R v B (CA697/2021) [2022] NZCA 62

R v B (CA697/2021) [2022] NZCA 62 [17 March 2022]NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFRESPONDENT PURSUANT TO S 200 OF THE CRIMINAL PROCEDUREACT 2011 REMAINS IN FORCE: SEE [2021] NZDC 21408.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 AOTEAROACA697/2021[2022] NZCA 62BETWEEN THE QUEENAppellantAND B (CA697/2021)RespondentHearing: 14 February 2022Court: Goddard, Katz and Edwards JJCounsel: B C L Charmley for AppellantS W Hughes QC for RespondentJudgment: 17 March 2022 at 2.00 pmJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is allowed.C The order made in the District Court discharging the respondent withoutconviction is set aside.D A conviction is entered on the charge of sexual violation by rape.E The matter is remitted to the District Court for sentencing.F The respondent is granted bail pending sentencing on the same bailconditions that he was subject to immediately prior to his sentencing inthe District Court on 10 November 2021.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] The respondent, B, pleaded guilty to a representative charge of raping hisyounger sister over a three-year period. The offending began in 2007 when B was 14and ended in 2010, just before he turned 17. His sister was aged between 11 and 14years old at the time of the offending.[2] On 10 November 2021, Judge Greig discharged B without conviction.1The Solicitor-General seeks leave to appeal against that decision on the ground that itis wrong in law, as the legal threshold for a discharge without conviction is not met inthis case.[3] We are satisfied that a grant of leave is appropriate.2 The issues raised areimportant, and the appeal has merit. Of note, B himself accepts that a grant of leaveis appropriate and, further, that the grounds for a discharge without conviction werenot made out.[4] The key issue in dispute between the parties is whether this Court shouldsentence B (the Crown's preferred position), or whether we should remit the matter tothe District Court for sentencing (B's preferred position).Background[5] When B and his sister were growing up, the family were fundamentalistChristians who were largely isolated from the outside world. The children were not1 R v [B] [2021] NZDC 21408 [Judgment under appeal].2 Criminal Procedure Act 2011, s 296.able to attend events such as birthday parties, they did not receive any sex education,and they had little or no access to the internet. B, however, managed to circumventthis and had accessed internet pornography sites which the sentencing Judge foundprovided an "entrée into the world of sex where consent is so often portrayedambiguously or barely at all".3[6] B was born with a disability. He described himself as feeling isolated and"different" growing up. Although he attended primary school for a period, he wasteased and bullied by other children. His parents subsequently decided to home-schooltheir children.[7] B sexually violated his sister on multiple occasions over a three-year period byrubbing his penis against her vagina to the point of ejaculation. The complainant firstdisclosed the offending to a counsellor in 2011 and subsequently to the police.The complainant was then aged 14, and B was 17. Sadly, the complainant felt that shehad no family support to progress her complaint at that time, and no evidentialinterview was conducted. Although B was spoken to by police in June 2011, the mattercould not be progressed further.[8] On 26 July 2018, when the complainant was 22 years old, she returned tothe police and made a formal complaint. She was evidentially interviewed on24 August 2018, and the process of prosecution began. B subsequently pleaded guiltyto one representative charge of sexual violation by rape.4 Three other chargeswere dismissed.[9] B has no previous convictions, had not offended prior to the sexual offendingagainst his sister, and has not offended since.District Court decision[10] On 2 November 2021, B appeared for sentencing. Shortly prior tothe sentencing hearing, the Judge raised with counsel the prospect of a discharge3 Judgment under appeal, above n 1, at [43].4 Crimes Act 1961, ss 128(1)(a) and (2), and 128B. Maximum penalty of 20 years' imprisonment.without conviction. This was not something that had previously been raised byeither counsel.[11] In his sentencing notes, the Judge did not expressly set a starting point orspecify discounts. He appears, however, to have accepted the Crown's suggestedstarting point of seven years' imprisonment, together with the Crown's proposeddiscounts of 30 percent for his youth; 15 per cent for his remorse, reparation and B'swillingness to attend restorative justice; and 25 per cent for his early guilty plea.5This led to a sentence of 25 months' imprisonment.[12] The Judge then reduced the sentence by a further six months (approximatelyseven per cent) to take into account B's disability and the associated teasing andfeelings of difference he had experienced; his lack of friends and associated lonelinessand isolation; difficulties associated with being raised in a fundamentalist religiousfamily; B's home-schooling (and associated lack of social interaction); his childhoodsurgeries for his disability; his early access to pornography at home, combined withhis total lack of sex education from his parents; and B's lack of offending since 2011.6This reduced B's sentence to 19 months' imprisonment, enabling non-custodialsentencing options to be considered.[13] The Judge acknowledged B's "exceptionally positive pre-sentence report" andsaw no risk of re-offending.7 As a result, B had "no rehabilitative needs" anda sentence of intensive supervision (as proposed in the pre-sentence report) wasnot appropriate.8[14] The Judge identified the available sentencing options as being either a punitivesentence, or a discharge without conviction. The Judge found that a punitive sentencewas inappropriate because B did "not need deterring". Further, B had "been heldaccountable and [was] continuing to hold [himself] accountable by the steps[he had] taken" and continued to take.95 Judgment under appeal, above n 1, at [9]–[12].6 At [13]–[16].7 At [18].8 At [18]–[19].9 At [19]–[20].