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Last Updated: 14 May 2010
NOTE : PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT)IN THE COURT OF APPEAL OF NEW ZEALAND
CA788/2009 [2010] NZCA 168AND DAVID MICHAEL JOHNSON
Respondent
Hearing: 15 April 2010
Court: Hammond, Chisholm and Asher JJ
Counsel: B J Horsley for Appellant
J H M Eaton for Respondent
Judgment: 6 May 2010 at 10.00 am
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JUDGMENT OF THE COURT
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B The appeal is allowed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
[1] The respondent, David Michael Johnson, pleaded guilty to seven counts of sexual conduct with a young person. On 27 November 2009, he was sentenced in the District Court at Christchurch by Judge Doherty to 9 months’ home detention. The Solicitor-General seeks leave to appeal against that sentence.
The offending
[2] At the time of the offending Mr Johnson was 36 years old. The complainant was 15. She had at one time had a relationship with a relative of Mr Johnson, which is how he came to know her.
[3] In December 2007, Mr Johnson and the complainant began ringing and texting each other about having sex. In January 2008, Mr Johnson called the complainant sounding distressed. He told the complainant that he needed to speak with her urgently. Fearing that something may have happened, the complainant went to the respondent’s house. Once there Mr Johnson asked the complainant if she wanted to have sex with him. The complainant declined, but eventually texted Mr Johnson and agreed to have sex with him. Sexual intercourse occurred on her second visit. She described the sex as rough and demeaning.
[4] Shortly after this Mr Johnson and the complainant were in contact by telephone. It was agreed that she would be picked up from her house. She climbed out of her bedroom window and was picked up by Mr Johnson, who drove her back to his house. He asked her to undress and performed oral sex on her. He used a vibrator, which he inserted into the complainant’s vagina. She did not like this as it caused her pain.
[5] From this point until April 2008, the complainant and respondent had a considerable amount of contact when sex occurred. He would pick her up from the house at night and take her to a local reserve where sexual acts took place in his car. She also went to his home on a number of occasions where sex occurred. On one occasion in the car the sexual contact developed into anal intercourse, which the complainant disliked and described as painful. Mr Johnson did not recall that incident, which he ascribed to either intoxication, or it being brief and unintentional.
[6] One occasion illustrates the dominating and demeaning nature of the relationship. Mr Johnson took the complainant to his brother-in-law’s home. Sexual intercourse took place and the complainant was required to clean up a semen stain on the carpet. Mr Johnson offered the complainant to his brother-in-law for sexual purposes, saying “she’s my bitch.” The brother-in-law declined. When they were leaving the brother-in-law asked what the complainant’s name was. Mr Johnson refused to give the name, describing the complainant in extremely derogatory and dismissive terms.
[7] After approximately three months of sexual contact the complainant moved house. She broke the contact. Mr Johnson did not know her address and could not continue to contact her. The complainant turned 16 in June 2008. Thus, while there are only seven counts, there were considerably more than seven acts of sexual contact during the three month period.
[8] A victim impact statement was filed on behalf of the complainant. It was stated that she has suffered serious emotional harm as a consequence of the contact. The initial contact developed from the pretext of Mr Johnson’s son needing help. As a consequence of her feelings of shame and worthlessness she did not complete her schooling, and lost many friendships. She feels disgusted with herself and dirty, and blames herself in part for what happened.
The decision
[9] The Judge went through the facts and noted that the sex was rough and demeaning. He agreed with Crown counsel’s portrayal of Mr Johnson as using the complainant as a “sexual play-thing”. He noted that at the time Mr Johnson was going through a personal crisis. His wife had left him and he had mental health difficulties and an alcohol problem. He observed that Mr Johnson’s expressions of remorse did not impress the probation officer. The Judge noted the protective aspect of the legislation, the recent increase in the maximum penalty and some significant recent Court of Appeal decisions.
