S (CA650/2020) v R [2023] NZCA 394

S (CA650/2020) v R [2023] NZCA 394 [25 August 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA650/2020[2023] NZCA 394BETWEEN S (CA650/2020)AppellantAND THE KINGRespondentHearing: 18 July 2023Court: Gilbert, Lang and Woolford JJCounsel: M J Taylor-Cyphers for AppellantI S Auld for RespondentJudgment: 25 August 2023 at 11 amJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B Appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] On 10 September 2020, following a four-day jury trial in the WhangāreiDistrict Court, the appellant was found guilty of three charges of sexual violation byunlawful sexual connection1 and six charges of sexual conduct with a child under 12.2The complainant was the appellant's biological son. He was aged nine to 10 at thetime of the offending. The offending occurred while the complainant was living withthe appellant, his then partner, and their two children.[2] On 23 October 2020, Judge D J McDonald sentenced the appellant to nineyears' imprisonment.3 He now appeals against sentence on the basis that the Judgegave insufficient discounts for childhood hardship, mental health, and addictionissues.Circumstances of offending[3] The appellant and the complainant's mother ended their relationship shortlyafter the complainant was born. He was the third child of that relationship.The complainant lived with his mother until he was about nine years of age. OrangaTamariki then contacted the appellant and asked whether he and his partner could carefor the complainant and his two older siblings as their mother was unable to do so.[4] The complainant lived with the appellant for a period of around 18 months.The offending commenced by the appellant exposing the complainant to pornographywhich graduated into the appellant masturbating in the complainant's presence whilewatching pornography.[5] On one occasion, while pornography was playing, the appellant rubbed hispenis on the outside of the complainant's bottom and in between his buttocks.On another occasion, the appellant got the complainant to masturbate him.[6] There were three occasions when the appellant caused the complainant to givehim oral sex by getting the complainant to fondle his penis and testicles before puttinghis penis into the complainant's mouth. The offending ended when the complainanttold the appellant he had received a vision from God telling him that it was wrong, andhe refused to perform oral sex on the appellant on that occasion.1 Crimes Act 1961, ss 128(1)(b) and 128B.2 Section 132(3).3 R v [S] [2020] NZDC 22023 [Sentencing notes].District Court sentence[7] At the outset, the Judge adopted a starting point of 10 years' imprisonment inreliance on the guideline judgment of R v AM (CA27/2009).4 He identified a numberof aggravating features in setting the starting point — planning and premeditation,abuse of trust and vulnerability, the scale of the offending, and harm to the victim.5[8] The Judge then turned to look at "personal matters". He noted that theappellant had a conviction for incest with his adult daughter in 2019 for which he wassentenced to community detention and supervision. The Judge did not impose anuplift for that offending.6[9] The Judge had the benefit of a report on the appellant's personal and culturalhistory under s 27 of the Sentencing Act 2002. He noted that it made "incredibly sadreading". The appellant had been subject to ongoing sexual abuse as a child, including,most notably, being raped by his father and brother. He also experienced regularbeatings from family members, including his mother. He was expelled from school ataged 15 for giving a "horrific" beating to another boy. Following that he lived on thestreets of Auckland. The Judge noted the appellant's statement as recorded in thereport that he did not wish to be like his father and wanted to stop the cycle ofoffending going from generation to generation.7[10] The Judge gave the appellant a 10 per cent discount for matters raised in thecultural report, which reduced the starting point of 10 years' imprisonment tonine years' imprisonment, which was the end sentence imposed.8Admission of fresh evidence[11] The appellant applies for leave to adduce fresh evidence in the form of apsychological report of Ms Sarah Bramhall dated 27 February 2023, some 28 monthsafter sentencing on 23 October 2020.9 Counsel explains that the appellant only4 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.5 Sentencing notes, above n 3, at [13].6 At [15].7 At [16].8 At [19].9 Court of Appeal (Criminal) Rules 2001, r 12B.approached her towards the end of 2021 and there were then delays because of theCOVID-19 pandemic and the lack of psychologists with availability to undertakeassessments and make reports.