Dayal v R [2016] NZHC 1027 (18 May 2016)

Last Updated: 3 June 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000079 [2016] NZHC 1027

BETWEEN	SHIU DAYAL Appellant
AND	THE QUEEN Respondent

Hearing:	16 May 2016
Appearances:	A G Speed and S Clark for Appellant D B Stevens and H D Benson-Pope for Respondent
Judgment:	18 May 2016

_{JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie on 18 May 2016 at 4.30pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_{Date:..............................}

Solicitors/counsel: Crown Law, Manukau A Speed, Auckland

DAYAL v THE QUEEN [2016] NZHC 1027 [18 May 2016]

Introduction

[1] The appellant, Mr Dayal, appeals against a sentence of two years and six months’ imprisonment, imposed on him by Judge C S Blackie in the District Court at Manukau on 22 January 2016. The sentence was imposed in regard to two charges of indecent assault, contrary to s 135 of the Crimes Act 1961.

[2] Mr Dayal had entered guilty pleas to the charges. The pleas were entered on the first morning of his trial, following the amendment of the charge list. A charge of sexual violation and three charges of indecent assault were withdrawn and replaced with two charges of indecent assault.

Background

[3] Mr Dayal is 62 years old. He was a care worker.

[4] The victim was a 24 year old female, who lives in an IHC care home. She suffers from a mental disability.

[5] On 31 May 2014, Mr Dayal was called to work the night shift at the IHC care home where the victim resided. He was the only carer in the house. As the victim was going to bed that evening, she complained of shoulder pain. Mr Dayal advised her to take Panadol. When that did not work, he instructed her to sit on the floor in the lounge. He massaged her shoulder and back. During the massage he touched the side and front of the victim’s breasts under her bra on more than one occasion. The victim then lay on her front on a sofa in the lounge, with her head on a pillow that was on Mr Dayal’s lap, while he continued to massage her.

[6] The victim became tired and went to her room. Mr Dayal followed her. She told him she wanted to go to sleep, but he remained and started rubbing and touching her. She told him “no”, and said that she did not want to have sex. Mr Dayal told her they were not going to have sex, and that he normally only did this to his wife. He then took off his t-shirt. He pulled up the victim’s singlet and bra, and touched her on her exposed breasts and stomach. He pulled open her thighs and rubbed her inner thighs and her vagina through her pyjama pants. Mr Dayal licked the victim

on her breasts and stomach a number of times. He then pulled her pyjama pants down a short way, exposing her vagina, before licking around it with his tongue. Eventually he left, telling the victim not to tell anybody, and saying that if she did so, he would lose his job.

[7] When he was interviewed by the police, Mr Dayal admitted touching the

victim’s breasts while massaging her, but denied the other allegations.

District Court Decision

[8] Judge Blackie recited the relevant facts. Notably, he described the most serious of the offending in this way: “... you pulled her pyjama pants down a bit which exposed her vagina and you licked it with your tongue”. He noted that the Crown had reduced the principal charge from sexual violation to one of indecent assault but commented, “the facts as I have outlined this morning were nevertheless the same”.

[9] The Judge noted that the maximum penalty that could be imposed was one of seven years’ imprisonment on each charge. He referred to the relevant principles and purposes of sentencing, and noted the vulnerability of the victim and the gross breach of trust involved. He considered that Mr Dayal’s activity bordered on sexual violation, but noted the Crown accepted that it was an indecent assault. He expressed the view that it had to be regarded as a gross indecent assault.

[10] After considering various authorities, Judge Blackie adopted a starting point of three and a half years’ imprisonment. He gave Mr Dayal a discount of 10 per cent for his previous good character and remorse. He also gave Mr Dayal a discount of

20 per cent for the guilty pleas. The end sentence was one of two and half years’ imprisonment. Obviously home detention was not available for consideration. Judge Blackie did however note that even if home detention had been available, this was not a case where home detention would have been appropriate.

Leave to appeal out of time

[11] The sentence was imposed on 22 January 2016. The notice of appeal is dated

14 March 2016. It is out of time. It appears that the reason for the delay was that the appeal was initially filed, in error, with the Court of Appeal.

