TUARAE v R [2023] NZCA 229

TUARAE v R [2023] NZCA 229 [13 June 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA527/2021[2023] NZCA 229BETWEEN TANE DAVILLE TUARAEAppellantAND THE KINGRespondentHearing: 11 May 2023Court: Mallon, Moore and Fitzgerald JJCounsel: M J Taylor-Cyphers for AppellantB D Tantrum and A F Mackenzie for RespondentJudgment: 13 June 2023 at 12 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Following a jury trial in the District Court at Auckland, Tāne Tuarae wasconvicted of representative charges of doing an indecent act on a child under 12,11 Crimes Act 1961, s 132(3).representative and non-representative charges of doing an indecent act of on a youngperson under 162 and one representative charge of attempted sexual violation.3 Priorto trial, Mr Tuarae pleaded guilty to two charges of assault on a child.4[2] Mr Tuarae was sentenced by Judge Bennett to four years and six months'imprisonment for this offending.5 He appeals his sentence.6 He says there was anerror in his sentence requiring correction on appeal because his personal mitigatingfactors should have led to additional discounts of 10 per cent for his cannabisaddiction, five per cent for his time spent on bail, and a further five per cent (on top ofthe 10 per cent discount given) for his youth.The offending[3] The offending occurred over a four-year period against one victim, P. At thetime of the offending P was aged between nine and 13. Mr Tuarae was between 18 and22 years old.[4] The indecency convictions related to the period between about January 2016and February 2018. Mr Tuarae would go into P's bedroom late at night and touch her.P described in her evidence how Mr Tuarae would place his hands under her clothingand would touch and rub her breasts and genitalia. This occurred as often as threetimes a week. On some occasions, Mr Tuarae would expose his penis and grab P'shand placing it on his penis to stimulate himself.[5] The attempted sexual violation conviction related to two separate occasions inDecember 2017 and February 2018. On those occasions Mr Tuarae attempted to havesexual intercourse with P. He removed his pants and exposed his penis and positionedhimself on top of her. Mr Tuarae attempted to remove P's pants, but she managed toprevent him from doing so.2 Section 134(3).3 Section 129(1).4 Section 194(a).5 R v Tuarae [2021] NZDC 16332.6 Criminal Procedure Act 2011, ss 244(1) and 250(2). A conviction appeal was filed but formallyabandoned by notice on 5 May 2023.[6] The charges of assaulting a child related to occasions between aboutFebruary 2014 and January 2018 when Mr Tuarae became angry with P and slappedher around the neck and face and kicked her legs and buttocks.District Court sentence[7] In sentencing Mr Tuarae, the Judge considered a four-year starting point wasappropriate for the lead offence of attempted sexual violation.7 The Judge thenuplifted the starting point by two years to reflect the other offending.8 This resulted inan adjusted starting point of six years imprisonment. There were no personalaggravating features warranting an uplift.9 There were several mitigating featuresidentified by the Judge.[8] For youth, the Judge referred to Mr Tuarae's age at the time of the offendingand applied a discount of 10 per cent noting that this was "within the midrange ofdiscounts for youth".10[9] The Judge had the benefit of a s 27 report and referred to the following passagefrom it:11There is much trauma present in [Mr Tuarae's] childhood. He was abandonedby his birth parents. He suffered the loss of a much loved sister. His parentsseparated. His father died. These were heavy burdens of trauma on a younglife. They undoubtedly had significant impact on his wellbeing anddevelopment.These significant traumas led to heavy, daily cannabis use that may have beensomewhat causal in [Mr Tuarae's] offending behaviours. He very well mayhave been impaired by the substance at the time of offending.Family dysfunction and the skewing of relationships is also clearly evident.[Mr Tuarae's] father was heavily involved in gangs as was his brother. Theyshared a partner. They both had children to this particular woman. The tiesare complex and emotionally charged with abandonment and betrayal. [P]had also been abandoned to the care of [].7 R v Tuarae, above n 5, at [15].8 At [15].9 At [16].10 At [17].11 At [17].