THE QUEEN v DERYCK ALLEN DOAR [1999] NZCA 68 (5 May 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca118/99

THE QUEEN

V

DERYCK ALLEN DOAR

Hearing:	5 May 1999 (at Auckland)
Coram:	Blanchard J Anderson J Robertson J
Appearances:	C Muston for Appellant C B Cato for Crown
Judgment:	5 May 1999

judgment of the court delivered by blanchard J

[1] The appellant pleaded guilty to two charges of sexual violation, one charge of aggravated wounding, two charges of burglary and one of arson.He was sentenced to 12 years imprisonment on each of the two sexual violation charges and on the charge of aggravated wounding.On the two burglary charges he was sentenced to six years imprisonment, and on the arson charge to two years imprisonment, making a total of 12 years imprisonment.He appeals against that sentence.

[2] The charges arose out of a rather bizarre series of events.The complainant was a 30 year old American woman who now lives in London.She was on holiday in New Zealand at the time and on the night in question she was staying in a motel in Rotorua.The complainant had fallen asleep on the sofa in her unit while watching television.At about 10:00pm she was awoken by the appellant who had climbed in through the rear window of the unit.The appellant fled when the complainant screamed on awaking to find him standing in the lounge.The matter was referred to the police, and Victim Support was called as the complainant was in a distressed and agitated condition.

[3] Shortly after midnight the Victim Support people left and the manager of the motel secured all the complainant's windows before leaving.At about 4:00 am the appellant returned to the complainant's unit.He went to some effort to break into her unit, first by burning a piece of clothesline and attempting to unlatch a window at the rear, and then attempting to use the piece of cord to unlatch the front door.He finally gained entry to the unit by climbing up and removing two louvres from a window beside the front door.

[4] The appellant went into the complainant's bedroom where he went through her belongings and took about $25.00 in cash and a number of credit cards.The complainant was asleep on the couch in the lounge of the unit at the time.The appellant then went into the lounge and watched the complainant sleep for about 15 minutes before going over to her and placing his hand inside her bike shorts and placing his fingers inside her vagina.He then removed her bike shorts. The complainant slept through all of this.He continued to fondle her genitalia and also performed oral sex on her by placing his tongue inside her vagina.He then began to fondle her breasts and started kissing her on the lips.

[5] At this point the complainant awoke and, on seeing the appellant, started screaming.In the struggle that followed the appellant threw the complainant to the floor and attempted to smother her with a pillow.The appellant punched her in the face three times, rendering her unconscious.He then went to flee the unit, but, realising that he had left fingerprints in the bedroom, he ran into that room, gathered some pieces of paper together, and lit a fire in the centre of the double bed.He then ran from the unit, leaving the complainant lying unconscious on the floor and the bed on fire.

[6] The complainant awoke a short time later and managed to walk out of the unit in a shocked and distressed state.She was met by other guests who came to her aid.The manager was able to extinguish the fire, which was confined to the bed.The appellant went to a local nightclub after fleeing the unit, but discarded some of the complainant's property on the way.

[7] The complainant received extensive bruising and stitches to her face and was admitted to hospital for observation.She told the police that she had contemplated suicide as a result of what had happened to her.The appellant was spoken to by the police and freely admitted the facts outlined here.In explanation, he said that the first time he went into her unit it was with the intention of taking property, but when he returned the second time it was with the intention of having sex with the complainant.He says that he panicked when she starting screaming and had hit her so that he could escape from the unit undetected.He lit the fire to destroy any fingerprints, and it was not until later that he realised the whole unit could have gone up in flames while the complainant was still unconscious.

[8] The appellant has a considerable history of previous offending, but never for serious sexual offending.The sentencing Judge considered that it was necessary to look at the totality of the offending; cumulative sentences might prove disproportionate.The Judge observed that sentencing is always a matter of balance.One must stand back and look at the facts; previous sentences provide only a guide or a map.He said that the aggravating features in this case are the considerable effort that the appellant went to on two occasions to break into the unit, which on the night in question could be regarded as the complainant's home, the serious sexual offending, the rendering of the complainant unconscious, and the setting fire to the motel room to extinguish incriminatory evidence.The appellant's actions were predatory in the extreme, and he showed a callous indifference to the fate of the complainant.

[9] The Judge said that the appropriate starting point for both of the sexual violation charges was 14 years imprisonment, and reduced it by two years in light of the plea of guilty and other mitigating factors.He also imposed a sentence of 12 years imprisonment for the charge of aggravated wounding.For the burglary charges the appellant was sentenced to six years imprisonment, and for the arson charge, two years.On another charge of disqualified driving, he was disqualified for 18 months.In total, then, the appellant has received 12 years imprisonment.

[10] Counsel for the appellant accepted that the Judge was right to consider the totality of the offending and to sentence accordingly.He also accepted that a discount of two years for the guilty plea was appropriate.But he said that a starting point of fourteen years was simply too high.It was conceded that there were the aggravating factors mentioned by the Judge but counsel said that too much weight was given to the sexual violations.The victim had suffered no injuries as a result of them and it may well have been that if the appellant had not himself admitted to the penetrations they would not have come to light - that the victim may have had no awareness of them.It was submitted that her trauma in respect of them must have been relatively slight.This was not the worst possible case either of aggravated wounding or of sexual violation.

[11] For the Crown, counsel submitted that this was a bad case of predatory sexual offending.The appellant broke into premises with the intention of having sex with the victim.Sexual violations occurred.She was also assaulted, injured and then left unconscious in danger from a fire deliberately lit by the appellant.His attitude was demonstrated by the fact that he proceeded to go to a nightclub.

[12] The Crown pointed out that although there is no record of sexual offending Mr Doar has a serious criminal record involving nocturnal burglaries of homes. In this case the motel room was the victim's home for the night in question.

[13] We regard the twelve year sentence as stern but not manifestly excessive in the circumstances of this case.It was very serious offending with some particularly disturbing elements.It involved breaking into the room where a women was asleep at night with the intention of sexually violating her, she being a complete stranger to the appellant.Furthermore, so determined was Mr Doar that he was not deterred when the police were called after the first incident.The other motivation appears to have been burglary and the appellant has a prior record for such offending.

[14] Mr Doar was prepared to take advantage of the fact that his intended victim was asleep to perform gross indecencies on her.Contrary to counsel's submission he is not, in our view, entitled to any reduction in sentence because, at the time the violations occurred, the victim was not aware of them. She has to live with the discovery of what was done to her while she was asleep.To take advantage of a sleeping woman for sexual purposes is despicable conduct.The fact that indecencies had occurred would have been apparent to the complainant from the manner of her awakening.In our view the credit to which the appellant is entitled for admitting to the particular acts of sexual gratification is adequately reflected in the discount for the guilty plea.

[15] The next disturbing matter is the attack on the complainant involving the use of a pillow to try to smother her and then punching her so that she was rendered unconscious.If that were not bad enough, Mr Doar callously lit a fire in order to conceal his involvement and left the scene when he must have appreciated the great danger to his unconscious victim from smoke inhalation. The statement of facts reveals that the complainant was affected by smoke but, luckily for herself and for the appellant, she was able to escape from the room.As Mr Cato submitted for the Crown, the appellant's attitude was amply demonstrated by the fact that he went straight to a nightclub.While he may have been intoxicated, he was quite capable or planning and carrying out his offending and, as we have said, he must have realised the dangerous situation in which he had left his victim.

[16] The totality of this offending called for a very substantial sentence and we are not persuaded that twelve years was too much.

[17] The appeal against sentence is dismissed.

Solicitors

Crown Solicitors, Auckland