[10] He assessed a starting point at three years’ imprisonment, bearing in mind the “aggravating features”. He made a deduction of 25 per cent for remorse, that remorse being “underpinned” by a payment of $10,000, which Mr Johnson had made to the complainant. He was impressed with a letter that Mr Johnson had sent to the complainant apologising for his actions, which he considered to be sincere. He considered that given the steps he was taking to control his alcohol consumption and get help, he was probably of little future risk to the community. He deducted another 25 per cent because of the guilty plea. The total deduction was, therefore, 50 per cent.
[11] This meant that the sentence of imprisonment would have been 18 months’ imprisonment. Observing that it was a “close run thing” he sentenced Mr Johnson to nine months’ home detention.
Approach to sentencing
[12] Section 134(1) of the Crimes Act 1961 (the Act) provides that every person who has sexual connection with a young person is liable to imprisonment for a term not exceeding ten years. Under s 134(6) of the Act, a young person means a person under the age of 16 years. Under s 134A it is a defence to a charge under s 134 that the person charged proves that before the act concerned he or she had taken reasonable steps to find out whether the young person was of or over the age of 16, that at the time of the act he or she believed on reasonable grounds that the young person was of or over the age of 16, and the young person consented. Mr Johnson did not seek to raise this defence.
[13] It has been observed of these provisions that they form part of the prophylactic regime designed to increase the protection of young persons who are in a position of vulnerability: R v Boyd,[1] and R v H.[2] In R v Boyd the observation of the English Court of Appeal in Attorney-General’s Reference No. 39 of 2003 (Wheeler),[3] that young girls who consent to sexual activity with considerably older men frequently become disturbed when they reach an age where they have full understanding of what they have been involved in, was relied on. The importance of deterring adults from having sex with children and young persons was emphasised when on 20 May 2005 the maximum sentence of seven years’ imprisonment was increased to ten years. The maximum sentence of ten years is exactly half the maximum sentence of 20 years for sexual violation.
[14] There is no tariff judgment of this Court for offending under s 134 of the Act. In R v V[4] this Court considered charges under both s 131(1)(a) and s 134(2)(b) of the Act. The maximum penalty on both charges was then seven years’ imprisonment. The Court observed in relation to s 131:[5]
The starting point in a contested rape case is now accepted as being eight years’ imprisonment (see R v A[6]). The starting point was increased to that figure after Parliament increased the maximum penalty for rape from 14 years’ imprisonment to 20 years’ imprisonment. Given the maximum seven year penalty under s 131, it might be relevant to consider, on a proportionate basis, two-and-a-half years’ imprisonment as a starting point in a contested case of sexual intercourse with a girl under care or protection.
[15] In R v H, following the 2005 increase in the maximum sentence under s 134 to ten years’ imprisonment, the Court noted the starting point of eight years for rape, and observed at [17]:
By following the R v V (CA180/01) approach and re-calibrating the starting point of eight years for rape to the new maximum penalty of ten years’ imprisonment, the starting point and conviction for sexual connection under s 134 could be fixed at four years’ imprisonment ...
This indication of a starting point has been followed in a number of decisions in this Court: R v Brunie,[7] R v Burdett,[8] R v Davidson[9] and R v Misileki.[10] In R v Burdett, R v H was described as a guide rather than a fetter.[11]
[16] In R v AM,[12] decided after the sentencing, the expression of a single starting point was recently described by this Court as out of step with present sentencing methodology. It was observed:[13]
In contradistinction R v A identifies a single starting point and this contemplates a wide range of necessarily impressionistic adjustments for aggravating and mitigating factors. So it provides comparatively little helpful guidance and does not, in itself, provide a mechanism for the consistent treatment of recurrent fact patterns.
R v AM has now identified sentencing bands for rape and sexual violation, and unlawful sexual connection.
[17] We consider that the four year starting point in R v H is still a useful reference point in relation to sentencing for sexual connection with young persons, where the offending shares features present in that case. Particular aggravating features in R v H were abuse of trust, a significant age gap between the offender and the victim, full penetrative sex on a number of occasions, and significant adverse effects on the victim. Where aggravating features in R v H are present, a starting point of four years may be appropriate. Other aggravating factors not present in R v H may be seen as increasing culpability. Such features could include grooming, or abusive and demeaning behaviour. Where there has been no breach of trust as in R v H but the same aggravating features are present, a lower starting point will be appropriate. A different combination of aggravating and mitigating factors might produce yet another result. It follows that the starting point of four years should be seen as no more than a mid-point in the range of offending where there is moderate culpability.
