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The Queen v MacKenzie [2007] NZCA 72 (16 March 2007)

Last Updated: 20 March 2007

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA298/06
[2007] NZCA 72

THE QUEEN

v

JOHN TE HUIA MACKENZIE

Hearing: 6 March 2007

Court: Chambers, Gendall and Heath JJ

Counsel: G Boot for Appellant
P K Feltham for Crown

Judgment: 16 March 2007 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B The sentences imposed in the District Court are set aside and sentences of three years six months imprisonment are substituted on each charge, to be served concurrently.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1] Following a trial in the District Court before Judge Clark and a jury, Mr MacKenzie was found guilty on two charges of sexual violation by unlawful sexual connection. The charges arose out of events that occurred in June 2005 on a day when Mr MacKenzie was caring for young children.
[2] The first sexual connection occurred while Mr MacKenzie was playing with an eight year old girl. He pulled down her pants and proceeded to lick her anus more than once. That incident was interrupted by a telephone call, during which time the victim began to put her clothes back on. When the call ended, Mr MacKenzie threatened her with a jug cord because he wanted to continue his activity. Similar behaviour to that exhibited before the interruption followed. During the course of that incident, penetration of the young girl’s anus was achieved by Mr MacKenzie’s tongue.
[3] Not long after the events occurred, the girl’s mother returned home. The young girl complained to her mother. The incident was reported to the Police. As a result of the investigation that followed, Mr MacKenzie was charged.

The District Court sentencing

[4] At sentencing, Mr Boot, for Mr MacKenzie, accepted that imprisonment was inevitable. The only issue was the length of the term of imprisonment to be imposed. Both charges carry a maximum penalty of 20 years imprisonment.
[5] Judge Clark identified breach of trust, the vulnerability of the victim, the threat of violence and repetitive offending as aggravating features arising from the offending. The Judge acknowledged that, while two offences were committed, they occurred within a relatively short period of time and involved a single course of conduct, interrupted only by the telephone call. Personal aggravating factors arose from the past criminal history of Mr MacKenzie. However, none of that offending was of a sexual nature. The Judge referred to the victim impact statements, saying the experience was causing difficulty for the young girl in relating to adult males, including her father.
[6] The only mitigating factor identified by the Judge was Mr MacKenzie’s comparative youth. At the time of sentencing he was 21 years old.
[7] Judge Clark regarded the need for denunciation of conduct of this type against vulnerable victims as the primary sentencing goal. She chose a starting point of three and a half years imprisonment. That was increased to a period of five and a half years imprisonment to reflect the conduct that occurred on the second occasion. An allowance of six months was made for the mitigating factor. An effective term of imprisonment of five years was imposed on each charge. The sentences were to be served concurrently.

Competing submissions

[8] Mr Boot submitted that the initial starting point identified by the Judge of three and a half years imprisonment was an adequate starting point to meet the totality of the offending. He submitted that, because the two incidents were separated only by the telephone call and the Judge had accepted there was one course of conduct, the Judge erred when she increased the starting point by a further period of two years. Mr Boot argued that, in effect, the Judge had imposed a cumulative sentence in circumstances which required true concurrent sentences.
[9] Mr Boot submitted that Mr MacKenzie’s conduct was "at the lowest end" of offending amounting to sexual violation and that it lacked the serious aggravating factors often present in such cases. Mr Boot submitted that an end sentence of three years imprisonment would have responded adequately to the totality of the criminal behaviour.
[10] Ms Feltham, for the Crown, submitted that the sentence imposed was within the range available to the Judge. However, she accepted that the way in which the Judge had constructed the sentence (by adding two years to the chosen starting point to reflect the second incident) was unusual.
[11] Ms Feltham submitted that, looking at the sentencing exercise afresh and having regard to the authorities cited, a starting point of five and a half years was within the range available, having regard to the specific aggravating features identified by the sentencing Judge. Further, she submitted that the end sentence imposed, while stern, was not manifestly excessive.

