E v R [2023] NZHC 2829 (9 October 2023)

Last Updated: 19 October 2023

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2023-406-11 [2023] NZHC 2829

BETWEEN	E Appellant
AND	THE KING Respondent

Hearing:	5 October 2023
Counsel:	M Zintl for Appellant M O’Donoghue for Respondent
Judgment:	9 October 2023

JUDGMENT OF ISAC J

[Sentence appeal]

Introduction

• [1] Mr E pleaded guilty to the sexual violation by rape of his 24-year-old stepdaughter. He was sentenced by Judge Reilly to four years and two months’ imprisonment.¹

• [2] Mr E now appeals against that sentence. He advances two grounds:

(a) First, the Judge erred in adopting a starting point of seven years’ imprisonment. It is submitted that given the short duration of the offending, and that the defendant stopped himself from continuing, the starting point ought to have been six to 12 months lower.

¹ R v E [2023] NZDC 14864.

E v R [2023] NZHC 2829 [9 October 2023]

(b) Second, the combined discounts for remorse and previous good character of 10 per cent were insufficient. Discounts for these factors totalling 20 per cent should have been provided.

The offending

• [3] The victim was the appellant’s stepdaughter. The appellant was in a long-term domestic relationship with the victim’s mother. At the time of the offending, the appellant was aged 57 and the victim 24.

• [4] On 25 February 2023, the appellant, the victim and the victim’s mother socialised together at a local tavern in Blenheim. Nothing untoward occurred and they enjoyed each other’s company, before walking home together at around 10 pm.²

• [5] At home they sat in the lounge to talk and watch television. The appellant retired to bed and was shortly followed by the other two. The victim cuddled up to her mother in the bed, in between her mother and the appellant. During the night the appellant awoke to the victim asleep next to him. He pushed her underwear aside and inserted his penis into her vagina. He had sex with her for no more than a minute before realising the significance of what he was doing. At that point he stopped, rolled over and went back to sleep.³

• [6] When spoken to by police the appellant expressed shame and remorse, acknowledging that the act had occurred when the victim was asleep and in circumstances where he knew she could not consent.⁴

Judgment under appeal

• [7] After setting out the facts, the Judge observed that the appellant is a 57-year-old man of “exceptionally good character” with no relevant previous convictions.⁵ There was significant victim impact as a result of the offending, which had left the victim

² At [1].

³ At [2].

⁴ At [3].

5. At [4]–[5] and [9]–[12]. The Judge referred to several letters of support by the family and employers of the appellant which describe him as a hard-working, caring and loving person whose offending was totally out of character.

feeling that her life had been destroyed.⁶ Her Honour also noted the appellant’s letter of apology, which she accepted was genuine.⁷

• [8] Turning to the starting point, the Judge identified three aggravating features in the offending: the vulnerability of the victim, the harm she has suffered, and the breach of trust involved.⁸

• [9] The Court adopted a starting point of seven years’ imprisonment. In doing so, the Judge rejected counsel for the appellant’s submission that two factors—the short duration of the offending and that the appellant brought it to an end of his own volition—justified a lower starting point. On the contrary, she observed:⁹

... if the act had been more enduring or prolonged and the victim had been required to take some evasive action to have you desist the start point would have been higher.

• [10] Her Honour then awarded discounts totalling 40 per cent for the appellant’s personal mitigating circumstances: 25 for his early guilty plea, five for remorse, five for previous good character and five for his positive attitude to rehabilitation.¹⁰ Stepping back and considering the offending as a whole, the Judge was satisfied that the resulting end sentence of four years and two months’ imprisonment appropriately reflected the gravity of the offending.¹¹

Approach on appeal

• [11] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material error in the sentence imposed and a different sentence should have been imposed.¹² The focus is on the final sentence reached. Although s 250 does not use the expression “manifestly excessive”, it is a principle that is well-established in the Court’s approach to determining the extent of the error in sentence appeals.¹³

⁶ At [6]–[7].

⁷ At [8].

⁸ At [14].

⁹ At [16].

¹⁰ At [17]–[22].

¹¹ At [23].

¹² Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

¹³ At [32]–[35]; and R v Shipton [2006] NZCA 530; [2007] 2 NZLR 218 (CA) at [138]–[140].

