MATTHEWS v R [2017] NZCA 493

MATTHEWS v R [2017] NZCA 493 [31 October 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA169/2016[2017] NZCA 493BETWEEN SHANE ALEX MATTHEWSAppellantAND THE QUEENRespondentHearing: 26 July 2017Court: Winkelmann, Brewer and Peters JJCounsel: Q Duff for AppellantE J Hoskin for RespondentJudgment: 31 October 2017 at 11.30 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of 13 years and six months' imprisonment is quashed and asentence of 12 years' imprisonment is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] Following a jury trial in December 2015 before Judge Spear in theDistrict Court at Hamilton, the appellant was convicted on three charges: one chargeof abduction with intent to have sexual intercourse and one of sexual violation by rapeagainst complainant A, and one charge of kidnapping against complainant B. Theoffending occurred on New Year's Eve 2001 (2001 offending).[2] The Judge sentenced the appellant on these charges on 21 March 2016, as wellas on a charge of indecent assault of a girl under 12.1 This latter offending hadoccurred in 2002 or 2003. The appellant pleaded guilty to the indecent assault chargeon 22 January 2016, after the Judge indicated that the indecent assault would be dealtwith by an uplift of 12 months on the sentence for the 2001 offending.[3] The Judge sentenced the appellant to 13 years and six months' imprisonmenton the rape charge. He adopted a starting point of 10 years for the two charges againstA, and then uplifted that by one year for the detention charge against B.2 He imposedtwo further uplifts: 12 months for the indecent assault and 18 months for theappellant's previous convictions.3 The Judge did not allow any discounts formitigating factors. He did, however, accept that the appellant had made efforts to cleanup his life by the time of sentencing and for that reason did not impose a minimumperiod of imprisonment.4 The Judge imposed concurrent sentences on the othercharges.[4] The appellant appeals against sentence on the ground that it is manifestlyexcessive and in particular:(a) That the starting point adopted by the Judge in respect of the offendingagainst A did not reflect the sentencing pattern or level prevailing at thetime of the offending.(b) The Judge "double-counted" the appellant's previous convictions asaggravating factors.1 R v Matthews [2015] NZDC 4809 [Sentencing notes].2 At [12].3 At [13]–[14].4 At [18].(c) The Judge erred in principle in his treatment of steps taken bythe appellant to conduct himself in a more law-abiding manner.The appellant submits that the Judge was required to treat those stepsas a mitigating factor and to reduce the end sentence by, say, 10 percent. Instead, the Judge considered that the steps taken made itunnecessary to impose a minimum period of imprisonment but gave nodiscount.Facts[5] The Judge described the circumstances of the 2001 offending as follows. Nodispute was taken with his summary.[6] The appellant was working as a doorman at a hotel. At his invitation, A cameto the hotel that night, bringing B. A and B spent the evening socialising in the hotel.At about 12.30 am, the appellant took A and B to his room at the hotel, saying theycould stay there overnight. The appellant then locked them in the room and went backto work. Their attempts to attract someone's attention to let them out were to no availand every so often the appellant would return to tell them to be quiet.[7] On finishing work, the appellant returned to the room, told B to get into thebed, and then lay down next to A on a mattress on the floor. A told the appellant thatshe did not wish to have sex as B was in the room. The appellant refused to acceptthis, ripped off A's clothing, punched and slapped her, removed her lower clothing andraped her. A's face and legs were bruised and swollen. The appellant also threatenedA that he would have sexual intercourse with B if A did not do as he wished.SubmissionsWas the 10-year starting point for the offending against A manifestly excessive?[8] In determining the starting point for the sexual violation by rape charge, theJudge recorded that he and counsel agreed the offending fell within rapeband two of the guidelines in R v AM (CA27/2009), meaning a starting point of sevento 13 years.5 The Judge said the following factors placed the offending within thatband:(a) There was a degree of planning and premeditation, as evidenced by thejury's guilty verdict on the charge of abduction with intent to havesexual intercourse. However, the Judge also accepted a submissionfrom then defence counsel that premeditation was of limitedimportance and that the offending was probably "closer to opportunisticor impulsive activity" than part of a "grand design".(b) The appellant detained A.(c) A and B were vulnerable as they had no means of escape.(d) There was actual and threatened violence.(e) A was humiliated by having to have sexual intercourse with theappellant whilst B was in the room.