ANDREWS v R [2021] NZCA 130

ANDREWS v R [2021] NZCA 130 [23 April 2021]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 AOTEAROACA15/2021[2021] NZCA 130BETWEEN VERNON JACOB ANDREWSAppellantAND THE QUEENRespondentHearing: 17 March 2021Court: Clifford, Brewer and Dunningham JJCounsel: T F Rickard-Simms for AppellantR E King and M J Lillico for RespondentJudgment: 23 April 2021 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] On 22 December 2020, in the District Court at Tauranga, Judge Hardingsentenced Mr Andrews on a number of charges to which he had pleaded guilty:11 R v Andrews [2020] NZDC 26833 [Judgment under appeal].(a) Three charges of breaching a protection order.2 The starting point oneach charge was nine months' imprisonment. The sentence on eachcharge was eight months' imprisonment, concurrent with each other butcumulative with the other sentences.(b) A representative charge of sexual connection with a young person.3The sentence was six months' imprisonment, concurrent with thesentence on the charge of assault with intent to injure below butcumulative with the other sentences.(c) One charge of assault with intent to injure.4 The sentence wassix months' imprisonment, to be served concurrently with thesix months imposed on the representative charge of sexual conduct witha young person.(d) One charge of threatening to kill.5 The starting point was six months'imprisonment. The sentence was four months' imprisonment,cumulative on the other sentences.(e) A representative charge (covering three incidents) of attemptingto pervert the course of justice.6 The starting point was 15 months'imprisonment. The sentence was 10 months' imprisonment, once againcumulative on the other charges.[2] The sum of the starting points was 36 months, or three years' imprisonment.The Judge deducted 20 per cent for Mr Andrews's guilty plea and remorse, althoughhis Honour emphasised there was little evidence of remorse.7 The Judge roundeddown the 28.8 months result to 28 months' imprisonment.8 The effective end2 Domestic Violence Act 1995, ss 19(2)(e), 49(1)(a) and 49(3); maximum penalty three years'imprisonment.3 Crimes Act 1961, s 134(1); maximum penalty 10 years' imprisonment.4 Section 193; maximum penalty three years' imprisonment.5 Section 306; maximum penalty seven years' imprisonment.6 Section 117(e); maximum penalty seven years' imprisonment.7 Judgment under appeal, above n 1, at [18].8 At [22].sentence, therefore, was two years and four months' imprisonment allocated betweenthe charges as set out above.[3] The Judge cancelled 249¼ hours of community work which were outstandingunder two previous sentences for breaching the protection order.[4] The Judge also purported to impose standard and special conditions of release.9This was erroneous because there is no power to impose such conditions wherea sentence of imprisonment is longer than two years.10[5] On 11 January 2021, the Judge corrected the erroneous sentence by deletingthe direction imposing standard and special conditions of release.11[6] Mr Andrews now appeals his sentence of two years and four months'imprisonment.12 He contends it is manifestly excessive.[7] Our task is to decide whether there is an error in Mr Andrews's sentence suchthat a different sentence should be imposed.13 Our focus will be on the end sentenceitself rather than on the method by which it was calculated. If the end sentence ismanifestly excessive then that would be an error requiring correction.Background[8] In late 2014, Mr Andrews began a relationship with the complainant. He wasthen 19 years old and she was then 13 years old. The relationship was sexual and thetwo effectively began to live together in the homes of the complainant's parents.[9] The complainant became pregnant with Mr Andrews's child in early 2017.On 7 September 2017, the police issued Mr Andrews with a letter of formal warning9 At [23].10 Sentencing Act 2002, s 93; see R v N (CA354/03) CA354/03, 1 March 2004. On sentences longerthan two years, the power to impose special conditions rests with the Parole Board, pursuant toss 18(2)(b) and 29AA(1) of the Parole Act 2002.11 Criminal Procedure Act 2011, s 180; R v Andrews [2021] NZDC 238 at [4] and [7][Updated sentencing notes].12 Section 244.13 Criminal Procedure Act 2011, s 250.in respect of a charge of sexual conduct with a person under 16 years.The complainant gave birth to the child on 11 November 2017, three weeks after her16th birthday.[10] Mr Andrews and the complainant separated in June 2018. On 25 June 2018,the District Court granted a protection order against Mr Andrews. The complainantwas named as a protected person.[11] During the course of their relationship, Mr Andrews and the complainantwould argue regularly. The charge of assault with intent to injure stems from one suchargument which occurred while the complainant was breastfeeding their child.Mr Andrews placed his hand on the complainant's neck and squeezed, causing her tohave difficulty breathing.