Santamaria v Police [2016] NZHC 1369 (22 June 2016)

High Court of New Zealand

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Santamaria v Police [2016] NZHC 1369 (22 June 2016)

Last Updated: 8 August 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000127
CRI-2016-404-000128

CRI-2016-404-000129 [2016] NZHC 1369

BETWEEN	LORENZO SANTAMARIA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 June 2016
Appearances:	C M Wright for Appellant H G Clark for Respondent
Judgment:	22 June 2016

_{JUDGMENT OF GILBERT J}

This judgment is delivered by me on 22 June; 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

Wright Wiseman Law, Auckland

Merediths, Auckland

SANTAMARIA v NEW ZEALAND POLICE [2016] NZHC 1369 [22 June 2016]

Introduction

[1] Mr Santamaria pleaded guilty to indecent assault of a person under 16, two charges of theft (over $1,000), one charge of theft (under $500), and one charge of receiving. He was convicted of these offences and sentenced by Judge Aitken in the Auckland District Court to 19 months’ imprisonment.¹

[2] Mr Santamaria appeals against this sentence arguing that it is manifestly excessive. He contends that a sentence of home detention ought to have been imposed as the least restrictive outcome appropriate in the circumstances. He also argues that the Judge ought to have given credit for remorse and placed greater emphasis on the probation officer’s assessment that Mr Santamaria would have a low risk of re-offending if he addressed his rehabilitative needs.

Facts

[3] Mr Santamaria previously occupied a self-contained area in the basement of the home where the victim and her family resided. He moved there in July 2013 and became friendly with the family.

[4] On 29 September 2013, the victim asked her mother and Mr Santamaria if she could go downstairs to watch a movie on Mr Santamaria’s newly purchased

55 inch television. While watching the movie, Mr Santamaria told her to lie down and put her feet up. He then began massaging her feet and moved his hands up to massage her legs. He then moved his hands up the victim’s body and rubbed her stomach, chest and breasts. The victim panicked and froze in fear. Mr Santamaria then moved his hands down to the victim’s vaginal area on the outside of her pyjama pants. He pressed his thumb firmly against the victim’s vagina and rubbed it in a circular motion for one to two minutes. The victim made an excuse to leave and ran upstairs to inform her parents.

[5] Mr Santamaria left the address before he could be questioned about the incident. He returned to the address on 1 October 2013 but was refused entry to the

¹ New Zealand Police v Santamaria [2016] NZDC 6647.

property. He then departed New Zealand for Singapore on 3 October 2013. He returned to New Zealand on 18 March 2015 whereupon he was arrested.

[6] The victim has been badly affected by Mr Santamaria’s offending and has suffered considerable emotional harm. She has trouble sleeping, suffers from panic attacks and her school work was affected. She no longer feels safe leaving her house and finds it very hard to trust anyone.

[7] In late March 2015, shortly after his return to New Zealand, Mr Santamaria moved in temporarily with another victim who was house-sitting for his sister. Mr Santamaria was allowed to stay under an arrangement known as “couch surfing”. He was not required to pay board but was expected to help with groceries and household chores. While at this address, Mr Santamaria stole various items including a tent, skis, a ski jacket and pants, ski boots and a dress shirt. Mr Santamaria gifted this victim a fishing rod which turned out to have been stolen from someone else who had hosted Mr Santamaria on a similar basis.

[8] In April 2015, two other victims invited Mr Santamaria to stay at their home also under a “couch surfing” arrangement. Approximately one week into his stay, Mr Santamaria started taking items from the house including clothing, household items and sporting equipment. He also stole hardware and tools from one of the victim’s workplace. On another occasion, he accompanied the other victim to her parents’ home to investigate after an alarm had been activated. While there, he stole several watches from the victim’s parents’ bedroom and items of clothing from the wardrobe.

[9] On 3 June 2015, another victim left a bag containing an iPhone 5s valued at

$1,000 in a locker at the Tepid Baths in Auckland. He returned to the locker, to find the bag had been stolen. The victim tracked the location of his iPhone using the

‘find my iPhone’ application to the Britomart Transport Centre where he found it in Mr Santamaria’s possession. Mr Santamaria handed the iPhone to the victim and immediately left the centre. He later claimed that he had purchased the iPhone for

$100 from someone on the street. These facts gave rise to the receiving charge.

