ERD V NEW ZEALAND POLICE HC TAU CRI 2008-470-22 [2008] NZHC 1417 (9 September 2008)

 ORDER SUPPRESSING NAME AND IDENTIFYING PARTICULARS OF
                      APPELLANT.
       NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING
 PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL
                    JUSTICE ACT 1985.


IN THE HIGH COURT OF NEW ZEALAND
TAURANGA REGISTRY
                                                                   CRI 2008-470-22



               BETWEEN  
                 ERD
                                          Appellant

               AND                        NEW ZEALAND POLICE
                                          Respondent


Hearing:       3 September 2008

Counsel:       P J Morgan QC for Appellant
               J C O'Brien for Respondent

Judgment:      9 September 2008


                            JUDGMENT OF HEATH J




Solicitors:
Crown Solicitor, Tauranga
Counsel:
P J Morgan QC, Hamilton


ERD V NEW ZEALAND POLICE HC TAU CRI 2008-470-22 9 September
2008

The appeal


[1]    ERD pleaded guilty to one charge of assault with intent to commit sexual
violation and another of injuring
with intent to injure.        He was sentenced by
Judge O'Driscoll, in the District Court at Tauranga, on 28 May 2008. The offence
of
assault with intent to commit sexual violation carries a maximum penalty of 10 years
imprisonment. The maximum penalty for the
crime of injuring with intent to injure
is five years imprisonment.


[2]    The sentencing Judge imposed an effective sentence of
two years six months
imprisonment.     ERD appeals on the grounds that the sentence was either
inappropriate or manifestly excessive.
     The submission that the sentence was
inappropriate is based on the proposition that a term of home detention would have
responded
adequately to the offending and ought to have been imposed.


[3]    The appeal was brought out of time. The delay was caused by
new counsel's
mistaken belief that ERD had pleaded guilty on indictment, meaning that any appeal
would go to the Court of Appeal.
I am satisfied that there is a good explanation for
the delay and that it is in the interests of justice to extend time to appeal.
I make an
order extending the time to bring the appeal.


Background facts


[4]    Around midnight on 7 September 2007, ERD returned
home after drinking at
a hotel in Tauranga for much of the evening. He was very intoxicated.


[5]    ERD was living with his wife.
He entered the house, went into the bedroom
in which his wife was sleeping, undressed himself and got into bed with her. The
complainant
was awoken by ERD's "cold body" touching hers. She was surprised
and frightened and pushed him away.


[6]    Angry at what he perceived
to be his wife's rejection of him, ERD began to
hit her about the head a number of times. He pulled on the complainant's night

gown hard enough to rip it at the back. He also tried to remove her underwear, by
pulling her panties down. The complainant was able
to hold on to her underwear to
prevent it being removed.


[7]    The complainant believed that ERD was trying to have sex with her.
She
repeatedly told him to leave her alone. There is no doubt that ERD continued to seek
sexual favours, even though she manifested
a refusal to consent to sexual activity.
ERD's conduct to this point is the foundation for the charge of assault with intent to
commit
sexual violation.


[8]    The complainant managed to free herself from ERD's clutches. She ran into
the garage, opened the garage
door and ran to a neighbour's property. Although she
knocked loudly on the neighbour's door she could not raise the occupants.


[9]    ERD went to his neighbour's property to find the complainant. She saw him
and ran back to her home. She locked the door and
telephoned the Police.


[10]   ERD returned to the house and tried to force his way in. On finding it was
locked he went to a tool
shed, picked up a screwdriver and jemmied open the back
door. He then entered the house.


[11]   The complainant heard him. She
tried to enter her car to drive away. ERD
stopped her. He pulled her out of the car. ERD dragged her forcibly along the
corridor to the bedroom. At that stage he
threw her onto the bed and punched her
with a closed fist, on about three occasions. This is the conduct on which the charge
of injuring
with intent to injure is based.


[12]   As a result of the assault, the complainant received a cut above her left eye,
which required
four stitches, and a cut lip. She also received extensive bruising to
her left cheek, extending from the eye to beyond her ear and
down to the bottom jaw.