[12] The charges of breaching the protection order are set out in the summary offacts as follows:Charge 4 – Breach of protection orderWhile she was with the defendant on 9 and 10 December 2018, the defendantplaced pressure on the complainant about their relationship and their son.The defendant tried to make her feel guilty about taking out the protectionorder and taking their problems to the court and police.He also told her they were back together, saying 'you're mine'. He showedher multiple photos of her on his phone.The defendant also indicated to her that he finally had evidence to stop herfrom having their son.The defendant started to kiss the complainant and when she asked him to stophe called her a 'bitch' and again told her 'you're mine'.Charge 6 – breach of protection orderBetween the incident on 9-10 December and the complainant making acomplaint to police on 17 December 2018, the defendant sent the complainanta large number of unsolicited messages via Facebook messenger.Several of these messages placed pressure on her about him being in breachof the protection order. He repeatedly told her that he did not want to go to jailand miss out on time with their son.The defendant also referred to the complainant's new casual partner ([M]),suggesting that he wanted to hurt or kill him. He further told her:- I'm serious bwt [M] f I find owt u kontactn him I'm gna go thea n fuukhim up n front of Maddie- [Complainant's name] it him or our son make yr choiceThe defendant indicated to her that he had witnesses and would make sure thatshe did not have custody of their son.Charge 7 – breach of protection orderBetween 8 February and 10 February 2019 the defendant sent furtherunsolicited messages to the complainant via Facebook messenger.The defendant continued to place pressure on the complainant about their son[J] and her new casual partner ([M]), sending messages that included:- You took my son away from me [Complainant's name]. N believed [M's]bullshit u fukd nw. Blame him u gna loose [J]- So wat u gna do?? Let me see my son. Or karry on bullshit- That's the only reason I have kourt u n [M] bitch[13] Mr Andrews had two previous convictions for breaching the protection order.The first of these breaches took place on 25 June 2018 and Mr Andrews was sentencedto 100 hours of community work. The second breach occurred on 4 December 2018and Mr Andrews was sentenced to a further 200 hours of community work.[14] On 2 April 2019, Mr Andrews was arrested on charges which includedkidnapping the complainant and raping her. When informed of the charges,Mr Andrews made an angry threat to kill the complainant.[15] The representative charge of attempting to pervert the course of justice relatesto three letters written by Mr Andrews between 1 August 2020 and 25 September 2020to a key Crown witness in Mr Andrews's forthcoming trial. According to the Crown'ssummary of facts following plea, the letters contained references to "nark", "snitch",needing a "protection order", and "the boys". They were sent to the witness'shome address. The summary of facts states further:The defendant wrote the letters intending the comments in them to intimidateand pressure the witness prior to his giving evidence; intending theintimidation and pressure to adversely affect the witness' evidence.[16] During the course of the trial, and after the complainant had given evidence,the Judge discharged Mr Andrews on the kidnapping and rape charges.14 Mr Andrewsthen entered pleas of guilty to the charges of assault with intent to injure, threateningto kill and attempting to pervert the course of justice.The sentence[17] The Judge went through the background to the offending and the respectivesubmissions of Crown counsel and Mr Rickard-Simms. The Judge said:15[14] In my view the charge of assault with intent to injure is the equivalentof a strangulation charge and the appropriate sentence for that is six months'imprisonment. I consider that a similar sentence of six months' imprisonmentis appropriate on the unlawful sexual involvement with a minor, but in thecircumstances which I have described that should be six months concurrentlywith the assault with intent to injure.[15] The breaches of protection order are a continuation of dominating,possessive behaviour and having regard to your prior convictions for the samething with the same person I consider each justifies a sentence of nine months'imprisonment, but that that nine months should collectively be concurrent,although cumulative on the earlier six months making an end sentence startpoint of 15 months.[16] The threat to kill may have been spur of the moment but given yourhistory and the nature of your personality it was a serious threat and it isdeserving of six months cumulative on the 15, taking the sentence total to21 months.