Geenty v R [2014] NZCA 355 (1 August 2014)

Last Updated: 6 August 2014

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011
IN THE COURT OF APPEAL OF NEW ZEALAND
CA837/2013 [2014] NZCA 355
BETWEEN	ROYCETON ANDREW GEENTY Appellant
AND	THE QUEEN Respondent

Hearing:	21 July 2014
Court:	O’Regan P, Goddard and Andrews JJ
Counsel:	A Shaw for Appellant B F Fenton for Respondent
Judgment:	1 August 2014 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

[1] The appellant was convicted after a jury trial of one representative charge of sexual connection with a young person under s 134(1) of the Crimes Act 1961. He was acquitted of a second, non-representative charge of the same kind.^[1] The trial Judge, Judge Adeane, sentenced him to three years’ imprisonment.^[2] He appeals against that sentence.

Grounds of appeal

[2] Counsel for the appellant raised four grounds of appeal. These were:

• (a) The starting point adopted by the Judge, three years’ imprisonment, ought to have been reduced to take account of the appellant’s acquittal on count 1.
• (b) The Judge erred in commenting that the relationship between the appellant and the complainant was “a relationship which, according to the law, should never have begun”.^[3]
• (c) The Judge should not have referred to the appellant’s convictions for fraud against the family trust of the complainant’s parents.
• (d) The Judge did not give any credit for remorse.

Factual background

[3] The appellant and the complainant met in July 2010, when the appellant was 32 and the complainant was 14. The complainant told the appellant she was 17. In the period relating to count 1 (the period up to the complainant’s 15th birthday in September 2010) the complainant performed oral sex on the appellant on one occasion and had consensual sexual intercourse with him on another occasion. The Crown case was that the appellant knew the complainant was not over the age of 16 because of an incident during which the complainant’s friends were discussing her age in the presence of the appellant, and the outcome of that discussion was an inference that she was only 15. In addition, the Crown case was that the complainant told the appellant she was 14 after the first time they had sexual intercourse. The jury’s acquittal of the appellant on count 1 indicates that they accepted that the

defence to a charge under s 134 of the Crimes Act, contained in s 134A, was made out in relation to the further allegation contained in count 1.^[4]

[4] Count 2 related to the period between the complainant’s 15th and 16th birthdays (September 2010 to September 2011). During this period there was regular consensual sex. The appellant again relied on the defence in s 134A, but it is clear the jury rejected this. The Crown case was that the appellant was told by a man who gave evidence at the trial that the complainant was under the age of 16 in November 2010. The appellant denied this.

Sentencing indication

[5] Prior to the jury trial, there had been a sentencing indication given by Judge Barry.^[5] In that sentencing indication, Judge Barry had indicated a starting point of three years’ imprisonment if the appellant were to plead guilty to counts 1 and 2. He indicated that if the appellant pleaded guilty there could be a 15 per cent discount in relation to that plea plus a further five per cent discount for remorse. That would have led to a sentence of two years and four months’ imprisonment. The appellant rejected this sentence indication and proceeded to trial.

Sentencing

[6] Judge Adeane took a starting point of three years’ imprisonment. As there were no mitigating factors, that was also the end sentence. He acknowledged the acquittal in count 1, but said:^[6]

Count number 2, however, as counsel realistically concedes, embraces all of the most culpable aspects of the accused’s conduct and involved sexual activity two or three times weekly, for a full year, with this girl.

Issue one: starting point

[7] Mr Shaw argued that the Judge ought to have adopted a lower starting point, given that the three year starting point adopted by Judge Barry for the sentencing indication was based on an assumption that the appellant would be convicted on count 1.
[8] As mentioned earlier,^[7] Judge Adeane considered that count 2 encapsulated most of the offending. He also indicated that he thought the starting point adopted by Judge Barry had been at the lower end of the spectrum.
[9] Mr Shaw’s submission assumes that Judge Adeane was bound to adopt the same approach as Judge Barry. That is not the case. The question on appeal is whether the sentence is manifestly excessive. Submissions were not addressed to that issue, and on the authorities there was no realistic basis on which to establish that the sentence was manifestly excessive.
[10] In any event, we agree with Judge Adeane that, given count 1 related to one specific incident, the offending encapsulated by count 2, involving repeated consensual sex over an extended period, encapsulated the essence of the offending for which sentence was being imposed.

