R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23 (3 August 2011)

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA88/2011 [2011] NZCA 360

BETWEEN THE QUEEN Appellant

AND SHANNON IAN CLIFFORD Respondent

Hearing: 20 June 2011

Court: O'Regan P, Chambers and Arnold JJ

Counsel: C L Mander and M H Cooke for the Appellant

G J King and Q C S Hix for Respondent

Judgment: 3 August 2011 at 10.30 am

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted. B The appeal is allowed.

C The sentence of five years imprisonment imposed in the District Court is

_{quashed and replaced with a sentence of seven years imprisonment.}

REASONS OF THE COURT

_{(Given by O’Regan P)}

R V SHANNON IAN CLIFFORD COA CA88/2011 [3 August 2011]

_{Table of Contents}

Para No

Introduction [1] Guideline judgments [2] Issues on appeal [5] Facts [10] Sentencing remarks [15] Were there grounds for an honest or reasonable

belief in consent? [18]

Reasonable belief and intoxication [22] Lack of actual violence [32] What is the appropriate sentence? [33] Starting point [35] Impact of Hessell (SC) on guideline judgments [45] Result [64]

Introduction

[1] The respondent, Mr Clifford, was found guilty after a jury trial of one count of sexual violation by rape. The judge who presided at his trial, Judge Philip Moran, sentenced him to imprisonment for a term of five years.¹ The Solicitor-General seeks leave to appeal against that sentence on the grounds that it was manifestly inadequate and wrong in principle.

Guideline judgments

[2] In 2010, this Court issued a guideline judgment in relation to sentencing for sexual offences, R v AM.² As the Crown’s application required us to consider the application of the guidelines in R v AM, we took the opportunity to consider whether

_{the decision of the Supreme Court in Hessell v R}³ _{impacts on R v AM and other}

¹ _{R v Clifford DC Ashburton CRI-2010-009-4143, 24 January 2011.}

² _{R v AM(CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.}

³ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

guideline judgments issued by this Court and on this Court’s approach to sentence appeals. We asked counsel to make submissions to us on those matters. We made a similar request in the context of another appeal, Flavell v R,⁴ involving another guideline judgment, R v Taueki.⁵ (For ease of reference we will refer to the Supreme Court’s decision in Hessell v R as Hessell (SC) and this Court’s decision in R v Hessell⁶ as Hessell (CA).)

[3] We are issuing our judgment in Flavell v R at the same time as this judgment. In the present appeal, Mr King made submissions on the Hessell (SC) issues and Mr Hix made submissions in relation to the respondent’s own appeal. Counsel for Mr Flavell, Mr Muston, also made submissions on the Hessell (SC) issues, which we will address in this judgment. We are grateful to all counsel for their helpful submissions on these issues.

[4] We will deal first with the Solicitor-General’s application, before turning to

the issues relating to Hessell (SC).

Issues on appeal

[5] At his trial, the respondent accepted that the victim had not consented to the sexual activity that took place. His defence was that he honestly believed on reasonable grounds that she was consenting. The jury must have concluded that it was not a reasonable possibility either that he honestly believed the victim consented or that, if he did, his belief was not reasonable. The Judge concluded that the jury must have taken the view that the respondent honestly believed the victim was consenting, but that his honest belief was a product of his drunken state at the material time and, though honest, was not reasonable. He sentenced the respondent on that basis. The Judge also took into account the fact that there was no violence involved in the rape of the victim, other than that inherent in the offence itself.

_{[6] The Crown’s proposed appeal is based on the following three grounds:}

⁴ _{Flavell v R [2011] NZCA 361.}

⁵ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.}

⁶ R v Hessell [2010] NZCA 450, [2010] 2 NZLR 298.

(a) given the Judge’s finding that the respondent’s honest but unreasonable belief in consent was attributable to his intoxicated state, it was wrong in principle to treat that finding as a significant mitigating factor;

(b) the Judge was wrong to allow the respondent’s intoxication to be a source of mitigation when, in the circumstances, there was no basis for an honest belief in consent nor reasonable grounds for such a belief; and

(c) the Judge erred in treating lack of actual violence during the rape as a mitigating factor.

