CASH v R [2021] NZCA 369

CASH v R [2021] NZCA 369 [6 August 2021]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS S203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA620/2020[2021] NZCA 369BETWEEN TAUKIRI MAKAIRA CASHAppellantAND THE QUEENRespondentHearing: 24 June 2021Court: Kós P, Mander and Davison JJCounsel: N P Chisnall and L A Elborough for AppellantM R L Davie for RespondentJudgment: 6 August 2021 at 9 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of five years and 10 months' imprisonment is quashed.C A sentence of four years and six months' imprisonment is substituted.D The order imposing a minimum period of imprisonment is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Davison J)[1] The appellant, Taukiri Makaira Cash, appeals his sentence of five years and10 months' imprisonment with a three-year minimum period of imprisonment (MPI)imposed by Jagose J in the High Court at Hamilton on 6 October 2020.1 The appellanthad previously entered guilty pleas and was convicted of one charge each ofkidnapping,2 attempting to do an indecent act on a child under the age of 12,3intentionally exposing a young person under the age of 16 to indecent material incommunicating with her,4 and three charges of doing indecent acts with intent to insultor offend.5[2] The appellant appeals on the grounds that the sentence is manifestly excessive.He submits that:(a) The overall starting point adopted by the Judge was excessive.(b) The uplift applied because the offending was committed while he wason bail was too high.(c) The Judge erred by failing to allow any discount on account of hispersonal background as detailed in a report prepared under s 27 ofthe Sentencing Act 2002.(d) The Judge gave an insufficient discount for his guilty pleas.Background[3] We adopt the Judge's summary of the appellant's offending:6[7] On 26 August 2018, you attracted the attention of a group of threegirls aged 10 or 11 walking on the footpath, and showed them a picture ofa naked woman on your mobile phone. They became upset and ran home.This was your indecent communication offence.1 R v Cash [2020] NZHC 2629 [Sentencing notes].2 Crimes Act 1961, s 209. Maximum penalty 14 years' imprisonment.3 Sections 72 and 132(3). Pursuant to s 311(1) the maximum penalty for an attempt is five years'imprisonment.4 Section 124A. Maximum penalty three years' imprisonment.5 Section 126. Maximum penalty two years' imprisonment.6 Sentencing notes, above n 1.[8] On 31 August 2018, you drove up to a group of five girls, agedbetween five and eleven, selling lemons on the side of the road. You got themto approach you by offering them money. Once close to you, you exposedyour penis to them. This was the first of your three indecent act offences.[9] On 5 October 2018, children were playing on the footpath outsidetheir home. One, aged four, was riding her scooter along the footpath a shortdistance from her siblings. You approached her in your car and offered hermoney. When she was close to you, you pulled her inside your car and droveaway. The alarm was raised by her siblings' screams, alerting their mother.You knew you had been seen by the mother, and with your escape impeded byheavy traffic, you stopped a short way up the road and pushed the girl out ofthe vehicle before fleeing. This is your kidnapping offence.[10] On 15 October 2018, in your car, you followed a nine-year-old girlwalking home from school. You drove past her, turned around, and thenparked a short distance ahead of her. As she walked past you, you pointedthe camera of your cell phone at her. She saw you masturbating. Youcontinued to follow her. She became frightened and ran home. This isthe second of your three indecent act offences.[11] Your third indecent act offence occurred on 29 October 2018, whenyou approached another nine-year-old girl walking along a footpath. Fromyour car, you told her you had a special video you wanted to show her. As shereached your vehicle, you sat up in your seat, exposing your penis to her.[12] The last offence occurred on 31 October 2018.7 You drove up toa ten-year-old girl standing at the end of her driveway, and asked fordirections. As she talked with you, you held up your mobile phone andshowed her sexual images. You unzipped your pants and showed her yourpenis, asking if she wished to touch it. She became frightened and ran intoher house. This is your attempted sexual conduct offence.High Court sentencing[4] The Judge adopted the kidnapping charge as the lead charge. Aftersummarising the offending and considering several analogous cases,8 the Judgeadopted an overall starting point of six and a half years' imprisonment.9[5] The kidnapping cases considered by the Judge had starting points of seven anda half years,10 two to three years,11 and two years.12 The Judge noted that in7 The offending that occurred in October 2018 happened while the appellant was on bail.8 R v Robertson HC Tauranga CRI-2005-070-453, 4 October 2006; R v Muavae [2000] 3 NZLR 483(CA); and Harrison v R [2009] NZCA 162.9 Sentencing notes, above n 1, at [33].10 R v Robertson, above n 8, at [41].11 R v Muavae, above n 8, at [18] where this Court observed that the kidnapping itself would haveattracted a sentence of around two to three years, and the totality of the offending could havejustified a sentence of up to six years' imprisonment.12 Harrison v R, above n 8, at [22] and [25].R v