The starting point in this case
[18] We were referred to ten sentence appeal decisions under s 134. They featured starting points of between two years and six months and nine years’ imprisonment. A table of Court of Appeal cases under s 134(1) since the 2005 amendment is Appendix A to this judgment.
[19] The Crown submitted that the appropriate starting point should have been four-and-a-half years’ imprisonment. It relied on two cases. In both R v Misileki and R v Burdett, the 26 and 44 year-old offenders were charged with one count under s 134 for one act of sexual intercourse with their 14 and 15-year-old victims respectively. Also of note is R v Hessell,[14] where a starting point of three years was upheld, for a number of instances of sexual connection over an afternoon with two girls of 14 and 15, with no sexual intercourse.
[20] Based on the Court’s guide of four years’ imprisonment in R v H, and the three-and-a-half year starting point upheld in R v Misileki and R v Burdett for single acts of intercourse, the starting point put forward by the Crown as correct was four-and-a-half years’ imprisonment, rather than the three year starting point chosen by the judge in this sentencing.
[21] We consider that the following factors are aggravating for the purposes of fixing the starting point:
- (a) Age discrepancy. Mr Johnson was 36 years, the victim 15 years.
- (b) Targeting. We do not consider that there was grooming. The suggestion of “predatory” behaviour by the Crown somewhat overstates the nature of Mr Johnson’s actions. But he did embark on a deliberate course of conduct, aimed at obtaining her participation in sexual acts. Mr Johnson sought the complainant’s attention by texts and by pretending that he was worried about his son to get her to his home. The case can be distinguished from, say, spontaneous and unplanned sexual activity, or where the complainant is an initiator.
- (c) Frequency of the sexual contact. There was frequent sexual connection on a regular basis over a three month period.
- (d) Rough and demeaning contact. Mr Johnson used the victim as his sexual play thing.
- (e) Effects on the victim. Her life changed significantly for the worse in terms of achievement, social contact and self-esteem, as a consequence of Mr Johnson’s treatment of her.
[22] We note the absence of breach of trust or grooming. In all the circumstances, given a number of significant aggravating factors, a starting point of three years and nine months’ imprisonment was the bottom of the range. Given that this is a Solicitor-General’s appeal, we adopt the most favourable position available to the respondent, and treat three years and nine months as the correct starting point.
Personal factors
[23] We now consider the Crown’s criticism of the discount of 25 per cent for the guilty plea and 25 per cent for remorse.
[24] The Crown does not quarrel with the 25 per cent discount for the guilty plea. The guilty plea was proposed by Mr Johnson’s counsel just prior to committal, and prior to the delivery of the guideline judgment in R v Hessell.[15] Nonetheless, the Hessell guidelines were applicable as Mr Johnson was sentenced after judgment was delivered in that case.[16] That discount was within the available range, and, indeed, a slightly higher discount could have been justifiable. Any possibility that the respondent is short-changed by this Court accepting a conservative discount for his guilty plea is balanced out by the generous discount afforded him for remorse and his reparation payment, as will become apparent immediately.
[25] The Crown’s real criticism was of the other 25 per cent discount that was applied by the Judge for the payment of $10,000 and remorse. The sentencing Judge was impressed with the sincerity of Mr Johnson’s remorse, despite the view of the probation officer that Mr Johnson shifted responsibility for his offending and was not motivated to address his wrongdoing. It was submitted by the Crown that the maximum range of further discount for remorse and other factors was between 10 and 15 per cent.