[7] The Crown submitted that the case properly fell at the top of band 1 (six – eight years imprisonment) or the bottom of band 2 (seven - 13 years) of the bands relating to sexual violation by rape in R v AM. It sought an end sentence in excess of seven years imprisonment.

[8] We are satisfied that the issues that the Crown seeks to raise are issues that should be dealt with by the Court on appeal. We therefore grant leave.

[9] Before we turn to the three grounds of appeal set out above, we briefly summarise the facts and the approach taken by the sentencing Judge.

Facts

[10] The respondent was 24 at the time of the offending. He knew the 41 year old victim through family connections and would occasionally visit her.

[11] At around midnight on the 14 March 2010, he walked into the victim’s house. He was obviously drunk. He pushed the victim into her bedroom and told her he was going to have sex with her. He put a hand up her top and one down her pants. She strongly resisted, making it clear she did not want any sexual activity to take

place. She reminded the respondent that he had a pregnant girlfriend at home. He

kept insisting. The victim’s young male flatmate then interrupted.

[12] The victim went into the lounge and the others followed. In the lounge, the respondent made sexually offensive comments to the victim and her flatmate, and exposed his penis and waved it around. He suggested to the victim that he would punch her in the nose. He then fell asleep on the couch.

[13] The victim and her flatmate both went back to their rooms. The victim thought that the respondent would leave when he woke up. She remained fully clothed and lay on her stomach. She went to sleep. A little later the respondent woke up and went into her room. She heard a door shut and then felt him pressing down on top of her. She said she froze with fear. He removed her lower clothing and had intercourse with her from behind. He then requested that she roll over, which she did, and he had sex with her again. The young flatmate came to the door again and asked the victim if she was all right. The respondent momentarily stopped and the victim replied shakily that she was. The sexual activity resumed and finished soon after.

[14] The victim said she did not protest during the rape because she feared for her three year old daughter and the two teenagers who were in the house. She said that although the respondent had not been violent, he was forceful and had obviously made up his mind that he was going to have sex with her, whatever she said or did.

Sentencing remarks

[15] Having set out the facts, the Judge acknowledged that the respondent deserved credit for his acceptance at trial that the victim did not consent. He concluded that the jury found that the respondent honestly believed the victim consented but that that belief was unreasonable. He commented that it was the first time in his trial experience that anyone had been convicted of rape on the basis that the respondent’s belief in consent was not reasonable. The Judge identified several aggravating factors, including the preceding events that would have instilled a fear of violence in the victim. He noted that the respondent had walked into the victim’s

home at night, demanded sex, indecently assaulted her and acted bizarrely. He also noted that the respondent had acted with a sense of entitlement. Finally, he noted the effects of the offending on the victim and that she felt like she had lost her dignity.

[16] In terms of mitigating factors, the Judge said:⁷

The mitigating features are these. During the rape itself, no actual violence was used beyond that involved in the act itself. During intercourse I am prepared to accept that you honestly believed she was consenting, and you are found guilty on the basis that a reasonable sober person in your position could not have held such a belief, and that your belief was not reasonable. That, I regard, as a very significant mitigating factor.

[17] The Judge then sentenced the respondent to five years imprisonment. He did not apply the sentencing methodology outlined in R v AM of setting a starting point for the offending before taking into consideration personal aggravating and mitigating factors.

Were there grounds for an honest or reasonable belief in consent?

[18] We will deal with the Crown’s second ground of appeal⁸ first, because it is essentially an attack on the finding made by the Judge that the jury must have convicted on the basis that they found that the respondent honestly believed that the victim was consenting, but that that honest belief was unreasonable.

[19] Mr Mander emphasised that, during the initial encounter between the respondent and the victim, the victim’s conduct made it absolutely clear that the victim had no interest in having sex with the respondent. He said that there was therefore no rational basis for the respondent to consider that anything had changed after his sleep, when he went back to the victim’s bedroom and found her asleep but fully clothed.

