R v M (CA 492/96) [1997] NZCA 38 (23 April 1997)

Last Updated: 3 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND C.A.492/96

Order Prohibiting Publication of

name address or Particulars identifying appellant

THE QUEEN

v

M (CA.492/96)

Coram: Eichelbaum CJ Blanchard J Heron J

Hearing: 23 April 1997

Counsel: JG Rowan & DM Goodlet for Appellant

S France for Crown

_{Judgment: 23 April 1997}

_{JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J}

This appeal is against a sentence of five years imprisonment imposed in the High Court at Wanganui on five charges of indecent assault and one of sexual violation by unlawful sexual connection (digital penetration of vagina).

The appellant is aged 40 and was before the Court as a first offender.

The complainants were friends of the appellant’s young daughter and in each

vagina while she was asleep. The appellant admitted in relation to this complainant that his finger had briefly penetrated her vagina to the depth of his first knuckle. The second complainant was aged 9. The offending consisted of touch and rubbing her vagina, including inside its lips, in two separate incidents on consecutive nights. The third victim was aged 10. There was one incident of touching of her vagina. The foregoing indecencies were not transitory. The touching continued for some minutes on each occasion. The fourth victim was

10. Here the admission was of putting vaseline onto her vagina in the bathroom after she had been in the shower.

It seems that the offending came to light because of a complaint by the fourth complainant but it had been weighing on the appellant’s conscience and that brought him to immediately confess what he had been doing in respect of all complainants, first, to the parents of the little girls, and then to the police. But for that confession much of the offending would not have emerged. The appellant did not plead guilty immediately. His guilty plea came on the morning of the depositions. But Mr Rowan has explained that the delay was caused by the refusal of the police to allow access to the video evidence prior to depositions except at the police station. That issue, one of general importance, was chosen as test case and was the subject of a ruling in the District Court.

The police were throughout aware that the appellant would be pleading guilty. It was therefore not necessary to further interview the children.

All of the offences had occurred subsequent to an investigation relating to the appellant made by the police in 1994. At that time the appellant had admitted earlier incidents of rubbing vaseline onto the vaginas of two 8 and 9 year old girls “to help relieve a rash” from which each was suffering. The police had officially warned him in respect of these actions. The similarity to what happened later in the case of the fourth complainant is readily apparent.

incident which had given rise to the warning. She referred also to the appellant’s full and frank confession. The facts indicated to the Judge a clear need for the public to be protected “for as long as possible” and for the need for the appellant to receive treatment as part of the prison sentence. Her Honour made a recommendation for such treatment during the serving of the sentence.

The Judge described the offending as “not inadvertent” and having elements of premeditation and planning but recognised that there was no violence involved. She was of the view that an “average sentence” for this type of unlawful sexual connection was “around the three year mark” and that individual sentences for indecent assault charges could be expected of “around the two year mark”. The Judge however accepted, correctly, that there can be no real tariff because of the wide variety of circumstances in which offending of this kind can occur.

The Judge took the view that a sentence in the range of 6 to 7 years imprisonment would be appropriate for the totality of the offending, with the most lenient sentence that could be imposed being one of six years imprisonment. She reduced that by one year on account of the confession and guilty plea.

In submissions on behalf of the appellant it was stressed that none of the charges was representative, all being related to particular incidents. Although at least one incident had progressed from a touching to a digital penetration, that had occurred briefly and without any force being applied or injury done to the young complainant. The victims in two of the cases were asleep during the offending and had no awareness of it. In a third instance the appellant had believed that the girl was asleep and had stopped touching her, over her clothing, when he discovered that she was awake. It was suggested by counsel that in the case of the fourth complainant the rubbing on of the vaseline in the genital area may have had some medical justification although counsel accepted that, even though there was a rash, it was obviously not appropriate for the appellant to do so, particularly after a police warning on the subject.

Counsel accepted that there were the following aggravating factors:

(a) The significant breach of trust against young children in the appellant’s care;

(b) Some premeditation and planning, but against this had to be balanced the circumstance that there was no continuing or developing offending, except in the case where offending occurred on consecutive nights; and

(c) The young age of the victims.

Against these factors, there were some elements of mitigation, namely;

(a) The appellant’s guilty plea which avoided further interviewing of young complainants;

(b) His deep remorse, which he had communicated both to the parents and personally to the Court;

(c) His keenness to pursue counselling and treatment; and

(d) The absence of any force or violence in any of the offending.

Appellant’s counsel submitted that the unlawful sexual connection ought to have been treated as being at the lower end of the scale and that the Judge was wrong to consider that sentences of about two years would have been the starting point for individual indecent assaults of the type committed by this offender. Overall, it was submitted, the starting point for a sentence based on the totality of the offending should have been no more than four to five years before any reduction for acceptance of responsibility and the guilty plea.

Notwithstanding Crown counsel’s careful submissions we are of the view that in the unusual circumstances of this case the sentence which the Judge arrived at was more than was called for. The starting point of six years cannot be said to be too severe for this combination of offending on four little girls.

We agree with Mr France that the duration of the incidents with the children who were sleeping or thought to be asleep, and their ages, means the offences were not individually at the lower end of the scale. There was also the warning which the appellant did not heed and a degree of premeditation in the making of the sleeping arrangements.

However, the appellant was deserving of substantial credit for his preparedness not only to admit the offence in respect of which there was a complaint but also those which would otherwise have gone undetected. He should no longer present a danger now that his offending is out in the open and can be addressed by the appropriate counselling in one of the available programmes which can be undertaken during his prison term. The protection of the public does not require a sentence of the length which was imposed. It also appears that the impact of his offending has been minimal because no force was used and because in two cases the children were quite unaware of what was occurring.

In the circumstances we have concluded that a proper sentence would have been one of four years imprisonment. We allow the appeal, quash the sentence imposed in the High Court and substitute a sentence of four years.

Solicitors

Horsley Christie, Wanganui, for Appellant

Crown Law Office, Wellington, for Crown