Berry v Police [2014] NZHC 2852 (17 November 2014)

Last Updated: 23 December 2014

NOTE: PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-443-026 [2014] NZHC 2852

BETWEEN	LEWIS JOEL PAI BERRY Applicant/Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 October 2014 (Further material received on 13 November 2014)
Appearances:	J Woodcock for the Applicant/Appellant B Sweetman for the Respondent
Judgment:	17 November 2014

_{JUDGMENT OF ELLIS J}

This judgment was delivered by me on 17 November 2014 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel/Solicitors:

J Woodcock, Barrister, New Plymouth

B Sweetman, Crown Solicitors, New Plymouth

BERRY v NEW ZEALAND POLICE [2014] NZHC 2852 [17 November 2014]

[1] Following Mr Berry’s plea of guilty to one charge under s 134 of the Crimes Act 1961 (sexual connection with a young person) he was sentenced by Judge Roberts to two years’ and three months’ imprisonment. He appealed that sentence and his appeal had been scheduled to be heard on 15 December 2014.

[2] Mr Berry had also applied for bail pending the hearing of the appeal but this was refused by Judge Roberts. Mr Berry also appealed that decision and that was the appeal that was scheduled to be heard by me.

[3] Because the grounds advanced in support of the bail appeal essentially went to the merits of the learned Judge’s sentencing decision, I indicated to counsel that I was prepared to hear the sentence appeal instead. Counsel were both agreeable to that course.

[4] After hearing submissions from counsel in relation to the sentence appeal on the morning of 20 October I adjourned to enable inquiries to be made as to:

(a) whether there were steps that could readily be taken to address the deficiencies that had been identified in relation to the suitability for home detention purposes of his mother's address (the difficulties were the fact that it is not connected to the national grid due to its reliance on solar power); and

(b) whether Mr Berry would be able to continue in his employment in the event that he was sentenced to home detention.

[5] When the hearing resumed that afternoon, Ms Woodcock advised that, as to (a), such steps could be taken but that four weeks was needed in order for the consistency of the signal to be properly tested and, as to (b), Mr Berry would be able to continue to work, provided he was under supervision at all times.

[6] In light of that advice, and of the favourable view I have formed about the strength of the grounds of appeal, I formed the view that the interests of justice favoured the grant of bail to Mr Berry pending further investigation into the

suitability of the proposed home detention address and the determination of his appeal. The grant of bail expires today, unless then extended by the Court.

[7] This judgment deals with the merits of the sentence appeal.

Facts of the offending

[8] Mr Berry is 19 years old. The complainant was 13. Initial contact between them (in June 2014) was through Facebook. Mr Berry and the complainant told each other their respective ages.

[9] Soon afterwards the two met in person and, after spending time together, went to the complainant’s home where they had (consensual) sexual intercourse in her bedroom. The following day they met up at the home of a mutual friend. After drinking alcohol the pair again had intercourse. They continued to see each other during July, although the complainant’s grandmother warned Mr Berry to stay away. Notably, however, the Police summary of facts (on the basis of which Mr Berry pleaded guilty) does not refer to any further occasions of sexual connection during this period.

[10] On 4 August 2014 the complainant’s mother took her to the Police where she disclosed the two earlier encounters just described.

[11] Mr Berry initially claimed that he and the complainant were just friends but pleaded guilty at his second appearance. At the time he was employed as farmhand in Central Taranaki and he still has the support of his employer. His relevant criminal history involves low level dishonesty and drug offending, for which he received non-custodial sentences.

Sentencing in the District Court

[12] After recounting the facts, Judge Roberts began by noting that there was no tariff case for s 134 offending. He then considered a number of relevant sentencing

decisions, including Johnson v R¹ and R v H². He noted that in Johnson, the Court of

Appeal said:³

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.

[13] Then, the Judge noted that in Faapuea v R,⁴ it was said that each case must turn on an assessment of the circumstances and the offender’s culpability. In the case before him, the Judge set out the aggravating factors in the following terms:⁵

(a) Age differential, you, Berry, approaching 20 years. Twenty years of age with your life experiences now already including a prison sentence, you must have been on notice that there were consequences when you interact as you did with an unsophisticated young girl. She was but 13 years and in the normal course of events, she should have been in her first year at secondary school.