[20] Mr Hix supported the Judge’s finding. He said that the victim’s response to the respondent’s activity on the latter occasion was different from her clear resistance

_{to his advances on the first occasion. He emphasised that the victim did not}

⁷ _{At [20].}

⁸ See at [6](b) above.

physically resist the respondent in any way, did not try to stop him from removing her clothes, changed position when required and when her flatmate asked her if she was alright, replied that she was. He also said that the victim did not express any concern about the events that had just happened to the respondent after the sexual violation was completed. He accepted that the victim’s actions may have been motivated by fear, but he said that the reasonable possibility that the respondent believed the victim was consenting could not be excluded.

[21] We see some force in Mr Mander’s submission that the finding made by the Judge involved taking a very benign view of the circumstances. It also seems inconsistent with the Judge’s observation that the respondent’s behaviour exhibited a sense of entitlement and that he did not care whether the victim wanted to have sex with him or not. However, we acknowledge the Judge’s advantage as trial Judge and, in the circumstances, consider that it is better for us to approach the appeal on the same factual footing as the Judge did.

Reasonable belief and intoxication

[22] We now turn to the first ground of appeal identified above.⁹ The essence of this ground is that the respondent’s intoxication was the only available reason for his holding the honest but unreasonable belief in consent, and that it was inappropriate for that to be taken into account as a mitigating factor because that was inconsistent with s 9(3) of the Sentencing Act 2002.¹⁰ Section 9(3) provides:

Despite sub-section 2(e), the court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes).

[23] Section 9(2)(e) otherwise requires the Court to take into account as a mitigating factor the fact that an offender has diminished intellectual capacity or

_{understanding.}

⁹ _{See [6](a) above.}

10. All references to statutory provisions are to sections of the Sentencing Act unless otherwise stated.

[24] Mr Mander relied on R v Hollander as confirming that a mistaken belief in consent formed because of intoxication would not be a mitigating factor.¹¹ In that case, a 33 year old man had intercourse with a 16 year old girl he had only just met on the floor of a toilet at a party. Other than turning her head when he tried to kiss her and closing her legs when he tried to kiss her vagina, her evidence was she had not otherwise protested or resisted, even when someone knocked on the door to tell

the man his taxi had arrived. The Court said:

Here the obvious reason the appellant formed the belief [in consent] which has been found not to be reasonably based is his intoxication and that cannot be a mitigating factor: s 12A Criminal Justice Act 1985.

[25] Section 12A of the Criminal Justice Act 1985 was to similar effect as s 9(3)

of the Sentencing Act.

[26] Mr Mander also relied on R v Hill in which this Court observed:¹²

To commit rape under a mistaken but unreasonable belief there is consent, induced by drunkenness of the accused, is not a mitigating factor at all.

[27] Mr Hix submitted that the Judge’s focus was not on the alcohol consumed as the reason for the mistaken belief in consent. He said that where an honest belief is formed, where alcohol is merely one of the factors involved, s 9(3) does not prevent consideration of the belief. Section 9(3) merely prevents intoxication itself from being taken into account. Further he said that Hollander had been impliedly overruled by R v AM, relying on the fact that in that case this Court said that

mistaken belief in consent can be relevant.¹³ He submitted that, though intoxication

may have been a contributing factor, the Judge found the respondent had formed a view of consent based on the conduct of the victim, not because of his drunkenness.

[28] We do not accept Mr Hix’s submissions. Section 9(3) clearly links to diminished understanding in s 9(2)(e). Its intent is that diminished understanding (that is, that which led to an apparently honest belief in consent) may not be taken into account if it is caused by intoxication. On Mr Hix’s interpretation, the section

_{would be robbed of any real effect.}

¹¹ _{R v Hollander CA440/97, 25 February 1998.}

¹² _{R v Hill CA94/02, 21 October 2002 at [25], cited in R v AM at [53].}

¹³ At [53].

[29] Further, the Judge’s comments in sentencing could not be clearer. As to the role of intoxication in the respondent’s unreasonable belief in consent, he said:¹⁴

There was certainly no resistance offered when you pulled down her pants, and from this in your drunken befuddled state, you probably thought that she was now consenting.

...

... the young flatmate came to the door and asked if she was all right, and she called out that she was, which no doubt would have reinforced further this drunken impression that you had, that she was up for what you were doing to her...