[17] The attempting to pervert the course of justice was ultimatelynot successful, but that is not for want of trying. Having regard to the matterson an overall basis I consider a further 15 months is appropriate, which takesan end point to three years' imprisonment, a little less than that submitted bythe Crown today and somewhat ahead of Mr Rickard-Simms' submissions.[18] As we have said, the Judge allowed a reduction in the sentence of 20 per centfor the pleas of guilty and some expression of remorse.1614 Criminal Procedure Act 2011, s 147.15 Judgment under appeal, above n 1.16 At [19].[19] The Judge addressed the issue of totality and concluded the end sentence oftwo years and four months' imprisonment was appropriate and within scale.[20] At the hearing on 11 January 2021 to correct the erroneous aspect of thesentence and to address submissions by Mr Rickard-Simms that the sentence shouldbe reduced to enable Mr Andrews to be released from prison immediately, the Judgesaid "[t]he sentence itself in my view was and is entirely appropriate if not arguablygenerous having regard to the charges".17Discussion[21] Mr Rickard-Simms is candid that the major driver for the appealagainst sentence is that Mr Andrews has never been considered for parole. This wasunfortunately due to the time spent on remand, the delay occasioned by the need tocorrect the erroneous sentence, and the Parole Board's timetable. As at16 March 2021, Mr Andrews had served 24 months of the sentence of 28 months.Mr Rickard-Simms told us that there is a parole hearing scheduled for April 2021 andthe parole report is favourable to Mr Andrews. Mr Rickard-Simms urges us to takethe period of imprisonment already served by Mr Andrews into account in decidingwhether the sentence is manifestly excessive — the point being that normallyMr Andrews would have been considered for parole once he had completed one-third(about nine months) of his sentence.[22] Addressing the individual sentences, Mr Rickard-Simms's submission is thatthe starting point of 15 months' imprisonment on the representative charge ofattempting to pervert the course of justice is itself manifestly excessive.This contributed to the end sentence being manifestly excessive.[23] We have considered the components of the sentence. Our first conclusion isthat the starting point of 15 months' imprisonment on the representative charge ofattempting to pervert the course of justice was within the range available to the Judge.There is no guideline judgment and so the focus in each case must be on the intention17 Updated sentencing notes, above n 11, at [7].behind the attempt and on its potential effect.18 Offences of this kind are serious"because they strike at the integrity of the justice system and rule of law".19Parliament has provided for a maximum penalty of seven years' imprisonment. In thiscase, on three occasions, Mr Andrews wrote directly to a key Crown witness in hisforthcoming trial seeking to intimidate him.[24] Although we acknowledge that a first principles analysis is often to bepreferred to examining other cases where inevitably the facts are different, we considerthe following cases to be relevant:(a) In Miller v R, the appellant wrote a letter from prison threatening twowitnesses and telling them not to show up to Court.20 A starting pointof three-and-a-half years' imprisonment was upheld by this Court.(b) In Harting v R, the appellant wrote to an adult stepchild suggesting thecomplainant should go to a lawyer and swear an affidavit saying shewas not well and had made up the allegations against him.21 The letterwas backed up by three telephone calls. This Court upheld a two-yearstarting point.(c) Finally, in Vela v R, the Court considered appropriate an uplift of18 months' imprisonment in a situation where prior to trial the appellanttelephoned the complainant and told her to tell a Crown witness to"shut the fuck up".22 This Court did not consider a higher uplift than18 months to be justified because there was no threat to use violenceagainst the neighbour and nothing came of the comment to the victim.23[25] The starting point of nine months' imprisonment for three charges of breachingthe protection order is within range. They were serious breaches and Mr Andrews hastwo previous convictions for breaching the protection order. The maximum term of18 Miller v R [2014] NZCA 382 at [11].19 Vela v R [2020] NZCA 153 at [37].20 Miller v R, above n 18.21 Harting v R [2016] NZCA 296.22 Vela v R, above n 19, at [11].23 At [37].imprisonment is three years for each charge. Moreover, the Judge cancelled the249¼ hours of community work outstanding on those previous breaches.[26] The concurrent sentences of six months for the representative charge ofsexual connection with a young person and assaulting the complainant with intent toinjure her were particularly light. The maximum penalty for sexual connection with ayoung person is 10 years' imprisonment and for assault with intent to injure themaximum penalty is three years' imprisonment.