a half years'imprisonment for Mr Burrows' sexual offending was excessive, bearing in mind:(a) the seriousness of the sexual connection charges;(b) the prolonged nature of Mr Burrows' offending;17 Herlund v R [2021] NZCA 71.18 Gillard v R [2014] NZCA 610.19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].(c) the number of victims;(d) many of the charges were presented on a representative basis;(e) the gross breaches of trust involved, particularly in relation to theoffending that took place in Christchurch;(f) the manipulative way Mr Burrows befriended the victims so that hecould fulfil his sexual desires by taking advantage of the victims'vulnerability; and(g) the serious impact Mr Burrows' offending has had on many of hisvictims.[43] More importantly, subject to one qualification, which we shall explain whenconsidering Mr Burrows' personal circumstances, we are satisfied that the endsentence of six years' imprisonment was a proportionate response to all ofMr Burrows' sexual offending and that the sentence imposed was generally consistentwith the totality principle set out in s 85(2) of the Sentencing Act 2002.[44] We do not accept that Herlund provides any assistance when trying todetermine the correct sentence for Mr Burrows. Mr Herlund faced charges of rape andother serious sexual offences. He accepted a generous sentence indication given bythe trial Judge during the trial when an arrangement was reached to reduce the mostserious charges down to sexual connection. The end sentence imposed on Mr Herlundwas six years' imprisonment. A sterner sentence was reasonably available in his case.[45] There are similarities between the offending by Mr Gillard and that ofMr Burrows. Ultimately, however, the end sentence of six years' imprisonment forMr Burrows' sexual offending was generally consistent with the end sentence of sixand a half years' imprisonment imposed on Mr Gillard.Mr Burrows' personal circumstances[46] The focus of Mr Cook's submissions before us concerned the deductions madefor Mr Burrows' personal circumstances and in particular the 10 per cent discount forhis remorse and rehabilitative prospects.[47] Mr Vaughan's report was not challenged in any meaningful way by the Crown.It shows that Mr Burrows has the capacity for rehabilitation and that ultimately he maybecome a responsible member of society.[48] The discount of 10 per cent given by the Judge for remorse and rehabilitationwas appropriate.[49] The Judge gave a five per cent discount to reflect Mr Burrows' personalconsiderations.[50] We have taken a slightly different approach to this issue from the Judge. Giventhe causal nexus between Mr Burrows' personal factors and the offending, as noted byMr Vaughan's report, we consider that a greater discount for personal factors waswarranted. We give a discount of 10 per cent for personal factors.[51] All other deductions made by the Judge were appropriate and have not beenseriously challenged on appeal. We would therefore deduct 40 per cent from the startpoint of nine and a half years. This produces an end sentence of five years and sixmonths' imprisonment for Mr Burrows' sexual offending.MPI[52] The Crown accepts that the Judge erred when she imposed an MPI on thecumulative sentence of six and a half years' imprisonment. This acknowledgement isappropriate because s 86 of the Sentencing Act provides for the imposition of an MPIon a "particular sentence". In addition, an MPI may only be imposed on sentencesthat involve a determinate sentence of more than two years' imprisonment. Only thesentence of three years for the sexual connection against Victim A meets this criterion.[53] We are satisfied the Judge erred when she divided up the sentence of six and ahalf years' imprisonment and allocated the sentences between the three sexualconnection charges in the way we have described at [2]. The proper course wouldhave been for the Judge to have treated one of the charges (the charge of sexualconnection against Victim A) as the lead charge and to have imposed concurrentsentences of imprisonment on all other charges, other than the charge of attempting topervert the course of justice.[54] Mr Cook urged us not to impose an MPI on Mr Burrows. We have reflectedon that submission but reject it. We have concluded that the aggravating features ofthe offending, and in particular the number of victims and the breach of trust arisingout of Mr Burrows' abuse of his position when he was a youth group leader andoutdoor education teacher in Christchurch, engage all of the criteria in s 86(2) of theSentencing Act.[55] We are satisfied that the period that Mr Burrows would be eligible to apply forparole set out in s 84(1) of the Parole Act 2002 (just under two years) is insufficientto:(a) hold Mr Burrows accountable for the harm done to his victims;(b) denounce Mr Burrows' offending;(c) deter Mr Burrows and others from committing the same or a similaroffence; and(d) protect the community from Mr Burrows.[56] We accordingly uphold the Judge's imposition of an MPI of two-thirds of thesentence imposed on Mr Burrows in relation to sexual connection in relation toVictim A.Result[57] The appeal against sentence is allowed in part.[58] The sentence in relation to the sexual connection charge against Victim A isquashed and substituted with a sentence of five years six months' imprisonment.[59] The cumulative sentences for the sexual connection charges against Victims Fand G are quashed and substituted with concurrent sentences offour years' imprisonment in relation to each charge.[60] The sentence of six months' imprisonment for perverting the course of justiceis cumulative on the sentence of five years six months' imprisonment in relation to thesexual connection charge in relation to Victim A. All other sentences imposed by theHigh Court are upheld.[61] The end sentence is six years' imprisonment.[62] We impose a minimum period of imprisonment of two-thirds (three yearsseven months) in relation to the sexual connection charge against Victim A.[63] We make an order prohibiting publication of the names, addresses, occupationsor identifying particulars of victims pursuant to s 202 of the Criminal Procedure Act2011.Solicitors:Crown Solicitor, Whangārei for Respondent