(b) Full penetrative sex. On the summary of facts, this disclosure is two instances. You had your warnings, you knew her age. Her grandmother had told you literally to move on. On the second occasion, this young girl was provided with alcohol. The impact or effect is understandably the mother’s justified concern, what will happen in the future.

(c) Abuse of trust. It was concerning to read the mother’s complaint that you encouraged her to run away from home more than once. This points to the reality, you well knew what you were doing was not right.

[14] The Judge noted that the Crown’s submission was that a start point of three

_{years should be adopted whereas counsel for Mr Berry submitted that two and a half}

¹ _{Johnson v R [2010] NZCA 168.}

² _{R v H [2008] NZCA 237.}

³ _{R v Berry DC New Plymouth CRI-2014-021-000622, 15 October 2014 at [17].}

⁴ _{Faapuea v R [2010] NZCA 20.}

⁵ At [12].

years was appropriate, with discounts for age and early guilty plea giving an end sentence somewhere between 18 and 20 months. Then the Judge said:

[14] This, for you, was a chosen course of conduct. You knew her age, you encouraged her to spend time with you, you maintained the association also. Perhaps she was flattered by the attentions of an older man, but you were a more sophisticated and already a more worldly person. You maintained that relationship despite attempts to discourage you.

[15] Within the High Court decision of King v Police, HC Timaru, CRI-

2009-476-24, Fogarty J reduced a sentence start to two and a half years where:

(a) An age disparity of 14 and 21 years existed.

(b) A defendant was an invited lodger in the family home. (c) Alcohol had been provided.

(d) Consensual intercourse followed.

[16] Faapuea v R involved digital penetration and oral sex performed on a 14 year old girl by a 20 year old male. Even though full intercourse did not occur, a start of two years and nine months was adopted.

[17] With now all the relevant information before me, I intend to adopt a start point of three years’ imprisonment. I consider the offending here to be elevated from that within King v Police and Faapuea v R. As here, there are two separate acts, alcohol was introduced, and also the extent of this unfortunate association. You are entitled to a full concession to reflect your plea. I intend to impose on you thus an end sentence of two years and three months.

...

[20] I do not consider any further concession should attach to the sentence I have nominated, specifically in relation to your age. You are not a first offender and you have already been sentenced to a jail term. You are thus a person well exposed to the system. It has not served to deter you. Finally, you are not a child. You are already a young man. That is my decision, two years and three months’ imprisonment.

Approach on appeal

[15] Section 250 of the Criminal Procedure Act 2011, states that the Court must allow the appeal if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[16] In any other case, the Court must dismiss the appeal.⁶

[17] This section was not intended to change the approach taken by the courts under the former Summary Proceedings Act 1957.⁷ Accordingly, in order for the appeal to succeed, there must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”. Such an error may be intrinsic in the reasoning or occur as a result of additional material submitted to the appeal Court.⁸

[18] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Discussion

[19] I agree with Ms Woodcock that there were a number of relevant errors in the analysis which underlay the starting point adopted by the learned Judge.

[20] First, there is the inference (at [12](b) of the Judge’s notes) that Mr Berry’s offending continued after he was warned off by the victim’s grandmother. As I have noted, that is not consistent with the Summary of Facts, which makes it clear that the two occasions of intercourse occurred before then.

[21] Relatedly, there is the suggestion that the relevant offending occurred over an extended period, when it occurred on consecutive days.

[22] Thirdly, the assessment that an aggravating abuse of trust was involved in the offending does not, in my view, bear close scrutiny. There was no particular relationship of trust between Mr Berry and the victim, other than that which is inherent in offending by a (somewhat) older boy against a younger girl. For the essentially same reason I have reservations about the suggestion in the pre-sentence

_{report that Mr Berry’s behaviour was “predatory” in any meaningful way. Nor can I}

⁶ _{Criminal Procedure Act 2011, s 250(3).}

⁷ _{Tutakangahau v R [2014] NZCA 279 at [26].}

⁸ Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].

see any basis for the suggestion in the report that there was any “grooming” involved

in the offending.