[10] The Judge considered "all of those background factors" identified in the reportwere relevant.12 The Judge said they painted a "pretty unhappy picture of dysfunction"in Mr Tuarae's early life.13 She allowed a 10 per cent discount for these backgroundfactors.14[11] Lastly, the Judge applied a discount of five per cent for Mr Tuarae's goodcharacter.15 The Judge considered that, despite Mr Tuarae's previous convictions andthe period of offending, Mr Tuarae had "given back" to his community.16[12] In total, the Judge discounted the starting point by 25 per cent to account forMr Tuarae's personal circumstances. The resulting end sentence was thereforefour years and six months' imprisonment.17AnalysisCorrect approach to appeal[13] There was no challenge to the starting point.18 The appeal focused solely onthe discounts given. For Mr Tuarae it was contended that if there was any error in anyof the discounts for mitigating factors, the appeal should be allowed and a newsentence substituted.[14] However, the court must allow the appeal only if it is satisfied that, for anyreason, there is an error in the sentence imposed and that a different sentence shouldbe imposed.19 It is well established that the focus remains on the end sentence, not theprocess by which the sentence was reached.20 The court will not intervene if thesentence is within the range that can properly be justified by accepted sentencing12 At [18].13 At [18].14 At [18].15 At [19].16 At [19].17 At [20].18 Although not challenged by either party, the Crown did submit that it was arguably lenient.19 Criminal Procedure Act, s 250(2).20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].principles.21 An assessment of whether the sentence is manifestly excessive remainsa useful concept in this inquiry.22[15] We turn to consider the errors alleged before assessing whether they led to amanifestly excessive sentence such that a different sentence should be imposed.Cannabis addiction[16] Mr Tuarae submits that, in addition to the 10 per cent discount allowed for hisbackground factors, a separate discount should have been allowed for his addiction tocannabis which was referred to in the s 27 report and the provision of advice to thecourt (PAC) report. He submits that his addiction likely impaired his decision-makingability.[17] The PAC report referred to Mr Tuarae's daily cannabis use, which he said wasto manage his grief from losing his siblings and his biological parents abandoning him.The s 27 report referred to Mr Tuarae's regular and heavy cannabis use since the ageof 14. As noted above, the Judge quoted parts of the s 27 report. Those parts referredto "significant traumas" in Mr Tuarae's childhood that led to his heavy cannabis usethat "may have been somewhat causal in [Mr Tuarae's] offending behaviours". Thoseparts also referred to the family dysfunction. The s 27 report went on to say that"[w]hilst the causal nexus of [his] offending [was] not strong, there [was] undoubtedlyconsiderable pain, trauma and dysfunction rife in his narrative".[18] The Judge provided a 10 per cent discount for "all those background factors".23It therefore included a discount for his daily cannabis use and any contribution thathad to the offending. It was not necessary for the Judge to identify a discrete discountfor addiction separate from the other background factors.24 The question is whether a10 per cent discount was adequate for all of the relevant background factors.21 At [36] citing Tutakangahau v R [2014] NZHC 556 at [10].22 At [35].23 R v Tuarae, above n 5, at [18].24 See, for example, Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [151]–[158] and [162]where the Supreme Court allowed Mr Berkland a discount of 10 per cent for all of his deprivedbackground generally, including his methamphetamine addiction.[19] Drug addiction may be a mitigating factor if it is linked to the offending.25 Ifthere is a stronger connection with or contribution to the offending, a greater discountmay be warranted. Here, any contribution Mr Tuarae's cannabis use had to hisoffending (as compared with the connection between his dysfunctional upbringing orgrief and his cannabis use) is relatively weak. He may have been impaired in somemanner by cannabis use when he offended as the s 27 report writer suggests, but thatdoes not explain whether that impairment was a factor in his offending nor why heengaged in sexual offending against his young victim over several years. It is differentfrom, for example, the more obvious connection between addiction and low-level drugdealing to support that addiction.