R v M (CA197/00) [2000] NZCA 444 (19 July 2000)

Last Updated: 25 April 2019

ORDER PROHIBITING PUBLICATION OF NAME ADDRESS OR PARTICULARS IDENTIFYING APPELLANT OR COMPLAINANT

IN THE COURT OF APPEAL OF NEW ZEALAND

CA197/00

THE QUEEN

V

M(CA197/00)

Hearing:	19 July 2000
Coram:	Blanchard J John Hansen J Baragwanath J
Appearances:	P J Mooney for Appellant J M Jelas for Crown
Judgment:	19 July 2000

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1] The appellant was convicted by a jury in the High Court at New Plymouth on a representative count of the indecent assault of his 15 year old daughter. He appeals against the sentence of 9 months imprisonment, submitting that it was manifestly excessive; and in the alternative that any prison term of six months or longer should have been suspended.
[2] The complainant has some intellectual disability, being assessed by a psychologist as functioning at the level of a child of 8½ to 10½. She had had an unsettled childhood, living with a number of caregivers until shortly before the offending commenced, when for the first time she came to live in the same house as the appellant.
[3] Following a complaint of rape the appellant was interviewed by a police officer. He denied rape but made admissions suggesting indecent assault. For example he stated that he had deliberately touched the complainant's breasts, over her clothes, on two to three occasions when giving the complainant a bedtime cuddle. He stated he had "cupped" the complainant’s breasts for "thirty seconds", using "just one hand, so whatever you can fit into one hand". After two to three times "the novelty wore off". He stated he did it because he liked "boobs". He also stated it was "like the instant kiwi, just a quick thrill". The appellant said he knew it was wrong and stopped it because his conscience was getting to him. The appellant stated that he had told the complainant "if she didn't like anything if she didn't like it, say no, and she said yes and she understood that, and never did so".
[4] He was tried on a representative count of rape and an alternative count of incest, as well as the count of indecent assault. Despite the complainant’s evidence that sexual intercourse had occurred on some four or five occasions he was acquitted on the two former counts.
[5] In sentencing the Judge stated

“There may, as [defence counsel] submitted, have been some doubt as to whether the touching was under or over her clothing but [the complainant] described it as being under her clothing and in my view the way in which she described it in the videotape interview was also open to that interpretation.

... you now find yourself, a man without previous convictions of any nature whatsoever, facing sentence for a relatively serious offence although, as both counsel have expressed it, in the range of possible actions which give rise to convictions for indecent assault, this is towards the lower end of the scale.

He concluded

As I have said, this was a breach of trust against a daughter and the charge was on a representative basis so the jury must have accepted at least one of several occasions which she described in the evidence was proved."

It is implicit that he sentenced on the basis that there was touching of the complainant’s breasts under her clothing, as she had asserted.

[6] The appellant submits that the Judge erred in doing so and that in the particular circumstances he ought not to have made any finding for the purposes of sentencing relying in any way on the evidence of the complainant or going beyond the admissions of the appellant at interview and later in giving evidence at trial. Those admissions were limited to touching the complainant’s breasts over her clothing which, he submitted, did not justify imprisonment.
[7] Mr Mooney does not challenge the settled principle that it is the right and duty of a trial Judge to accept responsibility for making factual findings to provide the basis on which to sentence, provided only such findings are consistent with the jury’s verdict. But he submits that on the particular facts of this case the complainant’s evidence was so discredited that to rely on it in any way would entail miscarriage of justice.
[8] Ms Jelas submits that there is no sufficient reason for the Judge to have wholly rejected the complainant’s evidence, including her account that the appellant touched her breasts under her clothing. Still less is there justification for this Court to interfere with the decision of the Judge who had seen and heard the witnesses
[9] The complainant’s evidence was that on about two occasions the appellant had put his hand up her top and touched her breasts under her bra, his hand going round in circles and feeling “it” - in the context, her breast. She also gave evidence of an occasion when the appellant put his hands up her top and rubbed his hands “up by my breasts ... on my skin” at the same time as he was having sexual intercourse with her. She stated that he touched her breasts, then took his hands out of her top and put them into her vagina. She also described a further occasion when she said he had sexual intercourse with her, without putting his hands up her top but using his hand to put his penis into her vagina. She described trying to push him off while he was having sex with her but he wouldn’t stop.
[10] The fact that the jury accepted part of this evidence and did not accept other parts could provide no basis, by itself, to require rejection of the whole of it.
[11] Mr Mooney relies not only on the jury’s failure to find rape or incest but also on:

• (i) the Judge’s acceptance that “there may have been some doubt as to whether the touching was over or under the complainant’s clothing";
• (ii) the conflict between the denial of the complainant in evidence that she had hugged and kissed the appellant a lot and an entry in her diary;
• (iii) evidence that the complainant had made false allegations of rape against a foster father.

[12] All these matters were however before the Judge who, like the jury in their province, was free to make findings upon them. The issue as to the nature of the touching was resolved by him in favour of the complainant. There is no justification for our reaching a different conclusion.
[13] We turn to the submission that even so the sentence was excessive. The appellant is a farmer, 41 years of age, and of previous exemplary character. The pre-sentence report recorded

"A community minded man, Mr McDonald related that the current matter has seen him have to resign from his role in victim support and St John's. He continues to work as a volunteer fireman and coach a local schoolgirl netball team. While Mr McDonald is now required to be escorted by a teacher while on school grounds, he has interpreted the school's decision not to ban him completely as an indication of the level of support that he has received from the wider community."

[14] He enjoys excellent references. His wife, who is not the complainant's mother, is supportive but anxious about her ability to cope with sole charge of a large diary unit which is operating at a loss, while caring for six children. But it is well settled that imprisonment is usually the appropriate sentence for sexual offending against children, in which category we place the complainant, especially where serious breach of trust is concerned: R v F (CA 242/89, 27 October 1989), R v Meredith-Blyde (CA 245/95, 19 July 1995).
[15] As the Judge observed, this is such a case. There were at least two offences, committed by a father upon a particularly vulnerable daughter who was entitled to expect security after the unsettled childhood to which we have referred. Instead she was abused and her existing insecurity has been accentuated. The victim impact statement expresses the complainant's distress, concluding poignantly "Other kids have fathers who care about you and that all I wanted was one like that".
[16] These considerations distinguish this case from those such as R v Westaway CA 137/98, 23 June 1998 where suspension was ordered. The seriousness of the present case and the persistent refusal of the appellant to recognise the significance of his conduct require refusal of suspension.
[17] The sentencing Judge, in view particularly of the impact of the sentence on the wife and children, gave leave to apply for home detention. But it appears unlikely that that course would be practicable in any such fashion as would assist the appellant's family to deal with the problems of running the farm.
[18] We consider that a 9 month sentence is excessive in all the circumstances, including the effects on the appellant's family and the effective removal of the home detention option. We make what in proportional terms is a substantial reduction in the sentence, from 9 months to 6 months imprisonment.

Solicitors
Gordon & Mooney, Stratford for Appellant
Crown Law Office