Dermer v R [2018] NZHC 1895 (30 July 2018)

Last Updated: 17 August 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-488-000015 [2018] NZHC 1895

BETWEEN	ADRIAN EDWARD JUNIOR DERMER Appellant
AND	THE QUEEN Respondent

Hearing:	18 July 2018
Appearances:	M Dyhrberg QC for the Appellant C A Anderson for the Respondent
Judgment:	30 July 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 30 July 2018 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

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

Counsel/Solicitors:

Marie Dyhrberg QC, Auckland

Marsden Woods Inskip & Smith, Whangarei

ADRIAN EDWARD JUNIOR DERMER v R [2018] NZHC 1895 [30 July 2018]

[1] This is an appeal against sentence, imposed in the District Court at Whangarei, by Judge D G Harvey, on 21 March 2018. Judge Harvey imposed an end sentence of two years and ten months’ imprisonment. As a result, Mr Dermer was not eligible for home detention, since the end sentence was above two years.

[2] Prior to sentencing, Mr Dermer pleaded guilty to the following charges:

(a)	Sexual connection with a young person, s 134(1) of the Act 1961;	Crimes
(b)	Threaten to do grievous bodily harm, s 306(1)(a) of the Act 1961;	Crimes
(c)	Two charges of assault with intent to injure, s 193 of the Act 1961;	Crimes
(d)	Threaten to kill, s 306(1)(a) of the Crimes Act 1961;
(e)	Assault with a weapon, s 202C of the Crimes Act 1961; and

(f) Two charges of male assaults female, s 194(b) of the Crimes Act 1961.

Facts

[3] Mr Dermer and the victim entered into a relationship in May 2013, ultimately separating in November 2015. At the time the relationship began, the victim was 14-and-a-half years old, while Mr Dermer was aged 16 years, turning 17 two months later. The victim turned 16 in late September 2014.

[4] Initially there were no problems in the relationship. However, starting in early 2014, Mr Dermer became violent towards the victim, punching and kicking her to the face and body, and making threats of violence against her. Mr Dermer also became controlling and manipulative over what the victim wore, who she saw, and arranged for her to pay her wages into his bank account. She had to ask him for any money.
[5] Mr Dermer was well aware when the relationship began, how old the victim was. The two of them engaged in sexual intercourse throughout the relationship, both while the victim was under the age of 16, and after.

[6] Sometime post-Christmas 2014, while Mr Dermer and the victim were living together at his mother’s house, Mr Dermer was pestering the victim for sex. She did not want to have sex and made that plain to him. In response, Mr Dermer grabbed the victim by the throat, with both hands and squeezed for approximately 15 seconds. He told the victim that he liked to see her being scared of him. Afterwards the victim’s throat was swollen and tender.

[7] In early 2015, the victim discovered she was pregnant. When Mr Dermer found out about this he threatened to assault the victim to the extent that he would force a miscarriage, stating, “If you don’t get an abortion, I’ll kick it out of your stomach”.

[8] In October 2015, Mr Dermer returned home from work to let the victim into the house they were living in, since the victim did not have a key. Mr Dermer was angry. He kicked the victim while she lay on the floor, then took a pillow and held it over her face, making it difficult for her to breathe. As he did so he said to the victim, “I fucking hate you, I fucking hate you. I hope you die. I’m gonna kill you”.

[9] In November 2015, the victim was seated on the couch at their shared home. The defendant returned home from work, took a knife from the kitchen, walked up to the victim, lifted her shirt and held the knife to her stomach.

[10] From early 2014 until the end of the relationship, Mr Dermer assaulted the victim by punching and kicking her, pulling her hair and kneeing her on numerous occasions.¹

1. While the agreed summary of facts recorded that Mr Dermer was violent towards the victim throughout the course of the relationship, it also recorded that there were no problems between the two of them until early 2014. As such, I have proceeded on the most favourable basis to Mr Dermer, that his violent offending towards the victim did not begin until early 2014.

