IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA37/2022
 [2022] NZCA 137

	
BETWEEN	
NATHAN LAWRENCE WEBB
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
28 March 2022	

Court:	
Gilbert, Woolford and Dunningham JJ	

Counsel:	
J C Hannam for Appellant
J M Marinovich for Respondent	

Judgment:	
21 April 2022 at 9.30 am	

JUDGMENT OF THE COURT

A		The appeal against sentence is allowed.
B		The sentence of nine years and six months’ imprisonment on the charge of rape is set aside and a sentence of nine years’ imprisonment is substituted.
____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

[1]	On 19 November 2021, Nathan Lawrence Webb was sentenced to nine years and six months’ imprisonment on charges of injuring with intent to injure, wounding with intent to injure and sexual violation by rape.  He now appeals against sentence on the ground that the sentence is manifestly excessive.
Factual background
[2]	The complainant in each case was Mr Webb’s partner.  As to the first charge, at around 8.30 am on 11 January 2020, the complainant was asleep in her bed as Mr Webb stood over her.  Mr Webb lashed out and struck the complainant once in the mouth with a closed fist, causing her top lip to split open.  Mr Webb packed a bag and told the complainant he was setting her free as he left the room.  The complainant had approximately five stitches to repair the injury to her upper lip.  Mr Webb told police it was only a little jab and it was self-defence.  
[3]	As to the second and third charges, the complainant was residing in temporary accommodation at a motel.  Sometime between 20 May and 3 June 2020, Mr Webb was present at the complainant’s motel unit.  The complainant was lying on her bed talking with her children on Facebook.  Mr Webb thought she was chatting up men.  He called the complainant a slut and said, “I’ll eat you alive bitch”, at which time he reached over and bit the complainant on her right breast.  The complainant suffered a wound caused by Mr Webb’s teeth and significant bruising around the wound.
[4]	At around 5.00 am on 3 June 2020, Mr Webb went around uninvited to the motel unit where the complainant was asleep in her bed.  Mr Webb opened the window beside the front door, reached through and unlocked the door.  Once inside, he got on top of the complainant, pinning her to the bed and calling her a cheating slut.  Mr Webb struck the complainant at least twice in the face as she attempted to fight back while struggling on the bed.  
[5]	Mr Webb then removed his clothing and got back on top of the complainant.  He put his penis into the complainant’s vagina without her consent and raped her on the bed.  When the complainant told Mr Webb that she was going to call police, he grabbed a knife and told the complainant he would cut her head off.  
[6]	A neighbour in the next-door unit called police after hearing loud banging and Mr Webb yelling at the complainant.  As a result of the assault, the complainant suffered swelling and bruising to her face.  
[7]	Mr Webb told Police that he had spent the night with the complainant and had consensual sex with her.  He also said that he struck the complainant twice with the back of his hand due to concerns he had that she was cheating on him.  
Reports for sentencing
[8]	In a Victim Impact Statement dated 14 June 2021, the complainant states that she suffers from regular anxiety attacks because of what had happened to her.  She also suffers from migraines and dizziness.  When she lies down at night, she feels as if she is spinning around.  She did not suffer these symptoms prior to Mr Webb attacking her.  The complainant says he would use her as a punching bag and call her derogatory names, which stripped her of all self-worth.
[9]	The complainant has been left with a permanent scar on her lip from the time Mr Webb punched her to the face on 11 January 2020 and scars and bite marks from where he later bit her on her breast.  However, she no longer sees herself as a victim, but as a survivor.  Her life is much better now without Mr Webb and she is proud of the progress she has made.
[10]	Mr Webb has five previous convictions for family violence, but has not been sentenced to imprisonment previously.  The Provision of Advice to Courts (PAC) report from the Department of Corrections dated 28 August 2021 identified alcohol use, attitudes, relationships and violence as offending-related factors.  It assesses Mr Webb as having a moderate risk of reoffending and a high risk of harm to others based on his current convictions and the amount of harm caused to the complainant.  In explanation for the offending, Mr Webb is said to have taken little responsibility for his offending and appeared to blame his complainant.  The report recommends imprisonment.
