THE QUEEN v KEITH GALLIERS [1999] NZCA 56 (27 April 1999)

PUBLICATION OF NAMES IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE court of appeal of new zealand

ca52/99

THE QUEEN

V

KEITH GALLIERS

Hearing:	27 April 1999 (at Auckland)
Coram:	Eichelbaum CJ Gault J Robertson J
Appearances:	P Hayman-Halton for Appellant J C Pike for Crown
Judgment:	27 April 1999

judgment of the court delivered by GAULT J

[1] The appellant was found guilty by a jury in the District Court at Rotorua on three counts of indecent assault and one count charged as attempted indecent assault.Following a conviction on all counts he was sentenced to 12 months imprisonment without the Judge specifying how that sentence applied to the individual offences.The appeal is against this sentence.An appeal against conviction originally notified was abandoned and is deemed to be dismissed. There arises a point in respect of count three to which further reference will be made.

[2] The assaults occurred in November and December 1997 and involved 14 year old complainants, one a friend the other a relative of a young woman who was then living with the appellant.The first incident with the female complainant occurred when the appellant met her for the first time at his home.She gave evidence that she was at the appellant's house visiting her friend.The appellant greeted her and straight away gave her a hug and took her onto his lap.He then put his hand down her pants and rubbed her vagina through her underpants.On the same occasion he pulled her t-shirt up out of her pants and touched her breasts under her shirt.These events were charged as attempted indecent assault.

[3] In the second incident involving the same complainant the appellant was said to have simulated sexual intercourse by lying on top of her on a bed at his home.Both were fully clothed.

[4] The second complainant is a male, and lived near the appellant.On a visit to the appellant's home to see the young woman who was living with the appellant and to whom he was related, the complainant was approached by the appellant who was clad only in a t-shirt after a shower and who rubbed the complainant's thigh and testicles through his clothes.The charge in relation to this incident was presented as a representative count to cover at least one other similar act of touching.

[5] The incident giving rise to the remaining count involved the same young male complainant who was using the shower at the appellant's home.The appellant undressed and entered the shower with the complainant and attempted to masturbate him.The complainant was also made to masturbate the appellant.

[6] The substantial issue at trial was the credibility of the complainants and the appellant.The appellant maintained that none of the events occurred and still does.However, the appeal is limited to the sentence.For the appellant it was submitted that the sentence should have been suspended but if not suspended should be reduced as manifestly excessive.

[7] The sentencing Judge considered a suspended sentence as is clear from his analysis of the decision in R v Westaway (CA137/98 judgment 23 June 1998) which was cited to him.In that case this Court allowed an appeal against a sentence of imprisonment for six months by suspending that sentence for two years.In Westaway the Court referred to R v Meredith-Blyde CA245/95, judgment 19 July 1995 where it was said that in appropriate circumstances a suspended sentence is open for consideration in cases of indecent assault.

[8] In the present case the sentencing Judge compared the facts with those in Westaway and concluded that a suspended sentence would not be appropriate.He noted that in Westaway there was a single offence at the lowest end of the scale while in this case there were several offences, the last of which was rather more serious, and all of which had a substantial impact on the victims.The Judge concluded that the sentence of imprisonment for 12 months was appropriate to mark society's rejection of this type of conduct and to indicate to others that they may face a term of imprisonment if they indulge in it.

[9] It is common ground that the general principle as stated in R v F CA242/89, judgment 27 October 1989 is that in cases of sexual offending against children unlessexceptional circumstances exist, a sentence of imprisonment should be imposed, particularly where there is a breach of trust involved.It was submitted for the appellant, however, that a suspended sentence is appropriate in the case of the present appellant having regard to a lack of aggravating features in the offending, his good prior record with no previous convictions, a positive work background and strong community support. It was submitted that there was little likelihood of re-offending.

[10] In an attempt to minimise the seriousness of the offending counsel for the appellant responsible for the written submissions - not Ms Hayman-Halton - contended that the victims should not be regarded as in the category of "children" being 14 years of age.He mentioned that they would fall within the category of "young persons" within the Children, Young Persons and their Families Act 1987.It was submitted also that one of the complainants could be described as "a street kid" and so could be regarded as having a hardened attitude and that there would be little effect from the appellant's actions. We have little doubt that both complainants were at an age where they were vulnerable and the circumstances were such that the conduct of the appellant in relation to them must be seen to have an element of predation.The element of trust common in parental and guardianship circumstances may not have been present, but the appellant undoubtedly had a responsibility towards these young people visiting his home.These particular arguments can carry no weight.

[11] For the Crown it was submitted that there were no special circumstances which would justify a suspended sentence for this appellant.Reference was made to the repeated offending with two complainants and the point was properly made that absence of aggravating features does not constitute mitigation.It was submitted that given the nature of the offending the fact that the appellant has refused to accept responsibility for what had occurred and the age of the victims a sentence of 12 months imprisonment should be seen at the lower end of the available range.

[12] It was submitted that the Judge did not review the applicable principles for suspension as expounded in R v Peterson.The Judge referred in general terms to these principles without elaboration but we have not been convinced that he overlooked any material matters.

[13] The appellant is 53 years old with no previous convictions and is entitled to call in aid his past record and community involvement but against this there must be weighed a course of conduct of repeated offending involving two young persons and the need for the sentence to reflect the totality of offending. Further, questions of rehabilitation are confronted by the continuing denial of any wrongdoing.We think the case cannot really be distinguished from Meredith-Blydewhere in somewhat similar circumstances this Court refused to interfere with the exercise of the discretion of the sentencing Judge to decline to suspend a sentence of imprisonment of 53 weeks.The number of offences and their seriousness put the case in a quite different category from Westaway.The sentence was one open to the Judge for the total offending.

[14] The charge of attempted indecent assault (count 3) appears to have been an error.There is no such offence and the complaint was of actual touching albeit through clothing.The only issue at the trial was whether or not the incident occurred.Plainly the jury accepted the evidence of the complainant and in that case the appropriate course is to accede to the request on behalf of the Crown and substitute under s386(2) Crimes Act 1961 a conviction for the offence of indecent assault.Clearly that is what was proved.

[15] In respect of each of the four offences the sentence of one years imprisonment is confirmed and the appeal dismissed.

Solicitors

Crown Law Office, Wellington