Robertson the duration of the kidnapping ("some hours") and the indecent assaultthat had occurred rendered that offending more serious than the appellant's.13The Judge considered that the offending in R v Muavae, where a 15-year-old girl witha developmental age of eight or nine was abducted, sexually violated, and indecentlyassaulted, was also more serious than the appellant's offending where the complainantwas "substantially younger and still more vulnerable".14 The Judge also consideredHarrison v R where the offender left his vehicle and approached a group of childrenwaiting at a bus stop. The offender took hold of the youngest child, a five-year-oldboy, and attempted to take him to his car. When the boy and the other children resistedhim he released his hold, returned to his vehicle, and drove away. The Judge notedthat a starting point of two years' imprisonment had been upheld on appeal.15[6] The Judge found that the culpability of the appellant's kidnapping wasaggravated by it having occurred in the context of his sexual offending against childrenwhose vulnerability was self-evident, and by his premeditated prowling of the streetslooking for children to prey on.16 From his review of analogous kidnapping casesthe Judge concluded that a stand-alone starting point for the appellant's kidnappingoffending was four to five years' imprisonment, and adopted a starting point of fourand a half years' imprisonment.17[7] The Judge then uplifted the starting point by 18 months for the sexualoffending, and by a further six months to recognise that the appellant's October 2018offending had occurred while he was on bail, albeit on "the arguably unrelated chargeof family violence".18 The Judge commented that the appellant's disregard for courtorders meant that the sentence imposed should also engage additional personaldeterrence.13 Sentencing notes, above n 1, at [26].14 At [27].15 At [28].16 At [29].17 At [30].18 At [31]–[32].[8] Accordingly, the Judge reached an adjusted starting point of six and a halfyears' imprisonment, which he considered appropriately addressed the totality ofthe appellant's offending.19[9] Turning to the appellant's personal circumstances, the Judge found that neitherthe appellant's age of 28 years, nor his nine previous convictions which were unrelatedto the index offending, warranted a discount or uplift to the starting point.20[10] While the Judge rejected a submission made by the appellant's counsel that hisoffending had been caused by his personal background, he nevertheless accepted thatthe appellant had experienced the "trapped lifestyle" described by Sir Mason Durie,21which the Judge summarised as being a collection of socioeconomic circumstancesand confused cultural identity resulting in marginalisation and diminished self-respect,with the resulting behaviours placing Māori at a disproportionate risk ofincarceration.22[11] However, the Judge said that he could not see any causal relationship betweenthose aspects of the appellant's background and his offending, and although hisbackground may go some way towards explaining his feeling of being "broken, shutout, and helpless", it did not reduce his culpability or explain how he may have beenpredisposed to sexual offending against children.23 The Judge said that it appearedthat the appellant lacked insight into his responsibilities as an adult towards childrenand the damage he had caused by his offending. On this issue the Judge concluded:24To be clear, your offending is not a 'mistake', 'silliness' or 'nonsense'; it isyour deliberate and serious breach of community standards to protectthe vulnerable. Your inability to recognise that means your prospects ofrehabilitation are hugely diminished. No discount is justified on account ofyour personal circumstances.[12] Turning to the issue of a discount for the appellant's guilty pleas, the Judgenoted that after they were originally entered, the appellant had applied for leave to19 At [33].20 At [35].21 See Mason Durie Ngā Kāhui Pou: Launching Māori Futures (Huia Publishers, Wellington, 2003)at ch 4.22 Sentencing notes, above n 1, at [36].23 At [37].24 At [38].vacate and withdraw them which would have added to the burden on the complainantsand their families.25 The Judge observed that the appellant's guilty pleas had, inthe end, spared the complainants and their families the distress of a trial, for which heallowed a 10 per cent discount to reduce the end sentence by eight months.26This adjustment produced the end sentence of five years and 10 months'imprisonment, which the Judge imposed.27[13] The Judge then proceeded to consider the imposition of an MPI. He observedthat the appellant would ordinarily be required to serve at least one third, or 23 months,of the sentence before becoming eligible for parole,28 but if he considered that to be"too short for the purposes of sentencing in [the appellant's] case" he could requirethe appellant to serve up to two thirds of the sentence before being eligible for parole.29[14] The Judge commented that the sentence he imposed was required to have tohave a degree of reality about it.30 He then said that while a sentence of imprisonmentmay deter the appellant from further offending against children: 31 the prospect you may be released into the community in less than two yearsis insufficient to hold you accountable for the harm you have done, or properlyto denounce that conduct, or to protect the community from you.32 Onthe other hand, to require [that] you may not be released for nearly four yearsis to deny you much incentive to obtain the insight your successfulrehabilitation will require.