[10] Mr Santamaria has a number of previous convictions for dishonesty offences: shoplifting in 2009, using a document to obtain a pecuniary advantage (x 2) in 2006, theft (x 2) in 2005, and causing loss by deception (x 2) in 2004.

Sentencing in the District Court

[11] Judge Aitken adopted a starting point on the lead offence of 18 months’ imprisonment. The Judge applied an uplift of four months’ imprisonment to reflect the other offending. She then applied a further uplift of one month to reflect Mr Santamaria’s six prior convictions for dishonesty offending. There is no challenge to the starting point adopted or to these uplifts. The Judge allowed a

15 per cent discount for Mr Santamaria’s guilty pleas and there is no challenge to

this either. This produced an end sentence of 19 months’ imprisonment.

[12] The Judge declined to allow any discount for remorse or for any other personal mitigating factors. She explained her reasons for this in the following paragraphs of her judgment:

[19] ... I am concerned from the probation report that you appear to minimise your behaviour. You are, in effect, claiming credit for remorse. That does not come through from the probation report, and the writer notes you appears to be minimising your offending behaviour, claiming for a while that you thought she was 18, that you would not have gone any further because you were too tired, although you did acknowledge that you knew she was at school because you had seen her in her school uniform. So, not the sort of conversation with the probation officer from which one might readily assume that you are remorseful.

[20] I acknowledge that you have written to me and you claim to be truly sorry for hurting your victims, and taking full responsibility, and I hope that that expression of remorse is some relief to the victim and her family. But, for my part, there is not the sort of exceptional remorse to which the Courts have referred in Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 that would, in my view, properly provide a matter of mitigation.

...

[22] Mr Santamaria, I have carefully listened to what has been said by your counsel and read the probation report, and there are no matters, in my view, which permit me to reduce the sentence other than your plea of guilty. Of course, this plea of guilty was entered not only after you fled the country and returned, but also after you pleaded not guilty...

[13] The Judge considered that a sentence of home detention would not meet the purposes and principles of sentencing in Mr Santamaria’s case. She summarised her reasons for reaching this conclusion as follows:

[23] Your counsel seeks a sentence of home detention and he has provided comprehensive submissions and authorities on which he relies. It is clear from those and many other authorities that one of the primary purposes of sentencing, and I am referring primarily here to sentencing on indecent assault, are the principles of denunciation, deterrence and the need to protect young people. The Courts have said on many occasions that for those reasons a sentence of imprisonment is generally required. I have asked myself, therefore, what is it about you and your circumstances that might persuade me that a sentence of imprisonment is not necessary to meet the purposes and principles of sentencing or, to put it another way, that home detention is the least restrictive outcome that would meet those purposes and principles.

[24] I have read the cases to which I have been referred and I make just very general comments. So much of this sort of offending can be distinguished on its facts because the instances of indecent assault are many and varied. But, in respect of R v MRH [2014] NZHC 2308, in which a sentence of home detention was appropriate, it is relevant to observe that in that particular case the offender immediately acknowledged responsibility for the offending, was found to be remorseful and in all other respects a law- abiding citizen. On those three counts I would have to say your matter can be distinguished, Mr Santamaria. You have accepted responsibility very late, I am not necessarily persuaded that you are truly remorseful, and you are not in all other respects a law-abiding citizen.

Did the Judge err in not allowing a discount for remorse?

[14] I address first Mr Santamaria’s complaints that the Judge should have given him a discount for remorse and placed greater emphasis on the probation officer’s assessment that Mr Santamaria would have a low risk of re-offending if he addressed his rehabilitative needs. This is because these factors are relevant to the principal ground of appeal which is that the appropriate sentence was one of home detention.

[15] Mr Santamaria provided a brief letter to Judge Aitken at sentencing expressing regret and remorse for his actions. Mr Wright submits that the Judge ought to have accepted this letter at face value and allowed a discount for remorse.

[16] In Hessell v R the Supreme Court confirmed that sentencing judges may properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful and that a robust evaluation of all the circumstances is required before a

discount should be allowed.² In my view, the Judge was entitled to be sceptical about Mr Santamaria’s expressions of remorse. Mr Santamaria fled the country five days after the sexual offending and was only arrested after he returned 18 months later. He initially pleaded not guilty to the offending and did not change his plea until “late in the day”.³ I agree with the Judge that various comments Mr Santamaria made to the probation officer can only be interpreted as an attempt by him to minimise his offending. For example, he claimed that he thought the victim was 18 but then acknowledged that he knew she was still at school having seen her in a school uniform. He also claimed that his intention was not to be sexual and that he would not have proceeded to have intercourse with the victim because he was “too tired”. These comments are not consistent with genuine remorse.