[13]   Eventually, the complainant was able to get away from ERD. She ran into
the bathroom and locked
the door.

[14]   Police officers arrived soon after. As they approached the doorway to the
house, ERD saw them. He slammed and
locked the front door. The officers found
the rear door open and entered the property. They located ERD in the garage. The
complainant
was in her bedroom.


[15]   When spoken to by the Police, ERD said that things had been blown out of
all proportion and it was only
"a minor domestic". In his grossly intoxicated state,
he said it was "his conjugal right to have sexual intercourse with his wife,
at least
twice a week, if he wanted" and that "it should be written into the Constitution".


[16]   While ERD pleaded guilty to
the facts as summarised, he was so intoxicated
at the relevant time that he has no independent memory of what occurred. That was
accepted by the sentencing Judge.


[17]   ERD has three criminal convictions for theft, all of which were entered as
long ago as
1980. He falls to be treated as a first offender.


Sentencing in the District Court


[18]   After reciting relevant facts and referring
to the victim impact statement
outlining the physical and emotional injuries suffered by the complainant, the Judge
considered the
pre-sentence report.


[19]   ERD and his wife have lived separately since the assault, though there had
been contact for business
purposes between them. The probation officer considered
that ERD was "at low risk of re-offending". Since the offending, ERD has
attended
and completed a Violence Prevention Programme, lasting some 16 weeks. On that
basis, a sentence of home detention, with
a number of special conditions, was
recommended by the probation officer.


[20]   The Judge accepted there was no tariff for offending
of this type. The Judge
was referred to R v McKain  [2007] NZCA 505, in which a starting point of nine
years imprisonment was used on an offence of attempted sexual violation, a charge
that carries
the same maximum penalty as assault with intent to commit sexual

violation. In McKain, an end sentence of six years six months
imprisonment, once
mitigating circumstances had been taken into account, was upheld. McKain was a
more serious case than the present.


[21]   Judge O'Driscoll was also referred to two other sentencing judgments of this
Court. Rightly, the Judge observed that it
was "always very difficult to compare and
contrast cases" stressing the importance of reviewing, in each case, the aggravating
and
mitigating factors at play and the purposes and principles of sentencing.


[22]   The Judge regarded accountability, denunciation
and deterrence as the
primary sentencing goals. He recognised that he was obliged to impose the least
restrictive sentence appropriate
in the circumstances. Although he had referred to
the need to sentence on first principles, the Judge did observe that he had not
been
referred to "any cases where sentences short of imprisonment [had] been imposed or
where home detention and/or community detention
[had] been imposed for offending
of this nature".


[23]   The Judge described the relevant aggravating and mitigating factors as
follows:

       [10] In terms of the aggravating factors there is the threatened and actual
       violence used by you, there is
the extent of the harm that was caused to the
       victim, there were the blows to the head and the offending was something
  
    which was ongoing from the point of view that your offending did not cease
       in the bedroom but continued afterwards when
the victim went to seek help.
       The Crown submits that the victim was someone who was vulnerable. I
       think the victim
was someone who was vulnerable because she was in her
       bed asleep at night. The Crown has submitted that there was a degree
of
       premeditation with this offending, I do not think there was premeditation
       from the point of view that the offending
was planned, I think it could and
       should have been stopped in the first instance, it should not have started at
       all,
but I do not think that is an aggravating factor it can be said that the
       offending was premeditated.

       [11] On the other
side of the ledger there are the mitigating factors. You
       are aged 45, you are in effect a first offender with no previous
convictions.
       There are some minor matters going back to the Youth Court in 1980 which
       I place no weight on at all.
I have had a number of references and
       testimonials placed before me, I have a report from the Drug and Alcohol
       Service,
I have a report from the Tauranga Living Without Violence
       Collective which have also provided me with a report. I have two
reports
       from a Mr Laven, a registered psychologist, who sets out your background
       and your personal circumstances. His
conclusion is that you will require

       ongoing medical and psychological treatment for depression and that there is
      
a post-concussional disorder, which has remained with you and needs to be
       assessed and treated. It seems that is related to
an incident that occurred
       when you were involved in a motor vehicle accident. The Crown accepts
       that the Court can
place some weight on your personal circumstances and
       that those matters which are set out in the psychologists report may
be
       matters that go towards diminished responsibility on your part.

