R v Yen [2007] NZCA 203 (23 May 2007)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

R v Yen [2007] NZCA 203 (23 May 2007)

Last Updated: 3 February 2014

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

_1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA190/06 [2007] NZCA 203

THE QUEEN

v

_{DAVID YEN}

Hearing: 19 October 2006

Court: Arnold, Randerson and Ronald Young JJ Counsel: D G Slater for Appellant

S B Edwards for Crown

Judgment: 19 October 2006

Reasons: 23 May 2007

_{JUDGMENT OF THE COURT}

A The indictment is amended to read:

The Crown Solicitor at Invercargill charges that David Ta Yen on the

14th day of December 2005 at Queenstown attempted to have unlawful sexual connection with [the complainant], a child under 12, contrary to s 132(2) of the Crimes Act 1961.

_{B The appeal against conviction is dismissed.}

R V YEN CA CA190/06 19 October 2006

100. The appeal against sentence is allowed. The sentence of two years imprisonment is quashed and a sentence of 15 months imprisonment is

_substituted.

REASONS OF THE COURT

_{(Given by Randerson J)}

Introduction

[1] On 1 May 2006 the appellant was sentenced in the District Court at Invercargill on one count of attempted sexual violation to which he had pleaded guilty. He was sentenced to two years imprisonment by Judge K J Phillips.

[2] He appealed against both his conviction and sentence. His sole ground of appeal against conviction was that a miscarriage of justice had occurred because, in law, the facts upon which he pleaded guilty could not have constituted attempted sexual violation. The sentence appeal was advanced on the ground that it was manifestly excessive.

[3] When this matter was heard on 19 October 2006, we ordered that the indictment be amended under s 335(1) Crimes Act 1961 to a charge of attempting to have unlawful sexual connection with a child under 12, contrary to s 132(2) Crimes Act. Having heard counsel, we dismissed the appeal against conviction but allowed the sentence appeal by reducing the sentence to 15 months imprisonment.

[4] We announced the outcome immediately because we were informed by counsel for the Crown that the appellant had been in custody since December 2005 and, if the sentence were reduced by any period greater than four months, he would be eligible for immediate release. Having concluded that the sentence should be reduced to 15 months, it was apparent that our decision should be communicated forthwith to the appellant and the prison authorities.

[5] We informed counsel that our reasons would follow. These are those reasons.

Background facts

[6] The agreed summary of facts upon which the appellant was sentenced revealed that, on 14 December 2005, the appellant approached the complainant who was playing with her four year old brother on a footpath outside their residential address. The appellant and the complainant were not known to each other. During this incident, the appellant’s pants slipped down. He was not wearing any underclothes and his penis was exposed for a few seconds. The complainant reacted by placing her hands over her mouth and giggling.

[7] The appellant walked to his residence a short distance away but then returned about ten minutes later in his motor vehicle, observing that the complainant and her younger brother were still outside their residence. The appellant stopped his vehicle and approached the complainant again after making sure that neither the complainant’s parents nor any members of the public were in sight. The appellant stood directly in front of the complainant and dropped his pants and underpants to expose his penis. He then invited the complainant to suck his penis. She turned and ran into her residence. The appellant left the scene.

[8] When approached by the police the following day, the appellant admitted he was aroused by the complainant’s reaction on the first occasion when she saw his penis. He also admitted that he had developed the desire to have the complainant perform oral sex on him and agreed he thought she was about five years of age.

The Judge’s sentencing remarks

[9] The Judge noted the aggravating features to be the “threatened act of violence” towards a vulnerable five year old girl; the fact that the appellant had approached her outside her own home where she should have felt safe; the distress and emotional harm caused to the complainant and the fact that there was some

degree of premeditation. The Judge also noted that the probation officer considered there was a high risk of the appellant reoffending.

[10] The Judge considered the mitigating factors to be the appellant’s previously unblemished character and that he expressed remorse to the victim’s family even though that had occurred only shortly before the hearing.

[11] The Judge noted that the appellant was a Brazilian of Chinese extraction and was isolated in New Zealand from his home country. He accepted a submission that, in consequence, a prison sentence would have a greater impact upon the appellant. The Judge considered that a full credit was appropriate for the guilty plea even though it had not been entered until after committal and the lodging of an indictment.

[12] After referring to the purposes and principles of sentencing the Judge considered that the appropriate starting point before the identified mitigating factors was three and a half years imprisonment. After taking into account the mitigating factors, he imposed a final sentence of two years imprisonment. In reaching that conclusion, the Judge also took into account that the appellant was the subject of a removal order and that, upon the completion of his sentence, he would be removed from the country. The Judge considered that, having regard to the need to protect the community, it was not appropriate to grant leave to apply for home detention.

The appeal against conviction

[13] For the appellant, Mr Slater (who was not counsel in the District Court) submitted that, on the basis of the agreed facts, the appellant could not, in law, be guilty of attempted sexual violation. He submitted the appellant’s actions did not go beyond mere preparation. In particular, he submitted there was no advance on the girl, no attempt to seize her nor lure her to a secluded place. He accepted however that the appellant had committed an offence such as committing an indecent act in a public place (s 125 Crimes Act) or committing an indecent act with intent to assault or offend (s 126 Crimes Act). Those offences carry a maximum penalty of two years imprisonment compared with the maximum of ten years imprisonment for attempted sexual violation under s 129 Crimes Act.

