T (CA84/2022) v R [2023] NZCA 221

T (CA84/2022) v R [2023] NZCA 221 [9 June 2023]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA84/2022[2023] NZCA 221BETWEEN T (CA84/2022)AppellantAND THE KINGRespondentHearing: 22 November 2022 (further submissions received 18 May 2023)Court: Katz, Mander and Downs JJCounsel: X Wang and C G Tuck for AppellantJ V Barry for RespondentJudgment: 9 June 2023 at 9:30 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence on appeal is granted.B The appeal is dismissed.C Order prohibiting publication of name, address, occupation or identifyingparticulars of appellant pursuant to s 200 of the Criminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)[1] Following a jury trial in the District Court, the appellant was convicted ofsexually offending against his daughter (X) at two different stages of her childhood.When X was aged between five and nine years she was sexually abused on twooccasions. The appellant was convicted of two charges of doing an indecent act on achild,1 one charge of sexual violation by unlawful sexual connection2 and one chargeof attempted sexual violation by unlawful sexual connection3 in relation to this period.4Later, when X was aged between 13 and 15, the appellant rubbed his penis against X'svagina while clothed on three occasions. In relation to this period, the appellant wasconvicted of three charges of doing an indecent act on a young person.5[2] The appellant was sentenced by Judge Matenga to four years and six months'imprisonment.6 He appeals that sentence.7 The sole ground of appeal is that thesentence is manifestly excessive because the Judge did not give an adequate discountto reflect the impact that a sentence of imprisonment will have on the appellant's family.Following the appeal hearing, but prior to the delivery of judgment, the Supreme Courtissued its decision in Philip v R, which is directly relevant to this issue.8 We thereforegranted leave to the parties to file further submissions addressing the significance ofPhilip v R to this appeal. Both parties took up that opportunity.[3] The question for this Court is whether there is an error in the sentence such thata different sentence should be imposed.9 As with any sentence appeal the focus mustremain on the end sentence imposed, rather than the process by which it was reached.101 Crimes Act 1961, s 132(3).2 Sections 128(1)(b) and 128B.3 Section 129(1).4 Based on further submissions received from counsel following the hearing it appears that there maybe some discrepancies in the Court's record of the appellant's convictions, although there is nosuggestion that these impacted on the sentence. We note that, when sentencing the appellant, theJudge referred to the sexual violation convictions as being for "sexual violation by rape" and"attempted sexual violation by rape". See R v [T] [2021] NZDC 25075 [Sentencing notes] at [1].Based on the information provided by the Crown, this appears to have been a slip. If counsel wishto have the record corrected the appropriate course is to apply to the District Court under r 1.6 ofthe Criminal Procedure Rules 2012.5 Crimes Act, s 134(3).6 Sentencing notes, above n 4, at [25].7 Criminal Procedure Act 2011, ss 244 and 247(1)(d). The appellant's notice of appeal was filed outof time. An extension of time to appeal was granted by Clifford J in a minute: [T] v R CA84/2022,20 July 2022 (Minute of Clifford J).8 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.9 Criminal Procedure Act, s 250(2).10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[4] The appellant seeks leave to adduce further evidence on appeal, in the form ofan updating affidavit from his partner. The Crown does not oppose the admission ofthat affidavit, and we are satisfied that it is in the interests of justice to admit it.District Court sentencing[5] At [23] of the sentencing notes the Judge stated:I have considered the circumstances and the law. My view is as suggested bythe Crown. This is a case where a start point of six years imprisonment isappropriate as the starting point when all of the offending is taken into regardin totality. No further uplift is required in my view. I accept that the start pointof six years imprisonment is properly reflective of all of the offending that thejury has accepted.