R v W CA271/96 [1996] NZCA 239; (1996) 14 CRNZ 132 (27 August 1996)

Last Updated: 21 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 271/96

ORDER PROHIBITING PUBLICATION OF NAME ADDRESS OR PARTICULARS IDENTIFYING APPELLANT

_{THE QUEEN}

v

_{W (CA 271/96)}

Coram Richardson P Gault J

Henry J Keith J Neazor J

Hearing 27 August 1996

Counsel S W Hughes for Appellant

J C Pike for Crown

_{Judgment 27 August 1996}

_{JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P}

This appeal is against a sentence of 2½ years imprisonment imposed in the High Court following pleas of guilty to three charges of sexual violation, one of those charges being rape, and two additional charges of indecent acts.

The appellant is now aged 22. The offending occurred over a period of about six months when he was 16 and the victim, his sister, was 10. It began with sexual

contact involving the appellant placing his penis on his sister’s thigh. That happened on three or four occasions. There were some ten occasions when he rubbed his penis across her vagina. On later occasions he inserted his fingers in her vagina. That led on to inducing her to perform oral sex on him. Finally, on three separate occasions, full intercourse occurred.

The offending came to light some 5 years later when the victim exhibited behavioural difficulties and the offending was made known to the parents. The appellant immediately accepted full responsibility for what he had done and the harm he had caused his sister. He began counselling with a counsellor, formally a long serving Police Officer, described by the sentencing Judge as a highly regarded pioneer and expert in this area. The counsellor has concluded that it is unlikely in the extreme that the appellant will reoffend.

A short time after the offending became known to the family the young victim indicated that she wished to make a complaint. The appellant immediately went to the police and volunteered what had occurred and pleaded guilty at the first opportunity.

There was, and is, no question that this was very serious offending. It was common ground that s 128B of the Crimes Act required a sentence of imprisonment unless, having regard to the particular circumstances of the offence and the offender, the court was of the opinion that the offender should not be sent to prison. Section 5 of the Criminal Justice Act 1985 also applied, creating a statutory presumption of a fully custodial sentence unless there were special circumstances of the offending or of the offender requiring a lesser sentence.

The sentencing Judge emphasised the age of the victim, the relationship of trust between the appellant and the victim, and the nature of the offending and the

length of time over which it had occurred. There were six further features which he took into account:

1. Sexual abuse of the appellant by an older male that had begun shortly before the appellant started to abuse his sister, and continued over a sustained period, including indecent touching, oral and anal sex. It seemed to the counsellor that the appellant was trying to resolve his own sexual confusion arising from the homosexual abuse to which he had been subjected.

The Judge concluded that while not excusing the way in which the appellant had abused his sister, that provided some explanation as to why he had behaved in that intolerable manner.

2. The appellant’s youth at the time of the offending. The Judge noted that the existence of a youth justice approach, which would have applied had the offending come to light at the time it was committed, should not be totally disregarded by a sentencing court now.

3. The immediate acceptance of full responsibility when confronted with the offending and the undertaking of appropriate counselling.

4. Support within the family and in the wider community, with the parents having acted commendably in endeavouring to provide appropriate support for both of the children.

5. The period of more than 5 years with, the Judge accepted, a total absence of any further offending. In that time the appellant had completed an

apprenticeship and had bought a house with his fiancé, who supported him notwithstanding the offending.

6. The position of the victim. Clearly she had undergone acute emotional distress. The reports to which the sentencing Judge referred attested to the difficulties she had faced. Shortly before sentencing, and while staying with her uncle and aunt, she wrote a letter of forgiveness of her brother, stating that she did not want him to go to jail as she still loved him and knew he was sorry for what he had done. In that regard the Judge recognised that, while nothing improper had occurred, there must have been pressures surrounding the victim throughout the period and before she wrote the letter.

The sentencing Judge referred to a number of decisions involving offending within the family, particularly those by young people. Clearly he weighed very carefully the need for imprisonment and the term of the sentence. He noted that while the condemnation of the appellant’s conduct and the restatement of the abhorrence of right thinking people about the behaviour involved could not be under-estimated, the actions of the appellant from the moment of disclosure had ensured that the victim had been reassured that she was not to blame, and further, that there was nothing to suggest that anybody required present protection from further abuse from the appellant. Nonetheless, he said, he found himself forced to conclude that in the light of the plain words of the statute and the interpretative decisions of the Court of Appeal and the consistent approach of the High Court, those compelling factors which he had identified did not, even in concert, overcome the statutory presumption requiring a term of imprisonment and that the minimum term that he could properly impose was one of 2½ years.

Ms Hughes for the appellant and Mr Pike for the Crown have carefully traversed the relevant aspects of this very difficult case. We have given anxious consideration to everything they had said. In the end we are not persuaded that the sentencing Judge erred in his reasoning and in his conclusion that the minimum sentence he could properly impose in all the circumstances was one of 2½ years imprisonment.

The factors we have listed clearly required that the case be given special consideration, as it was by the sentencing Judge in a very careful statement of the relevant matters. Giving all the emphasis we can to those six factors - and there we attach considerable weight to the victim’s own feeling that the appellant should not go to jail, and the assurances of full family support for the victim, as well as the factors affecting the position of the appellant - the offending by a 16 year old was simply too serious and protracted to allow a lesser sentence than 2½ years imprisonment.

For the reasons given the appeal is dismissed.

Solicitors

Govett Quilliam, New Plymouth, for appellant

Crown Law Office, Wellington