[23] Fourthly there is the suggestion that the six year age gap between Mr Berry and the victim was a discrete aggravating factor. The cases analysed by the Court of Appeal in R v H⁹ suggest that such an age difference is at the lowest end of the spectrum. None of the cases surveyed involved an age difference of less than six years.

[24] I also agree that the finding that any available discount for youth was completely offset by Mr Berry’s previous offending and his previous imprisonment cannot be justified. Most of Mr Berry’s criminal history (which is, in itself, limited) relates to Youth Court matters which must be disregarded. The only custodial sentence he has received is two months’ imprisonment for breach of community work. Moreover, since receiving that sentence there are very positive signs that he has taken steps to turn his life around, most notably by acquiring employment (in which he is doing well). The failure to consider Mr Berry’s rehabilitative prospects

and needs was, in my view, an error.¹⁰

[25] After taking all these matters into account, the conclusion that the starting point adopted and/or the end point arrived at were manifestly excessive seems virtually inevitable. Having reviewed the relevant cases,¹¹ I consider that an appropriate starting point would be two years nine months’ imprisonment. There is no quibble with the 25 per cent discount afforded to Mr Berry in the District Court for his early guilty plea but to that I would add a further discount of approximately five months on account of Mr Berry’s age, giving an end sentence of 20 months imprisonment. The home detention discretion is therefore engaged.

Home detention?

[26] Following the hearing on 20 October a further pre-sentence report was

_{prepared. Due to the problems with her own property mentioned above, Mr Berry’s}

⁹ _{Above n 2.}

10. The relationship between youth and rehabilitative prospects is important, as recently emphasised by the Court of Appeal in Tutakangahau.

¹¹ Broughton v R [2011] NZCA 73.

mother has now secured rental accommodation that is deemed technically suitable. The proposal is that she would live there with Mr Berry if he is granted home detention. The owners of the property are aware of the proposal and do not object. There remains a question mark over whether Mr Berry will be able to continue his employment while on home detention and further information about that appears to be required.

[27] In any event, I consider that home detention is the least restrictive sentencing outcome in Mr Berry’s case. It is trite that in appropriate cases such a sentence is capable of adequately denouncing and deterring even serious offending such as this. It should not be underestimated how difficult such a sentence will be for Mr Berry.

[28] Most importantly, in this case, I consider that Mr Berry’s rehabilitative prospects and needs will be best served by such a sentence. As I have said, there are signs that he is turning his life around. He has good support from his family and from his employer. There have also been concerns for his safety in prison and he has been placed in the “at risk” unit.

[29] Accordingly, Mr Berry’s appeal against sentence is allowed. The sentence of two years and three months’ imprisonment is quashed. A sentence of nine months’ home detention is substituted.

[30] The home detention address is 29 Takaroa Street, Urenui. Arrangements are to be made for Mr Berry to travel directly to the home detention address to await arrival of the Probation Officer and an agent from the monitoring company.

[31] The following special conditions apply:

(a) He is to abstain from the consumption of alcohol and non-prescription drugs for the duration of his home detention sentence as directed by the Probation Officer.

(b) He is to attend for a psychological assessment and complete any treatment/counselling as recommended by the psychological

assessment to the satisfaction of his Probation Officer and treatment provider.

(c) He is to attend alcohol and drug abuse counselling as may be directed by the Probation Officer.

(d) He is not to associate or otherwise have contact with any person under

16 years of age unless another adult, over the age of 20 years who has previously been approved in writing by your Probation Officer, is present.

(e) He is not to have contact or otherwise associate with the victim of his offending, directly or indirectly, unless he has the prior written consent of his Probation Officer.

(f) He is to engage in only such vocational training/employment (paid or unpaid) as approved in writing by the Probation Officer.

[32] I record my hope that the Probation Officer is able to, and will, approve Mr

Berry continuing his former employment. I reserve leave to apply in the event that the further assistance of the Court is required in that respect.

Rebecca Ellis J