PESEFEA V R [2016] NZCA 35

PESEFEA V R [2016] NZCA 35 [2 March 2016]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA370/2015[2016] NZCA 35BETWEEN SILIA APISAI PESEFEAAppellantAND THE QUEENRespondentHearing: 16 February 2016Court: Stevens, Simon France and Ellis JJCounsel: A M McCormick for AppellantJ M O'Sullivan for RespondentJudgment: 2 March 2016 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] Following a trial in the Christchurch District Court before Judge MacAskill and a jury, Mr Pesefea was found guilty of one count of attempted sexual violation.Mr Pesefea was sentenced to five years, six months' imprisonment.1 He appealsagainst sentence on the basis that the starting point of six years' imprisonment was too high in comparison to similar cases, and therefore the end sentence of five years,six months' imprisonment, is manifestly excessive. Mr Pesefea takes no issue with the six month deduction from the starting point for previous good character.[2] The appeal was filed out of time and an extension is required. As the respondent does not oppose the application, we extend the time for filing the appeal.Background[3] The offending occurred in March 2012. The complainant (then aged 14), was staying, along with members of her family, at Mr Pesefea's house. Having arrangedto be alone with the complainant at the house (by sending his teenage son and thecomplainant's brother away), Mr Pesefea approached her and began hugging and kissing her from behind. Despite her protests, Mr Pesefea then forced the complainant into his bedroom and pinned her down on his bed. He tried to remove her shorts but could not, so instead undid the zipper and inserted his penis through the undone zipper. When Mr Pesefea was unable to penetrate the complainant due to her underwear, he simulated sexual intercourse while lying on top of her until he ejaculated. Semen was left on her clothing as a result of the offending.The sentencing decision[4] In arriving at a starting point of six years' imprisonment, Judge MacAskill identified the following aggravating features of the offending: the complainant'sage, her vulnerability, the exploitation of a relationship of trust, the harm caused to the complainant, and Mr Pesefea's actions following the attempted penetration.2 TheJudge also found premeditation for the offending in Mr Pesefea's actions ofarranging for the two boys in the house to be sent away. No mitigating features of the offence were identified. Considering these factors the Judge arrived at a startingpoint of six years' imprisonment.1 R v Pesefea DC Christchurch CRI-2014-009-7880, 18 December 2014.2 Although not referred to as such by Judge MacAskill, these correspond to 'culpability factors'from the guideline judgment R v AM [2010] NZCA 114, [2010] 2 NZLR 750.[5] Dealing with features personal to Mr Pesefea, the Judge determined there were no aggravating factors. In terms of mitigating factors, the Judge noted Mr Pesefea was a first time offender and had presented evidence supporting his previous good character. From the starting point of six years, six months was deducted for previous good character, resulting in a final sentence of five years, six months' imprisonment.Challenge on appeal[6] Mr Pesefea submits that the starting point of six years is too high whencompared with other similar cases. No issue is taken with the Judge's identificationof the relevant aggravating factors of the offending. However, Mr McCormick, for Mr Pesefea, submits that the offending is less serious than in other cases in which a lower starting point was adopted. Specifically, counsel relies on:(a) Bowman v R3 in which a starting point of five years' imprisonmentwas adopted on two counts of attempted sexual violation. There, the complainant was particularly vulnerable as she had been asleep, significant emotional harm was caused, and there was an element of a breach of trust.(b) R v Tutu & Carter4 in which a starting point of five years'imprisonment was adopted on one count of attempted sexual violation. The vulnerability of the complainant and the closeness to the commission of the full offence were factors requiring a significant sentence.[7] Counsel contends that the present offending is less serious than these authorities, suggesting Mr Pesefea's actions fell some considerable distance short ofactual rape and there was still some way to go before the full offence could have been committed. A starting point of between four to five years would therefore be more appropriate in light of these factors.3 Bowman v R [2014] NZCA 92.4 R v Tutu & Carter HC Napier CRI-2010-041-163, 4 February 2011.Analysis[8] A general desire for consistency in sentencing levels between cases involving similar offences and circumstances is affirmed in the Sentencing Act 2002.5 But first, the features of the actual offending must be assessed to determine a starting point which properly reflects the culpability inherent in the offending.6 As Mr McCormick accepts, Judge MacAskill was ideally placed to form a view of the factors and circumstances of the offending relevant to sentencing.[9] There is no guideline judgment or tariff established for attempted sexual violation by way of rape. However, the culpability factors and banding established in R v AM,7 which sets out sentencing bands for the full offence of sexual violation by way of rape, are relevant.8 Although it was not a tariff case, this Court inBowman noted that the comparison should be with rape band one in R v AM, with starting points between six to eight years imprisonment.9 That suggests a starting point of six years was available to Judge MacAskill. As Ms O'Sullivan submits,offending involving sexual violation by rape with the aggravating circumstances present in this case would have attracted a starting point well above six years imprisonment.[10] Mr McCormick submits the offending here should be viewed as less serious because it is not a situation in which the line between the full offence and an attempt is narrow, such as where skin-to-skin contact between the offender and victim occurs. We disagree. Here, penetration was only thwarted by the complainant'sclothing under her shorts. This situation bears some similarities to cases in which the full offence of sexual violation by rape is frustrated by the protests of thecomplainant or the offender's impotence.10 Mr Pesefea went considerable distance in attempting to sexually violate the complainant and, when that failed, further indecency by simulated intercourse followed. As this Court said in R v Hassan, in5 Sentencing Act 2002, s 8(e).6 R v Taueki [2005] 3 NZLR 372 (CA) at [42].7 R v AM, above n 2.8 Bowman v R, above n 3, at [17].9 Ibid.10 See R v Tutu & Carter, above n 4, where the Judge regarded a rape being thwarted by these two factors as coming very close to the commission of the full offence.cases of this nature "what is important is for the circumstances of the particularoffending to be properly analysed in the context of the particular charge".11[11] When the aggravating factors identified by the Judge are factored into the analysis, the offending can be properly characterised as more serious. The present case is quite different from that in Bowman such that reliance on that authority is misplaced. In particular, the complainant's youth, the premeditated nature of theoffending, and Mr Pesefea's actions before and after the attempted rape12 all elevate the gravity of the offending. We consider a six year starting point cannot be seen as out of line.13 Taking all the circumstances of the offending into account, we are satisfied a six year starting point was well within the range available.[12] As the six year starting point is within range, and no issue is taken with thedeductions from the starting point, the end sentence of five years, six months'imprisonment cannot be seen as manifestly excessive.Result[13] The application for an extension of time to appeal is granted.[14] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent11 R v Hassan [1999] 1 NZLR 14 (CA) at [16].12 Described by the Judge as a serious indecent assault in itself.13 Cases cited by the Crown include R v Keen [2010] NZCA 112; Mukoko v R [2012] NZCA 390;R v McKain [2007] NZCA 505; R v Mottram [2009] NZCA 475.