[15] The Judge imposed a three-year MPI.3325 At [39]. The appellant originally entered guilty pleas to the charges on 14 November 2019.The week before he was originally due to be sentenced, he dismissed his then counsel and advisedhe wished to vacate and withdraw his guilty pleas. He then made an application for leave to vacatehis guilty pleas, but prior to the scheduled hearing of the application he withdrew it, and it wasdismissed on 9 July 2020. His sentencing then followed on 6 October 2020.26 Sentencing notes, above n 1, at [39].27 At [40].28 Parole Act 2002, s 84(1).29 Sentencing notes, above n 1, at [41].30 At [42], citing Gordon v R [2009] NZCA 145 at [15].31 Sentencing notes, above n 1, at [42].32 Shaw v R [2016] NZCA 110 at [24]; and Fleming v R [2011] NZCA 646 at [22].33 Sentencing notes, above n 1, at [43].Issues on appeal[16] We will now address the issues on this appeal, which relate to the starting point,s 27 discount, credit for the guilty pleas and MPI.[17] We will address submissions expressly where needed in the course of ouranalysis.Starting point[18] There are no guideline judgments for kidnapping sentencing, because ofthe "infinite variety of circumstances which underlie the crime of kidnapping".34[19] We agree with Mr Elborough that Harrison provides a reasonably closeanalogy with the appellant's offending.35 In both cases the offender approached agroup of young children on the side of the road with the intention of abducting one ofthem. In both cases the offenders took hold of a child in order to force the child intotheir vehicle. However, while the offender in Harrison did not succeed in forcing theboy he had taken hold of into his vehicle, the appellant did achieve his intendedabduction of a child by first luring her close to his car, then pulling her into it anddriving away. Those actions make the appellant's offending significantly moreculpable than the offending in Harrison notwithstanding that the objective of theoffenders in both cases was the same — namely the abduction of a child off the streetand taking them away in a car.[20] When comparing kidnapping cases, the starting points adopted and the finalsentences imposed, it is relevant to note that it is often the case that kidnapping isaccompanied by other serious offending against the abducted person. Where the courthas taken another offence as the lead offence for the purposes of determiningthe sentence, the sentence imposed for the kidnapping offending is by way of an upliftto the starting point adopted for the lead offence as distinct from a stand-alonesentence. Where this sentencing methodology has been adopted the sentences34 R v Wharton (2003) 20 CRNZ 109 (CA) at [11].35 Harrison v R, above n 8.imposed as uplifts to the sentence for the lead offending and as concurrent sentencesare not necessarily closely comparable with stand-alone sentences.[21] Robertson is an example of this.36 The defendant was charged with abductinga child, committing three indecencies on the child, attempting to kidnap two otherchildren, and robbing another child. The defendant approached a five-year-old girlwalking on her way to school with her seven-year-old brother. He tricked her to getinto his car, and then drove her to a remote location where he removed her boxer shortsand indecently assaulted her. Fortuitously, the police located the defendant in the carwith the child an hour after she had been abducted. For the abduction offending,Keane J adopted a starting point of seven and a half years, which was also the finalsentence imposed.37 For each of the two attempted kidnapping charges, the Judgeimposed concurrent sentences of two years' imprisonment.38 Because of the way inwhich Keane J constructed the sentence imposed in Robertson, we do not findthe sentence he imposed for the two attempted kidnapping offences to be a usefulcomparison when determining the appropriate starting point of the appellant'soffending.[22] In Muavae the defendant was charged with the kidnapping, sexual violation byunlawful sexual connection and indecent assault of a particularly vulnerable15-year-old female complainant with a developmental age of only eight or nineyears.39 The complainant was abducted and driven around in the offender's car forseveral hours, her repeated requests to be taken home ignored, and with the doors ofthe vehicle locked to prevent her escaping. Then in the evening the offender drove herto a public reserve and, after removing her clothing, indecently assaulted her bykissing her breasts and sexually violated her by digitally penetrating her vagina.On a Solicitor-General's appeal, this Court quashed a sentence of three years'imprisonment imposed in the District Court and substituted a sentence of four anda half years' imprisonment.40 The Court said:4136 R v Robertson, above n 8.37 At [42].38 At [45].39 R v Muavae, above n 8.40 At [20].41 At [18].Viewed in totality, the offending could well have justified a sentence of up tosix years' imprisonment, the charge of kidnapping itself attracting a sentenceof around the two-to-three-year mark. The kidnapping was not a mereincident of the sexual offending but constituted a prolonged and enforceddetention which must have been disturbing for the victim.