[15] Of particular significance, the Judge noted that, if B's matter had been dealtwith in 2011 when he was a young person, he may not have been charged and, if hehad been, any charges may have been resolved by way of a family group conferencein the Youth Court.10 The Judge observed that in the Youth Court jurisdiction, youngpeople are able to be discharged under s 282 of the Oranga Tamariki Act 1989.11The Judge also referred to various youth justice principles, including the legislativedirection that "unless the public interest requires otherwise, criminal proceedingsshould not be instituted against a child or young person if there is an alternative meansof dealing with the matter".12[16] The Judge noted that in H v R the Supreme Court had observed that youthjustice principles are still relevant even though the defendant is now an adult.13In particular, the Supreme Court observed in that case that:14It is also recognised that there are particular factors related to the stage ofdevelopment that may have contributed to the offending of children and youngpersons and that may be seen as reducing or explaining culpability and also asmeaning rehabilitation is more likely.[17] The Judge also acknowledged, however, that a number of decisions ofthe High Court and this Court appeared to "discourage me from doing what I intendto do in this particular case" (namely, discharging B without conviction).15For example, in Pouwhare v R, this Court stated that when a young person is sentencedin the District Court, having been transferred for sentencing by the Youth Court, thesentencing judge is not required to take into account the youth justice principles setout in (what was then) the Children, Young Persons, and Their Families Act 1989.16The Judge distinguished similar observations of this Court in Churchward v R17 onthe basis that the charge in that case was murder; a charge that is specifically excludedfrom the jurisdiction of the Youth Court.1810 At [23].11 At [39].12 At [27], citing Oranga Tamariki Act 1989, s 208(2)(a).13 At [30], citing H v R [2019] NZSC 69, [2019] 1 NZLR 675 at [31].14 H v R, above n 13, at [33].15 At [34].16 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [97].17 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]–[92].18 Judgment under appeal, above n 1, at [38].[18] In conclusion, the Judge stated that:[48] The cases where it was said that youth justice principles could stillbe considered for adults who had offended as youths, are to my mind utterlymeaningless if the practical application of those principles simply meansknocking a few years off an adult sentence. That is to pay lip service tothe concept of youth justice principles. Youth justice principles can only meanthat consideration at least should be given to sentencing you now as you wouldhave been sentenced then.[19] The Judge then turned to consider whether a discharge without convictionwould be the appropriate sentence in B's case.[20] Section 107 of the Sentencing Act 2002 provides that a court must notdischarge an offender without conviction unless the court is satisfied that the directand indirect consequences of a conviction would be out of all proportion to the gravityof the offence. The Judge identified the following consequences of a conviction:B would have to declare his conviction to a future employer, bank or insurancecompany; a conviction would limit his ability to travel; and B "would have the publicstigma of having committed the most serious sexual offence".19 In terms of the gravityof the offending, the Judge acknowledged that the offending was "really serious" butsaid that B's moral culpability was diminished by his youth at the time.20 Viewed inthis way, the seriousness of B's offending was "significantly reduced by [his] level ofmoral culpability at that age".21[21] Taking those factors into account, the Judge concluded that the consequencesof a conviction would outweigh the seriousness of the offending. B was accordinglydischarged without conviction and ordered to pay $10,000 reparation to thecomplainant. B's name was also permanently suppressed.22Did the Judge err in law in discharging B without conviction?[22] The threshold for allowing a Solicitor-General's appeal against a decision todischarge a defendant without conviction is a high one. The appeal court must be19 At [45].20 At [46].21 At [47].22 At [47], [50] and [51].persuaded that a Judge who correctly understood and applied the test for dischargewithout conviction under ss 106 and 107 of the Sentencing Act could not have madethe decision under appeal. If the decision was open to the Judge, on a properunderstanding of the law, the appeal will be dismissed.23[23] Ms Charmley, for the Crown, submitted that the threshold for allowinga Solicitor-General's appeal is met here. First, she took issue with the Judge'ssuggestion that, had he been dealt with in the Youth Court, B would almost certainlyhave been discharged under s 282 of the Oranga Tamariki Act. Ms Charmleysubmitted that there are a range of responses the Youth Court could have adopted,taking into account the factors listed in s 284 of the Oranga Tamariki Act. A dischargewithout conviction, particularly given the seriousness of the offending, was far frominevitable. In any event, Ms Charmley observed, the jurisdiction of the Youth Courtcomes to an end when a person turns 18. (When B offended, the Youth Court'sjurisdiction ended at 17 years). Thereafter, offenders are sentenced inthe District Court in accordance with the Sentencing Act.24[24] Ms Charmley referred to Winkelmann J's observation in Attorney-General vYouth Court at Manukau (a case involving an application for the dismissal of chargesdue to undue delay) that:25[72] The loss of certain sentencing options at age 17 and a half cannot beviewed as the loss of "softer" or more beneficial sentencing options. It ismerely a recognition that at that age, certain options are no longer appropriate.Therefore, the unavailability of these options at age 17 and a half is to beregarded as a neutral factor.