LAM v R [2016] NZCA 114

LAM v R [2016] NZCA 114 [11 April 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 ZEALANDCA138/2015[2016] NZCA 114BETWEEN THUAN LAMAppellantAND THE QUEENRespondentHearing: 29 February 2016Court: Randerson, Peters and Collins JJCounsel: L Freyer for AppellantS K Barr for RespondentJudgment: 11 April 2016 at 11:00 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)Introduction[1] The appellant appeals against a sentence imposed by Judge Winter in the District Court at Manukau on 18 February 2015.1[2] The appellant was for sentence on 12 charges of sexual offending, having been convicted following a jury trial before Judge Winter in December 2014.1 R v Lam [2015] NZDC 2646.[3] In particular, the appellant's offending comprised two charges of sexualviolation by unlawful sexual connection; one of attempted sexual violation by rape; three of indecency with a girl under 12; three of sexual conduct with a child under 12; and three of sexual conduct with a young person under 16. All charges were representative with the exception of one charge of indecency with a girl under 12 and one of sexual conduct with a child under 12.[4] The offending occurred repeatedly over a nine-year period, when the victim was aged between five and 14 years.[5] In sentencing the appellant, the Judge adopted a starting point of 13 years imprisonment. The Judge then made a reduction of one year in recognition of circumstances that were personal to the appellant and which would make a sentence of imprisonment more severe than otherwise, those circumstances being theappellant's age (59 years at the time of sentence), his inability to speak English andhealth issues.[6] The one year reduction gave an end sentence of 12 years.[7] The Judge also imposed a minimum period of imprisonment (MPI) of 50 per cent of the sentence.[8] The appellant appeals on the ground that the sentence was manifestly excessive. In particular, the appellant submits that:(a) the one year, or seven to eight per cent, reduction for the appellant'spersonal circumstances was insufficient and a reduction of at least two years, or 15 per cent, was required; and(b) having regard to those same circumstances, the MPI should have been no more than 45 per cent of the end sentence.[9] Mr Barr, on behalf of the Crown, submits that the one year discount the Judge gave was sufficient but that, in any event, the nature of the appellant's offending wassuch that it was open to the Judge to adopt a higher starting point, so that the endsentence of 12 years was within the available range. Mr Barr submits that a starting point of between 16 and 20 years imprisonment was open to the Judge, on the basis that the offending fell within the upper range of band three and the lower range of band four, as identified in R v AM.2[10] Mr Barr also submits that the MPI the Judge imposed was within the available range.Discount for personal circumstances[11] The appellant is now 60 years of age. He and his family emigrated to New Zealand in 2003 and he speaks no conversational English. The Judge also referred to evidence that the appellant suffers from chronic back and leg pain. The effect of these matters is that a sentence of imprisonment will be more onerous for the appellant than would otherwise be the case.[12] Ms Freyer, counsel for the appellant, submits that a discount of at least two years was required to recognise these factors. She referred us to several authorities in which the Court had granted discounts ranging from six to more than 30 per centof the starting point in recognition of matters such as the offender's age, inability tospeak English and severe ill-health.3 As Ms Freyer submitted, the circumstances inR v Peng are the most similar to the present. In that case the offender was aged 60 at the time of sentence, did not speak English, was in poor health and had no prior convictions. The Court allowed a discount of two years for those features, being 25 per cent of the starting point.4[13] Having regard to Peng and the other authorities to which we were referred, we accept that a greater discount may well have been warranted on account of theappellant's personal circumstances, up to say two years or 15 per cent, rather thanthe one year the Judge gave.2 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.3 Peng v R [2015] NZCA 45; Ayala v R [2012] NZCA 271; Mahomed v R [2010] NZCA 419;R v Chan [2009] NZCA 528; R v Ogaz [2007] NZCA 45; R v Wong CA378/02, 25 March 2003;R v Douangmanivanh CA154/02, 19 July 2002; and R v Lin [2013] NZHC 2837.4 Peng v R, above n 3, at [2].[14] Despite that, we do not consider the sentence of 12 years imprisonment to be manifestly excessive and we do not propose to reduce it. As Mr Barr submitted, it was open to the Judge to adopt a substantially higher starting point – one of at least 14 years – given the nature of the offending. Had the Judge done so, and then givena discount of up to two years for the appellant's circumstances, the end sentence would have been at least 12 years.5 Because of that it cannot be said that the endsentence of 12 years was manifestly excessive. Our reasons for accepting Mr Barr'ssubmission are as follows.