[12] Ms Bramhall summarises her opinion as to the appellant's risk of future sexualre-offending as follows:[The appellant] is assessed as a below average risk of future sexual re-offending. He has offended against [his son] ([a] prepubescent male) andengaged in an incestuous relationship with his adult daughter. While he hasmaintained denial of the sexual offending against his son, there is limitedevidence from official information and [the appellant's] self-report that hepreviously led a lifestyle characterised by sexually deviant practices orpresented with a persistent and problematic pattern of compulsive sexualbehaviour or an undermanaged sexual drive across his lifespan. There is alsono other evidence to suggest he has sought to engage in any other sexualoffending with children and he did not express beliefs/attitudes normalisingdeviant or unlawful sexual practices. His own mental health strugglesincluding trauma and substance use are likely to have contributed to his sexualoffending.[13] She concludes by setting out the various rehabilitative pathways available tothe appellant in prison.[14] At sentencing, however, the Judge did not make a specific finding that theappellant was at risk of future sexual reoffending. The Judge quoted the pre-sentencereport which considered him to be a high risk of offending, especially against children,and that his risk of reoffending would escalate unless he completed a specialisedprogramme for child sexual offenders, which was successfully run in a number ofNew Zealand prisons. In the end, however, the Judge did not attribute any weight toany risk of future sexual reoffending in sentencing the appellant.10[15] As to the appellant's mental health struggles including trauma and substanceuse, which Ms Bramhall opines were likely to have contributed to his sexual offending,as noted above, the Judge had before him a personal and cultural report, under s 27 ofthe Sentencing Act. The report, compiled by Mr Andrew Baker, sets out in some detail10 Sentencing notes, above n 3, at [17].the appellant's unfortunate background.11 This led the Judge to comment that it made"incredibly sad reading".[16] We assess the new evidence against the settled criteria of freshness, cogency,and credibility, bearing in mind that the ultimate criterion is the interests of justice.12There is no question that the proposed new evidence is credible.[17] Counsel for the appellant submits that the evidence is fresh but accepts that"it could have been fresh if adduced at the time of sentencing; the situation since hasbeen static". No explanation has been provided as why such evidence was nottendered on sentencing. Without any indication to the contrary, we are of the viewthat the report could have been obtained for sentencing with reasonable diligence. It istherefore not fresh.[18] In assessing the appellant using the Millon Clinical Multiaxial Inventory IV(MCMI-IV) tool, Ms Bramhall noted that while the appellant's profile was found to bevalid and reliable, his response style suggested a tendency to present with greaterpsychological impairment than what he likely experiences. Mr Bramhall says this isoften referred to as a "cry for help" and may reflect his overall coping response.[19] Notwithstanding this caveat, we find the report to be cogent on the issue of theappellant's risk of future sexual re-offending.[20] Ms Bramhall was instructed to assess the appellant's risk of sexual re-offendingand identify the presence of any psychological factors, including mental health issues,that may have contributed to his index sexual offending. Ms Bramhall noted that sincethe time of his arrest, the appellant has continued to deny sexually offending againsthis son. Ms Bramhall therefore states that, "[a]s such, it is not possible to provide anexplanation of his sexual offending process." Nonetheless, she goes on to hypothesisethat:11 It does not appear that Mr Baker's report was made available to Ms Bramhall as she does not listit as a source document for her report.12 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]–[120]; R v Bain [2007] UKPC 33,(2007) 23 CRNZ 71 at [34]; and Ieremia v R [2020] NZSC 143, [2021] 1 NZLR 168 at [36].[T]he index offending stemmed from poor sexual boundaries associated withthe impact of his own sexual abuse, the absence of adequate sexual scripts,relationship difficulties and poor coping in the context of life stresses.He abused his position of trust and created situations where he could sexuallyoffend, suggesting an ability and willingness to disregard the needs andvulnerability of [the complainant] in pursuit of his own sexual gratification.[21] This narrative was, however, before the Judge in the form of the s 27 report,which detailed the appellant's own sexual abuse, the absence of adequate sexualscripts, relationship difficulties and poor coping in the context of life stressors.Ms Bramhall's report adds little more except for a cogent assessment of the appellant'srisk of sexual re-offending. Overall, however, Ms Bramhall's report is not material tothe sentence under appeal.