[11]	A psychiatric report from a consultant forensic psychiatrist dated 27 August 2021 found Mr Webb did not have a mental illness, but he clearly had a significant substance abuse history for which he had received rehabilitation services in the past.  The psychiatrist also notes a longstanding history of family violence involving several partners.  The report records Mr Webb’s advice that he intended to continue with substance rehabilitation and anger management therapy in future.  
[12]	A Specialist Whānau Cultural Assessment report dated 17 November 2021 sets out the personal, family, whānau, community and cultural background of Mr Webb and the way in which that background may have related to the commission of the offences.  The cultural report notes Mr Webb’s core beliefs, values and life as being largely impacted and influenced by the social norms of excess and normalised abuses of alcohol and drugs along with whānau harm, violence and crime.  
[13]	Mr Webb’s parents had a violent relationship that significantly impacted Mr Webb as a child.  Mr Webb was also sexually abused as a young child.  The abuse started when he was between five and 10 years of age.  It carried on through later care arrangements with extended family and at times with the state.  The cultural report refers to him as an eight-year-old being kidnapped by a gang and abused during his detention.  The cultural report concludes that the exposure to sexual harm and trauma Mr Webb endured over his early lifetime and through to his teenage years had severed any societal values and norms, regardless of indigenous or cultural context.
District Court sentencing
[14]	Judge G F Hikaka took the charge of sexual violation by rape as the lead offence.  He referred to the guideline case of R v AM (CA27/2009).  The Judge noted agreement of counsel that Mr Webb fell within the second band identified in AM, which encompasses a range of seven to 13 years’ imprisonment.  The Judge adopted a starting point on the charge of rape midway in the second band of 10 years’ imprisonment.  That starting point was uplifted by two years to take account of the other two violence charges.  The Judge also uplifted the sentence by nine months to take into account Mr Webb’s criminal history and the fact that he was subject to a sentence of intensive supervision at the time of the first offence and on bail for the first offence when he committed the second and third offences.  
[15]	The Judge then applied a 15 per cent discount for Mr Webb’s guilty pleas and a further 10 per cent to take account of the traumatic background identified in the cultural report.  After making the necessary uplifts and discounts, the Judge’s final sentence was of nine years and six months’ imprisonment, which he imposed on the charge of sexual violation by rape.  The Judge also sentenced Mr Webb to concurrent terms of two years’ imprisonment for the other two violence charges.
Appellant’s submissions
[16]	Mr Webb advances the appeal on the basis that the Judge gave insufficient weight to the cultural report detailing his background circumstances.  Mr Webb submits that the 10 per cent discount given by the Judge was insufficient to truly account for the diminished culpability that his cultural background and alcohol addiction presents.  He submits that a reduction of 15 per cent is more appropriate than the 10 per cent adopted by the Judge.
[17]	In his written submissions, Mr Webb submitted that a further discount of two to three per cent could be applied to recognise his remorse.  The complainant had continued to write to him, and he was willing to engage in a restorative justice conference with her.  In his oral submissions, however, counsel for Mr Webb withdrew this as a ground of appeal on the basis of an assessment in the PAC report that Mr Webb took little responsibility for his offending and appeared to blame the complainant.
Crown submissions
[18]	The Crown submits that the discount of 10 per cent for factors raised in the cultural report is within the range available, taking into account the factors identified and the serious nature of the offending.  
[19]	The Judge was well aware from the information provided that Mr Webb’s upbringing was traumatic.  He was exposed to both family violence and sexual offending committed by family members.  The Crown submits that the Judge was cognisant of this and determined that there was a nexus between Mr Webb’s upbringing and the violent offending for which he was being sentenced.  The Judge also recognised Mr Webb’s alcohol addiction.  
Discussion
[20]	Counsel for Mr Webb refers to a number of cases where discounts for factors highlighted in cultural reports were given.  He specifically discusses three.  In Heta, on a Solicitor-General appeal, the High Court Judge found that a 30 per cent discount for personal circumstances described in a cultural report together with a 10 per cent discount for participation in a restorative justice process did not make the end sentence of three years and two months’ imprisonment on violence charges manifestly inadequate.  The Judge noted, first, that a discount for personal trauma of five to 10 per cent was available on existing authority.  Second, a combined discount for positive engagement in a restorative justice process and for remorse of up to 20 per cent would not have been out of range.  Third, a discount to acknowledge Ms Heta’s capacity to rehabilitate of five to 10 per cent would not have been inappropriate.