[14] At the outset of the hearing of the appeal, we expressed our preliminary view to counsel that there appeared to be a more fundamental difficulty in sustaining a conviction for attempted sexual violation on the agreed facts. The Supreme Court has recently held in L v R [2006] NZSC 18 at [21] that, to constitute the offence of attempted sexual violation, there must be an intention to complete the relevant physical act and an intention that this should occur without the consent of the complainant and without the accused believing on reasonable grounds that the complainant was consenting.

[15] On the facts of the present case, there was nothing to suggest that the appellant intended sexual connection to occur between himself and the complainant without her consent. When he asked her to perform oral sex on him, she ran away and he immediately left the scene.

[16] It followed that his actions could not, in law, constitute attempted sexual violation and that a miscarriage of justice had occurred notwithstanding the guilty plea. However, subject to the appellant’s submission on the issue of attempt, it seemed to us that the appropriate charge would have been attempted sexual connection with a child under the age of 12 years, contrary to s 132(2) Crimes Act. The penalty for that offence is also 10 years imprisonment. But, unlike attempted sexual violation under s 129, the issue of consent does not arise. By virtue of s 132(5), it is not a defence to a charge under the section that the child consented. Nor is it a defence that the accused believed that the child was over the age of 12 years: s 132(4).

[17] After hearing counsel, we indicated we would amend the charge to allege an offence against s 132(2). We then proceeded to hear argument as to whether, on the facts, the conduct of the appellant was sufficient in law to constitute an attempt to have sexual connection with the complainant.

[18] Section 72 Crimes Act provides:

72 Attempts

(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

[19] The principles upon which the Court proceeds are well established but not always easy to apply in practice. As established by this Court in Police v Wylie & Anor [1976] 2 NZLR 167, 169, whether there is an attempt to commit a crime must always involve two questions. The first is whether the evidence establishes an intent to commit the crime. The second is whether the conduct of the accused is sufficient in law to amount to an attempt. Not every act done or omitted with intent to commit an offence is sufficient to amount to an attempt within the meaning of s 72. There must be acts or omissions which are immediately or proximately connected with the intended offence and are not merely preparatory steps. As this Court stated in Wylie at 170:

The issue of proximity is made a question of law by reason of s 72(2)

although in truth it is largely a question of fact and degree.

[20] The Court in Wylie agreed with observations by Lord Reid in

R v Smith [1975] AC 476 at 499 that:

It must be left to common sense to determine in each case whether the accused has gone beyond mere preparation.

[21] This Court held in Wylie that the conduct of the respondents had definitely reached a stage where it amounted to “a real and practical step towards the actual commission of the crime rather than mere preparation ...”. In those circumstances

the Court was satisfied there had been an attempt to commit the relevant offence. In other cases, the test has been described as whether there has been a “real and substantial” step towards the actual commission of the crime: R v B (5) HC CHCH T19/01 7 September 2001 William Young J.

[22] In the Supreme Court of Canada’s decision in Deutsch v R (1986) 30 DLR (4^th) 435, Le Dain J made the following observations on the distinction between preparation and an attempt at 451:

In my opinion the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished.

[23] The first part of this passage draws attention to the need to focus on the steps actually taken in relation to the ingredients of the complete offence. As the Supreme Court’s decision in L v R shows, this can be a difficult but vital step. It involves consideration of steps taken towards completion of the actus reus as well as the conclusions which might be drawn about any mental elements of the complete offence, including an accused’s knowledge or intentions as revealed by his or her conduct or by other evidence. The second part of the passage cited from Deutsch supports the statement in Adams on Criminal Law at CA 72.15 that:

Whether any individual act in a chain of events can be characterised as a real and substantial step towards completion of a criminal object will require its examination in light of the specific acts that have gone before and those which remain to follow in order to complete the criminal object.

[24] We had no doubt that, in the present case, the conduct of the appellant was sufficient to amount, in law, to an attempt to have sexual connection with the complainant. Matters had reached the point where nothing more was required on the part of the appellant in order to complete sexual connection. He had taken down his pants in front of the complainant, exposed his penis to her and invited her to perform oral sex on him. The only additional step required in order to complete sexual connection was for the complainant to effect a connection between her mouth and

his penis. That was a step which did not require any further action by the appellant. Had she taken that step, the offence under s 132(2) would have been complete.

[25] On that basis, it was inevitable that the appeal against conviction on the amended charge had to be dismissed.

Appeal against sentence

[26] Mr Slater submitted that the sentence was manifestly excessive given that there was no actual contact nor any attempt to lure the complainant away. He said, the conduct of the appellant was more akin to a case of indecent exposure.

[27] Ms Edwards was not able to cite any case in which, in like circumstances, a sentence had been imposed at a level similar to that in the present case. Nevertheless, she submitted that, although the starting point of three and a half years was at the “very top end” of the available range, the generous discount for mitigating factors meant that the sentence, while stern, was still within the range available to the sentencing Judge.

[28] We were unable to accede to the Crown’s submissions in this respect. We accepted that the appellant’s behaviour deserved denunciation and that the emotional effects on the little girl were serious and distressing both for her and for her family. A sentence of imprisonment was appropriate even though the appellant was a first offender. But while the appellant’s actions were undoubtedly indecent, there was no physical contact, there were no threats, and he desisted immediately when his request for sexual contact was not met. There being no tariff case in this area, and little guidance from comparable cases, we were of the view that an appropriate starting point in the particular circumstances of this case was 18 months and that, after a discount for the guilty plea and late expression of remorse, an appropriate sentence was 15 months imprisonment.

[29] On that basis, we allowed the appeal against sentence and substituted a sentence of 15 months imprisonment for the sentence of three years imposed by the Judge.

Solicitors:

Crown Law Office, Wellington