[17] I am not persuaded that the Judge made any error in declining to allow a discount for remorse. I agree with her assessment that no such discount was warranted.

Didi the Judge err in not allowing a discount for other personal factors?

[18] Mr Wright says that alcohol was a factor in Mr Santamaria’s offending. He notes that Mr Santamaria voluntarily completed a four week programme at CADS to address his alcohol and drug abuse. Mr Wright realistically acknowledges that any discount for this would be “a small amount”. I am also not persuaded that the Judge was wrong not to allow a discount for these modest rehabilitative efforts.

[19] Mr Wright also submitted that the Judge placed insufficient emphasis on the probation officer’s assessment that Mr Santamaria would have a low risk of re- offending if he addressed his rehabilitative needs. The probation officer assessed Mr Santamaria as posing a medium risk of harm to others taking into account the sexual assault on a minor and the psychological and emotional impact such offending can be expected to have on the victim. The probation officer also assessed Mr Santamaria as having a medium risk of re-offending if he does not address his

_{rehabilitative needs. The Judge appropriately took this assessment into account,}

² _{Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].}

³ The Court was not given details of when the guilty plea was entered but the sentencing Judge

described this as having occurred “late in the day”.

including by imposing release conditions tailored to meet Mr Santamaria’s rehabilitative needs. Again, I am unable to detect any error in the Judge’s approach.

Did the Judge err in not commuting the sentence to one of home detention?

[20] This is the principal ground of appeal. Mr Wright acknowledges that indecent assault on a young person is a serious offence as is reflected by the maximum penalty of seven years’ imprisonment. He accepts that imprisonment is the usual outcome.

[21] In Nath v R the Court of Appeal dismissed an appeal against sentence where the appellant argued that home detention should have been imposed.⁴ The appellant had been convicted on one charge of attempted sexual connection with a young person under 16 and had been sentenced to two years’ imprisonment. In that case, as in this, the Court adopted a starting point of 18 months’ imprisonment. The Court of Appeal considered that a sentence of imprisonment was required to meet the purposes of sentencing:⁵

In terms of the purposes of sentencing, we consider that accountability, denunciation and deterrence require a term of imprisonment rather than home detention. In terms of the principles of sentencing, we consider a term of imprisonment is necessary to give proper recognition to the gravity of the offending and the culpability factors involved (as identified above). As this Court has said, usually imprisonment will be the only appropriate sentence for sexual offending against children or young persons. While the present offending did not proceed beyond an attempt, we see no reason to depart from that approach here.

[22] Mr Wright referred to the decisions of this Court in Halley v Police⁶ and Gerber v Police⁷ as examples of cases where home detention was considered appropriate. However, these cases are plainly distinguishable from the present and do not assist. The critical issue is whether the Judge was wrong not to commute the

sentence to one of home detention in all the circumstances of the present case.

[23] This case involved sexual assault on a 15 year old by a 49 year old male who

_{had been allowed to stay in the victim’s parents’ home. It involved a gross breach of}

⁴ _{Nath v R [2010] NZCA 418.}

⁵ _{At [22].}

⁶ _{Halley v Police HC AK CRI-2006-404-320 [25 October 2006].}

⁷ Gerber v Police [2013] NZHC 773.

trust. The consequences for the victim have been severe. Mr Santamaria has endeavoured to minimise his offending and has not shown genuine remorse. He presents as having a medium risk of re-offending and causing harm to others. I agree with the experienced Judge’s assessment that there is nothing about the facts of Mr Santamaria’s offending or his personal circumstances that would justify departing from the general rule that a sentence of imprisonment is required to meet the purposes of sentencing in cases of this type, particularly those of accountability, denunciation and deterrence. In any event, I am not persuaded that the Judge was wrong in reaching this conclusion; it was clearly open to her.

[24] For the reasons given, all grounds of appeal fail. The appeal must accordingly be dismissed.

Result

_{[25] The appeal is dismissed.}

M A Gilbert J