THE QUEEN v M(CA117/00) [2000] NZCA 78 (8 June 2000)

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

IN THE court of appeal of new zealand

ca117/00

THE QUEEN

V

M(CA117/00)

Coram:	Gault J Henry J Blanchard J
Decision: (ex parte)	8 June 2000

judgment of the court delivered by blanchard j

[1] The appellant was found guilty by a jury at the Christchurch High Court of two counts of sexual violation.The appellant was also convicted of a number of other charges, namely theft, car conversion, two charges of breach of a protection order and one charge of failing to respond to Court bail.These charges arose out of a separate incident from the sexual violation charges. The appellant was sentenced to 3½ years imprisonment on one charge of sexual violation and was convicted and discharged on the other count.In relation to the other charges, the appellant was sentenced to an effective sentence of nine months imprisonment, to be served cumulatively with the sentence for the sexual violation, given that they were a separate series of events.

[2] The facts can be stated briefly.The appellant was in a de facto relationship with the complainant's mother.The complainant was 12 years old at the time of the offences.One night he entered her bedroom during the early hours of the morning, took her underwear down and digitally penetrated her. This incident was described as "momentary".Then, after telling her to "open it up", the appellant licked her vagina.The evidence indicates that this was also a brief event, the entire incident lasting no more than ten minutes.As the sentencing Judge indicated, the impact on the complainant of these offences is insidious.

[3] The other charges upon which the appellant was convicted relate to an incident after the sexual violation episode, where the appellant pursued his former partner, the complainant's mother.The appellant went to his former place of work, and obtained entry by persuading a cleaner that he needed to collect his belongings.Once inside he obtained a key to the safe and stole over $5,000.He also left with some cigarettes.He then made his way to the North Island and hired a car in Auckland.The appellant failed to return the rental car when due, but kept it and lived in it for several months.On two separate occasions the appellant was seen watching the premises occupied by his former partner who had the benefit of a protection order.The appellant managed to escape on the first occasion but was arrested on the second occasion.The charge of breach of bail reflected his failure to attend depositions at first call.

[4] The appeal is against sentence only.The appellant applied to this Court to be heard on his appeal and proposed to represent himself.The Court declined a hearing, and has decided the matter on the written submissions received from the appellant.

[5] The appellant presents two main submissions in support of his appeal.The first is that the sentence of 3 ½ years for the sexual violation offence is manifestly excessive.Three principal arguments are raised in support.The first relates to the severity of the offence.The appellant submits that the actual offences lasted only a short time and that there was no violence involved.When imposing sentence the Judge referred to the length of time and observed that it does not undermine the seriousness of this sort of offending involving a child of the age of the complainant.The lack of violence also does not lessen the seriousness of the offences, and their impact on the complainant.This Court is satisfied that the Judge approached these issues appropriately, correctly identifying the mitigating factors and the weight to accord them.This ground of appeal accordingly fails.

[6] The second argument concerns the existence of mitigating factors that were not before the sentencing Judge, and the weight placed on mitigating and aggravating factors by the Judge.The appellant submits that he was denied adequate time to inform counsel of all the factors he wanted put before the Judge at sentencing.In particular, the appellant submits that the sentencing Judge was not aware of all relevant personal circumstances.The Judge summarised the mitigating factors presented by counsel for the appellant:

Mr Glue also emphasised that your offending was a "one off", as he put it, and spontaneous; that it did not involve violence; and that you had effectively ruined your life by your lapse on that occasion.Mr Glue also emphasised that you are remorseful; that you have not got a violent past; that you have effectively been out of trouble since 1982; and the events which resulted in you going to the North Island were more driven by obsession to keep contact with your two young sons than by anything else.

[7] An additional mitigating factor the appellant wishes this Court to consider is the personal stress he was under due to his domestic circumstances at the time of the offences.While it is important that all factors that could be reasonably seen to be mitigating factors are put before the Judge for sentencing purposes, the personal stress suffered by the appellant is not sufficient to warrant a reduction in sentence.We are not persuaded that the Judge did not consider all mitigating factors reasonably available.The Court cannot ignore the fact that the appellant acted inappropriately towards a young girl who was in his care.This breach of trust must invoke a response to denounce what occurred, to mark society's condemnation of this sort of behaviour and to act as a deterrent to others.