[22] In those circumstances, we decline to admit Ms Bramhall's report as freshevidence.Appellant submissions[23] Counsel for the appellant does not take issue with the 10-year starting pointadopted by the Judge, but invites this Court to increase the discount of 10 per cent formatters raised in the s 27 report on the basis that inadequate weight was given tochildhood hardship (including economic hardship and cultural dislocation), andmental health and addiction issues. She submits a 20 per cent discount should havebeen granted, which would lead to an end sentence of eight years' imprisonment.[24] In considering the overall adequacy of the discount, the comments of this Courtin Williams v R are said to be relevant.13 In the context of Mr Williams' difficultbackground, including the traumatic events he appeared to have suffered as a child,his removal from whānau into state care, and the inter-generational effects ofcolonisation and deprivation, this Court considered the 12-month discount (which wasjust over 10 per cent) low, "bordering on inadequate".14[25] Counsel noted that in Williams v R, this Court referred to Zhang v R,R v Rakuraku and Solicitor-General v Heta, which all illustrate the importance of an13 Williams v R [2021] NZCA 535.14 At [113].overall assessment, taking into account social and cultural dislocation resulting fromcolonisation (which can result in poverty, alcohol and drug abuse, unemployment,educational underachievement and violence) as part of the sentencing analysis.15[26] As to his mental health and addiction, counsel submits that the appellantexhibits mental health difficulties, including depression, anxiety, and post-traumaticstress disorder. He may meet the DSM-5 diagnostic criteria for Major Mood Disorder.He has described experiencing suicidal ideation from age 10. He reports havingattempted suicide on several occasions and having been hospitalised — the mostrecent occasion being in 2019 after the incestuous sexual relationship with hisdaughter ended. He has been prescribed medication for both depression and anxietyin the past.[27] Counsel submits that the appellant has also struggled with substance abuse.Although he has experimented with a range of drugs, the appellant says he was a"big drinker" who typically drank a bottle of wine most days, and several bottles ofwine and a bottle of spirits at the weekend. He reports that he drank until he passedout, and on several occasions his children intervened after they found him choking onhis vomit while he slept. The appellant reports that he completed a Salvation Armyaddiction programme in 2019 and says that he has abstained from alcohol since thistime.[28] Counsel submits that the link between the offending and the appellant's mentalhealth is two-fold. First, the appellant's suicidal tendencies lead him to self-soothewith risk-taking behaviour. This means he is more likely to take risks, because of hismental health. His culpability for taking these risks is therefore reduced. Secondly,the appellant's substance abuse, in particular his regular abuse of alcohol, was a dailyoccurrence, contemporaneous with the offending. This is relevant to the sentencingprocess in the way the court recognises addiction can reduce culpability throughimpaired decision-making.15 Williams v R at [113] citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159]–[162]; Rv Rakuraku [2014] NZHC 3270 at [58]; Solicitor-General v Heta [2018] NZHC 2453, [2019] 2NZLR 241 at [50].[29] Counsel submits that, in addition, some small credit may also be factored intothe sentence for the appellant's efforts towards rehabilitation and sobriety. As theSupreme Court has recently made clear in Berkland v R, rehabilitation and a desire todo that work is to be recognised at sentencing if for no other reason than it incentivisesa defendant making efforts to reduce the risk of reoffending of his or her ownvolition:16[161] Sentencing Judges should encourage offenders to take up theopportunities offered by rehabilitative programmes to make the necessarychanges in their lives. One way to do this is by providing material sentencingdiscounts when the evidence suggests that is what an offender is genuinelywilling to do. Such encouragement can be an inflection point in the life of aprisoner.[30] On all personal factors, the appellant seeks a discount of 20 per cent. This issaid to be consistent with this Court's decision in Agar v R, where on appeal a discountof 20 per cent was allowed to recognise efforts towards drug rehabilitation, and formental health issues and other s 27 factors.17Discussion[31] In any appeal against sentence, this Court must allow the appeal if for anyreason there is an error in the sentence imposed on conviction and a different sentenceshould be imposed.18 In this case, counsel for the appellant submits that it was an errornot to grant him a 20 per cent discount for personal mitigating factors, rather than a10 per cent discount. As has been reiterated on many occasions, however, the focusin any appeal against sentence is on the end sentence and whether it is manifestlyexcessive.