[9] On this basis, the Judge accepted the Crown's submission that a 10-yearstarting point was warranted for the offending against A.6[10] Counsel for the appellant, Mr Duff, submitted that a starting point of 10 yearsfor this offending was too high and that a starting point of nine years was appropriate.Mr Duff submitted that a lower starting point would have been adopted had theappellant been sentenced closer in time to the offending. Mr Duff referred us to astatement in R v AM (CA27/2009), which he submitted confirmed that a starting pointof eight years prevailed prior to R v AM (CA27/2009).7[11] Crown counsel, Ms Hoskin, submitted that the Judge was correct to identifythe starting point for the offending against A by reference to the band two guidelinesin R v AM (CA27/2009).5 At [10]–[12] citing R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.6 At [12].7 R v AM (CA27/2009), above n 5, at [26]–[28].[12] Ms Hoskin submitted that 10 years was within the available range, havingregard to the aggravating features identified by the Judge and what Ms Hoskinsubmitted was a breach of trust between A and the appellant. Before us, Ms Hoskinacknowledged the starting point was "stern" and that the Judge's reference to A andB's vulnerability as an aggravating factor had the effect of "double counting" theappellant's detention of them. Ms Hoskin maintained, however, that there should beno reduction to the starting point.Discussion on starting point[13] The guidelines identified in R v AM (CA27/2009) apply to sentences imposedafter the judgment, subject to the offending having been committed after the increasein the maximum term of imprisonment from 14 to 20 years in 1993.8 Accordingly, asMs Hoskin submitted, those guidelines applied in this case.[14] Mr Duff's submission that a starting point of eight years prevailed at the timeof the offending is based on this Court's decision in R v A in 1994.9 R v A providedguidance for sentencing for sexual violation by rape in the light of the increase in themaximum penalty to which we have referred. In R v A, this Court said that eight yearsshould be the starting point in a "contested rape case", subject to other factorswarranting a longer or shorter sentence.10[15] In R v AM (CA27/2009), this Court discussed why it had become desirable torevise the guidance given in R v A. One reason was that sentencing judges had treatedeight years as the minimum available starting point, which had not been intended.11Accordingly, Mr Duff's submission that an eight-year starting point would haveapplied had the appellant been sentenced in, say, 2003 is not necessarily correct. Itcould well have been the minimum adopted. Moreover, as the Court said in R v AM(CA27/2009), R v A was decided before current sentencing methodology and the term"starting point" was used in a different sense to that in which it is used now.128 R v Jeffries [2012] NZCA 608 at [83]–[84].9 R v A [1994] 2 NZLR 129 (CA).10 At 131–132.11 R v AM (CA27/2009), above n x, at [28].12 At [16], [22] and [26].[16] That said, we accept that a starting point of 10 years for the offending againstA was too high and that nine years was appropriate. This may have occurred becausethe Judge does appear to have double counted A and B's detention, first under thatheading and secondly as the reason he considered A and B vulnerable.[17] We also take into account that the aggravating factors were present to amoderate extent only. On that basis, we consider that a starting point at the lower endof band two is appropriate.Uplift for prior convictions[18] The appellant's criminal history included offending committed both prior andsubsequent to the 2001 offending.[19] The relevant prior offending comprised one charge of rape and one of unlawfulsexual connection, both committed in 1993, and for which the appellant was sentencedto concurrent terms of imprisonment of eight and six years respectively. The appellantalso had a conviction for male assaults female in 1994.[20] The subsequent offending included six convictions for male assaults femaleand one conviction for contravention of a protection order, all committed between2004 and 2008.[21] Although Ms Hoskin submitted that it was open to the Judge to uplift by18 months for the appellant's prior convictions, we accept Mr Duff's submission thatsuch an uplift was too high. We have reviewed the uplifts imposed or considered inother cases involving serious sexual offending. An uplift of 12 months for similaroffending was imposed or upheld in the vast majority of those cases.13[22] In this case there is an additional complication. Some of the offending to whichthe Judge referred occurred after the 2001 offending for which the appellant was beingsentenced. At [13] of the sentencing notes the Judge said as follows:13 See R v Smith [2009] NZCA 514; D (CA197/2014) v R [2014] NZCA 373; RS (CA21/2014) v R[2014] NZCA 484; R v L [2014] NZHC 2471; and P (CA515/2014) v R [2015] NZCA 480.In particular, I calculate that you have seven previous convictions for maleassaults female the latest of which was in 2008. Of more significance is yourconviction for rape and unlawful sexual intercourse back in 1993 and for thatyou received a sentence in the High Court at Auckland in November 1994 ofeight years' imprisonment. So, there is a sad history shown by your convictionhistory of a man who has been prepared to take what he wants from women,when he wants it, irrespective of what they want and also a preparedness touse violence against women. In my view that justifies an uplift of 18 months.