R v W CA165/96 [1996] NZCA 238 (9 September 1996)

Last Updated: 21 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 165/96

ORDER PROHIBITING PUBLICATION OF NAME ADDRESS OR PARTICULARS IDENTIFYING APPELLANT

THE QUEEN

V

_{W. (CA165/96)}

Coram: Henry J Tompkins J Anderson J

_{Hearing: 9 September 1996 (at Auckland)}

Counsel: R J Earwaker for the Appellant

A R Burns for the Crown

_{Judgment: 9 September 1996}

_{JUDGMENT OF THE COURT DELIVERED BY HENRY J}

This appeal is against an effective sentence of twelve years imprisonment imposed in the District Court at Otahuhu on 27 March 1996. The appellant had been found guilty at trial on eight charges of sexual violation, five of indecent assault, one of doing an indecent act, and one of assault with intent to commit sexual violation. An appeal against conviction is now not pursued. The offending occurred over a period of some ten years and involved three separate complainants.

The appellant, now aged 46 years, lived in a de facto relationship from early

1983 with a woman who then had two daughters both of whom are present complainants. The offending against complainant A commenced when the girl was 8 years of age and started by the appellant rubbing her groin, this form of indecency continuing over a period of about 2 years. Between the ages and 10 and 12 years that progressed to violation by digital penetration of the girl’s vagina. A year or so later further indecencies occurred, the girl being required to masturbate the appellant who also performed oral sex on her. The abuse continued throughout her ages of 14 to 18 years, that period resulting in four representative charges of rape being preferred against the appellant. The victim impact report discloses a number of consequences which are far reaching and are of a grave nature.

Complainant B was subjected to indecent touching between the ages of 8 and

11 years but, perhaps fortuitously, not to other abuse.

Complainant C was a friend of complainant A. On one occasion when she was

13 or 14 years of age the appellant got into her bed and assaulted her with intent to sexually violate her. When the girl was 15 years old he sexually violated her at the family home by licking her vagina. Her victim impact report also discloses serious consequences, which again need not be repeated but which are significant.

The appellant has no previous offending of relevance. The Judge rightly identified the pertinent factors as including: the duration of the offending, a period of some ten years in all; the involvement of three separate victims, two of whom were members of the appellant’s own household and for practical purposes being his stepdaughters; the ages of each victim at the time of offending being such that they were particularly vulnerable; the resulting traumatic effects on two of them; the offending being repetitive and in some instances regular and frequent; the lack of

remorse exhibited by the appellant and the failure by him to accept responsibility for these actions. As against those there are no counter-balancing or compensating mitigating factors.

As the Judge recognised, it is the totality of the offending which must govern the effective sentence. It is therefore seldom helpful in such cases as the present to attempt to analyse a final sentence by reference to those imposed count by count, or to attempt a critical analysis of the use of cumulative and concurrent sentences. It is the overall picture which is important. In viewing the present final sentence it is also relevant to note that one of the representative counts of rape falls within the increased maximum regime. The effective sentence of twelve years imprisonment here was in our view within the range available to the Judge and cannot be classed as excessive.

The appeal was lodged out of time. There will be an extension of the time for appealing to 16 May 1996, but the appeal itself will be dismissed. The appeal against conviction is also dismissed. There will be an order for final suppression of the appellant’s name, and address or of any particulars leading to his identification this being solely for the purpose of protecting the identity of the three complainants.

Solicitors

Haigh Lyon, Auckland, for the Appellant

Crown Solicitors, Auckland, for the Crown