...

During intercourse I am prepared to accept that you honestly believed she was consenting, and you are found guilty on the basis that a reasonable sober person in your position could not have held such a belief, and that your belief was not reasonable.

[30] We reject Mr Hix’s submission. The Judge clearly attributed the respondent’s

belief in consent to his intoxication.

[31] We do not think that the comments in R v AM were intended to limit Hollander or Hill and, of course, they could not have any effect on the application of s 9(3). All the Court said in R v AM was that an offender’s culpability may be at a lower level in a case of mistaken but unreasonable belief in consent than in a case

where the offender knows the victim is not consenting.¹⁵ But the Court said nothing

to indicate any limitation on s 9(3) or any retreat from the observations made in Hollander and Hill. Clearly an intoxicated belief in consent is not to be treated as a mitigating factor because to do so would be to treat intoxication as mitigating, which s 9(3) forbids. This was, at best, a case of intoxication leading to the mistaken belief.

Lack of actual violence

[32] Turning now to the Crown’s third ground of appeal, Mr Hix accepted that the

Judge was wrong to take into account the lack of actual violence beyond that inherent in the rape as a mitigating factor. We agree. Additional violence should be

¹⁴ _{At [9], [10] and [20].}

¹⁵ At [53].

treated as an aggravating factor, rather than its absence being treated as a mitigating factor.¹⁶ However, as we note later, the Judge was not following a particularly orthodox sentencing process, in that he did not set a starting point. It is not clear what discount, if any, was attached to this factor.

What is the appropriate sentence?

[33] Having accepted that the Judge erred in the respects stated above, we now turn to consider the sentence that ought to have been imposed. In doing so, we proceed on the basis that, in Solicitor-General appeals, the sentence imposed at first instance should be adjusted “by no more than the minimum extent necessary to remove the element of manifest inadequacy”.¹⁷

[34] In arriving at the sentence of five years imprisonment, the Judge did not follow the normal sentencing methodology set out in the guideline judgments of this Court such as R v AM and R v Taueki.¹⁸ In the present case, that methodology required the setting of a starting point for the offending, having regard to aggravating and mitigating circumstances relating to the offending, before adjustments for personal aggravating and mitigating circumstances were made. Mr Mander was

critical of the Judge’s failure to adopt that approach. We agree that the Judge ought to have done so. In the circumstances, we consider that it is necessary for us to approach the sentencing exercise afresh, adopting the sentencing methodology described in R v Taueki and R v AM, and applying the guidelines set out in R v AM.

Starting point

[35] Mr Mander submitted that the present case properly came at the top of band 1 or the bottom of band 2 in terms of the bands for sexual violation by rape set out in R v AM. In R v AM, this Court said that band 1 would be appropriate for offending at

_{the lower end of the spectrum, that is, offending where the aggravating features are}

¹⁶ _{R v T CA238/04, 16 November 2004 at [15] and [23]; R v AM at [38].}

¹⁷ _{Sipa v R [2006] NZSC 52, (2006) 22 CRNZ 978 at [9].}

¹⁸ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.

either not present or present to a limited extent.¹⁹ Mr Mander argued that in the present case there were aggravating features of premeditation, the fact that the offending occurred in the victim’s home, some level of actual and threatened violence and the fact that the offending involved full penetration in two different positions until ejaculation.

[36] Band 2 of R v AM applies where the scale of offending and levels of violence and premeditation are moderate.²⁰ This Court said that Band 2 covers offending involving a vulnerable victim, an offender acting in concert with others, or additional violence. It was said to be appropriate for cases which involved two or three of the aggravating factors described earlier in the judgment in R v AM.²¹

[37] We accept that the respondent appears to have arrived at the victim’s home intent on having sex with her, and eventually carried out that intention. That does establish a degree of premeditation. Section 9(1)(i) applies. We also accept that the offending occurred in the victim’s home. The respondent’s presence in her home was not a home invasion in the ordinary sense of the word because he was not an unwelcome guest, having visited the house on previous occasions. We do not consider the circumstances to be such that s 9(1)(b) applies. However, the victim was entitled to expect that the respondent, having been permitted to come into the house, would not then sexually assault her. There was also actual or threatened violence in terms of s 9(1)(a), though again we see this as being at the lower end of the spectrum.