[23] We consider the appellant's kidnapping offending to be significantly lessculpable than the offending in Muavae. A comparison of the offending in Muavaewith the appellant's offending in the present case clearly demonstrates that they do notshare an equivalent level of gravity. In our view, and notwithstanding this Court'sobservation that a sentence of up to six years' imprisonment could well have beenjustified for the totality of the offending in Muavae, the four-and-a-half-year sentenceimposed in that case reflects significantly more serious offending than the appellant's.[24] We consider that the appellant's culpability and consequently the appropriatestarting point for his offending lies between the two-year starting point adopted inHarrison and the four-and-a-half-year sentence imposed in Muavae. In our viewthe appropriate starting point is three and a half years' imprisonment. The offendingis appropriately regarded as being brief in duration. The child was released shortlyafter the appellant had driven away with her, and she was not detained for an extendedperiod of time or subjected to any trauma in addition to that inherent in the experienceof being pulled into the appellant's car and detained, albeit fairly briefly. The adjustedstarting point represents one quarter of the maximum penalty for kidnapping. That isa year less than the starting point adopted by the Judge, and we accordingly find thatthe starting point chosen by the Judge was in error.The 18-month uplift for the other charges[25] We note that the appellant does not take issue with the uplift of 18 months'imprisonment added to the starting point for the other charges. We also note thatthe appellant acknowledges that the six-month uplift applied by the Judge to accountfor the appellant's offending occurring while he was on bail was within the availablerange.[26] The Crown submits that an uplift greater than the 18 months added bythe Judge for the other offending was potentially available, and says that the six-monthuplift for the offending being committed while the appellant was on bail was withinrange. We agree.Discount for s 27 factors[27] For personal background factors such as cultural and economic deprivation towarrant a reduction in the sentence that would otherwise be imposed, those factorsmust be shown to have a demonstrative nexus with the offending such as to havereduced the offender's culpability by reason of contributing causatively tothe occurrence of the offending.42[28] In Zhang v R this Court explained:43[159] ingrained, systemic poverty resulting from loss of land, language,culture, rangatiratanga, mana and dignity are matters that may be regarded ina proper case to have impaired choice and diminished moral culpability.Where these constraints are shown to contribute causatively to offending(whether associated with addiction or not), they will require consideration insentencing.[162] social, cultural or economic deprivation that has a demonstrativenexus with the offending may be presented in mitigation regardless ofthe specific ethnicity of the offender. Likewise, the tools available in ss 25and 27 are there for use by any relevant offender.[29] We do not accept the submission that the appellant's sexual offending againstyoung children can be either attributed to or connected with his difficult and unsettledchildhood which involved him being frequently exposed to domestic violence.His sexual interest in children is not demonstrated to be related to his unsettled andpoverty-stricken background and experiences as a child and young person. While it isclear that as a child he was exposed to domestic violence, experienced real poverty,and was exposed to drug and alcohol abuse from an early age, there is nothing in hisbackground to show that he was subjected to sexual abuse or that he was exposed tosexual behaviour that would have the potential to cause or give rise to sexual offendingtowards children. We do not see any demonstrative nexus between the appellant's42 Bartlett v R [2021] NZCA 152 at [41].43 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 (footnotes omitted).background as set out in the detailed s 27 report and his sexual offending againstchildren.[30] In our view the offending in R v Webster, on which Mr Chisnall relies, can bedistinguished from the present case.44 In that case the defendant was convicted of30 charges of physical and sexual violence against several women. The defendant'sbackground had involved him being subjected to frequent beatings by his father, whowas a gang member living a lifestyle characterised by heavy drinking. He had seenhis father kicking people in the head and had witnessed his uncle's violent behaviour,including seeing him beat an aunt until she was unrecognisable. The offender's sexualoffending resulted in 24 convictions on charges of acts of serious sexual violationincluding rape and unlawful sexual connection, which were carried out in manyinstances by force and with violence. That type of violent sexual offending directedtowards adult women is distinctly different in character to the sexual devianceunderlying the appellant's sexual offending directed towards children.