[12] Although neither counsel expressly addressed this issue, it is implicit from the respondent’s submissions that it does not take issue with leave being granted. I am satisfied that it is appropriate to grant leave, and I do so.

Appeals against Sentence

[13] Mr Dayal has a right of appeal against his sentence pursuant to s 244 of the

Criminal Procedure Act 2011.

[14] As the first appeal Court, this Court’s powers on appeal are set out in s 250 of the Act. The Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed. In any other case, the Court must dismiss the appeal.

[15] In Tutakangahau v R,¹ the Court of Appeal confirmed that s 250 of the Criminal Procedure Act was not intended to change the approach taken to sentence appeals under now repealed provisions in the Crimes Act 1961 and in the Summary Proceedings Act 1957. Rather, the Court must proceed on an “error principle”. The discretion to vary a sentence is not unfettered, and the Court does not embark upon the sentencing afresh, nor substitute its own opinion for that of the original sentencing Judge. There must be an error vitiating the exercise of the original

sentencing discretion.²

[16] Furthermore it is the end sentence which is important from the appellate perspective, and not the method by which it was reached. Sentence appeals

_{generally turn on the question of whether or not the final outcome is manifestly}

¹ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].}

² R v Shipton [2007] 2 NZLR 218 (CA) at [138].

excessive. The route by which the Judge reached that outcome will be relevant to the analysis, but it is seldom, in itself, pivotal.³

Submissions

[17] Mr Speed, on behalf of Mr Dayal, contended that the sentence imposed was manifestly excessive on the following grounds:

(a) that the starting point of three years and six months’ imprisonment was too high in the circumstances of this case, and, in particular, that Judge Blackie based his starting point on an incorrect assessment of the facts;

(b) that the starting point adopted by Judge Blackie was inconsistent with that taken in similar cases;

(c) that Judge Blackie failed to properly assess Mr Dayal’s personal circumstances, and failed to take into account the desirability of his rehabilitation; and

(d) that Judge Blackie failed to give Mr Dayal a full 25 per cent discount for his guilty pleas.

[18] The respondent submitted that there was no error by Judge Blackie in his approach to the sentencing, and that, even if there was an error, the sentence imposed was not manifestly excessive.

[19] I propose to deal with each of the appellant’s arguments in turn.

Analysis

Starting Point

[20] Mr Speed submitted that Judge Blackie made a factual error when describing the offending, and thus in fixing the starting point of three and a half years’

³ Ripia v R [2011] NZCA 101 at [15].

imprisonment. He noted that throughout his sentencing notes, Judge Blackie stated that Mr Dayal licked the victim’s vagina. He argued that Judge Blackie had referred to the initial summary of facts which the Crown relied on when it was alleging sexual violation, and that he overlooked the amended statement of facts, which was put before the Court when the charges were amended. The amended summary of facts recorded that Mr Dayal exposed the victim’s vagina, and licked around it with his tongue.

[21] I agree with Mr Speed that there is a significant difference. Licking a victim’s vagina may involve penetrative conduct, sufficient to constitute an unlawful sexual connection. Licking around a victim’s vagina does not involve penetrative conduct – rather it amounts to an indecent assault. I accept that the Judge’s description of this aspect of the offending was incorrect but I am not persuaded that this is a mistake of any consequence. It is clear from the sentencing notes, and from a discussion that the Judge had with counsel, that he was aware of the amendment to the charge list. Judge Blackie was clearly sentencing Mr Dayal for the two indecent assaults.

[22] What is in issue is whether or not the end sentence imposed by the Judge was manifestly excessive.

Comparable Cases?

[23] Mr Speed contended that the various authorities cited by Judge Blackie were not directly in point.

[24] Four cases were cited by Judge Blackie – R v Koia, R v Gilligan, R v N and R v Taane.⁴ Mr Speed suggested that the offending in each of these cases was more serious than that with which Mr Dayal was convicted. Mr Stevens accepted that some of the cases cited by the Judge involved offending which took place over a longer period, and/or involved multiple victims, but argued that nevertheless the indecent assaults committed in the various authorities were at a lower level than that

_{committed by Mr Dayal, because there was no oral or genital contact.}

⁴ R v Koia HC Auckland T 992403, 19 April 2000; R v Gilligan CA383/00, 7 December 2000; R v

N HC Auckland CRI-2006-092-2334, 29 July 2008; R v Taane [2008] NZCA 461.