[24]   Judge O'Driscoll formed the view that the cumulative
effect of the two types
of offending was "too serious to be dealt with by way of a community-based
sentence or home detention". In
his view, home detention, either by itself or in
addition to a sentence of community work, would not respond to the offending
adequately.
For that reason, Judge O'Driscoll formed the view that imprisonment
was the only appropriate sentencing option.


[25]   Having regard to the totality of the offending, Judge O'Driscoll took
a
starting point of four years imprisonment. A period of one year six months was
deducted from that starting point as a credit to
reflect the early guilty pleas and the
other mitigating factors to which the Judge had referred.


[26]   A sentence of two years
six months imprisonment was imposed on the charge
of assault with intent to commit sexual violation. A concurrent sentence of one
year
six months imprisonment was imposed on the charge of injuring with intent to
injure. ERD's name was suppressed, to protect the
identity of the complainant.


Competing submissions


[27]   Mr Morgan QC, for ERD, submitted that the Judge ought not to have
imposed
a sentence of imprisonment. The essence of Mr Morgan's point is that the
sentencing purposes identified by s 16(2)(a) of the Sentencing
Act 2002 (the Act)
could be achieved by a sentence other than imprisonment: s 16(2)(b). Mr Morgan
submitted that home detention would
have been an adequate sentencing response to
meet the sentencing goals of denunciation and deterrence.


[28]   Mr Morgan referred
to R v Hill  [2008] 2 NZLR 381 (CA). Mr Hill had
pleaded guilty to one count of possession of the Class A controlled drug
Methamphetamine for the purpose of supply.
Section 6(4) of the Misuse of Drugs

Act 1975 created a presumption of imprisonment for an offence of that type. The
general provisions
of s 16 of the Act are subject to s 6(4): see s 16(3)(a).
Nevertheless, the Court of Appeal held that home detention was an appropriate
sentencing response.


[29]   The creation of home detention as a discrete sentence arose out of
amendments to the Act made by the
Sentencing Amendment Act 2007. The 2007
Amendment provided more specific guidance to application of the sentencing regime
and, for
the first time, set out a hierarchy of sentences: see s 10A of the Act.


[30]   Section 8(g) of the Act was amended to require a
Court to impose the least
restrictive outcome "appropriate in the circumstances" to reflect the hierarchy of
sentences set out in
s 10A.      Section 10A(2) defines imprisonment as the most
restrictive sentence and home detention as the second most restrictive:
see
s 10A(2)(e) and (f).


[31]   Like Mr Hill, ERD is someone who falls within transitional provisions of the
2007 Amendment. Section
57 of the 2007 Amendment provides that, in cases where
an offence was committed before s 80A of the Act came into force, home detention
may be ordered if the terms of s 80A are satisfied and the offender consents to the
imposition of home detention. In Hill, the Court
of Appeal, while holding that
sentences ought not to be artificially "tailored" to enable offenders to have the
benefit of the sentence
of home detention, held that those offenders who came within
the transitional provisions were qualifying candidates for the sentence,
even though,
once s 80A came into force, only those who would have been sentenced to a term of
imprisonment of two years or less
were eligible.


[32]   Delivering the judgment of the Court of Appeal in Hill, Arnold J expressed
points of principle relevant to
the present case as follows:

       [32] First, although the relevant requirements are differently worded, both ss
       57 and
15A [of the Sentencing Act 2002, as amended by the Sentencing Act
       2007] indicate that home detention was intended to be a
mechanism to
       reduce the number of people sentenced to imprisonment. It is apparent from
       the explanatory note to the
relevant Bill, the Criminal Justice Reform Bill no
       93-1, that an important objective of the new sentence of home detention
is to

       reduce the prison population. The opening sentence of the explanatory note
       reads:

               "The purpose
of the Bill is to introduce a range of measures to arrest
               the sharp increase in the prison population in recent years.
This
               increase is no longer sustainable, neither financially nor socially.
               New Zealand's imprisonment
rate is considerably higher than
               countries that we habitually compare ourselves with, such as the
               United
Kingdom, Canada, and Australia. The Bill, which includes
               some measures that will have an immediate effect and others
that
               will take longer for their impact to be felt, is intended to contribute
               to a reduction in the
imprisonment rate over time."

