THE QUEEN v ROBERT GORDON SAND [1999] NZCA 132 (29 July 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 146/99

THE QUEEN

V

ROBERT GORDON SANDAY

Hearing:	29 July 1999 (at Auckland)
Coram:	Henry J Anderson J Robertson J
Appearances:	DJ McNaughton for Appellant KBF Hastie for Crown
Judgment:	29 July 1999

judgment of the court DELIVERED BY ROBERTSON J

[1] On 5 March 1999 Robert Gordon Sanday appeared in the District Court at Otahuhu charged with rape.He indicated that he wished to plead guilty to the charge and a plea was duly received and he was remanded for sentence on 13 April.

[2] He was sentenced to 8½ years imprisonment.He appeals against that sentence on the basis that it is in all the circumstances wrong in principle and manifestly excessive particularly in as much as it failed to give sufficient credit for his very early plea of guilty, failed to take into account the public interest in encouraging offenders to confess their crimes and that the sentencing Judge gave too much weight to the aggravating features of the matter.

[3] The complainant is 31.She has severe intellectual disability resulting from maternal Rubella.She has been registered with IHC since she was 2½ years old and requires 24 hour supervision and a high level of support with independent living skills, including personal hygiene, household chores, mobility and self care.She is blind in one eye and has a hearing impairment for which she wears a hearing aid.

[4] She lives in a home run by a private trust for persons with disabilities and attends on week days an Intellectually Handicapped Day Service Centre.

[5] The appellant who is now 28 years of age commenced employment at the IHC Day Service Centre where she goes each week on 4 March 1998.He was employed to carry out general duties with regard to the persons attending the centre including assisting staff members who were working with those attending.

[6] Between July and November of 1998 the appellant supervised a computer activities group.The victim was one of four people involved in that on a regular basis for 2 hours every Wednesday morning during that period.

[7] On one occasion the appellant took the victim to a toilet situated at the premises.First he pushed her to the floor in a sitting position and then using his left arm to pin her down into a lying position he used his right arm to remove her track pants.The victim screamed but could not communicate in any other way as she is unable to speak.While lying on the floor the appellant penetrated her vagina with his penis.He eventually withdrew prior to ejaculating on to his own right hand.The two people were in the toilet for about 20 minutes during which the victim was screaming in a high pitched sound which is the only way she has to communicate her feelings.After the incident the appellant cleaned himself and replaced the clothing he had removed from the victim.He then took her back to the computer activities room.

[8] On 22 February 1999 the defendant approached an officer of IHC and outlined what had occurred.He repeated his confession to a Regional Service Adviser a day or two later.The following week he went to a police station where he again repeated his confession.In explanation he said he had raped the complainant on the spur of the moment, that he felt guilty and ashamed and he wanted to face up to what he had done.

[9] This 28 year old married man has not previously appeared before the Court.

[10] The sentencing Judge properly identified the significant aggravating features which existed and which had been acknowledged on behalf of the appellant including the severe breach of trust with a person who was disadvantaged and involved imposing his will upon a person who to a large extent was helpless.There was a degree of force involved in the commission of the offence and as would be anticipated there were significant ongoing effects on the victim.

[11] The Judge also noted the early plea of guilty, the fact that the appellant had made a confession voluntarily and that it was a situation where without that disclosure the crime may not have been detected.

[12] The sentencing note indicates that the Judge said the starting point for a "non contested rape is 8 years".We assume that is a transcription error as 8 years is the starting point for a contested hearing R v A [1994] 2 NZLR 129.The Judge concluded that the aggravating features clearly outweighed the mitigating ones and determined that the appropriate penalty was 8½ years imprisonment.

[13] Mr McNaughton in a commendably succinct submission argued that there is a strong public interest in encouraging offenders to approach the police and confess to crimes and submitted that offenders considering whether to approach the police could be dissuaded from doing so because of the perception that they will be dealt with just as harshly as those offenders located as a result of police inquiries who are forced to acknowledge their guilt when confronted with the evidence.He noted that in this case that apart from the appellant's confession there was no evidence against him.There had not been a complaint. There was no medical evidence which indicated that the offending had occurred and that if the appellant had chosen to remain silent the offence would never have been detected.

[14] The learned sentencing Judge correctly identified the issues to be evaluated but did not indicate any particular weighting.We are satisfied that because of the gross breach of trust even although it was a single incident the Crown is correct when it submits that a sentence of 11 years would have been justified after trial.

[15] The nub of the appeal is what allowance should be given in respect of an offence which is totally self referred and in which every allowance for remorse, co-operation and factors associated with a plea of guilty must be available.In the unique circumstances we are satisfied this would justify a very substantial deduction which must be at least a third to recognise the powerful factors supporting a discount.

[16] We are persuaded that there was an insufficient recognition of the very unusual circumstances and that the justice of the case would be met by the imposition of a penalty of 7 years imprisonment.The sentence of 8½ years imprisonment must necessarily imply a starting point of 12 to 13 years which despite the gross breach of trust, the special relationship and the importance of deterrent and condemnatory sentencing is more severe than is called for.

[17] The appeal is accordingly allowed and the sentence of 8½ years is quashed and substituted with that of 7 years imprisonment.

Solicitors

Crown Law Office, Wellington