[25] We accept the Crown's submission that the Judge erred in law in dischargingB without conviction. As the Supreme Court acknowledged in H v R, youth justiceprinciples may continue to have some relevance once an offender has turned 18.26Those principles must, however, be applied in a manner consistent with the provisionsof the Sentencing Act. They cannot "trump" or override the provisions of that Act, as(in effect) happened here.23 R v Cleaver [2020] NZCA 397 at [20].24 Ray v Police [2019] NZHC 2958, [2019] NZFLR 520 at [35].25 Attorney-General v Youth Court at Manukau [2007] NZFLR 103, (HC).26 H v R, above n 13, at [31].[26] Under s 107 of the Sentencing Act an offender must not be discharged withoutconviction unless the direct and indirect consequences of a conviction are out of allproportion to the gravity of the offending. Whether this proportionality test is met isnot a matter of discretion but a matter of fact requiring judicial assessment.27 Here, thegravity of the offending (the rape of a child aged between 11 and 14, on multipleoccasions) was extremely serious, even having regard to B's reduced culpability dueto his youth.[27] In that context, the consequences of conviction identified by the Judge werevery generalised (having to disclose a conviction to a future employer, bank orinsurance company; the potential impact on his ability to travel; and the public stigmahe would face).28 These are the ordinary and expected consequences of offending ofthis nature. Before us, B did not seek to argue that there is anything unusual ordisproportionate about such consequences in this case.[28] For the reasons outlined, we are satisfied that the Judge erred in finding thatthe direct and indirect consequences of a conviction would be out of all proportion tothe gravity of the offending. B should not, therefore, have been dischargedwithout conviction. That was not a sentencing option that was available to the Judge,on a proper understanding of ss 106 and 107 of the Sentencing Act.Should this Court sentence B, or remit the matter to the District Court forsentencing?[29] The next issue is whether this Court should sentence B or remit the matter tothe District Court for sentencing.[30] In our view sentencing should take place in the District Court for the followingreasons:(a) First, both B and the complainant were previously willing to engage ina restorative justice process. Attempts to arrange a restorative justice27 H (CA680/11) v R [2012] NZCA 198 at [30]–[34].28 We note that any public stigma is significantly mitigated by the fact that (currently at least) B hasbeen granted name suppression.meeting with an organisation specialising in dealing with cases ofsexual offending were unsuccessful, however, because of COVID-19lockdown restrictions. If this Court were to sentence B there would beno further opportunity for a restorative justice process to take placeprior to sentencing. If the matter is remitted to the District Court forsentencing, however, there will likely be an opportunity for sucha process to take place.(b) Secondly, if B is sentenced in this Court, he would have limited appealoptions (he would only be able to appeal his sentence to theSupreme Court, with leave). If the matter is remitted to theDistrict Court for sentencing, however, B will have an automatic rightto appeal to the High Court.29(c) Finally, if B is sentenced in the District Court there will be anopportunity for the complainant to participate in the sentencing hearing,if she wishes to do so. If we were to impose a sentence on B therewould be no such opportunity. Although the complainant haspreviously provided a victim impact statement, she may wish to updatethis following the completion of any restorative justice process.In addition, the complainant should be given the opportunity to expressher views on the issue of whether B should be granted permanent namesuppression, as those views were not before the District Court atthe time of the original sentencing hearing.3029 Criminal Procedure Act 2011, s 247(1)(c), and more generally ss 244–252.30 When considering making a permanent suppression order suppressing the details of an offenderunder s 200 of the Criminal Procedure Act 2011, a court is required to take into account any viewsof a victim (s 200(6)). The victim's views are to be conveyed in accordance with s 28 of theVictims' Rights Act 2002. Here, the Crown was clearly concerned at the sentencing hearing thatthe complainant's views on suppression were not known and should be ascertained prior to a finaldecision on suppression being made. From the information available to us this does not appear tohave occurred.Result[31] The application for leave to appeal is granted.[32] The appeal is allowed.[33] The order made in the District Court discharging B without conviction is setaside and a conviction is entered on the charge of sexual violation by rape. The matteris remitted to the District Court for sentencing.[34] B is granted bail pending sentencing on the same bail conditions that he wassubject to immediately prior to his sentencing in the District Court on10 November 2021.[35] For completeness, we record that the District Court's order suppressing B'sname pursuant to s 200 of the Criminal Procedure Act 2011 remains in force untilfurther order of the District Court (if any).Solicitors:Crown Law Office, Wellington for Appellant