[23] In R v Barrett, this Court identified the potential unfairness in uplifting foroffending committed after the offending for which an offender is beingsentenced.14 The Court accepted, however, that in some circumstances the lateroffending might well be recognised by an uplift. It is apparent that caution is requiredin treating later offending as an aggravating factor.[24] In the appellant's case, it is not clear the Judge turned his mind to this issue. Wedid not receive submissions on this point but, in any case, we do not need to addressit, as in our view it makes no difference to the outcome. As the Judge identified, themost relevant offending for the purposes of the uplift is the rape and unlawful sexualconnection offending committed in 1993. We consider that offending, on its own,justified an uplift of 12 months and that, in the circumstances of this case, thesubsequent offending to which the Judge referred does not warrant a further uplift.[25] We accordingly reduce the uplift for previous convictions from 18 months to12 months. We do not therefore need to address Mr Duff's submissions that the Judgeerred in "incorporating the appellant's previous convictions into the starting point".Regardless, when the relevant part of the sentencing notes is read in context, it is clearthe Judge did not double count the previous convictions.Rehabilitative efforts[26] Mr Duff submitted that the appellant was entitled to a 10-per-cent discount onaccount of his efforts to improve his lifestyle and conduct himself in a moreresponsible manner.[27] Mr Duff relied on these passages in the Judge's sentencing notes:14 R v Barrett [1999] 1 NZLR 146 (CA).[17] One matter that did arise in my preparation of the case was whether Ishould impose a minimum non-parole period. As you will be aware, you areentitled to be considered for parole after serving one-third of your sentence.The Crown has not sought a non-parole period and I have not heard argumentfrom counsel on that issue. I intended to invite counsel to address me on thepoint because for offending of this nature it would be usual to impose at least50 percent if not a full two-thirds non-parole period.[18] However, I accept to a large extent that you have cleaned your life up.I accept to a large extent that you have endeavoured to turn your life aroundand be a better person than you have been and for that reason I will leave itfor the Parole Board to deal with you and I will not impose a minimum periodof imprisonment. [28] In support of the submission referred to in [26] above, Mr Duff referred us tothis Court's decision in V (CA400/12) v R, the following passage of which is relevantto this point:15[27] The third error concerned the Judge's approach to mitigating factors.As we have seen, the feature of the appellant having been rehabilitated andliving an offence-free life since the time of the offending many years beforewas not taken into account in making an allowance from the starting point.Rather the Judge used it by taking it into account in relation to the entirelyseparate exercise of whether or not an MPI should have been imposed. Suchan approach is impermissible.[29] Mr Duff is correct in submitting that rehabilitative efforts are relevant whenconsidering whether any deduction should be made from the starting point.Nevertheless, we do not consider the Judge erred in failing to give the appellant anycredit for rehabilitative efforts. This is because the appellant has continued to offendsince 2008, when he was convicted for male assaults female. In the intervening period,he has been convicted for breach of prison release conditions, unlawfully taking amotor vehicle, driving with excess breath alcohol (third or subsequent) and drivingwhilst disqualified. In those circumstances, no discount was required.Result[30] The appeal against sentence is allowed.15 V (CA400/12) v R [2012] NZCA 465 (footnote omitted).[31] The sentence of 13 years and six months' imprisonment imposed on the chargeof sexual violation by rape is quashed. A sentence of 12 years' imprisonment issubstituted.[32] In all other respects the (concurrent) sentences imposed by the Judge stand.Solicitors:Richmond Property & Litigation Limited, Auckland for AppellantCrown Law Office, Wellington for Respondent