[15] One of the charges of sexual violation consisted of the appellant forcing the victim to perform oral sex on him when she was 11 or younger. As the Judge said, the Court will apply the rape guidelines in R v AM when sentencing for sexual violation offending involving penile penetration of the mouth.6[16] The Judge considered that five aggravating factors identified in R v AM were present. These were that the offending involved a breach of trust; it was premeditated; the victim was vulnerable; the scale and extent of the offending; and the severe emotional harm caused to the victim.7[17] Having regard to these matters, the Judge concluded that the offending was"squarely in band 3" of the guidelines, meaning a starting point of between12 and 18 years, with the Judge deciding on a starting point of 13 years.8[18] Band three is for offending accompanied by aggravating features at a serious level.9 It is appropriate for offending involving two or more aggravating factors to ahigh degree or more than three to a moderate degree. We agree that the appellant'soffending was well within band three.5 This Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome (rather than the route by which the judge reached that outcome) is manifestly excessive: Ripia v R [2011] NZCA 101 at [15].6 R v Lam, above n 1, at [23]; and R v AM, above n 2, at [65], [76] and [90].7 R v Lam, above n 1, at [22].8 At [29].9 R v AM, above n 2, at [105].[19] In support of his submission that the end sentence was within the available range, Mr Barr referred us to Triggs v R and H (CA123/2012) v R.10 In each of these cases, the sentencing Judge adopted a substantially higher starting point for similar offending.[20] In Triggs, the offender was for sentence on one charge each of rape, sexual violation by unlawful sexual connection by digital penetration and indecent assault. Each charge was representative. The offending occurred over three years, when the offender was aged between 50 and 53 and the complainant was aged between seven and 10 years.[21] The Judge placed the case in the middle of band three and adopted a starting point of 15 years. On appeal, this Court said that the case might well have been placed in band four and that a higher starting point might have been adopted.11[22] The appellant in H (CA123/2012) was sentenced on one representative charge of sexual violation by rape and one representative charge of sexual violation by unlawful sexual connection. The offending occurred regularly over a four year period when the victim was aged between nine and 13 years. On appeal this Courtconfirmed the Judge's decision to place the offending within band four and said that the Judge's starting point of 17 years was "well justified".12[23] Having regard to these authorities, we accept that Judge Winter might have adopted a starting point of at least 14 years and, accordingly, the end sentence was within the available range.MPI[24] Absent the imposition of a longer MPI, an offender is subject to a non-parole period of one third of the length of their sentence.1310 Triggs v R [2012] NZCA 543; and H (CA123/2012) v R [2012] NZCA 479.11 Triggs v R, above n 10, at [11] and [13].12 H (CA123/2012) v R, above n 10, at [14]-[15].13 Parole Act 2002, s 84(1).[25] A Judge may impose a longer MPI if satisfied the one third period would be insufficient to meet one or more of the purposes listed in s 86(2) of the Sentencing Act 2002, those purposes being the need to hold the offender to account; denunciation; deterrence; and protection of the community.[26] The Judge was satisfied that the one third period would be insufficient to meet the first three of those purposes and he imposed an MPI of 50 per cent of the sentence, that is six years.[27] Ms Freyer for the appellant does not take issue with the imposition of an MPIbut submits that the Judge was also required to take the appellant's personalcircumstances into account in fixing the length of the MPI; that he failed to do so; and that any MPI should not have exceeded 45 per cent of the end sentence.[28] Mr Barr submits that the Judge must have had the appellant's personalcircumstances in mind when he considered the MPI, because he said that the one third period would be sufficient to protect the community given the appellant's age.14Quite aside from that, however, Mr Barr submits, and we accept, that the MPI of 50 per cent of the sentence was warranted and that no reduction is required.Result[29] The appeal against sentence is dismissed.Solicitors:Public Defence Service, Auckland for AppellantCrown Law Office, Wellington for Respondent14 R v Lam, above n 1, at [40].