District Court decision

[11] The Judge took as the most serious charge, the offence of unlawful sexual intercourse with a young person. On that charge, he imposed an end sentence of two years’ imprisonment. For the entirety of the violent offending, an end sentence of 10 months’ imprisonment was reached, to be served cumulatively. A starting point was not explicitly adopted by the Judge in relation to any particular offence. The Judge said he was taking a starting point of four years over all. He then applied a discount of six months for youth and a 15 per cent discount for a guilty plea. The final sentence was two years, 10 months’ imprisonment.

[12] The Judge was influenced by the fact that he perceived Mr Dermer’s behaviour as carrying all the hallmarks of a perpetrator of serious domestic violence. He pointed to the threats, the violence and the total control which Mr Dermer came to exercise over the victim’s life.

Appeal against sentence

[13] Section 250(2) 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.

[14] In any other case, the Court must dismiss the appeal.²

[15] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.³ Further, despite s 250 making no express reference

² Criminal Procedure Act 2011, s 250(3).

³ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] and [27].

to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.⁴

[16] The approach taken under the former Summary Proceedings Act was set out in

R v Shipton:⁵

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[17] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.⁶

Analysis

[18] I agree with Ms Dyhrberg QC that the underage sex charge did not merit the starting point that the Judge fixed, for some of the reasons that Ms Dyhrberg submits. This is not the sort of case at which the full weight of the penalty regime is directed, considering the age of Mr Dermer and the victim and that to a certain extent, their relationship does exhibit some hallmarks of consensual teenage sexual experimentation. The charge is designed more for predatory behaviour. I consider, given the totality of the controlling and manipulative conduct relevant to that charge, and given that Mr Dermer was 16 going on 17 when the relationship started in May 2003 (he was born on 17 July 1996) whereas his girlfriend was only 14, that the

⁴ At [33] and [35].

⁵ R v Shipton [2006] NZCA 530; [2007] 2 NZLR 218 (CA) at [138]- [140].

⁶ Ripia v R [2011] NZCA 101 at [15].

charge is not at the lowest end of the spectrum for sentencing, but it did not justify the starting point set by the Judge.

[19] I consider the violence charges to be materially more serious and they should be the starting point, with the lead offence of threatening to kill. Ms Anderson, for the Crown, did not oppose that alternative way of approaching the matter.

[20] It follows that I consider the Judge was in error, both in terms of treating the underage sex charge as the lead offending and in terms of the sentence he imposed with regard to that charge.

[21] I therefore need to repeat the sentencing exercise to determine whether the sentence is manifestly unjust.

[22] Ms Dyhrberg submits that a starting point for the violence offending (in totality) would be two to two-and-a-half years maximum, taking the charge of threatening to kill as the lead offence. She accepts that it might be more than the two years that the Crown had submitted before the Judge (and that the Judge therefore adopted while noting that he considered it too low). The Crown submits that the overall start point for the violence offending should be two-and-a-half to three years.

[23] A useful authority for sentencing in the case of threatening to kill is Tanuvasa v Police, where Muir J outlined factors relevant to assessing the seriousness of the offence.⁷ They included premeditation, the nature and frequency of the threats, the link to earlier actual violence, the ability of the offender to effect the threat, actual danger to the complainant and the use of a weapon as part of the threat.

[24] In my view, the start point for the violence charges overall should be two years, nine months. Threatening to kill is a serious offence with a maximum sentence of seven years’ imprisonment. Mr Dermer in this case has held the victim down with a pillow over her face, causing her to struggle to breathe, while he made it clear to the victim that he hoped she would die and that he wanted to take her life from her. The act of holding the pillow over her face was extremely dangerous, and gives credence

⁷ Tanuvasa v Police [2017] NZHC 939.

to Mr Dermer’s threat. I consider that is a seriously aggravating feature of this offending. Moreover, Mr Dermer’s threat to assault the victim so severely that she would suffer a miscarriage is extremely troubling. Considered alongside the assault where Mr Dermer placed his hands around the victim’s throat when she refused to have sex with him (telling her that he enjoyed seeing her scared of him), the picture is one of a callous, controlling and manipulative young man, willing to use violence and threats of violence to get what he wanted out of the relationship.