[21]	Here, Mr Webb has not participated in a restorative justice process and his capacity to rehabilitate is also not established.  Counsel also acknowledges a discount for remorse is not available.  The PAC report notes that he took little responsibility for his offending throughout the interview and appeared to be blaming the complainant for the circumstances.  He denied raping the complainant, reporting that she fell asleep during this time.
[22]	In Cuthbert the Chief District Court Judge allowed a 13 per cent reduction from a 69-month starting point on three charges of burglary of commercial premises in consideration of a cultural report.  Despite a lengthy discussion of Mr Cuthbert’s background, there was no discussion as to how the level of discount was arrived at.
[23]	In Moses, this Court dealt with an appeal from a sentence of eight years and four months’ imprisonment for possessing methamphetamine for supply.  The sentencing Judge had given a discount of nine per cent to Ms Moses, a 43‑year‑old woman, for her lack of any relevant prior convictions and her willingness to undertake treatment for addiction.  The Judge had, however, declined an adjournment for a cultural report, reasoning that it would not make a material difference to sentence given personal circumstances must be subordinated to denunciation and deterrence.  On appeal, this Court had the benefit of a cultural report.  It increased the discount for personal factors to 15 per cent (that is, an additional six per cent) because the cultural report pointed to a connection between her social and cultural background and her offending.  The report also pointed to prospects of rehabilitation, which the Court thought merited recognition.
[24]	In the present case, while a discount is clearly warranted on account of Mr Webb’s traumatic upbringing and culturally and socially deprived background, which are reflected in aspects of his offending, prospects of rehabilitation are problematic.  The cultural report queries whether Mr Webb has an adequate understanding yet of the impact he had on the wairua of his complainant.  The cultural report also notes:
Nathan is not motivated to embrace any journey of enhancement to his cultural identity or knowledge base for himself or for his place in the world of Te Ao Māori, however, the conversation needs to be continued to demonstrate the unseen opportunities.
[25]	In those circumstances, we cannot say that a 10 per cent discount is inadequate to take account of the cultural factors which have driven Mr Webb’s offending.
[26]	There was no issue taken with the starting point adopted by the sentencing Judge or the various other uplifts or discounts applied.  However, during the course of the hearing we queried the uplift of nine months to take into account Mr Webb’s criminal history and the fact that he was subject to a sentence of intensive supervision or on bail at the time of the offending.
[27]	An uplift for criminal history must be proportionate to the sentence imposed for the previous offending.  An uplift is unlikely to be proportionate if it exceeds the prior sentence.  In the present case, Mr Webb has one previous conviction for contravening a protection order, two previous convictions for male assault female, and two previous convictions for assault on a person in a family relationship.  None resulted in a term of imprisonment.  Mr Webb received sentences of community work or intensive supervision.  An uplift of nine months’ imprisonment is therefore clearly disproportionate to the community-based sentences he had previously received.  Mr Webb is being doubly punished.
[28]	While in some circumstances, an uplift can be given for offending while on bail or sentence, we are of the view that none is warranted in the present case.  The starting point adopted was towards the top end of the available range in terms of the second band of R v AM.  An uplift of two years’ imprisonment was ample to reflect the totality of Mr Webb’s offending and we consider the discount for cultural factors was at the lower end of what would be available.  Standing back and looking at the overall approach, we consider an end sentence of nine years’ imprisonment is sufficient to meet the purposes and principles of sentencing in this case.  
Result
[29]	The appeal against sentence is allowed.
[30]	The sentence of nine years and six months’ imprisonment on the charge of rape is set aside and a sentence of nine years’ imprisonment is substituted.  

Solicitors: 
Hannan & Co Lawyers Ltd, New Plymouth for Appellant
Crown Solicitor, New Plymouth for Respondent