[32] No issue is taken with the starting point of 10 years' imprisonment.At sentencing, Crown counsel submitted that the appellant's offending fell withinband 3 of the guideline judgment of R v AM, that is, attracting a starting point ofbetween 12 and 18 years' imprisonment. It submitted that a starting point of 13 to 14years' imprisonment was appropriate. On the other hand, defence counsel submitted16 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.17 Agar v R [2021] NZCA 350 at [52].18 Criminal Procedure Act 2011, s 250.that the appellant's offending fell within the upper end of band 2, that is, attracting astarting point of between seven and 13 years' imprisonment.[33] The Judge stated that "[i]n my view, your offending was at the upper end ofband 2."19 He then proceeded to set a starting point for all the appellant's offending of10 years' imprisonment, which is not the upper end of band 2, but the mid-point ofband 2.[34] In terms of R v AM, the initial band into which an offender will fall isdetermined by how many culpability assessment factors are considered to have beenpresent in his offending. The judgment outlines 12 factors. The banding process isintended to promote consistency between the sentences imposed in similar situations.Allocating an initial band into which an offender will fall is, however, not an exactscience and the placement of the appellant's offending at the upper end of band 2 couldequally have led to a starting point of 11 years' imprisonment.[35] As to the appellant's mental health and addiction, there was some informationbefore this Court which was available to the Judge on sentencing. The PAC reportnoted that previous offending factors had been his dysfunctional family relationships,his depression, and his alcohol abuse. Having been sentenced to five months'community detention and six months' supervision on a charge of incest with hisdaughter, he undertook counselling for both his depression and alcohol addiction.[36] The s 27 report also noted that the appellant was at the time of sentencing onmedication for depression, which seemed to be helpful in managing his symptoms.The appellant had remained positive and alcohol free throughout the trial and althoughdepressed, he had moved on from suicidal tendencies.[37] The difficulty in granting a more substantial discount to take account of theappellant's mental health and addiction is that the Judge was unable to determinewhether these factors contributed in any material way to the index offending and hecontinued to deny the offending. The PAC report writer says that the appellant19 Sentencing notes, above n 3, at [14].effectively denies not only the offending, but also denies the presence of any issues.The s 27 report writer also records:[The appellant] believes that he is innocent and that in this case he has beenset up. [The appellant] feels that the inability for him to present informationcrucial to his innocence, means he has not had a fair hearing.[38] The appellant seems to suggest that the complainant's accusation was paybackbecause the complainant had "done some things" to the children of his daughter withwhom he an incestuous relationship.[39] While more substantial discounts are available for mental health and addiction,they need to be a contributing factor to the offending in some way for an offender'sculpability to be assessed as lesser than it would otherwise be if those factors were notpresent.[40] It is not possible to provide an explanation of the appellant's sexual offendingwhen he continues to deny the offending, saying he has been set up.[41] We are therefore unable to say that the Judge fell into error when he onlygranted a 10 per cent discount to the appellant for the matters raised in the s 27 reportin relation to his childhood hardships. While a larger discount may have beenavailable for other more proximate factors such as mental health and addiction, theextent of their contribution to the offending remains speculative in the face of theappellant's continued denial of the offending.[42] Finally, we note that the Judge declined an application for an order under s 86of the Sentencing Act that the appellant serve more than one third of his sentencebefore he becomes eligible for parole. He rightly acknowledged that the courts needa more cogent reason for making such an order other than the need to deter anddenounce.20Result[43] The application to adduce further evidence is declined.20 At [18].[44] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Whangārei for Respondent