[27] In this case, the unlawful sexual conduct began when the complainant was only13 years old. Mr Andrews was 19 years old. The consent of the young person is nota defence to the charge of sexual conduct with a young person, except to the verylimited extent described in s 134A.24 The point of the charge is to protect vulnerableyoung people from the sexual attentions of older people.25 The acquiescence of thecomplainant's parents is irrelevant.[28] We consider the following cases to be relevant comparators:(a) Berry v Police, where the appellant aged 19 met a young personaged 13.26 They had sexual intercourse on two occasions. Ellis Jconsidered the age gap and the extent of the sexual contact to berelevant aggravating factors. She did not consider it was clear thatMr Berry's behaviour was "predatory".27 She adopted a starting pointof two years and nine months' imprisonment.(b) Leef v R, where the appellant was aged between 19 and 20 at the timeof the offending, against separate complainants aged 14 and 15.28Neither the Court nor defence counsel took issue with a final sentenceof 16 months.24 Crimes Act 1961, s 134A(2). Explicitly on this point, see Burdett v R [2009] NZSC 114 at [2].25 R v Herbert CA70/98, 21 May 1998 at 4; reiterated recently in Hawken v R [2019] NZCA 450 at[19]; see also R v Johnson [2010] NZCA 168 at [13].26 Berry v Police [2014] NZHC 2852.27 At [22].28 Leef v R [2011] NZCA 567.(c) Hawken v R, where the appellant aged 32 met a young person aged 15when he attended a party at her home.29 She offered him a place tostay and soon commenced a sexual relationship with him. He wasvulnerable and she took on a parental role towards him. There was nosuggestion of a lack of consent and the complainant gave evidence insupport of Ms Hawken. At first instance, the Judge considered thesubstantial age gap to be a moderately serious exacerbating factor,and also noted the offer of accommodation, the number of instancesof contact, the extent of the contact, the breach of trust inherentin Ms Hawken taking on a parental role, and her efforts to stopthe evidence coming forward.30 This Court considered that a three-and-a-half year starting point was not out of range.(d) Fa'afuata v Police, where the appellant aged 39 engaged in a briefconsensual sexual relationship with the complainant aged 14.31The Judge identified the following aggravating factors: the agedisparity between the victim and Mr Fa'afuata; the breach of trustarising from the fact that he was a boarder in her parents' home; thevulnerability of the victim; and the provision of a mobile telephone tothe victim to enable them to stay in contact with each other. The Judgeadopted a starting point of three years, which was upheld on appeal.[29] In light of these examples, and especially in light of the very similarcircumstances in Berry v Police¸ we consider that a six-month starting point wasextremely generous to Mr Andrews.[30] The assault with intent to injure occurred after the complainant had ceasedto be a young person under 16 years of age. The sentence could have been cumulativeon the sentence for sexual conduct with a young person.29 Hawken v R, above n 25.30 At [7].31 Fa'afuata v Police HC Auckland CRI-2009-404-33, 3 April 2009.[31] It is only the charge of threatening to kill that gave us concern as toits sternness. The threat was a spontaneous utterance made to police officers uponbeing told of serious charges based on allegations by the complainant whichMr Andrews disputed vehemently. However, Mr Andrews accepted his threat met thelegal definition of the charge and he pleaded guilty to it. Given Mr Andrews hasconvictions in 2013 and 2014 for speaking threateningly, we accept that six monthswas within the range available to the Judge as a starting point.[32] Mr Rickard-Simms does not suggest that the overall discount of 20 per cent forthe pleas of guilty and for remorse was insufficient.[33] The Judge appreciated the need to look at the charges as a whole to ensure thatthe end sentence did not exceed Mr Andrews's overall culpability having regard to thesentencing principle of totality. In our view, the Judge did that appropriately and theoverall discount of 20 per cent was available to him, and generous when consideringthe fact that several of the guilty pleas were entered during the trial.[34] We understand Mr Rickard-Simms's submission on the unfortunate way inwhich events have coincided to deprive Mr Andrews of the chance to seek earlierrelease on parole. But that does not make the end sentence manifestly excessive.Rather, in our view, it could well be observed that the end sentence of two years andfour months' imprisonment was somewhat lenient.Result[35] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent