R v LB

• Jurisdiction: New Zealand
• Judge: Downs J
• Judgment Date: 07 February 2020
• Neutral Citation: [2020] NZHC 94
• Docket Number: CRI-2019-419-000086
• Court: High Court

Between

The Queen

Appellant

and

LB

Respondent

[2020] NZHC 94

Downs J

CRI-2019-419-000086

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

Criminal Sentencing — appeal by Crown — historical sexual offending by a young person — starting point of 11 years imprisonment commuted to 12 months home detention — whether the sentence was manifestly inadequate

Counsel:

JN Hamilton for Appellant

RP Boot for Respondent

JUDGMENT OF Downs J

This judgment was delivered by me on Friday, 7 February 2020 at 4 pm.

Registrar/Deputy Registrar

A Crown appeal

1 Between 1994 and 1998, Mr LB repeatedly raped his younger cousin. 1 Mr LB also repeatedly violated her with his fingers. On one occasion, Mr LB forced the victim to suck his penis until he ejaculated. Mr LB was aged between 14 and 18 years; the victim 12–16. She later attempted suicide, more than once. In 2018, the offending came to light. Mr LB pleaded guilty. He has not committed any further offences.

2 Judge D C Clark adopted a starting point of 11 years' imprisonment. The Judge mitigated this by 76 percent for personal factors; then a further 25 percent for Mr LB's guilty pleas. This left a notional sentence of two years' imprisonment. The Judge commuted this to 12-months' home detention. So, an 11-year starting point for serious sexual offending became a sentence other than imprisonment.

3 The Crown appeals. The Solicitor-General contends the Judge erred and the sentence is manifestly inadequate. Mr LB resists this analysis. He contends his sentence should stand.

The facts

4 Mr LB first sexually violated the victim when he was 10 and she eight. He did so at a family function. Mr LB pulled aside the victim's underwear and inserted a finger to her vagina. Mr LB then tried unsuccessfully to penetrate her with his penis. This incident did not form part of the sentencing mix as Mr LB was too young to be criminally responsible.

5 In late 1994, cousins were playing hide and seek at an uncle's home. Mr LB told the victim he wanted to “do it to her again”. Mr LB pulled the victim to the floor, kissed her, pulled her underwear down and then inserted his fingers to her vagina. Mr LB then forced his penis into her vagina. He later ejaculated inside her. The same day, Mr LB again inserted his fingers to the victim's vagina. Mr LB also forced the victim to suck his penis until he ejaculated in her mouth. Mr LB was 14; the victim 12.

6 A few months later, Mr LB and the victim were on holiday with their families. Mr LB repeatedly followed the victim to remote locations. There, he inserted his fingers and then penis to her vagina.

7 This became a pattern. It happened regularly for four years. The victim told the defendant many times she did not want him to do this, as it hurt and she may become pregnant.

8 Mr LB's final act of rape occurred in the victim's bedroom in October 1998. Mr LB was 18; the victim 16.

9 In November 2018, members of the victim's family confronted Mr LB. He acknowledged the offending. Police became involved months later. On 18 June 2019, Mr LB admitted almost all the offending. Charges were laid 11 July 2019. Mr LB pleaded guilty 30 August 2019. He was then 39.

10 The agreed summary of facts says Mr LB “expressed extreme remorse for his actions”.

Victim impact

11 Victim impact is significant. The victim describes fear and intimidation over “many years”, hypervigilance, loneliness, isolation, anxiety, depression and repeated suicide attempts — one after seeing Mr LB in a shop. In 2019, the victim was diagnosed with post-traumatic stress disorder. She experiences flashbacks and anxiety. She requires medication to sleep. Unsurprisingly, the victim considers Mr LB stole her childhood.

Pre-sentence report and other matters

12 Mr LB is married with three children.

13 His pre-sentence report describes “a good and pro-social upbringing [by] his parents and family” and says Mr LB has not been the victim of any sexual violence. However, the report says Mr LB suffered “violent and abusive” experiences at school. He has sought counselling for these.

14 Mr LB told the pre-sentence report writer the offending gave him “a sense of belonging”. He also said he then believed the victim “was wanting to participate too”.

15 The report recommended imprisonment given the “severity of Mr LB's historical offending” or, failing that, home detention.

16 Mr LB offered to attend a restorative justice meeting. The facilitator considered this could be detrimental to the victim's position, so no meeting took place.

