RENWICK v R [2020] NZCA 480

RENWICK v R [2020] NZCA 480 [13 October 2020]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 AOTEAROACA143/2020[2020] NZCA 480BETWEEN WADE MAXIM RENWICKAppellantAND THE QUEENRespondentHearing: 21 July 2020Court: Cooper, Peters and Whata JJCounsel: A J D Bamford for AppellantB Hawes and K A Courteney for RespondentJudgment: 13 October 2020 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is allowed.C The sentence of four years and five months' imprisonment imposed inthe District Court on the charge of sexual violation by rape is quashed.A sentence of three years' imprisonment is substituted.D The concurrent sentence of three years' imprisonment imposed inthe District Court on the charge of sexual violation by unlawful sexualconnection is quashed. A concurrent sentence of two years' imprisonmentis substituted.___________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, Mr Renwick, appeals against his sentence of four years andfive months' imprisonment on a charge of sexual violation by rape, and three years'imprisonment on a charge of sexual violation by unlawful sexual connection to beserved concurrently.1 Mr Renwick contends the sentence is manifestly excessive.[2] Mr Renwick's appeal is brought out of time. There being no objection we grantthe required extension.Background[3] As Mr Bamford, counsel for Mr Renwick, submitted, the background to thismatter is unusual.[4] In December 2010, Mr Renwick was charged with indecent assault andthe two charges of sexual violation to which we have referred, all in respect of thesame complainant. Mr Renwick pleaded not guilty to the offending and was acquittedon all charges following a jury trial in November 2011.[5] On 5 July 2018, Mr Renwick presented at the Nelson Police Station, saying hewished to confess to the offending. The police conducted an evidential video interviewof Mr Renwick on that day and he made an unequivocal confession in that interview.[6] Thereafter, on 2 July 2019, and on the application of the Solicitor-General,this Court ordered Mr Renwick be retried on the sexual violation charges.2This Court's decision records that Mr Renwick supported the Solicitor-General'sapplication, expressing the hope a retrial would be a "worthy step to the beginning oftrue healing and closure" for the complainant.31 R v Renwick [2020] NZDC 1145 [District Court judgment]; and Crimes Act 1961, ss 128(1)(a)and (b) and 128B.2 Solicitor-General v Renwick [2019] NZCA 276.3 At [3].[7] Mr Renwick then pleaded guilty to the charges in the District Court at Nelsonon 12 July 2019, and was sentenced by Judge Zohrab on 24 January 2020.4[8] The Judge adopted a starting point of seven years and six months'imprisonment, and then reduced this by 10 per cent on account of Mr Renwick's ageat the time of the offending (18 years), 15 per cent for matters pertainingto Mr Renwick's personal circumstances, and 20 per cent for Mr Renwick's"exceptional remorse".5 This 20 per cent was principally to reflect Mr Renwick'svoluntary acknowledgement of his offending despite his acquittal but also includedwhat the Judge described as a "very, very modest discount" for Mr Renwick's guiltypleas.6[9] The Judge applied this 20 per cent discount subsequent to the reductions forthe other mitigating factors he identified. This Court delivered its decision inMoses v R after the Judge sentenced Mr Renwick, this being to the effect the startingpoint is to be reduced by the combined total of all discounts.7 In accordance withthe approach in that case, it would be necessary to reduce Mr Renwick's sentence fromfour years, five months' imprisonment to four years and one month's imprisonment.Submissions[10] Although initially contending the starting point was too high and the discountsfor youth, personal circumstances, remorse and the guilty pleas too modest, before usMr Bamford confined his submissions to an argument for a discrete discount of 15 to20 per cent for Mr Renwick's guilty pleas, in addition to the 20 per cent allowed forremorse.[11] Crown counsel, Ms Courteney (who was not counsel at sentencing),acknowledged separate discounts were required for Mr Renwick's self-reportingof the offending and for his guilty pleas, these being different mitigating factors.4 District Court judgment, above n 1.5 At [32] and [38].6 At [38].7 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [46].[12] Ms Courteney referred us to several authorities of assistance. In R v Kabhir,Priestly J was required to consider the discount to be afforded to an offender for guiltypleas entered before his retrial.8 In that case, the Judge settled on a reduction of10 per cent for the guilty pleas.9[13] In other authorities to which we were referred, the issue on appeal was whetherthe discount for self-reporting given at first instance was sufficient, despite substantialdiscounts for the offender's guilty pleas.