[26] It was not correct to make an extra allowance for Mr Johnson’s remorse, accepting the Judge’s assessment that it was genuine. This remorse was already accounted for in the discount for the guilty plea. It has been made clear in a number of Court of Appeal judgments,[17] culminating in R v Hessell, that as a general rule the discount for a guilty plea incorporates the discount for remorse. In R v Hessell the Court of Appeal noted that “exceptional remorse, demonstrated in a practical and material way, can attract its own reward”.[18]
[27] It was open to the Judge to take into account as an extra factor the payment of the $10,000 as an exceptional expression of remorse in a practical and material way, by considering it under s 10(1)(a) and s 9(2)(f) of the Sentencing Act. However, the Crown submitted that the weight given to this smacked of a form of “cheque book justice”.
[28] Under s 10(1)(a) payments by an offender to a victim must be properly taken into account as mitigating circumstances in a sentencing process. But the weight given to such a factor will generally be limited. The payment is not necessarily indicative of remorse; it may simply reflect a strong desire not to go to prison and a willingness to pay any money that will help to achieve that goal. On the other hand, payments should not be discouraged as they can often mean a lot to a victim, providing some compensation for suffering. They can be seen as a restorative and remedial measure.
[29] In assessing this payment by Mr Johnson we take into account the fact that he appears to be well-off and has significant assets. Although we are informed from the Bar that the recession has taken its toll on his finances, the payment of $10,000 is unlikely to have caused him great hardship. Nevertheless, it has been accepted by the victim, and accepted by the sentencing Judge as indicative of genuine remorse. A discount under s 10(1)(a) and s 9(2)(f) to the sentence of imprisonment of five per cent or more on this account could have been appropriate. Further, accepting that a slightly greater discount than 25 per cent was available because of the guilty plea, and also giving some limited weight to the fact that he has Asperger Syndrome and was engaged in an alcohol-fuelled destructive lifestyle at the time, a total further discount of up to a maximum of fifteen per cent could have been justified. Thus, bearing in mind that this is a Solicitor-General’s appeal, a discount of 15 per cent and then a further discount of 25 per cent could have been applied, leaving a minimum sentence of two years and four months’ imprisonment.
The correct sentence
[30] It follows from our conclusion that a sentence of two years and four months’ imprisonment was the minimum available. Given the qualifying requirement for home detention of a sentence of two years’ imprisonment or less (s 15A of the Sentencing Act 2002), the District Court Judge should not have considered or imposed home detention. In any event, imprisonment will usually be the only appropriate sentence for persons who have committed serious sexual offending against children or young persons.[19]
Disposal of this appeal
[31] Mr Eaton reminded us that a sentence will only be interfered with on a Solicitor-General’s appeal in very clear cases. Accepting this, it is clear that the sentence which was imposed was manifestly inadequate. The usual consequence of our conclusion that the sentence should have been a sentence of at least two years and four months’ imprisonment, would be that the appeal would be allowed and that sentence substituted for the District Court sentence. The logical result is that the non-custodial sentence of home detention would be replaced by a prison sentence. It would be possible to impose such a sentence, reducing it somewhat to reflect the five months of home detention already completed.
[32] However, there are further factors that must be considered. It is recognised that a court will be more disinclined to interfere with a non-custodial sentence, when the consequence will be a period in custody following a period of liberty.[20] It was stated in R v Donaldson:[21]
Even if the Court determines that the sentence is manifestly inadequate or based upon a wrong principle, it will still be reluctant to interfere if this would cause injustice to the offender. In particular, the Court will be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with than where an inadequate custodial sentence is in issue.
A defendant who has received a merciful sentence and escaped imprisonment will feel great relief. There will be a natural tendency to assume that the sentence is final, and to organise affairs and expectations accordingly. To be then faced with the reversal of that situation at a later date and immediate imprisonment is a harsh further penalty, not earned by the offender.
[33] Mr Johnson has completed more than half of his sentence, albeit in home detention rather than in custody. To carry out much of a sentence of home detention, and to then be faced with removal to prison carries with it “a distinct element of unfairness”.[22] While a reduction in sentence could partially compensate for the sentence already served, the calculation will be imprecise. A report from the probation officer shows that Mr Johnson has met his home detention obligations and there have been no compliance issues. He has remained engaged with Alcoholics Anonymous and appears to have been alcohol and drug free. There has been no contact with the victim, and he has been attending sessions with a psychotherapist. He appears to have made considerable progress since sentence in turning his life around.