[6] Defence counsel accepted this starting point was appropriate but soughtsignificant discounts, suggesting that when all relevant factors were taken into account"the Court may even be able to discount the six years as much as by four years".11[7] A report was prepared for the appellant pursuant to s 27 of the Sentencing Act2002. Although issues of systemic deprivation or cultural alienation and dispossessiondid not feature in the appellant's personal background (he is Pākehā), the report didrefer to other mitigating factors. These included that there had been sexual abuse inthe appellant's family which he had learned of when he was aged about 20. In thereport writer's view this was likely to have resulted in some dysfunctionality in thehome, affecting the appellant's development and attitudes to relationships, even if hewas not aware of the abuse at the time that it happened. The report writer suggested acausative link between this and the appellant having difficulties with intimacy and atendency to sexualise his relationships. The Judge also saw the appellant's alcoholismas a mitigating factor, along with his mental health history and diagnosis of autismspectrum disorder (ASD).12 (We note that ASD was identified by the report writer asa possibility, rather than this having been formally diagnosed). The Judge applied adiscount of 15 per cent for the various matters set out in the s 27 report.1311 Sentencing notes, above n 4, at [15].12 At [16]–[18].13 At [24].[8] The Judge also gave a further global 10 per cent discount to reflect otherpersonal mitigating factors:14 such as your previous good character, your recognition and acceptance ofthe verdicts, your prospects of rehabilitation, your support within thecommunity and the recognition also of the effects that it will have [9] The "effects that it will have" is clearly a reference to the Judge's earlierstatement that "I acknowledge also the affect that these convictions will have on your[partner] and children."15 The likely impact of the convictions on the appellant's familywas set out in an affidavit sworn by his partner. She deposed that she was a full-timemother and that she had not been in paid employment for 10 years, and that she couldnot support herself financially. If the appellant were to be imprisoned, she and theirthree children would lose the home they lived in and be left with nowhere to go.[10] Applying the two discounts, the end sentence reached was one of four years andsix months' imprisonment.16Should a greater discount have been given to reflect hardship to the appellant'sfamily?Relevant legal principles[11] It is well established that a sentencing discount may be available in some casesto reflect the impact that a sentence of imprisonment would have on an offender'sfamily. The Sentencing Act 2002 provides for consideration of impact on an offender'sfamily in s 8(h) and 8(i), which respectively require a sentencing court to take intoaccount circumstances of the offender which would make an otherwise appropriatesentence "disproportionately severe", and to take into account "the offender's personal,family, whanau, community, and cultural background in imposing a sentence with apartly or wholly rehabilitative purpose".[12] The Supreme Court in Philip addressed the principles applicable to discountsfor hardship to children resulting from the imprisonment of a parent. The majority14 At [24].15 At [22].16 At [25].cited with approval this Court's statement in Campbell v R that the weight to beaccorded to the impact of imprisonment on an offender's children "depends on thecircumstances" and that relevant factors include "the type of offending and thecircumstances of the child or children".17 The majority did not, however:18 find it helpful to characterise discounts [for the impact of imprisonment onan offender's family] as "rare" or to emphasise, to the exclusion of otherfactors, whether the defendant is the primary caregiver or the seriousness of theoffending. What is required is a consideration of all of the relevantcircumstances which must include the child's interests. Those interestsinclude, as our reference to the [United Nations Convention on the Rights ofthe Child] indicates, the importance for children of growing up in a familialenvironment. We accept that there may be other factors in this considerationwhich take primacy including, by way of example, issues of inter-familialviolence; an absence of remorse and/or lack of any rehabilitative steps, butthose factors are not relevant here.(footnotes omitted)Submissions[13] The appellant's partner's updating affidavit states that following the appellant'simprisonment she and the children had to live in emergency housing for six to sevenmonths. They were eventually able to find a more stable place to live but have had totake in a boarder to help with the rent. She is a stay-at-home mother and is dependenton social welfare benefits for her income. Prior to his imprisonment the appellant hadhelped with the children when he was not working, but she no longer has that support.Further, one of their children has recently been identified as possibly being highlyautistic. A formal diagnosis is awaited.