[14] For example, in Sanday v R, the appellant had self-reported, and pleaded guiltyto, serious sexual offending against a vulnerable victim.10 But for the self-reporting,the offending would never have come to light. After noting the appellant's early guiltyplea and that his confession allowed detection of the offending, the District CourtJudge had sentenced the appellant to eight years and six months' imprisonment.This Court allowed the appeal against sentence and substituted a term of seven years'imprisonment, on the basis the "unique circumstances" of the case justifieda substantial discount of at least one third of the effective starting point.11[15] In S v R, the appellant self-reported sexual offending against his 10-year-olddaughter.12 Mander J allowed the appeal against sentence. He increased the discountfor self-reporting from the five per cent allowed in the District Court to 20 per cent,whilst retaining the 25 per cent discount the District Court Judge had given on accountof the appellant's guilty pleas.13[16] In R v Lynch, referred to by Mander J in S v R, the appellant voluntarilyconfessed to blackmail.14 Rodney Hansen J allowed a 40 per cent reduction to thestarting point for this and other mitigating factors.15 Thereafter, the Judge applied a33 per cent reduction (to the reduced sentence) for the appellant's guilty plea.168 R v Kabhir [2013] NZHC 2178.9 At [26].10 Sanday v R CA146/99, 29 July 1999.11 At [15].12 S v R [2017] NZHC 205.13 At [33].14 R v Lynch HC Hamilton CRI-2010-019-3449, 9 September 2010.15 At [52].16 At [53].This 33 per cent discount was the maximum then considered available, being prior tothe Supreme Court's decision in Hessell v R, in which the Court held that guilty pleadiscounts should not exceed 25 per cent.17[17] In the present case, and as we have said, the Judge's discount of 20 per cent forexceptional remorse included some recognition of Mr Renwick's guilty pleas. Despitethat, and rather than trying to carve out whatever modest percentage the Judge mighthave included for Mr Renwick's guilty pleas, counsel proposed we determinethe additional discount due to Mr Renwick for his guilty pleas.[18] As we have said, Mr Bamford submitted a discount of between 15 and20 per cent would be appropriate. Ms Courteney considered 10 to 15 per cent wouldbe appropriate.[19] Our view is the Judge's substantial discount for remorse was appropriate.This is because, of his own volition, Mr Renwick presented to the police station andcooperated fully thereafter, despite his earlier acquittal and there being no prospect ofany retrial. As to Mr Renwick's guilty pleas, the significant benefits which usuallyaccrue as a result of a guilty plea, such as avoiding the expense of trial and requiringa victim to give evidence, have not been obtained in this case. However, other benefitshave been realised. The victim's original complaint has now been vindicated andMr Renwick's offending marked with a substantial term of imprisonment.In the circumstances, we think an additional discount of 15 per cent is appropriate.In accordance with the methodology set out by this Court in Moses v R, this discountis to be calculated as a percentage of the starting point.18[20] This brings the total discounts for mitigating factors to 60 per cent. The Judge'sstarting point of seven years and six months' imprisonment, reduced by 60 per cent,results in an end sentence of three years' imprisonment on the charge of sexualviolation by rape. That reduces the final sentence imposed by 32 per cent. As notedbelow, it is necessary to make a corresponding reduction to the concurrent sentenceimposed on the charge of sexual violation by unlawful sexual connection.17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.18 Moses v R, above n 7, at [46].Result[21] The application for an extension of time to appeal is granted.[22] The appeal against sentence is allowed.[23] The sentence of four years and five months' imprisonment imposed inthe District Court on the charge of sexual violation by rape is quashed. A sentence ofthree years' imprisonment is substituted.[24] The concurrent sentence of three years' imprisonment imposed in theDistrict Court on the charge of sexual violation by unlawful sexual connection isquashed. A concurrent sentence of two years' imprisonment is substituted.Solicitors:Bamford Law, Nelson for AppellantCrown Solicitor, Christchurch for Respondent