The Queen v M [2000] NZCA 24; [2000] 2 NZLR 60 (23 February 2000)

Last Updated: 9 December 2011

PUBLICATION OF NAME IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA459/99

THE QUEEN

V

M (CA459/99)

Hearing:	23 February 2000
Coram:	Gault J Williams J Goddard J
Appearances:	M A Edgar for Appellant P K Hamlin for Crown
Judgment:	23 February 2000

JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1] The Solicitor-General seeks leave to appeal against a sentence of imprisonment for two years suspended for two years with nine months periodic detention and two years supervision with counselling conditions imposed on the respondent in the District Court at Otahuhu on 29 October 1999. The offences for which the respondent was found guilty by a jury were sexual violation by unlawful sexual connection (digital penetration) and indecent assault on a girl under the age of 16 (two instances).
[2] The material facts can be stated briefly. The 15 year old complainant was a friend of the respondent’s daughter and the offences took place during a weekend sleepover. The respondent was said to be a father figure to the complainant and encouraged the complainant to treat the house as her own. On the first occasion, the respondent had been out drinking. On returning home he found the complainant asleep on the couch. The first indecent assault related to the respondent touching the complainant’s thigh with his hand inside a large foam novelty glove, for a couple of minutes. The following night the respondent, the complainant and the respondent’s daughter went to a bar, drank and played pool. On the way home the respondent suggested that the complainant stay another night and she accepted. When they returned to the respondent’s home the complainant went to sleep on the couch. She awoke to find the respondent touching her genitalia and trying to kiss her. This gave rise to the second count of indecent assault. The complainant pretended to be asleep and crossed her legs to prevent the respondent continuing. He nevertheless opened her legs and inserted his finger in her vagina. This was the basis of the charge of unlawful sexual connection. The complainant heard the respondent unzip his trousers and made a show of waking up and asking for a cigarette. The respondent then asked if he could have sexual intercourse with her and she refused. The following day the respondent offered what the Judge described as a “clumsy acknowledgement” of his wrongdoing. When Police spoke to him he acknowledged there had been inappropriate behaviour but admitted only to kissing and touching.
[3] When imposing sentence the Judge referred to the sexual violation charge as the most serious and accepted that s128B(2) Crimes Act 1961 required a sentence of imprisonment in the absence of particular circumstances of the offence or offender indicating otherwise. He found no such circumstances. He approached the appropriate term of imprisonment by taking R v Jackson (1997) 14 CRNZ 569 as dictating a starting point of four years but considered that case to be more serious than this case essentially because in Jackson he saw a greater breach of trust, more serious impact on the victim and an element of gratification (evidenced by ejaculation) not found in this case.
[4] The Judge then identified certain “mitigatory facts” as follows:

...the offending was short in duration, that there was no element of gratification or ejaculation although the behaviour may be seen as a preliminary, that you recognised your wrongdoing and attempted to make amends and that you acknowledged your inappropriate behaviour to the Police. In addition, there are a number of personal features advanced by Mr Edgar, your long term personal problems with dyslexia, and long term alcohol problems which resulted in a marriage break up. Added stressors have arisen from that. You have had the care of four children, you have been involved in building a home, you have been involved in attending to the education needs of the children which has had as a concomitant aspect, long distance travelling and you have had considerable financial pressures.

You have, in my view, to your credit attempted to address your alcohol abuse, and you were accepted at one time for the Bridge programme. As far as sexual aggressiveness is concerned, your former wife found it hard to accept the behaviour for which you have been sentenced, and she probably would know better than any.

[5] The Judge then determined the duration of the sentence stating:

If anything, I consider that your offending was unpremeditated and completely opportunistic. My view of the matter considering all of the factors puts this in the range of two to two-and-a-half-years, and giving you credit for your past good conduct and your actions since the offending, I set the sentence of imprisonment that should be imposed at two years.