[31] There being no demonstrative nexus to connect the appellant's social, culturaland economic deprivation with his offending, there is consequently no basis uponwhich it would be appropriate to allow a discount of his sentence on that account.We accordingly find that the Judge was correct in his decision not to give any discountin respect of the appellant's personal background as described in the s 27 report.Insufficient credit for guilty pleas?[32] Mr Chisnall submits that the Judge erred by only giving the appellanta 10 per cent discount in recognition of his guilty pleas. He says that the Judge placeddispositive weight on the fact that the appellant had previously applied for leave towithdraw his guilty pleas, and in effect treated the appellant as if he had pleaded guiltyon the eve of trial. Mr Chisnall argues that even if the appellant had entered his pleasat a late stage just before trial he could have received a more generous discount toreflect the benefits to the administration of justice that flowed from avoiding the youngcomplainants having to give evidence. He submits that the appellant should havereceived a 15 per cent discount for his guilty pleas.44 R v Webster [2021] NZHC 1016.[33] For the Crown, Mr Davie submits that the Judge made no error. We agree.The pleas were entered at a late stage and the delay caused by the appellant'sapplication for leave to vacate and withdraw his guilty pleas, and the effect of the delayand uncertainty it caused for the complainants and their families, was clearly a relevantfactor in the Judge's consideration of the appropriate discount. We also note thatthe appellant's explanation (in a letter expressing remorse) that the reason he appliedfor leave to vacate his guilty pleas was because he was embarrassed that what he haddone was sexually motivated, and he felt ashamed that he had offended againstchildren. Significantly, those reasons are quite unrelated to the accuracy ofthe complainants' allegations.[34] The 10 per cent discount allowed by the Judge was appropriate recognition thatthe appellant's guilty pleas had spared the complainants the distress of a trial. Indeed,given the cogency of the prosecution case against the appellant, and the late entry ofthe guilty pleas following his withdrawal of the application for leave to vacate hisguilty pleas, it was even perhaps generous. Determination of the amount of a guiltyplea discount is a matter of judicial assessment and discretion having regard tothe relevant context and background.45 We accordingly reject the submission thatthe Judge erred and that a greater discount ought to have been allowed.Minimum period of imprisonment[35] Mr Chisnall submits that the sentence of imprisonment imposed onthe appellant itself satisfies the objectives contained in s 86 of the Sentencing Act, andaccordingly an MPI is unnecessary. He further submits that the imposition of an MPIwas inconsistent with the overriding sentencing principle of imposing the leastrestrictive outcome appropriate in the circumstances.46 Mr Chisnall submits thatthe three-year MPI imposed by the Judge is not necessary to protect the communityfrom the appellant, and the extra term the appellant may be required to serve is merelydeterrent and denunciative and fails to recognise the appellant's good prospects ofrehabilitation, as evident from the contents of the s 27 report.45 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [57] and [65].46 Sentencing Act 2002, s 8(g).[36] Mr Davie submits that the Judge did not err by imposing the MPI, and that hewas entitled to conclude that the sentencing purposes of denunciation andaccountability would not be achieved by the standard non-parole period due tothe large number of complainants and the attendant harm to them caused bythe offending.[37] The Judge explained when imposing the MPI that the prospect of the appellantbeing released back into the community in less than two years was insufficient to holdhim accountable for the harm he had done, to denounce his offending, and to protectthe community from him.47 However, whether or not the appellant is released whenhe becomes eligible for parole after serving one third of his sentence is a matter fordetermination by the Parole Board which is required to make its decision in accordancewith the guiding principles contained in s 7 of the Parole Act 2002, which stipulatesthat the paramount consideration for the Parole Board in every case is the safety ofthe community. The appellant's rehabilitation and progress towards developinginsight into his offending, and the assessment of the risk he would pose tothe community if released, are matters falling within the specialist expertise of theParole Board. Whether or not the appellant is released after having served one thirdof his sentence is, we think, a matter best left for determination by the Parole Board.Result[38] As noted above, we find that the appropriate starting point for the kidnappingis three and a half years' imprisonment. We uplift that starting point by 18 months onaccount of the other charges, and apply a 10 per cent discount to reflect the appellant'sguilty pleas to reach a final sentence of four years and six months' imprisonment.[39] We accordingly allow the appellant's appeal against sentence.[40] We quash the sentence of five years and 10 months' imprisonment.[41] We substitute a sentence of four years and six months' imprisonment.47 Sentencing notes, above n 1, at [42].[42] We quash the High Court's order imposing the MPI.Solicitors:Crown Law Office, Wellington for Respondent