[14] Mr Wang, counsel for the appellant, submitted that the impact of imprisonmenton the appellant's family warranted a discrete 10 per cent discount, in addition to anydiscount available for other factors. The appellant's family have lost their primaryincome earner, which Mr Wang submitted is as crucial as the caregiving role providedby the children's mother. Further, the appellant was a caring and engaged father.17 Campbell v R [2020] NZCA 356 at [41], quoted in Philip v R [2022] NZSC 149, [2022] 1 NZLR571 at [50] per Winkelmann CJ, Ellen France and Williams JJ. The minority of the Court(Glazebrook and O'Regan JJ) did not disagree with the majority's reasoning in relation to discountsfor the impact of imprisonment on an offender's family: see [62] per Glazebrook and O'Regan JJ.18 At [56] per Winkelmann CJ, Ellen France and Williams JJ, citing Mau v R [2021] NZCA 106;Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509; and Fukofuka v R [2019] NZCA 290.Mr Tuck, who filed supplementary submissions for the appellant, also noted thecomments of a psychologist who gave evidence in Philip which were quoted by themajority as follows:19 the practical effect of [Mr Philip's] imprisonment "on Ms Hayman [theother caregiver] could have a detrimental impact on her ability to provide thequality and stability of care she seems to provide currently".He submitted that similar considerations apply here.[15] The Crown, on the other hand, submitted that an evaluation of all of the relevantcircumstances, as required by Philip, does not support a greater discount in this case.In particular, the Crown submitted that:(a) The other component parts of the 10 per cent discount given by theJudge (summarised at [8]–[9] above) justified only limited recognition,if any. The appellant accordingly received an appropriate discount forhardship to his family.(b) On its own, the hardship to the appellant's family did not justify adiscount of 10 per cent. The Crown refers in particular to the fact thatthe appellant was not the primary caregiver; the offending was seriousand occurred over a lengthy period; and the appellant continued to denyhis offending and had failed to take meaningful rehabilitative steps.(c) The further evidence on appeal does not materially change theassessment. The position of the appellant's family is not materiallydifferent from what the Judge would have anticipated at the time ofsentencing, based on the evidence that was before him.Our view[16] As noted above, the focus is on the end sentence, rather than the process bywhich it was reached. We therefore note at the outset that the discount of 15 per centfor the matters set out in the s 27 report was, in our view, somewhat on the generousside. While not minimising the challenges the appellant has faced, unlike many19 At [53].offenders who appear before the courts, his background does not appear to have beencharacterised by severe deprivation and/or abuse.[17] Turning to the global 10 per cent discount for other factors, we accept the Crownsubmission that only modest discounts were available for good character andremorse/rehabilitative prospects.[18] Any credit for good character was tempered by the fact that there were two setsof offending involving a total of five incidents that spanned a period of years. As forremorse, it is arguable that no discount was available on the evidence before the Court.For example, the pre-sentence report writer noted:[The appellant] was found guilty at a jury trial, and throughout the pre-sentenceinterview denied his sexual offending to the report writer. [The appellant]displayed cognitive distortions around his offending, shifted blame to thevictim stating that she was lying about the sexual offending, then tried to blamehis alcohol use around the time of the offending.[19] Similar comments are made throughout the pre-sentence report.[20] The s 27 report (prepared shortly before sentencing) also provides little or noevidence of insight or remorse. The appellant claimed not to recall the offending "butthe jury said I did it — so I did". He further stated that "I still don't recall what Isupposedly did to my own daughter" and expressed the view that it would "[b]e simplerif I could remember/recall then I could heal and move on." His position appears to bethat if the offending occurred it must have been attributable to his heavy alcohol use,which also explains his lack of recall. It seems somewhat implausible, however, thatthe appellant would be unable to recall five separate incidents of sexual offendingacross two different time periods. Further, such an assertion does not appear to besupported by the appellant's partner's comment to the s 27 report writer that:According to [X's] dates I was around for the later ones (offenses) — we weredrinking, our best mates were our neighbours. We always made consciousdecisions on leaving so I don't think the drinking was a problem particularly.