V V R Coa

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeStevens J)
Judgment Date12 Oct 2012
Neutral Citation[2012] NZCA 465
Docket NumberCA400/2012

[2012] NZCA 465

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Stevens, Chisholm and Venning JJ

CA400/2012

BETWEEN
V (CA400/2012)
Appellant
and
The Queen
Respondent
Counsel:

B J Hesketh for Appellant

F E Cleary for Respondent

Appeal against sentence imposed on charges of sexual offending against younger sister — appellant argued starting point was too high and insufficient weight given to age at time of offending, subsequent good character, rehabilitation and remorse — rather judge had used rehabilitation and subsequent character to assess if minimum period of imprisonment should be imposed — starting point of 12 and half years adopted and uplift of one year added for totality of the offence — end sentence of eight years imprisonment — whether judge erred in the construction of the sentence including double counting — whether the starting point was too high and if so, what was the appropriate starting point.

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

The issues were: whether United had assigned the loan under s50 Property Law Act 2007 (“PLA”) (how thing in action assigned) and had no standing to sue; whether the debt had been satisfied; whether summary judgment would be an abuse of process as sufficient funds existed to pay the debt; and whether enforcing a foreign judgment when all the relevant transactions had occurred in California would be an abuse of process.

Held: A judgment in personam of a foreign court was enforceable in New Zealand if: the foreign court's jurisdiction over the judgment debtor was recognised by New Zealand law; if the judgment was for a definite sum of money and the judgment was final and conclusive. United had established the jurisdictional pre-requisites for enforcement and was prima facie entitled to summary judgment; it was for C to prove he had a tenable defence.

Under the trust agreement, it was clear that legal title to the Brockton loan had not passed to Allied. Even if there had been an assignment, it had not yet taken legal effect in that no notice of the assignment had been given to C. United was still able to give a discharge for the debt. There was no evidence that United had entered into the trust agreement purely to give it standing; legal title had to remain with United as there were third party interests in the loan assets. Joinder of Allied was unnecessary as United would hold the sum on trust for Allied which made a claim by Allied for the same sum improbable.

C could not rely on the defence that the foreign debt had been satisfied as a result of an assignment order issued by the Californian Court directing the proceeds of sale of properties payable to Pacific to be paid to Hanover and United, because the funds had not actually been paid and it was not a foregone conclusion.

The public policy exception was a narrow defence; the matters relied on had to shock the conscience of a reasonable New Zealander or be contrary to New Zealand's view of basic morality. There was no evidence of abuse of process by United which would bring the case within the public policy exception of enforcing a foreign judgment. There was no ulterior motive by United or improper purpose. The argument that all proceedings arising from the guarantee should take in place in California should be raised on enforcement rather than on application for entry for judgment.

C had no tenable defence, however before the Court entered its reasons for judgment, C presented a memorandum that the Receivership Court made an order approving the distribution of the sum owing to Allied which had been paid and the US judgment had been satisfied. It was for that reason only that United's application for summary judgment was declined.

JUDGMENT OF THE COURT
  • A The appeal is allowed.

  • B The sentence of eight years imprisonment is quashed and a sentence of four years and nine months imprisonment substituted.

REASONS OF THE COURT

(Given by Stevens J)

Stevens J)
Introduction
1

The appellant pleaded guilty to 10 charges of sexual offending against his younger sister. He was sentenced by Judge Spiller in the Hamilton District Court to eight years' imprisonment. 1 He now appeals against the severity of that sentence.

2

The appellant submitted that the starting point adopted by the sentencing Judge was too high and that insufficient allowance was made for youth, subsequent good character, rehabilitation and remorse. For these reasons, the appellant submitted that the overall sentence was manifestly excessive.

3

For the reasons that follow, we consider that the appeal should be allowed and the appellant's sentence reduced. There were errors of principle in the construction of the sentence resulting in the starting point being too high. Insufficient discounts were applied for mitigating factors. Moreover, a mitigating factor that ought to have been applied to reduce the starting point was only applied in relation to whether or not a minimum term of imprisonment should be imposed. As a result the sentence was manifestly excessive.

Background
4

The offending in question occurred over a period of between three to five years from 1996 to around 2001. 2 At the time the offending commenced the complainant was approximately five years old and the appellant was approximately fourteen years old. During this period the appellant and the victim lived together with their parents and two brothers. As the eldest child, the appellant was frequently left to babysit his three younger siblings.

5

The appellant's sexual offending against his sister took place on a regular basis. The sentencing Judge recorded that at one point the offending occurred at least once every fortnight. The appellant told his sister that “this is what big brothers and little sisters do” and instructed her not to tell anyone about the offending.

6

The appellant's actions came to light when the complainant disclosed the offending in 2005. This eventually led to prosecution as a result of which the appellant pleading guilty to the following charges:

  • (a) Sexual violation (inducing the victim to perform oral sex on his penis in a woodshed).

  • (b) Doing an indecent act on a girl under 12 (inducing the victim to masturbate his penis in the woolshed).

  • (c) Sexual violation (oral connection with the victim's vagina in the appellant's bedroom).

  • (d) Sexual violation (oral connection with the victim's vagina in the lounge).

  • (e) Sexual violation (inducing the victim to perform oral sex on his penis in the lounge).

  • (f) Sexual violation (inducing the victim to perform oral sex on his penis in the garage).

  • (g) Doing an indecent act on a girl (inducing the victim to masturbate his penis in the garage).

  • (h) Sexual violation (oral connection with the victim's vagina on a number of occasions) (representative charge).

  • (i) Sexual violation (inducing the victim to perform oral sex on his penis) (representative charge).

  • (j) Doing an indecent act on a girl under 12 (inducing the victim to masturbate his penis on a number of occasions) (representative charge).

Sentencing
7

The parties were agreed that the lead charge was that of sexual violation occasioned by the appellant inducing the complainant to perform oral sex on his penis.

8

The Judge first considered the correct placement of this case within the bands set out by this Court in R v AM. 3 The culpability factors were identified as: the degree of planning and premeditation; the vulnerability of the victim; the harm to the victim; the scale of the offending; and the breach of trust. Applying these factors,

the Judge placed the offending at the top of rape band 2 or bottom of rape band three. A starting point of 12 and a half years imprisonment was adopted. An uplift of one year was added to the initial starting point to reflect the totality of the offending.

9

Because it is relevant to the discussion which follows, we set out in full the reasoning of the Judge in setting the starting point for the offending:

  • [12] What I have to do in terms of what the Court of Appeal has said, is to isolate what are called culpability factors or responsibility factors and I isolate the following culpability factors. First of all, the degree of planning and premeditation that took place over this extended period of time; the vulnerability of the victim, that she was a child roughly five, six, seven years of age at the time; the harm to the victim which has been outlined in the victim impact statement; the scale of the offending, that this took place over a lengthy period of time; and the breach of trust. These are all factors isolated by the Court of Appeal which I consider to apply to your case. However, I do take account of your lawyer, Mr Hesketh's argument that to place your offending at band 4, that is the most serious level, is to place it too high. Instead, I place your level of offending at the top of band 2, bottom of band 3, so therefore I fix my starting point in relation to the lead offences as 12 and a half years.

  • [13] It is commonly accepted by your lawyer and also the Crown that there has to be an uplift to reflect all of the offending together and therefore there is an uplift of one year. So the starting point, and I do emphasise [Mr V], the starting point is not the end point, the starting point for your offending is one of 13 and a half years' imprisonment.

10

The Judge then considered the appropriate discount for the appellant's age. He concluded that any such discount should be “of a limited degree”. 4 A discount of one and a half years imprisonment from the starting point was applied.

11

As a final step the Judge applied a discount of four years for the appellant's guilty plea and remorse leaving an end sentence of eight years imprisonment. The Judge stated:

Then I take account of the fact that you have pleaded guilty and in terms of the law you are entitled to a discount...

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