Sentencing

17 The Crown sought a starting point of 15 years' imprisonment. Mr LB advocated the much lesser starting point of 10 years' imprisonment. The Crown acknowledged Mr LB's then youth, subsequent good character, and guilty pleas constituted mitigating factors. Mr LB sought discounts for those and for:

Each was advanced as warranting discrete discount.

• (a) Remorse.

• (b) Mr LB's preparedness to attend a restorative justice meeting.

• (c) His offer of $10,000 for emotional harm.

18 Mr LB did not enjoin home detention, at least in his (lawyer's) written submissions. These presupposed a sentence of imprisonment, albeit one mitigated by the factors above.

19 Judge Clark adopted a starting point of 11 years' imprisonment. The Judge treated the offending as within band two of R v AM. 2 AM is the Court of Appeal's guideline sentencing judgment in this area. It articulates four sentencing bands for

rape. Band one is the least serious; band four the most serious. The Judge was influenced by two decisions in which a 10-year starting point was adopted for historical sexual offending by a teenager, 3 and Mr LB's age throughout the offending

20 The Judge mitigated the starting point by 76 percent for personal factors, including 40 percent for youth. These discounts reduced the starting point to 31.7 months, which the Judge rounded down to 31 months.

21 Many discounts overlapped. Sixteen percent was allowed for remorse, Mr LB's willingness to attend a restorative justice meeting, and “personal circumstances”. An additional 10 percent was deducted for Mr LB's willingness to pay $10,000 reparation.

22 The Judge discounted the 31-month figure by 25 percent because Mr LB pleaded guilty promptly. This resulted in a notional sentence of two years' imprisonment. The Judge commuted it to home detention. The Judge did not address s 128B(2) of the Crimes Act 1961, which creates a presumption of imprisonment for the offence of sexual violation.

A precis of the competing cases

23 The Solicitor-General contends the Judge made several errors. She argues the offending was governed by band three of AM, not band two; and a starting point of not less than 13 years' imprisonment was required. The Solicitor-General submits the Judge double-counted Mr LB's youth by modifying the starting point for this feature and then deducting a further 40 percent. Relatedly, the Solicitor-General contends the Judge erred in her approach to mitigating features:

The unmodified aggregation of mitigating factors, many of which were overlapping, led to a home detention sentence for rape that was manifestly inadequate. The learned District Court Judge's approach of simply adding together credit for mitigating features resulted in a grossly excessive reduction from an already inadequate starting point. While there were several mitigating features that warranted credit in Mr LB's case, the Crown submits that the repeated rape of a vulnerable family member over an extended period of time called for a sentence closer to four years' imprisonment.

24 Finally, the Solicitor-General contends the Judge wrongly imposed home detention notwithstanding the presumption of imprisonment.

25 Mr LB contends the Judge did not err. He emphasises the discretionary nature of the sentencing jurisdiction and the Court of Appeal's recent reiteration of this feature in Zhang v R 4 and Orchard v R. 5 Mr LB argues his case warrants home detention.

Principle

26 A sentence appeal must be allowed if the Court is satisfied there is an error in the sentence and a different one should be imposed. 6 Crown appeals in this context are not for borderline cases: “Their legitimate scope is confined to cases where there is a solid ground for treating a sentence as manifestly inadequate or inappropriate”. 7 So, considerations justifying an increase in sentencing must be more compelling than those justifying a reduction. Care must be taken not to countermand the legitimate exercise of a Judge's sentencing discretion, especially when the Judge has been (properly) merciful. 8 All this is well-known.

Analysis

Did the Judge err when fixing the starting point?

27 The Judge was influenced by two decisions: B v R 9 and R v Bradnock. 10 In Bradnock, Keane J adopted a 10-year starting point for similar, but less serious, sexual offending. The Judge treated Mr Bradnock's age at the time of the offending—14–18 years — as affecting the starting point. There was no appeal. In B, Judge Ingram adopted a 10-year starting point for historical sexual offending against four young victims. The defendant was then 13–17. The starting point was not disturbed on appeal.

28 Both cases involved less serious offending than Mr LB's, and B is distinguishable. B did not involve rape; the case fell under AM's lesser unlawful sexual connection bands. The final sentence in Bradnock was six years' imprisonment; like Mr LB, he pleaded guilty. But, as observed, Keane J did consider the defendant's age relevant to starting point. Judge Clark did likewise.

29 Orthodox sentencing methodology treats youth as a mitigating factor, hence a deduction from the starting point after it is settled. The Court of Appeal has consistently exhorted this approach, and for good reason. It promotes structure and consistency. It also promotes transparent...