[25] In R v Koia,⁵ the offender indecently assaulted a 34 year old mentally handicapped man on at least three occasions. Over a period of two months, the offender indecently stroked the victim, placing his hand inside the victim’s clothing and masturbated him. An end sentence of three years’ imprisonment was imposed.

[26] I do not accept Mr Speed’s submission that the offending in that case was more serious. I acknowledge that the offending took place over a longer period of time, but in my judgment, Mr Dayal’s offending was considerably more serious. The oral contact, particularly around the victim’s vagina, is a serious aggravating element to Mr Dayal’s offending. I agree with Judge Blackie’s description that it was close to sexual violation.

[27] In R v Gilligan,⁶ the offender faced four representative charges of indecent assault which had occurred over a seven year period. The victims were adult men, who were in an IHC programme. There is little description of the offending in the judgment. It is simply recorded that the victims were touched improperly and that the offender committed indecencies against them of a serious nature. A sentence of three and a half years was upheld.

[28] I accept the submission made by Mr Speed that the circumstances in Gilligan were very different from those which applied to Mr Dayal but I do not consider that the case is particularly helpful, given the absence of any detailed description of the relevant facts.

[29] In R v N, the offender indecently assaulted his intellectually disabled 16 year old granddaughter. The offending took place over a period of 18 months. There was indecent touching, involving fondling of the victim’s breasts and touching her over her underwear in her vaginal area. There was no skin to skin contact. A three year starting point was adopted.

[30] Mr Speed submitted that the persistent nature of the offending, the victim’s age and the resulting harm, made it more serious than Mr Dayal’s offending. I

disagree. While Mr Dayal’s offending occurred on only one occasion, the nature of the indecent assaults, including the oral contact with the victim’s genital area and breasts, to my mind makes the offending more serious than the offending involved in R v N.

[31] In R v Taane, the offender was involved in a predatory attack on a tourist. He managed to persuade the tourist to accompany him to a secluded section of a track. He pestered her into allowing him to give her a massage, but he ended up by taking his clothes off, and rubbing her bare back. When she tried to stand up, he pressed down hard on her. Eventually he removed her shorts with considerable force, rubbed her buttocks, ripped her t-shirt and kissed her on the breast. She tried to push him away, but she was unsuccessful. Eventually he stopped when she started to scream. A three year starting point was upheld on appeal.

[32] Mr Speed submitted that the forcible nature of the assault, and its predatory nature, made it more serious than Mr Dayal’s offending. Again, I disagree. While Mr Taane’s attack was violent and involved additional offending – lower level robbery – the sexual contact in Mr Dayal’s case was more serious in nature, and Mr Dayal’s offending involved a gross breach of trust.

[33] Mr Speed also referred to two additional cases which were not before Judge Blackie. The first was Walsh v R.⁷ In that case, the offender placed the victim’s hands on his penis, and rubbed her hand over his penis. An 18 month starting point was adopted on appeal for the resulting indecent assault charge. I do not consider that this case assists. Mr Dayal’s offending was clearly more serious, as the assault involved oral contact around the victim’s vagina, as well as touching and kissing the victim’s breasts and rubbing her inner thighs and vagina over her clothing.

[34] The second was R v Jackson.⁸ In this case, a psychiatric nurse was convicted of unlawful sexual connection by digital penetration of the victim, who was a patient in the hospital where he worked. The Court of Appeal, on a Solicitor-General’s appeal, stated that a term of imprisonment of four years would not be out of line.

However given that the appeal was brought by the Solicitor-General, it adopted a starting point of two and a half years’ imprisonment. Mr Speed submitted that this case showed that the starting point adopted by Judge Blackie was too high. Again, I disagree. The case involved a sexual connection, not an indecent assault, and but for the fact that the appeal was brought by the Solicitor-General, a starting point of imprisonment of four years would not have been out of line for the offending there in issue.