[20] While some judges may have allowed a slightly greater discount for matters inthe s 27 report, we are satisfied the total discount of 10 per cent for background factorswas within range.26 While Mr Tuarae's upbringing was dysfunctional, he was lovedby his whāngai mother. He was employed during the period of the offending. He alsoworked as a Māori warden from 2013 to 2018.27 We are satisfied that there was noerror in the discount provided.Youth[21] Mr Tuarae contends that the Judge intended to afford him a "mid-range"discount for youth but instead afforded a discount at the low end of the range. Herefers to W v R, where this Court stated that youth discounts generally vary between10 and 30 per cent.28 He submits that the discount should therefore have been15 per cent rather than the 10 per cent allowed.[22] However, the appropriate discount for youth reflects the particularcircumstances of the offender.29 Here, Mr Tuarae was 18 years and nine months oldwhen he first assaulted the victim. He was around 20 years and seven months old25 Wheeler v R [2017] NZCA 193 at [13]; and Matthews v R [2019] NZCA 208 at [7].26 See, for example, Drewet v R [2023] NZCA 192 at [74]; McDonald v R [2023] NZCA 172 at [15];and Kreegher v R [2021] NZCA 22, (2021) 29 CRNZ 622 at [47].27 Compare with, for example, the 15 per cent discount allowed to the two defendants in Carr v R[2020] NZCA 357 at [63]–[65] and [70]–[71] where the matters raised in both s 27 reportsalongside the corrosive effect of involvement in anti-social relationships were more significant.28 W v R [2022] NZCA 442 at [61].29 At [62].when his sexual offending began, and between 22 years and six months and 22 yearsand nine months old when he attempted to sexually violate the victim. In other words,most of his offending began when he was over 20 years old and the most seriousoffending was when he was over 22 years old. We agree with the Crown's submissionsthat that this age range is towards the upper end at which discounts for youth areroutinely given. Further, the offending did not arise from a momentary loss of self-control that can be a feature in youth offending.30 Instead it occurred over a period ofseveral years.[23] We are satisfied that there was no error in the 10 per cent discount for youthallowed by the Judge.Time on bail[24] Mr Tuarae was on bail simpliciter for approximately two and a half years. Hisconditions required him to reside at his home address, and not to associate with thecomplainant or witnesses, have contact with young people under 16 years of age orapply for any passport or travel documents. He was subject to bail checks.[25] Mr Tuarae submits a modest discount could have been given for the time hespent on bail. He accepts that the conditions of bail were not particularly onerous butcontends that his compliance was exemplary over the lengthy period of his bail.[26] The Sentencing Act 2002 provides that time spent on electronically monitored(EM) bail is a mandatory mitigating factor.31 The purpose of a discount for EM bailis to recognise its restrictive nature. Although not specifically provided for in theSentencing Act, a discount for time spent on bail simpliciter is potentially available asa matter of discretion where the conditions are restrictive, such as where they imposelengthy curfews.32 Any such discount will depend on the restrictiveness of the bail,the length of time spent on that restrictive bail and the level of compliance by theoffender.3330 At [60]. See also Mehrok v R [2021] NZCA 370 at [42]–[43].31 Sentencing Act 2002, s 9(2)(h).32 See, for example, Kreegher v R, above n 26, at [9] and Bennett v R [2012] NZCA 173 at [25].33 See Kreegher v R, above n 26, at [49]; R v Nepe [2008] NZCA 98 at [33]; Keown v R [2010] NZCA492 at [12]; and Tamou v R [2008] NZCA 88 at [18]–[19].[27] We are satisfied that there was no error by the Judge in failing to allow adiscount for the period that Mr Tuarae spent on bail. His conditions were notparticularly restrictive and compliance with his bail conditions over an extendedperiod is not in itself sufficient to require a discount in these circumstances.Conclusion[28] As noted, the ultimate inquiry is whether the end sentence reached by thesentencing Judge is within the range. We are satisfied that it was. We also note that,while it was not wrong to allow it, the discount for good character was arguablygenerous. Mr Tuarae had previous convictions for unrelated offending and the currentsexual offending was serious and extended over several years.Result[29] The appeal is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent