R v G CA358/00 [2000] NZCA 430 (30 November 2000)

Last Updated: 18 January 2019

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA358/00

THE QUEEN

V

G

Hearing:	30 November 2000
Coram:	Gault J Robertson J Penlington J
Appearances:	R A A Weir and A P Neems for Appellant K Raftery for Crown
Judgment:	30 November 2000

JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1] G was found guilty following a second jury trial in the District Court at Auckland on five counts of assaulting a child under the age of 14 years, four of which related to one of his sons, R, and the fifth related to another son, M. He was subsequently sentenced to three years imprisonment. This was effected with sentences of one year in respect of an offence involving the use of a knife against R, and eight months in respect of each of the other three counts involving R, all sentences to be served cumulatively. He was also sentenced to 18 months imprisonment in respect of the offence involving M, this sentence concurrent with the sentences for the offending in respect of R. The sentence of three years was expressed to be cumulative upon a sentence of seven years imprisonment imposed in May 1999 on G in respect of offending committed on three of his daughters. G appeals against his sentence of three years imprisonment on the ground that it is manifestly excessive in the circumstances.
[2] The offending occurred between 1969 and 1976 when G’s two sons were young children. They are now both grown men. G has been described as a violent man who took his anger out on his children when they, in his opinion, misbehaved. While four of the charges on which he was found guilty related to R, it appears that the Crown initially took the view that M was the primary victim. But the appellant was found not guilty of other more serious charges involving M, being of wilful ill-treatment (cruelty) of M and injuring with intent to injure.
[3] In relation to R, the evidence established that he received occasional beatings with a garden hose and with jug cords which left marks on his body. He wore long clothes to cover the bruises and avoid difficult questions. From evidence given by R, he received this sort of abuse about once a month. While the abuse generally involved a jug cord or the garden hose, the appellant also progressed to hitting the complainants with his fists. On one occasion recounted by R, the appellant became angry when one of the children played with the horn switch in the car so that the horn sounded when the appellant turned on the ignition. The appellant hit the child responsible and then because R was in the front seat, he punched him in the side of his head causing his head to strike the side window of the car. R was about 12 years old at this time.
[4] The worst incident involving R, and the incident for which the appellant was sentenced to one year imprisonment, involved a knife. A similar incident occurred with M and this was the subject of the single count upon which the appellant was convicted in relation to M. The sentencing Judge described the incident in the following terms:

My notes summarising the evidence of this were that [R] said he used to wet the bed until he was nearly 14. “It started at [X], it made my father very unhappy. One night after this had occurred, he got me out of bed together with my sisters and brothers.” He told [R] to put his penis on a chopping board. [R] was aged about 12 years then. He said he was going to intermediate school and you, the prisoner got a bread knife and slammed it down on the board inches away from his penis. He ran off frightened, he just wanted to run away from his father he said and hid under the bed. [R] said in evidence that he has a boy who is 12 and who wets his bed but he would never treat him like that.

[5] The Judge recorded in the sentencing notes that he took into account the age of the appellant when sentencing, as well as the fact that he is currently serving a sentence for offences committed against his daughters. Contrary to submissions made for the appellant the Judge did not take into account the intellectual functioning of the appellant as there is no evidence that he suffered from any impairment at the time the offences were committed. These matters were all that was available to be taken into consideration in terms of mitigation. The appellant expressed no remorse for his offending and according to the police interview considered it normal to treat children this way, although perhaps recognising that punishment methods may have changed in modern times.
[6] Counsel for the appellant had submitted that any sentence passed should be concurrent with the sentence currently being served by the appellant because they are all part of the same pattern of offending. The Judge rejected this submission.

Mr Weir submitted to me that having regard to your age and other matters I should simply impose concurrent sentences today, that is to say, concurrent with the sexual violation sentence so that there would be no addition to the time you spend in prison. I am afraid I do not accept that submission either. The damage that you did to your sons’ lives require some additional sentence. They have waited for a long time for justice and justice would not be done if the sentence was wholly concurrent with the sexual violation. The suffering that you caused needs to be marked by a sentence that is a real one rather than a theoretical one.

[7] The Judge then sentenced the appellant to an effective term of three years, fixed having regard to his age, then 69, the requirement to consider the appropriate sentence for all offending and the fact that the offending occurred many years ago.
[8] For the appellant there was advanced what were essentially two grounds of appeal. It is appropriate to deal with the second ground first. Counsel submitted that the sentencing Judge’s starting point was too high and must be taken to have been based on the appellant’s alleged cruelty offences when he was found not guilty on the charges involving wilful ill-treatment of his sons. The Judge recorded on sentencing that the appellant had not been found guilty on these charges so that when referring to the appellant’s “cruelty” towards his children we do not take him as using that term as it is used to describe the wilful ill-treatment offence. The circumstances surrounding the assaults were serious and fully warranted the description “cruelty”. We are satisfied that the Judge did not sentence the appellant for offences for which he was found not guilty, but was simply describing the conduct constituting the offences for which he was found guilty.
[9] Assault against natural children with knives, hoses and fists can be considered to be cruelty, even where the offences amount to assault only.
[10] The starting point for sentencing the appellant in relation to the four offences of assault involving R was considered by the sentencing Judge to be five years imprisonment. While the maximum sentence for this offences was, and is, two years imprisonment, we are here concerned with multiple offending over a period of some eight years (three of the charges were representative). We do not consider the starting point was too high. This was a serious course of conduct over an extended period involving assaults and beatings of children and extending to the two bizarre and disgraceful incidents arising from bed-wetting. After a defended hearing, and before adjustment for any special factors, we do not think a sentence of five years would necessarily be interfered with. But the effective sentence in this case was three years, and Mr Weir accepted that this could not be challenged other than by reference to the totality principle: R v Nuku [1969] NZLR 343, R v Bradley [1979] NZCA 33; [1979] 2 NZLR 262, R v Strickland [1989] 3 NZLR 47. In Strickland Richardson P for the court said (p50).

The totality principle is the established judicial approach to sentencing for multiple offences. In R v Nuku [1969] NZLR 343 where an offender had been sentenced on the same day by different judges on unrelated offending committed three years apart, this Court held that the proper approach in considering the appeal was to assess what would have been the appropriate sentence to be imposed if one Judge had sentenced the applicant for all the offences involved.

[11] The appellant originally faced charges of offending in respect of five of his children. As a result of an order for severance he was separately tried on charges of offending against three daughters. He was convicted on 18 counts of assault and sexual offending over a period of about 14 years from 1971 to 1985. There were six offences of rape and a number of the assault and indecent assault counts contained representative charges. On a Solicitor-General’s appeal the sentence imposed for these offences was increased from six to seven years by this Court (CA181/99 and 182/99, judgment 1 September 1999).
[12] The essential issue in the present appeal then is whether for the total offending against all five children the total sentence of 10 years is excessive. In making this assessment it is appropriate to take into account that the earlier seven year sentence was fixed on a Solicitor-General’s appeal and so the appellant is entitled to retain the benefit of that being set at the minimum necessary to constitute an appropriate response to that offending.
[13] We were pressed by Mr Weir to regard the offending against the sons as essentially part of the same “transaction” as that involving the offending against the daughters which also involved violent assaults. We do not accept that. There was no single transaction. There was repeated offending over many years. It is quite unrealistic to contend that the sentence imposed for the offences in respect of the girls in some way encompassed the offending against the boys so as to warrant only concurrent sentences. We entirely agree with the Judge that this separate and additional offending against further victims called for separate and additional sentences.
[14] Further, we agree that the imposition of the cumulative sentence of three years was open to the Judge consistent with the totality principle. In result the total sentence is a long one, particularly for a person of the appellant’s age. But the total offending was appalling. Its impact on the lives of all five victims has been serious and long-lasting. The appellant has no insight into the seriousness of his treatment of his children. He harbours no remorse and can advance no mitigating factors other than his age. In that respect his physical health is reported as good – apart from deafness. There is no ill-health that would greatly increase the harshness of imprisonment for him.
[15] The appeal is dismissed.

Solicitors
R A A Weir, for Appellant
Crown Solicitor, for Crown