[35] Mr Speed also argued that the Judge’s starting point was higher than that which would be adopted for unlawful sexual connection offending which falls into the lower end of band one discussed in R v AM.⁹ I do not consider this argument assists Mr Dayal either. Unlawful sexual connection cases are of limited assistance in determining the appropriate starting point for indecent assault offending, and I do not consider that it is necessarily inappropriate to adopt a starting point for

particularly serious indecent assaults which exceeds the starting point for rather less serious unlawful sexual connections.

[36] There were significantly aggravating features to Mr Dayal’s offending. First, and most obviously, there was a significant breach of trust. The victim was suffering from a mental disability. She was living in an IHC care home. Mr Dayal was her carer. He abused the trust that she was entitled to repose in him. Secondly, the assault was a gross indecent assault. Mr Dayal pulled the victim’s pants down and licked around her vagina. He did so knowing of her situation. Mr Dayal’s behaviour was exploitative and grossly demeaning. That is clear from the victim impact statement, a copy of which has been made available to me.

[37] In my judgment, and by reference to the authorities which I have noted

above, a starting point of three and a half years’ imprisonment was well within the

_{available range.}

⁹ R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.

Personal Circumstances/Rehabilitation

[38] Mr Speed argued that the Judge failed to properly assess Mr Dayal’s personal

circumstances, or to take into account the desirability of his rehabilitation.

[39] Again, I do not consider that there is anything in this submission. Judge Blackie gave Mr Dayal a discount of 10 per cent for his previous good character and for remorse which he had expressed.

[40] It appears that Mr Dayal’s wife is seriously ill, but there is nothing to indicate that she will face any exceptionally substantial hardship, if Mr Dayal is in custody. In any event, that is a matter which Mr Dayal should have thought of before he committed this offence. It does not justify leniency now.

[41] Judge Blackie did focus on deterrence and denunciation. In my view that was appropriate in the context of this offending, which involved gross indecent assaults against a vulnerable person where there was a significant breach of trust. I accept that the Judge did not expressly refer to rehabilitation, but there was nothing in the Provision of Advice to Courts report that showed that Mr Dayal has any particular rehabilitative prospects. I do not consider this is a case where such rehabilitative prospects as Mr Dayal may have would justify a lower sentence.

[42] Further, s 7(2) of the Sentencing Act states that nothing about the order in which the purposes of sentencing appear in the section implies that any purpose referred to must be given greater weight than any other purpose referred to. Judge Blackie was entitled to give greater weight to denunciation and deterrence than to rehabilitation. He was constrained by the mandatory considerations set out in s 8 of the Act, and he was entitled to consider that consistency in sentencing with other similar cases meant that a sentence of imprisonment was appropriate. It was open to him to conclude that imprisonment was the least restrictive outcome appropriate in the circumstances.

Guilty Pleas

[43] Finally, there are the guilty plea discounts. Mr Speed argued that a full 25 per cent discount for the pleas should have been given, given the significant amendment to the charges.

[44] Mr Stevens acknowledged that there was as significant amendment to the charges, but nevertheless submitted that a discount of 20 per cent was appropriate given the strength of the Crown case. He noted for example that Mr Dayal’s saliva was found in the victim’s underpants.

[45] I am not persuaded that a full discount of 25 per cent should have been given. Mr Dayal received a significant benefit from the reduction in the charges. As the Supreme Court noted in Hessell v R:¹⁰

[62] Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.

[46] I accept that Mr Speed discussed possible pleas with the Crown at an early stage, but the fact remains that when he was spoken to by the police, Mr Dayal denied the most serious aspects of the offending. He only entered his guilty pleas on the morning that the trial commenced. I accept that in some cases, a full 25 per cent discount has been given in broadly similar circumstances,¹¹ but I am not persuaded

_{that Judge Blackie erred in only allowing a 20 per cent discount.}

¹⁰ _{Hessell v R, [2010] NZSC 135, [2011] 1 NZLR 607}

¹¹ Hohipa v R [2015] NZCA 485.

Result

[47] For the reasons I have set out in this judgment, the end sentence imposed by the Judge was not manifestly excessive.

[48] The appeal is declined.

_{[49] Given the sentence imposed, issues of home detention do not arise.}

Wylie J