[6] From that point the Judge went on to decide that the sentence could be suspended under s21A Criminal Justice Act. He considered the respondent should be encouraged in his rehabilitation efforts.
[7] While weight must be given to the advantage enjoyed by the Judge in having presided over the trial, the manner in which he rejected the claimed impact on the victim as “overstated” and emphasised the absence of gratification – the digital penetration notwithstanding, conveys the impression of a process of reducing the sentence below the level at which it should have been fixed in order to bring it within s21A. That would be contrary to principle.
[8] The submissions for the Solicitor-General are that the appropriate sentence should be more than two years imprisonment so that suspension is not open, but, in any event, suspension is precluded by s5 Criminal Justice Act which requires, in the absence of special circumstances, a full time custodial sentence where the offending involves “serious violence”. R v Accused (1994) 11 CRNZ 471 was relied on in this respect.
[9] This Court has not attempted to set any tariff for cases involving sexual violation by digital penetration, but the cases show sentences fixed against starting points ranging from two to five years on conviction after trial and before allowing for mitigating factors: R v K CA82/98, judgment 15 June 1998, R v Talataina (1991) 7 CRNZ 33 (a decision preceding the increase in 1993 in maximum sentence).
[10] The appropriate sentencing level depends upon the circumstances of the offending. But even in those cases placed at the bottom of the range rarely have suspended sentences been upheld: see e.g. R v Accused (CA62/94), R v C CA43/98, judgment 28 May 1998, R v Jackson (1997) 14 CRNZ 573.
[11] Upon a careful review of the offending in this case we are satisfied that a sentence of two years is inadequate. Accordingly, no issue of suspension arises.
[12] Rather than placing the offending at the bottom of the range of seriousness as the Judge did, we see in the three offences and the surrounding circumstances criminality at a higher level. The touching incident on the first day, while superficially minor is to be seen in context and against subsequent events.
[13] The complainant was a vulnerable 15 year old with a troubled home life. She plainly saw the respondent as someone in whom she placed trust. Yet she was permitted, if not encouraged, to consume alcohol with the respondent and was invited to stay at his home for a second night. She was then subjected to abuse, initially while she was asleep and while the respondent believed she was asleep so that he had no basis for any assumption that his acts would be welcomed. His intentions were clear from the unzipping of his trousers and only the actions of the complainant stopped him.
[14] The impact on the victim was described in a full report prepared by a registered psychologist. This reads as a balanced report, carefully emphasising that not all the trauma she has experienced is attributable to the offending. The Judge’s comments about overstatement may have been directed to the reference in the report to the comment that there was some evidence the perpetrator was grooming the complainant for sexual abuse. Even if that is set aside, however, the report describes all too familiar on-going and recurrent symptoms flowing from the abuse and from her experience of intense fear that she would be raped.
[15] We have carefully reviewed the mitigatory factors referred to by the Judge. Some of those are simply comment on the absence of aggravating factors. The absence of “gratification” by ejaculation is in that category. The emphasis on the attempt to make amends and address problems, when analysed, seems to be no more than his comment the following morning about having been a “jerk”, to an attempt to address alcoholism through the Bridge programme in 1993 and the making of an appointment for assessment by SAFE after conviction and more than a year after offending. There was no guilty plea to attract credit. The inclusion of alcoholism as among mitigatory factors would seem inconsistent with s12A Criminal Justice Act, and the family responsibilities were exaggerated.
[16] Overall we consider, with respect, that the Judge must be regarded as having gone too far in attempting to extend leniency to the appellant.
[17] We are satisfied the sentence must be increased and a full time custodial sentence imposed. Mr Edgar invited us to adopt the course suggested in R v Donaldson (1997) 14 CRNZ 537 of drawing attention to the inadequacy of the sentence but leaving it in place to avoid the unfortunate situation of the respondent being brought back into custody. The seriousness of the offending is such that we are not prepared to take that course.
[18] Accordingly, leave to appeal is granted. The appeal is allowed. The sentence is quashed and, conscious that it is a Solicitor-General appeal, we substitute a sentence of imprisonment for three years.
[19] The respondent is required to surrender himself to the police at Auckland no later than 10.00am on the morning of Friday 25 March.

Solicitors

Crown Solicitor, Auckland