Consideration

Was the starting point too high?

• [12] For the appellant, Mr Zintl submits that the starting point of seven years’ imprisonment was too high. He principally relies on the Court of Appeal’s judgment in R v Hill,¹⁴ and its treatment of that case in R v AM, the guideline judgment for rape offending.¹⁵

• [13] In Hill, following a party where they had both been drinking, the offender and victim shared a taxi back to the victim’s house where they drank more alcohol and talked.¹⁶ Mr Hill told the victim he loved her, at which point she told him to leave. The victim left the room and changed into pyjamas. When she returned to find Mr Hill still there, she again told him to leave. He grabbed her arms with both hands and pushed her back onto the couch, causing scaping and bruising to her thigh in the process. Ignoring her protests, he removed the victim’s clothes and penetrated her briefly,¹⁷ before abruptly stopping and apologising.

• [14] At the time, R v A set the starting point for contested rape cases at eight years’ imprisonment.¹⁸ Mr Hill’s initial sentence of three and a half years’ imprisonment was quashed by the Court of Appeal as manifestly inadequate, and a sentence of six years was substituted.

• [15] In essence, Mr Zintl submits that the appellant’s offending, when compared to Hill and the other cases cited by the Court of Appeal in R v AM, properly sits at the lower end of rape band one (which attracts a starting point of six to eight years’ imprisonment). He highlights three common features of the present offending and that in Hill: in both cases the duration of the offending was brief, the degree of violation limited, and the offender ended the rape themselves. And while the present case involves a breach of trust, the victim did not suffer any physical injuries, unlike the victim in Hill.

¹⁴ R v Hill CA111/02, 21 October 2002.

¹⁵ R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [93]–[94].

¹⁶ R v Hill, above n 14, at [3]–[5].

17. At [5] and [10]. The victim said Mr Hill penetrated her “just a few” times and that the rape was brief: “a minute, two minutes, really quick”.

¹⁸ R v A [1994] 2 NZLR 129 (CA).

• [16] Overall, Mr Zintl submits that a starting point of six to six and a half years’ imprisonment is required here.

• [17] In R v AM, the Court of Appeal set “rape bands” to guide sentencing judges.¹⁹ Band one sets a starting point of six to eight years’ imprisonment and applies where aggravating factors are either not present or present to a limited extent.²⁰ Band two sets a starting sentence of seven to 13 years’ imprisonment and applies where the scale of the offending and levels of violence and premeditation are, in relative terms, moderate. This band covers offending involving a vulnerable victim, and is appropriate for cases which involve two or three of the factors increasing culpability to a moderate degree.²¹ Notably, these two bands overlap. The starting point of seven years adopted by the Judge was at the bottom of band two, and the middle of band one.

• [18] In the present case, the Judge identified three aggravating factors—or “culpability assessment factors”—of the appellant’s offending. Those findings are not challenged. While none of them are of sufficient gravity to suggest this case fell outside of band one, given their number the Judge was correct to adopt a starting point of seven years.

• [19] Overall, I do not find the decision in R v Hill helpful. It concerned a Solicitor-General’s appeal from a manifestly inadequate sentence, was delivered over 20 years ago, and most importantly pre-dates the Court of Appeal’s guideline judgment in AM. Even so, the Court noted in Hill noted that the “gravity of sexual offending [is not] greatly mitigated by its brevity, sudden cessation and immediate expression of regret”.²² It follows that the starting point adopted by the Judge cannot be criticised and this ground of appeal must be dismissed.

19. R v AM, above n 15, at [88]. The purpose of these bands is to assist in achieving consistency of approach and properly graduated sentences that reflect overall culpability of offending.

²⁰ At [93].

²¹ At [98].

²² R v Hill, above n 14, at [25]. Hill is cited in R v AM, above n 15, at [93], as an illustration of a case with a starting point at the lower end of rape band one. I am inclined to think there are aggravating features present in Mr E’s case that were absent in Hill.

Were the discounts for remorse and previous good character inadequate?

• [20] Mr Zintl submits that the five per cent discount for remorse was insufficient, and that an award of at least 10 per cent ought to have been made.²³ He notes that the appellant has openly accepted responsibility for his offending, was willing to attend a restorative justice process, wrote a letter of apology and paid $5,000 in reparation to the victim for emotional harm. The Judge clearly accepted the appellant’s remorse was genuine.