[38] In our view, the appropriate starting point is in the middle of band 1 of R v AM. We do not accept the Crown submission that this is a band 2 case. As already noted we do not consider that the respondent’s unreasonable belief in consent, if that was the position, is appropriately brought into play to reduce that starting point given it was induced by his intoxication. Section 9(3) applies.

[39] Taking a starting point of seven years imprisonment, therefore, we now

_{consider personal aggravating and mitigating factors. The respondent’s criminal}

¹⁹ _{R v AM at [93].}

²⁰ _{R v AM at [98].}

²¹ R v AM at [98].

record is not good, but he has no previous convictions for an offending of this kind or even of a serious nature, and we do not see this as calling for any uplift from the starting point. The offending also occurred while the respondent was subject to a sentence of community work, but we do not see this factor as calling for an uplift in the circumstances either.

[40] Mr Hix submitted that the respondent should get credit for some personal mitigating factors. He said it would be appropriate to take into account the views of the victim and in particular, the fact that she was saved some trauma by the respondent’s acceptance that the sex had taken place without her consent.

[41] We do not consider that the victim’s views are such that a discount on sentence is warranted. The victim said that prison “is where he deserves to be”. She said that in the weeks before court she felt overwhelmed and described the experience as “nerve-wracking”. She is to be commended for going to counselling and seeking to put the experience behind her. We see nothing in the submission that her views required a lenient approach.

[42] We agree that the respondent’s acceptance that the victim had not consented to having sex with him was commendable. But it has to be said that this did not significantly reduce the victim’s burden of giving evidence. The defence approach still called into question her actions at the time of the offending. While it was not alleged that she consented, it was alleged that she acted as if she were consenting, leading the respondent to believe she did consent.

[43] In those circumstances there are no adjustments required to the starting point, and the appropriate end sentence of seven years imprisonment.

[44] We have considered whether imposing a sentence of seven years imprisonment is consistent with the approach to Solicitor-General appeals in Sipa v R. In our view taking the starting point in the middle of band 1 of R v AM and not applying any uplift for the relatively minor aggravating matters is sufficient recognition of this principle. Accordingly we allow the Crown’s appeal and increase

the sentence imposed on the respondent from five years imprisonment to seven years imprisonment.

Impact of Hessell (SC) on guideline judgments

[45] We turn now to the impact of the Supreme Court decision in Hessell (SC) on the sentencing guideline judgments issued by this Court.

[46] This Court’s decision in Hessell (CA) set out guidelines for the provision of a discount for a guilty plea by an offender. The Supreme Court described this Court’s judgment in these terms:²²

The judgment reiterates the well-established principle that the earlier the plea is entered, the larger the reduction should generally be, and that principle is not in issue. The judgment, however, also sets out a prescriptively structured approach for sentencing courts to fix reductions in the sentences that would have been imposed if the offender had been convicted after a trial. The appeal to this Court puts in issue the prescriptive form of the guidance and the legitimacy of the courts establishing such a regime of sentence reductions for guilty pleas. The essence of the structure was that the sentence reductions were determined according to a sliding scale with the 33 per cent reduction for a plea entered at the first reasonable opportunity at one end and a 10 per cent reduction for a plea entered three weeks before commencement of the trial, at the other.

[47] The Supreme Court considered that this Court’s approach was overly rigid and gave too much emphasis to the desirability of consistency in sentencing levels. While that is a factor recognised in s 8(e) of the Sentencing Act, that factor was one of 10 set out in s 8 and it was not appropriate to give it greater importance than the

others.²³

[48] The Supreme Court agreed that, generally speaking, the earlier a guilty plea is entered, the greater the discount will be,²⁴ but the Court went on to state that other circumstances, such as the strength of the Crown case had to be taken into consideration, and that prescriptive guidelines were not warranted. The Court also

_{considered that this Court’s approach of treating remorse and the guilty plea together}