[25] Like the District Court Judge, I consider that a starting point of two years, nine months’ imprisonment may even be described as lenient considering the totality of the violent offending.

[26] The Judge took the approach of sentencing Mr Dermer to separate cumulative sentences for the violence offending and the sexual offending. I consider that given the offending was somewhat similar in kind, occurring in the context of a single domestic relationship, that a more appropriate course is to uplift the violence offending to take account of the sexual offending.

[27] In terms of an uplift for the offence of sexual connection with a young person, Ms Dyhrberg submits that there should be an uplift of two to three months. The essence of her argument is that the charge concerned consensual sex, in the context of a genuine, long-term teenage relationship. Her very helpful submissions forcefully argued that such relationships are not the target of the proscription against unlawful sexual connection with a young person, the focus of that provision being on relationships which can fairly be described as predatory in nature. The Crown said the uplift should be more than three months and more like six months because of the repeat nature of the offending.

[28] I have decided that I do not consider that an uplift of anything less than six months is appropriate. While I am entirely in agreement with Ms Dyhrberg’s submissions regarding the purpose of criminalising unlawful sexual connection with a young person, I do not consider that Mr Dermer’s offending against this provision can be properly described, certainly not in its entirety, as a genuine teenage relationship, nor as teenage sexual experimentation. While the relationship may have
started off that way, the facts as outlined above make it clear that the sexual relationship between Mr Dermer and the victim developed into something more sinister. It is clear from the summary of agreed facts that while the sexual relationship between the pair can be described as legally consensual, Mr Dermer became controlling, manipulative and violent toward the victim, punching and kicking her for some months from early 2014 until she turned 16. Mr Dermer also obtained full control of the victim’s finances. The sheer fact that she would allow him to take control over her life and autonomy to such an extent strongly suggests that she felt pressured by him to accede to his demands and influence. During oral argument, Ms Dyhrberg accepted that the controlling behaviour could be relevant to sentencing for unlawful sexual connection with a young person (as well as in relation to the violence charges), and I consider that is undoubtedly correct.

[29] I therefore do not consider the offending to be comparable to that outlined in R v Parata, a case directed to me by Ms Dyhrberg, where the defendants were discharged without conviction.⁸ In that case there was nothing to suggest the sexual relationship was predatory. Further, the victims of the offending did not perceive themselves as victims, and the parents of the victims themselves thought the whole matter had been blown out of proportion. Moreover, unlike the present, the facts do not suggest that the defendants were exerting any form of control over the victims, either sexually or more generally in their day-to-day lives.

[30] I note, as relevant to the present case, the remarks of the Court of Appeal in R v Johnson, that aggravating features relevant to sentencing for unlawful sexual connection with a young person include abusive or demeaning behaviour.⁹ At the same time, I accept that the offending in the present case is not in the category of Johnson, where the age difference between the victim and the defendant was 21 years, and the offending was extremely demeaning, abusive and committed only for the gratification of the defendant. In one instance, Mr Johnson had offered the complainant to his brother-in-law for sex, stating that “she’s my bitch”. In that case the starting point was three years and nine months’ imprisonment.

⁸ R v Parata [2016] NZDC 5445.

⁹ R v Johnson [2010] NZCA 168.

[31] I consider that a six-month uplift is appropriate taking into account the aggravating features I have referred to.

[32] That brings me to an uplifted starting point of three years and three months’ imprisonment.

[33] The discount for youth that the Judge gave of six months is not disputed by either counsel, and I would not disturb it.