[34] While there will be cases where an appellate court is persuaded that the community confidence in the administration of justice requires the imposition of a sentence of imprisonment despite such factors, this is not such a case. It would be extremely harsh to now impose a custodial sentence on Mr Johnson. There is an alternative. The manifestly inadequate sentence of home detention can be increased to 12 months’ home detention. While still a manifestly inadequate sentence, we have concluded that this is the proper result of the appeal.
Result
[35] Leave to appeal is granted, and the appeal is allowed. The minimum sentence that should have been imposed for the offending was a sentence of two years and four months’ imprisonment. The nine months’ home detention was manifestly inadequate and is quashed.
[36] However, because of the special features we have mentioned that arise as a consequence of the sentencing, the result is that the sentence of home detention of nine months’ home detention on the seven charges, (concurrent), is substituted by one year’s home detention.
[37] At the request of the probation officer in Christchurch, we note that Mr Johnson is to address the factors of his offending, and that the conditions of the sentence may be varied in this regard. Community Probation will apply to vary the conditions.
Solicitors:
Crown Law Office, Wellington for Appellant
APPENDIX A
COURT OF APPEAL DECISIONS UNDER SECTION 134(1) SINCE THE 2005 AMENDMENT
Faapuea v R [2010] NZCA 20
One charge under s 134, two counts under s 134(3) (doing an indecent act on a young person)
R v Hessell [2009] NZCA 450
Nine charges under s 134
R v Burdett [2009] NZCA 366
One count under s 134
R v Brunie [2009] NZCA 300
Two counts under s 134, one count under s 131B (meeting after grooming)
R v Misileki [2008] NZCA 513
One count under s 134
R v Davidson [2008] NZCA 484
Three counts under s 134, three counts under s 131B (meeting after grooming), other objectionable publication charges.
R v Stacey [2008] NZCA 465
Six counts under s 134
R v H [2008] NZCA 237
One count under s 134, one count under s 131 (sex with dependent family member), representative.
R v Henderson [2007] NZCA 524
Three counts under s 134, three counts under s 134(3) (indecent act on a young person).
R v A CA194/07, 17 October 2007
Six counts under s 134 (female offender).
[1] R v Boyd
(2004) 21 CRNZ 169 at
[40].
[2] R v
H [2008] NZCA 237 at
[17].
[3]
Attorney-General’s Reference No. 39 of 2003 (Wheeler) [2005] UKHL 49; [2004] 1 Cr
App R (S) 79.
[4]
R v V (CA180/01), 30 August
2001.
[5] At
[15].
[6] R v A
[1994] 2 NZLR 129
(CA).
[7] R v
Brunie [2009] NZCA 300 at
[11].
[8] R v
Burdett [2009] NZCA 366 at
[18].
[9] R v
Davidson [2008] NZCA 484 at
[27].
[10] R v
Misileki [2008] NZCA 513 at
[18].
[11] At
[24].
[12] R v
AM [2010] NZCA 114 at
[1].
[13] At
[27](b).
[14] R
v Hessell [2009] NZCA
450.
[15] R v
Hessell [2009] NZCA 450 at
[15].
[16] See
R v Hessell at
[74].
[17] See for
example R v Wilson [2008] NZCA 496 at [14]; R v Walker [2009] NZCA
56 at [15].
[18]
At [28].
[19]
R v S CA465/05, 11 April 2006 at [12].
[20] See R v
Clark CA266/81, 10 March 1981 at 4-5; R v Parker CA246/87, 29 April
1988 at 7; and R v Peters 11 April 1986, CA309/85 at 8-9.
[21] R v
Donaldson (1997) 14 CRNZ 537 (CA) at
550.
[22] R v
Palmer CA332/03, 31 March 2004 at [45].
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