²² _{At [1].}

²³ _{At [37].}

²⁴ At [1].

was wrong, and considered that remorse should be dealt with as a separate mitigating factor.²⁵

[49] Mr Muston argued that R v Taueki requires reconsideration in light of the Supreme Court’s position outlined in Hessell (SC). He said R v Taueki emphasises consistency above other purposes and principles mentioned in ss 7 and 8. He said the guidelines set out in R v Taueki made for a heavily structured approach to sentencing of the kind that was disapproved of by the Supreme Court in relation to

the guidelines set out in Hessell (CA).²⁶

[50] Mr Muston’s submissions were not supported by Mr King. Both Mr Mander and Mr King submitted that the Supreme Court criticisms of this Court’s judgment in Hessell (CA) did not imply any concern about other guideline judgments of this Court. They agreed that the Supreme Court judgment should be seen as generally endorsing this Court’s approach to guidelines to sentencing judges in setting the starting points for sentences in relation to specific offences, such as the guidelines given in R v Taueki and R v AM. They emphasised the difference between this Court’s judgment in Hessell (CA) and other guideline judgments. They said that, in Hessell (CA), this Court set out relatively prescriptive guidance on the way in which sentencing judges should deal with one of the mitigating factors set out s 9 of the Sentencing Act. In contrast to this, other guideline judgments are confined to establishing general bands for the setting of starting points for sentences for particular offences, which do not circumscribe the way in which personal mitigating and aggravating factors are taken into account in setting the end sentence for the particular offender.

[51] We accept the submission that the Supreme Court judgment in Hessell (SC) does not call for any change in approach to guideline judgments issued by this Court or to the way in which this Court deals with sentence appeals. Our reasons can be

_{stated briefly.}

²⁵ _{At [63]–[64].}

²⁶ At [72].

[52] First, the Supreme Court in Hessell (SC) appears to endorse the approach to sentencing guidelines taken in this Court’s judgment in R v Taueki.

[53] The Supreme Court quotes the observation made in R v Taueki²⁷ that the principal objective of the guidelines set out in that judgment is consistency, and the Court’s objective of achieving consistency in the approach adopted by sentencing judges, which should in turn lead to consistency in sentencing levels.²⁸ The Court also cites the later observation in R v Taueki that evaluation is an important aspect of sentencing and without it there would be a danger of a formulaic or mathematical approach to sentencing starting points. The Supreme Court said that this approach was consistent with earlier guideline judgments of this Court. As the Supreme Court

had already endorsed those earlier judgments, this comment can, at least impliedly, be said to be an endorsement of the approach taken in R v Taueki.

[54] Secondly, while the Supreme Court saw consistency as but one factor of many, having no greater weight than the other factors set out in s 8 of the Sentencing Act, it did not suggest that the objective of this Court’s guideline judgments in relation to consistency, described in the quote from R v Taueki mentioned above,²⁹ was inappropriate. On the contrary, the Court appeared to endorse the R v Taueki approach, albeit indirectly. If the Supreme Court had intended to criticise guideline

judgments other than this Court’s judgment in Hessell (CA), we believe it would have done so expressly.

[55] In addition, the Supreme Court made it clear that its comments on the High Court of Australia’s instinctive synthesis approach to sentencing in R v Markarian³⁰ were not to be taken as suggesting a departure from what the Supreme Court called “the flexible approach that has been followed in New Zealand”.³¹

[56] Thirdly, as Mr Mander pointed out, the Supreme Court has stated that primary responsibility for reviewing levels of sentences rests with this Court.³² And

²⁷ _{At [10].}

²⁸ _{At [31].}

²⁹ _{At [49].}

³⁰ _{R v Markarian [2005] HCA 25, (2005) 228 CLR 357.}

³¹ _{At [55].}

³² Burdett v R [2009] NZSC 114 at [4].