• [21] Similarly, Mr Zintl submits that a discount of 10 per cent (rather than the five awarded) was necessary to reflect the appellant’s previous good character and lack of relevant convictions.²⁴ He notes the dual logic underpinning this feature of mitigation: first, a fall from grace is significant punishment in itself; and second, there is greater potential for rehabilitation where community involvement and good character indicates a reduced probability of re-offending.²⁵

• [22] In response, Mr O’Donoghue for the Crown submits that the Judge followed the correct approach in relation to the discount provided for good character, which is ultimately a matter of judicial assessment. He accepted, however, that a further discount of five percent was likely warranted to reflect remorse and reparation. Mr O’Donoghue also referred to a number of authorities which caution against the artificial aggregation of multiple individual discounts that might produce an end sentence which fails to reflect an offender’s overall culpability.²⁶ He referred to the following statement by the Court of Appeal in Dickey v R:²⁷

It is always necessary to stand back and make an overall assessment when sentencing, and manifest injustice is assessed as a matter of overall

²³ Mr Zintl referred to three cases where higher discounts for remorse were made: Rowles v R [2016] NZCA 208 at [18] (eight per cent discount where the appellant offered $1,000 reparation, wrote a letter of apology to the victim’s family, and was willing to attend a restorative justice process); Hawkins v R [2022] NZHC 283 at [6] and [37] (five per cent discount for letter accepting full responsibility for offending and a further five per cent discount to reflect a $2,500 reparation offer); and Sherratt v R [2021] NZHC 1901 at [61] (combined discount of 20 per cent for remorse, letter of apology, $5,000 reparation payment, and previous good character).

²⁴ Citing Chai v R [2020] NZCA 202 at [31] (combined 10 per cent discount for previous good character and rehabilitative efforts); and Singh v R [2020] NZCA 211 (combined 12.5 per cent discount for good character and remorse from adjusted starting point adopted on appeal).

²⁵ R v Findlay [2007] NZCA 553 at [91].

²⁶ McCaslin-Whitehead v R [2023] NZCA 259 at [61]; and Adams on Criminal Law – Sentencing

(online ed, Thomson Reuters) [SA9.16].

²⁷ Dickey v R [2023] NZCA 2 at [175] (footnotes omitted).

impression. Discounts overlap and there is a risk that some statutory purposes of sentencing can be lost sight of when they are treated separately and simply tallied up.

• [23] Overall, the Judge awarded the appellant a 15 per cent credit for remorse, previous good character and his prospects for rehabilitation. Having regard to all the circumstances and the authorities referred to, I accept Mr Zintl’s submission that a higher discount was warranted in Mr E’s case.

• [24] The appellant is 57 years old. He was a person of generally good character, who is well liked and respected by his family and employer. He appears before the court with only two previous convictions which were unrelated in nature to the present offending, fairly minor and historic, having occurred some 35 years ago. The Judge was correct to treat him effectively as a first offender. It also follows that for someone with his otherwise unblemished history, his conviction and imprisonment for this offending represents a significant fall from grace. As the Judge observed, this was an inexplicable moment of stupidity that has had a significant impact on a young woman and on Mr E’s own life.

• [25] Mr E is deeply remorseful. I too have read his letter of apology and agree it appears heartfelt. Moreover, the appellant has made a significant reparation payment to the victim. That of course will not heal the harm his offending has caused, but it is a further sign of remorse and acceptance of responsibility, and is a factor that the court is required to take into account in sentencing.²⁸

• [26] I allow a further eight per cent discount. This reflects that genuine remorse and an early plea will often warrant a full-third discount off the starting point, together with a further five percent to reflect the emotional harm reparation as required by s 10 of the Sentencing Act 2002, and the appellant’s other personal mitigating factors.

²⁸ Sentencing Act 2002, s 10.

Conclusion and result

• [27] The appeal is allowed. The sentence of four years and two months imprisonment is quashed and a sentence of three years and seven months’ imprisonment is imposed in its place.

Isac J

Solicitors:

Crown Solicitor, Nelson