       [33] The sentence of home detention reflects a perception that society's
       interests are
better served in some cases by the imposition of restrictions on
       liberty through home detention rather than through imprisonment.
The
       explanatory note at p 5 identifies the "acknowledged advantages" of home
       detention as including "low rates of re-conviction
and re-imprisonment, high
       compliance rates, and positive support for offenders' reintegration and
       rehabilitation".

       [34] Secondly, the home detention provisions sit within the general context
       of the Sentencing Act. Accordingly, a
sentence of home detention must be
       imposed in a way that is consistent with the purposes and principles of
       sentencing as set out in the
Act (and in any other relevant legislation).

       [35] Thirdly, as Ms Markham submitted, this Court has said previously that

      sentences should not be artificially "tailored" to enable offenders to have
       the benefit of the home detention option
(R v Edwards  [2006] 3 NZLR 180 at
       para [24]). This will be particularly relevant to cases governed by s 15A,
       given the absolute jurisdictional limit
it imposes through the use of the
       defined term "short-term sentence".

       [36] Fourthly, in determining whether there
is jurisdiction under s 15A(1)(b)
       (that is, whether the judge would otherwise impose a "short-term sentence"),
       the
relevant figure is the end sentence rather than the starting point. But
       under both ss 15A and 57 the starting point and the
factors which lead to the
       end sentence will be relevant to the decision whether or not a sentence of
       home detention
should be imposed. Where the giving of a significant
       discount to reflect an offender's personal circumstances produces an
end
       sentence that is sufficiently low to raise the possibility of home detention,
       those personal circumstances will
also be relevant to the question whether
       home detention should be imposed. (my emphasis)

[33]   Mr Morgan submitted, without
attempting to minimise what he described as
ERD's "disgraceful conduct", that the violent behaviour fell at the lower end of the
scale of domestic violence and any sexual aspects related to the violence were short
lived. He submitted that, while the sexual crime
carried a greater maximum penalty,
the conduct in issue made the subsequent conduct that gave rise to the charge of
injuring with
intent to injure ought to be regarded as the more culpable conduct.

[34]   In particular, Mr Morgan pointed to the absence of threats
or indignities on
the complainant at the time of the assault with intent to commit sexual violation. He
referred also to the absence
of a weapon or prolonged period of violence.


[35]   Ms O'Brien, for the Crown, submitted that the starting point of four years
taken by the Judge was well within range. Indeed, by reference to a series of
authorities dealing with either attempted sexual violation
or assault with intent to
commit sexual violation (both offences are created by s 129 of the Crimes Act 1961),
she submitted that
the starting point might be regarded as "light": see McKain, R v
Hassan  (1998) 16 CRNZ 18 (CA), R v Cottle (CA2239/04, 2 November 2004), R v
Falaoa (CA96/03, 15 July 2003) and R v Silva (High Court, Auckland, CRI 2003-
004-038908, 24 May 2005, Wild J).


[36]   Ms O'Brien submitted that, in terms of s 16(2) of the Act, a sentence was
required to
meet the sentencing purposes of accountability, interests of the victim,
denunciation and deterrence which could not be achieved
by a sentence other than
imprisonment. For that reason, she submitted that the sentencing Judge's approach
was correct and that the
sentence imposed ought to be upheld.


Analysis



(a) Appellate approach


[37]   Mr Morgan argued that, on a sentence appeal, this
Court ought to approach
the question of sentencing afresh, by forming its own judgment as to the proper
sentence to impose. He relied
upon dicta in Austin Nichols & Co Inc v Stichting
Lodestar [2008] 2 NZLR 141 (SC) to support of that submission.


[38]   With respect,
I do not agree. Austin Nichols was a case dealing with the
appellate approach to be taken to decisions of specialist tribunals. While
the Court
offered more general guidance about the appellate function, it did not, in my view,
intend to change the law on the approach
taken to appeals against discretionary
decisions. On such an appeal, an appellate court must be satisfied that the first

instance
Judge erred in law, failed to take account of relevant factors, took into
account irrelevant factors or was plainly wrong.