[21] Later, the report writer states that:[The appellant] continues to deny his sexual offending, but also acknowledgesthat the court has determined his guilt.He appears to have minimal insight into his offending, its impact on the victimand others.[22] The report writer also observed that:The absence of any mention of his daughter or any possibility of any impact onher is stark. This seems to support the proposition that [the appellant] haslimited emotional intelligence or capacity to fully comprehend the notion ofaction or consequence — irrespective of his guilt or innocence.[23] The appellant's letter to the sentencing Judge (dated 14 December 2021)appears to (belatedly) show somewhat more insight. In it, the appellant stated that he"fully accept[s]" that he "did the things" that he had been convicted of and that he is"deeply remorseful" for the pain and damage done to his daughter and family. Theappellant continued to maintain, however, that he "genuinely [could not] rememberwhat happened", which he thought might be because of his "black out drinking". Theappellant sought to explain aspects of the pre-sentence report, stating that he found theinterview process "confronting", he went into "a defensive mode" and he had madeincorrect comments about the offending to the pre-sentence report writer "out of fear".We do not find these explanations particularly convincing. As noted above, theappellant also made a number of concerning statements in his interview with the s 27report writer.[24] In our view the appellant's belated assertion of remorse could only justify a verymodest discount (if any), given the contents of the pre-sentence report and s 27 report.Further, the appellant's lack of insight into his offending and the harm it has done tohis daughter also impacts negatively on his rehabilitative prospects.[25] The final component of the global 10 per cent discount was the impact on theappellant's family of a sentence of imprisonment, which is the focus of this appeal.Taking into account all the circumstances, we consider it was open to the Judge to givesome credit to the appellant on account of hardship to his family, including the loss ofthe family breadwinner and the loss of his supportive presence in the home as thechildren's father. Such a discount was not, however, essential. We consider thediscount given by the Judge was adequate, having regard to the following factors:(a) The appellant was not the primary caregiver of his children. As themajority noted in Philip v R, it is not helpful to emphasise this factor "tothe exclusion of other factors".20 It is nevertheless a relevant factor thatmay be considered together with all other relevant factors. While theappellant's children will inevitably be impacted by his imprisonment,the degree of impact will be somewhat less than if he were the primarycaregiver.(b) The offending was serious and, while there was a gap between the twosets of offending, it spanned a lengthy period. As noted in Campbell v R,"the nature of the offending and other sentencing considerations" mayinform the assessment of the appropriate discount for impact on anoffender's family.21(c) As we have found above, the appellant has shown limited remorse forhis offending. As the Supreme Court noted in Philip v R, a lack ofremorse and/or rehabilitative steps is a relevant factor in determiningwhether a discount is appropriate.22 We consider the appellant's lack ofremorse decreases any available discount for the impact of hisimprisonment on his family.[26] As we have noted above, the 15 per cent discount for the factors referred to inthe s 27 report was generous. As for the additional 10 per cent global discount, it waswithin range, given that each of the component elements of that discount warrantedonly modest credit, for the reasons we have outlined above. Viewing the discounts intotality, the 25 per cent afforded by the Judge for the range of personal mitigatingfactors he identified was well within range. It follows that the end sentence is notmanifestly excessive.20 Philip v R, above n 8, at [56] per Winkelmann CJ, Ellen France and Williams JJ.21 Campbell v R, above n 17, at [45].22 Philip v R, above n 8, at [56] per Winkelmann CJ, Ellen France and Williams JJ.Result[27] The application for leave to adduce further evidence on appeal is granted.[28] The appeal is dismissed.[29] The complainant is the daughter of the appellant. The complainant's name issuppressed pursuant to ss 203 and 204 of the Criminal Procedure Act. We are satisfiedthat publication of the appellant's name would be likely to lead to the identification ofthe complainant.23 In order to protect the complainant's identity, we make an orderprohibiting publication of the appellant's name, address, occupation or identifyingparticulars pursuant to s 200 of the Criminal Procedure Act.Solicitors:Crown Solicitor, Auckland for Respondent23 Criminal Procedure Act, s 200(2)(f).