the legitimacy of guideline judgments has also been recognised in the Sentencing

Practice Note issued by the Chief Justice and the Chief District Court Judge on

21 May 2003.³³

[57] The sentencing approach suggested in this Court’s judgment in R v Taueki, and in other guideline judgments, requires the sentencing Judge first to identify a starting point, including aggravating or mitigating factors relating to the offence. Thus the starting point is a level of sentence that would be appropriate in a case of conviction after trial in the absence of any relevant mitigating or aggravating factors relating to the offender. This assessment of the degree of gravity of the offending provides a basis for comparison with other cases, because it does not include recognition of personal factors relating to the offender which will obviously vary from case to case. The sentencing bands set out in this Court’s guideline judgments such as R v Taueki and R v AM provide guidance only on this step in the sentencing process. Both emphasise the need for judicial evaluation in applying the guidelines

avoiding a formulaic or mathematical approach.³⁴

[58] The second step is to evaluate the mitigating and aggravating factors relating to the particular offender. Initially the Court saw the discount for guilty plea as being part of the second step, but in Hessell (CA) it refined the approach so that the assessment of the discount for guilty plea would be a third step, to be undertaken only after the sentencing Judge had determined what sentence would have applied to the offender, in the absence of the guilty plea, having taken into account all other personal mitigating and aggravating factors.

[59] The third step was to apply the appropriate discount for the guilty plea.

[60] The Supreme Court endorsed this three stage approach in Hessell (SC).³⁵

However, under the Supreme Court’s approach, remorse other than that which is

inherent in the plea, would be considered at the second stage as a mitigating factor, before the discount for guilty plea was applied. Adapting the guidance given in

33. Practice Note – Sentencing 2003 [2003] 2 NZLR 575 (HC) per Elias CJ and Judge D J Carruthers.

³⁴ _{R v Taueki at [30], R v AM at [36].}

³⁵ At [73].

R v Taueki, in light of this Court’s judgment in Hessell (CA) and the correction of that judgment in the Supreme Court’s judgment in Hessell (SC), the appropriate staged approach to sentencing is:

(a) Step one: starting point involving the assessment of the gravity of the offending, including any mitigating or aggravating factors relating to the offence.

(b) Step two: making allowance for personal aggravating and mitigating factors, including what the Supreme Court called “extraordinary remorse”,³⁶ that is remorse for which it is appropriate to give credit separately from any discount given for a guilty plea.

(c) Step three: a discount for a guilty plea if the offender has pleaded guilty. This should take into account the factors mentioned in the Supreme Court’s judgment in Hessell (SC) but should not exceed the maximum level of 25 per cent prescribed by the Supreme Court in that judgment.³⁷

[61] Mr King suggested to us that this Court should give more guidance on what he called “departures” from guideline judgments. There were two aspects to this. The first is the degree to which a sentencing Judge sets a starting point outside the guideline bands. Normally, this arises where there is a suggestion that the starting point should be below the lowest point of the lowest band. The second is the allowance made for personal mitigating and aggravating factors after a starting point has been reached.

[62] As to the first, the sentencing guidelines given by this Court are guidelines. In most cases, they provide for the possibility of starting points outside the guideline bands where the circumstances warrant this. The sentencing Judge should record in his or her sentencing notes why he or she considers it is warranted in the particular

_{case. An example is R v AM, where the Court acknowledged that cases may fall}

³⁶ _{At [72].}

³⁷ At [75].

outside the bottom of rape band one and gave an example of this.³⁸ The Court highlighted the need for reasons to be stated if that course were followed.³⁹

[63] As to the second, we do not see allowances for personal aggravating or mitigating factors as being departures from guideline judgments, but rather the application of the sentencing approach required by those judgments. Mr King suggested that sentencing judges may see guidelines as to the setting of a starting point for offending, representing the culpability of the offender, as a point from which only minor deductions can be made for personal factors. We disagree. Each case will depend on its own facts. Where there are no aggravating factors but significant mitigating factors, an end sentence may well be considerably lower than the starting point adopted by the judge.

Result

[64] We grant leave to appeal and allow the appeal. The sentence of five years imprisonment imposed in the District Court is quashed and a sentence of seven years imprisonment is substituted.

Solicitors:

Crown Law Office, Wellington for Appellant

Quentin Hix Legal Limited, Timaru for Respondent

³⁸ _{R v AM at [96].}

³⁹ R v AM at [97].