[39]
  In delivering the judgment of the Supreme Court in Austin Nichols, Elias CJ
referred to the fact that the appeal before that court
did not involve a question of
discretion: at [17]. In my view, the Supreme Court intended to exclude appeals
against the exercise
of discretions from the approach enunciated in that case. In
those circumstances, the orthodox and time-honoured approach to appeals
against
discretionary decisions remains intact.


[40]   That view has been reinforced by the Court of Appeal, in the context of
an
application for leave to appeal in a care of children case. In Blackstone v Blackstone
 [2008] NZCA 312, Glazebrook J, for the Court of Appeal, said:

       [8] Duffy J first considered the nature and scope of the appellate jurisdiction
       and the applicability of the Supreme Court case of Austin, Nichols. She
       considered (at [27]) that appeals from a discretion
are not affected by Austin,
       Nichols and that the principles in May v May  [1982] 1 NZFLR 165 continue
       to apply. We agree.

[41]   The rules on appeals against discretionary decisions are well suited to
sentence appeals.
Different judicial minds may reasonably disagree on the nature or
length of any sentence. But, the result should fall within a relatively
narrow range.


[42]   When deciding whether to imprison or impose home detention (for example),
the closer one gets to the dividing
line the more difficult it becomes to articulate
reasons for preferring one sentence to the other. In such cases, the view of a
sentencing
Judge, from the jurisdiction in which crimes of the type in issue are
frequently tried, assumes greater weight. He or she is in a
much better position to
determine which type of offending falls on one side of the line or the other. The
broader the base of similar
offending a Judge sees, the more likely it is that the
chosen sentencing response will be appropriate.

(b) Did the Judge err?


[43]   I start by considering the way in which ss 15A and 16 of the Act interact.
While home detention is a less restrictive sentence
than imprisonment, s 15A(1)(b)
requires a sentencing Judge to determine the sentence of imprisonment that would be
imposed, if home
detention were not. On the other hand, s 16(1) and (2) provide that
the sentencer must only impose a sentence of imprisonment if
satisfied that
sentencing goals identified in s 16(2)(a) can only be achieved by that sentence and
no other sentence would be consistent
with the application of the principles in s 8.


[44]   In referring to s 8, a sentencing Judge must be mindful of the Legislature's
direction to impose the least restrictive outcome appropriate in accordance with the
hierarchy of sentences set out in s 10A: s 8(g).


[45]   In my view, the proper approach is to identify first the nature of the offending
and to assess a starting point consistent
with the elements established and to take
account of aggravating circumstances relating to the offence. That is the "modern
approach"
to sentencing articulated in R v Taueki  [2005] 3 NZLR 372 (CA) at [8].


[46]   It is inherent in the pleas of guilty entered by ERD that he acknowledged that
he assaulted the complainant
with intent to violate her sexually. It is also inherent in
his plea that, later, he injured her with intent to injure. The injuries
were not minor.


[47]   During the first part of the incident, ERD acknowledges having formed a dual
intent, to apply force to the
complainant and to commit sexual violation. During that
phase of the offending, ERD struck the complainant about the head on more
than one
occasion.


[48]   Aggravating factors beyond those inherent in the elements of the offence are
the multiple blows to the
head and his attempts to take advantage sexually of the
complainant while she lay asleep, necessarily in a vulnerable position. Another
way
of putting the "vulnerability" point is to say, as Ms O'Brien suggested, that ERD
abused the trust which his wife had placed
in him when sharing the matrimonial bed.

[49]     The offending continued unabated. It involved a prolonged incident in which
the
complainant attempted to escape from him (on at least two occasions) and
culminated in ERD dragging her forcibly to the bedroom and
punching her with a
closed fist on about three occasions.


[50]     Based on the comparator authorities to which Ms O'Brien referred
me, I
agree that a starting point of about four years imprisonment was in range having
regard (as the sentencing Judge did) to the
totality of the offending.