Analysis of competing submissions

[12] In R v M [2000] 2 NZLR 60 (CA) this Court reiterated that it had not attempted to set any tariff for cases involving sexual violation by digital penetration, though the cases tended to show that sentences were fixed against starting points ranging from two to five years imprisonment after trial and before allowing for mitigating factors: at [9].
[13] Those observations reflected earlier (and more general) appellate pronouncements about the need to determine sentences on charges of sexual violation by unlawful sexual connection on a case by case basis, taking account of the nature of the aggravating features and the overall criminal culpability. By way of example, we refer to R v Jackson (1997) 14 CRNZ 573 (CA) at 576.
[14] Subsequently, in R v Tranter CA486/03 14 June 2004 at [95], this Court said that the starting point of two to five years imprisonment (to which R v M referred) "should not be seen as limiting the options available to the sentencing Judge" because "both the low point and the high point are conservative". The Court observed that, having regard to the maximum penalty of 20 years for sexual violation by unlawful sexual connection (in that case digital penetration), it would be a rare case in which a two year starting point would be appropriate: indeed, a starting point in excess of five years might well be appropriate in more serious cases.
[15] Unsurprisingly, neither counsel could locate any sentencing decision dealing with the type of connection that occurred in this case. We have considered authorities dealing with other types of sexual connection that we regard as analogous.
[16] In our view, the way in which the Judge arrived at the starting point of five and a half years imprisonment was unorthodox and an error. The error arose from the failure of the Judge to fashion the sentence to reflect her finding that the offending arose out of a single course of conduct.
[17] We consider that the starting point should have been assessed taking into account the aggravating factors relating to the offence in the context of the single course of conduct. In the manner in which the Judge assessed her starting point, we have concerns whether aggravating features were double counted in her calculation of the sentence to be imposed.
[18] Also, we are of the view that the end sentence imposed was out of line with appellate decisions that we regard as analogous. We refer, in particular, to R v O (CA193/99) 26 October 1999, R v Edwards CA94/04 21 September 2004 and R v T (CA139/05) 26 July 2005.
[19] In our view, the aggravating factors to which the Judge referred justified a starting point of four years. That was sufficient to reflect the overall offending. Such a starting point also provides an adequate degree of consistency with sentences for similar offences that have been confirmed by appellate judgments. We agree that the Judge’s allowance of six months to reflect the mitigating factor was within the range available to her. We adopt it.
[20] On that analysis, the end sentence ought to have been one of three years six months imprisonment. The difference between that and the sentence imposed is sufficient to hold that the sentence was manifestly excessive.

Result

[21] The appeal against sentence is allowed. The concurrent sentences of five years imprisonment imposed in the District Court are set aside. In lieu thereof, we impose a sentence of three years six months imprisonment on each charge, the sentences to be served concurrently.

Solicitors:
Gavin Boot Law, Hamilton, for Appellant
Crown Law Office, Wellington

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[1]	Following a trial in the District Court before Judge Clark and a jury, Mr MacKenzie was found guilty on two charges of sexual violation by unlawful sexual connection. The charges arose out of events that occurred in June 2005 on a day when Mr MacKenzie was caring for young children.
[2]	The first sexual connection occurred while Mr MacKenzie was playing with an eight year old girl. He pulled down her pants and proceeded to lick her anus more than once. That incident was interrupted by a telephone call, during which time the victim began to put her clothes back on. When the call ended, Mr MacKenzie threatened her with a jug cord because he wanted to continue his activity. Similar behaviour to that exhibited before the interruption followed. During the course of that incident, penetration of the young girl’s anus was achieved by Mr MacKenzie’s tongue.
[3]	Not long after the events occurred, the girl’s mother returned home. The young girl complained to her mother. The incident was reported to the Police. As a result of the investigation that followed, Mr MacKenzie was charged.

[4]	At sentencing, Mr Boot, for Mr MacKenzie, accepted that imprisonment was inevitable. The only issue was the length of the term of imprisonment to be imposed. Both charges carry a maximum penalty of 20 years imprisonment.
[5]	Judge Clark identified breach of trust, the vulnerability of the victim, the threat of violence and repetitive offending as aggravating features arising from the offending. The Judge acknowledged that, while two offences were committed, they occurred within a relatively short period of time and involved a single course of conduct, interrupted only by the telephone call. Personal aggravating factors arose from the past criminal history of Mr MacKenzie. However, none of that offending was of a sexual nature. The Judge referred to the victim impact statements, saying the experience was causing difficulty for the young girl in relating to adult males, including her father.
[6]	The only mitigating factor identified by the Judge was Mr MacKenzie’s comparative youth. At the time of sentencing he was 21 years old.
[7]	Judge Clark regarded the need for denunciation of conduct of this type against vulnerable victims as the primary sentencing goal. She chose a starting point of three and a half years imprisonment. That was increased to a period of five and a half years imprisonment to reflect the conduct that occurred on the second occasion. An allowance of six months was made for the mitigating factor. An effective term of imprisonment of five years was imposed on each charge. The sentences were to be served concurrently.