Issue two: Judge’s remark

[11] The Judge made the following comment at the end of his sentencing remarks: “Your remorse at the moment I judge to be situational and for the end of a relationship which, according to the law, should never have begun”.^[8]
[12] Mr Shaw argued the observation that the relationship should never have begun was inconsistent with the acquittal on count 1. In effect, he argued that there was nothing unlawful about the relationship beginning at a time when the appellant reasonably believed the complainant was 17 years old. In our view, the comment was no more than an observation that a relationship between a 32 year old man and a 14 year old girl was inappropriate and did not indicate any questioning of the verdict on count 1.^[9] It had no impact on the sentence. No more needs to be said.
[13] Mr Shaw developed this into a wider point that the Judge sentenced the appellant on count 2 on the basis of offending over a period of one year, when it would have been fairer to do so on the basis that the offending occurred over a period of ten months. That submission was based on the fact that the evidence at trial was that the appellant was told that the complainant was under the age of 16 in November 2010, some two months after the complainant’s 15th birthday. So, Mr Shaw argued, for the first two months of the period covered by count 2, the appellant would still have been able to establish the defence provided by s 134A.
[14] We hesitate to interfere with the trial Judge’s assessment of the facts: he was better placed than we are to determine that issue. It does not seem to us to be axiomatic that the jury must have found that the appellant did not know the complainant’s real age until November 2010. But even if the submission is correct, the offending persisted for ten months and involved the appellant and the complainant having sex two or three times a week throughout that period. Whether this occurred for ten months or 12 months does not seem to us to make a significant enough difference to affect the outcome. On either version of events, the offending involved many, many episodes of sexual encounters between the appellant and the complainant at a time when the appellant knew the complainant was only 15 years old.

Issue three: reference to fraud

[15] The background to this issue is that the relationship between the appellant and the complainant came to light when it was revealed that the appellant had used a bank card associated with the bank account of a family trust of the complainant’s parents and had thereby fraudulently obtained over $7,000. He had pleaded guilty to fourteen counts of fraud and had been sentenced for that offending some months before the trial.^[10]
[16] In his sentencing notes in the present matter, Judge Adeane said:

[5] [The complainant] was also taken advantage of, both emotionally and financially, because the defendant committed fraud against her or her family interests to the tune of $7,000 taken from credit cards which were placed at her disposal, and diverted by the accused to his own account. I recognise immediately that mention of this aspect of the matter might give rise to thoughts of double counting. I assure the accused that that is not so. He has already been dealt with on those fraud matters, but he needs to recognise today that it was his further self-indulgence, by way of committing the fraud, that finally gave the complainant the strength to address this matter and to bring it to an end.

[17] Mr Shaw argued that, although the Judge said he would not double count the fraud convictions, “the tenor of the Judge’s remarks can be read as unreasonably intruding upon the sentence and exercise in respect of count 2”. We disagree. There is no reason to go behind the Judge’s clear assurance to the contrary. The remark was made in the context of the assessment of the impact of the relationship on the complainant and the Judge’s assessment that she had been taken advantage of.

Issue four: remorse

[18] Mr Shaw argued that the Judge was wrong to make no allowance on the grounds of remorse. He sought leave to table a letter from the appellant, which we received without objection from the Crown. In that letter the appellant expresses remorse “for the thoughts and actions that led to my conviction”. He also acknowledges that the fact the relationship between him and the complainant was a loving and caring relationship does not detract from the fact it was a mistake from the start, a mistake he should have tried harder to avoid.
[19] We do not see any reason to interfere with the Judge’s assessment on this aspect of the case. The appellant took the case to trial, strongly denying that he had ever been made aware the complainant was under the age of 16 years old. His
pre-sentence report writer expresses some scepticism about his remorse (in a report dated 18 January 2013). In a later report, dated 6 November 2013, the report writer recorded the appellant’s acceptance that he should have done more to check the complainant’s age, but added the observation that the appellant:

... displayed a tendency to shift the blame for his offending at times, noting his victim had used a fake identification and had told him she had reading difficulties to convince him she was older than she was.

[20] We discern no error in the Judge’s approach to this issue.

Result

[21] All the grounds of appeal fail. The appeal is therefore dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] The count on which he was acquitted was count 1 in the indictment.

^[2] R v Geenty DC Wellington CRI-2011-085-3565, 15 November 2013.

^[3] R v Geenty above n 2, at [13].

^[4] The defence has three elements: (i) before the time of the act concerned, the accused took reasonable steps to find out whether the young person was 16 or older; (ii) at the time of the act concerned, the accused believed on reasonable grounds the young person was 16 or older; and (iii) the young person consented to the sexual activity.

^[5] R v Geenty DC Wellington CRI-2011-085-3565, 22 August 2013.

^[6] R v Geenty, above n 2, at [2].

^[7] At [6] above.

^[8] R v Geenty, above n 2, at [11].

^[9] The appellant acknowledged himself in a letter to this Court that the relationship was a “mistake from the start”: see [18] below.

^[10] R v Geenty DC Wellington CRI-2012-085-1819, 22 January 2012.