[51]     To check whether the starting point was appropriate, I have undertaken a
Taueki analysis, on
the basis of adapting, on an evaluative basis, the starting points
identified in that guideline judgment for grievous bodily harm
offending. Taueki
acknowledges that it is appropriate to adapt the guidelines to lesser offences
involving serious violence: Taueki
at [9].


[52]     Adapting the Taueki approach, at least two aggravating factors can readily be
identified. First, ERD struck the
complainant with multiple blows to her head.
Second, he sought to take advantage of her while she lay vulnerable in her bed. The
Court of Appeal, in Taueki, made it very clear that violence in a domestic setting
cannot be seen as reducing the seriousness of
offending; indeed, a sentencing Judge
must always be alert to this major societal problem and to the difficulties inherent in
its
detection. Similarly, intoxication does not act as a mitigating factor.


[53]     Where two or more aggravating factors exist, Taueki
suggests that the
starting point for sentence would fall on the cusp of Bands 1 and 2. In the context of
offending involving a maximum
penalty of 14 years, the likely starting point would
be about five years imprisonment. When one considers the totality of the offending
in this case (two offences carrying maximum penalties of 10 and 5 years
respectively) a starting point in the vicinity of four years
imprisonment is not out of
range.


[54]     The appropriateness of the starting point is demonstrated also by the
approach taken
by the Court of Appeal to attempted sexual violation, an offence that
carries the same maximum penalty as assault with intent to
commit sexual violation.

Both offences involve an attempt to commit sexual violation.             In R v Sewell
(CA497/95, 13 February
1996), the Court of Appeal said, at 3-4:

       Parliament has given the clearest possible indication that the offence of
     
 sexual violation is to be regarded more seriously than previously, and that
       the general level of sentences should be increased.
If the offence is more
       serious, so also must be the attempt. It would be totally inconsistent, and
       would defy logic,
to treat the offence as being markedly more serious than
       before, but the attempt as remaining at the same level as before.

[55]   No criticism can be made of the District Court Judge in the credit he gave for
mitigating circumstances. If the usual credit
of one-third was applied for the early
guilty pleas, 15 months credit would have been given on that basis alone. The
additional period of three months credit for other mitigating
factors was open to the
Judge. The sentence was not clearly excessive.


[56]   The most difficult issue on this appeal is whether
the totality of ERD's
conduct required a sentence of imprisonment to meet the sentencing goals set out in
s 16(2)(a) of the Act.


[57]   With respect to Mr Morgan's submission, I regard a prolonged attack
involving two separate incidents occurring in close
proximity to each other in which
multiple blows are struck to a vulnerable person's head as amounting to serious
violence. In Taueki,
the Court of Appeal indicated that almost all grievous bodily
harm offences would involve a sufficiently high degree of criminality
to make a
sentence of imprisonment inevitable: at [27]. In my view, serious violence of the
present type falls into the same category.


[58]   While, having regard to the mitigating factors which the sentencing Judge
gave weight in sentencing are also applied to
the judgment about whether home
detention is an adequate sentencing response, the Judge was right, in my view, to
conclude that accountability,
denunciation and deterrence required the imposition of
a term of imprisonment. Particularly, in the context of domestic violence,
such a
view was, in my view, inevitable. The offending was too serious for any other
sentencing response to be appropriate.

[59]
    The principles expressed by the Court of Appeal in Hill ought not to be
applied uncritically. While it is true that Mr Hill committed
an offence carrying a
maximum penalty of life imprisonment (and a starting point of three years six
months imprisonment was taken
in terms of R v Fatu  [2006] 2 NZLR 72 (CA)), the
efforts at rehabilitation evidenced by Mr Hill's conduct were sufficient to justify the
imposition of a lower sentence.


Result


[60]     For the reasons given, I am satisfied that the sentencing Judge imposed a
sentence that was appropriate to respond
to the offending with which he was dealing.
There is no basis to interfere with his discretionary decision. The appeal against
sentence
is dismissed.


[61]     I thank counsel for the quality of the arguments advanced on appeal.




                              
                              ____________________
                                                                       P R Heath
J

Delivered at 1.00pm on 9 September 2008