[8]	Mr Boot submitted that the initial starting point identified by the Judge of three and a half years imprisonment was an adequate starting point to meet the totality of the offending. He submitted that, because the two incidents were separated only by the telephone call and the Judge had accepted there was one course of conduct, the Judge erred when she increased the starting point by a further period of two years. Mr Boot argued that, in effect, the Judge had imposed a cumulative sentence in circumstances which required true concurrent sentences.
[9]	Mr Boot submitted that Mr MacKenzie’s conduct was "at the lowest end" of offending amounting to sexual violation and that it lacked the serious aggravating factors often present in such cases. Mr Boot submitted that an end sentence of three years imprisonment would have responded adequately to the totality of the criminal behaviour.
[10]	Ms Feltham, for the Crown, submitted that the sentence imposed was within the range available to the Judge. However, she accepted that the way in which the Judge had constructed the sentence (by adding two years to the chosen starting point to reflect the second incident) was unusual.
[11]	Ms Feltham submitted that, looking at the sentencing exercise afresh and having regard to the authorities cited, a starting point of five and a half years was within the range available, having regard to the specific aggravating features identified by the sentencing Judge. Further, she submitted that the end sentence imposed, while stern, was not manifestly excessive.

[12]	In R v M [2000] 2 NZLR 60 (CA) this Court reiterated that it had not attempted to set any tariff for cases involving sexual violation by digital penetration, though the cases tended to show that sentences were fixed against starting points ranging from two to five years imprisonment after trial and before allowing for mitigating factors: at [9].
[13]	Those observations reflected earlier (and more general) appellate pronouncements about the need to determine sentences on charges of sexual violation by unlawful sexual connection on a case by case basis, taking account of the nature of the aggravating features and the overall criminal culpability. By way of example, we refer to R v Jackson (1997) 14 CRNZ 573 (CA) at 576.
[14]	Subsequently, in R v Tranter CA486/03 14 June 2004 at [95], this Court said that the starting point of two to five years imprisonment (to which R v M referred) "should not be seen as limiting the options available to the sentencing Judge" because "both the low point and the high point are conservative". The Court observed that, having regard to the maximum penalty of 20 years for sexual violation by unlawful sexual connection (in that case digital penetration), it would be a rare case in which a two year starting point would be appropriate: indeed, a starting point in excess of five years might well be appropriate in more serious cases.
[15]	Unsurprisingly, neither counsel could locate any sentencing decision dealing with the type of connection that occurred in this case. We have considered authorities dealing with other types of sexual connection that we regard as analogous.
[16]	In our view, the way in which the Judge arrived at the starting point of five and a half years imprisonment was unorthodox and an error. The error arose from the failure of the Judge to fashion the sentence to reflect her finding that the offending arose out of a single course of conduct.
[17]	We consider that the starting point should have been assessed taking into account the aggravating factors relating to the offence in the context of the single course of conduct. In the manner in which the Judge assessed her starting point, we have concerns whether aggravating features were double counted in her calculation of the sentence to be imposed.
[18]	Also, we are of the view that the end sentence imposed was out of line with appellate decisions that we regard as analogous. We refer, in particular, to R v O (CA193/99) 26 October 1999, R v Edwards CA94/04 21 September 2004 and R v T (CA139/05) 26 July 2005.
[19]	In our view, the aggravating factors to which the Judge referred justified a starting point of four years. That was sufficient to reflect the overall offending. Such a starting point also provides an adequate degree of consistency with sentences for similar offences that have been confirmed by appellate judgments. We agree that the Judge’s allowance of six months to reflect the mitigating factor was within the range available to her. We adopt it.
[20]	On that analysis, the end sentence ought to have been one of three years six months imprisonment. The difference between that and the sentence imposed is sufficient to hold that the sentence was manifestly excessive.