[34] The updated sentence at this point is therefore two years and nine months’ imprisonment.

[35] Ms Dyhrberg then submits that there should be a discount for good character because the Judge wrongly took into account the first conviction Mr Dermer had received, which was in fact part of the total offending and taken out of chronological order. I accept that the first conviction should not be taken into account for that reason, but in my view, it makes no difference because of the number of charges and the length of the offending. It would not be appropriate for there to be a discount for good character. Ms Dyhrberg does not push the point much further than that.

[36] Ms Dyhrberg then submits strongly that there should be a discount for rehabilitation. She refers to the fact that Mr Dermer has attended courses, had extensive counselling and is in another relationship that has been ongoing since November 2016 where “nothing has gone wrong”.

[37] The Crown submits there should be no discount for rehabilitation.

[38] In my view, it is not appropriate to give a discount for rehabilitation. I accept that Mr Dermer has completed a number of courses and carried out a degree of counselling, but I see no reference anywhere to his acknowledging that he was violent and that he was wrong in being violent. To the contrary, every reference I read of Mr Dermer’s acknowledgement of wrongdoing relates to controlling behaviour, or anger, or hitting “something” as opposed to hitting the victim. For example, in the pre-sentence report, prepared by Corrections, Mr Dermer does not allude to the
violence inflicted upon the victim by himself, only his controlling behaviour. Also, almost every reference is to both he and the victim not knowing what they were doing, being young, not knowing how to operate in relationships, arguing with each other and other forms of reciprocal behaviour. For example, in the pre-sentence report, Mr Dermer claims that his controlling behaviour was simply due to his lack of maturity, and that the problems only started after the victim became jealous of him, levelling accusations that he was flirting with other girls.

[39] I acknowledge Mr Dermer has been in a new relationship since November 2016 and at least on the basis of reports received, all went well until he was sentenced on 21 March 2018, at which point he went into custody. I note though that everything was apparently smooth in his first relationship for some nine months (based on the summary of facts) and at that stage (early 2014) Mr Dermer started to become violent. I note also that the violence did not become public until after the relationship ended in November 2015, so it had continued undetected for quite some time. Furthermore, at relevant points during the offending, Mr Dermer and the victim had been living with his mother or her parents. I therefore would not be prepared to make assumptions regarding his current relationship.

[40] Finally, in terms of a discount for the guilty pleas, the Judge allowed a 15 per cent discount and neither counsel contests that, nor would I disturb it, though there may well have been grounds to justify a lower discount, considering that the guilty plea by Mr Dermer was not entered until immediately prior to the commencement of his trial.

[41] I therefore arrive at a sentence of two years and four months’ imprisonment.

[42] A sentence of home detention is not available as the end sentence of imprisonment is beyond the cusp of two years.

[43] I would, however, allow the appeal on the basis that the sentence imposed in the District Court was manifestly unjust, being six months longer than the sentence I would have imposed.

Conclusion

[44] The appeal is allowed.

[45] The sentence of two years and 10 months’ imprisonment is quashed and substituted with a sentence of two years and four months’ imprisonment. That sentence is comprised as follows.

(a) On the charge of threatening to kill, Mr Dermer is sentenced to two years and four months’ imprisonment;

(b) On the charge of sexual connection with a young person, Mr Dermer is sentenced to eight months’ imprisonment, to be served concurrently;

(c) On both of the charges of assault with intent to injure, Mr Dermer is sentenced to six months’ imprisonment each, to be served concurrently;

(d) On the charge of threatening to do grievous bodily harm, Mr Dermer is sentenced to six months’ imprisonment, to be served concurrently;

(e) On the charge of assault with a weapon, Mr Dermer is sentenced to eight months’ imprisonment, to be served concurrently;

(f) On both of the charges of male assaults female, Mr Dermer is sentenced to six months’ imprisonment each, to be served concurrently.









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Hinton J