[8] The appellant submits that the Judge placed too much weight on a previous conviction for assault in 1982.The Judge referred to this offence, along with several previous convictions for dishonesty offences during the 1970s, but we are satisfied that he placed little, if any, weight on these offences.The most aggravating factor for sentencing purposes was the circumstances of the offending itself.The appellant's previous offences would carry little weight, particularly given his good record since 1982, apart from an excess breath alcohol conviction that the Judge appropriately considered irrelevant.

[9] In his third argument against the sentence of 3½ years imprisonment, the appellant takes issue with the pre-sentence report prepared by a probation officer and placed before the sentencing Judge.The appellant expresses his genuine remorse for his actions, and submits that the probation officer was mistaken when she interpreted the appellant's remorse as driven as much by the fact that he will not be able to maintain contact with his two children as by any genuine feelings of regret for the harm he caused the complainant.This report was carefully prepared after consultation with the appellant and is based on statements made by him.The report records the probation officer's interview and her perceptions of the appellant, as is required in such a situation.

[10] The appellant also submits that the report wrongly suggests that he has an alcohol problem.It refers to the appellant's history of alcohol abuse and states that it is evident that alcohol was a disinhibiting factor in the offending.The report also states that the appellant is unable to see any connection between alcohol and his offending.The report appears to be accurate, even on the basis of the appellant's own submissions to this Court. The appellant admits a history of alcohol problems and acknowledges that he cannot remember the full facts of the offence.While the report does not refer to a course undertaken by the appellant at Queen Mary Hospital for alcohol problems, this was some time ago and is of no assistance in this sentence appeal.Despite the appellant's submissions, this Court is satisfied that the pre-sentence report does not stress the violent nature of the appellant's character.In these circumstances, the Court is satisfied that the pre-sentence report was prepared carefully and after full consultation with the appellant and that appropriate weight was placed on various aspects of the report by the sentencing Judge.

[11] 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).

[12] The appropriate sentencing level depends upon the circumstances of the offending, as recognised by this Court in R v M (CA459/99) (CA459/99, judgment 23 February 2000).Each case must be assessed upon its own particular circumstances but we are satisfied that the various factors taken in isolation or cumulatively could not on any basis have justified a sentence which was less than that eventually imposed, which was within the range available to the Judge.No credit was available for a plea of guilty as the matter proceeded to trial, the complainants having had to undergo the ordeal of giving evidence. The grounds of appeal having failed, the appeal against the sentence of 3 ½ years for sexual violation by digital penetration is dismissed.

[13] The appellant also appeals the sentence of nine months imprisonment imposed cumulatively upon the previous sentence for the offences relating to the incident when the appellant pursued his former partner.The appellant submits that the sentence should have been imposed concurrently with the previous sentence, as in his view the offences were all part of the same event. It is evident that counsel for the appellant submitted at sentencing that a concurrent sentence would be appropriate.The Judge dealt with the issue in these terms:

That brings me to the other charges.Mr Glue encouraged me to regard them as being sufficiently connected to the other offending to justify a concurrent sentence.In other words, a sentence that runs alongside the sentence I have just imposed.I cannot do that.I agree with Mr Stanaway that they are effectively a separate series of events.

[14] The appellant submits that the Auckland incident was only nine weeks after the sexual violation and only three weeks after the relationship with his former partner ended.He says that he was still emotionally affected by the sexual offending and its consequences.The Court does not doubt that these incidents have had a severe impact on the appellant, but this does not excuse or explain his behaviour, or justify any reduction in sentence.It may cause the appellant to appreciate the even greater emotional turmoil he has caused the complainant.The appellant tries to minimise the offences that occurred in Auckland, but, as the sentencing Judge commented, breach of a protection order is a serious offence.Motive can have little, if any, relevance save in the most exceptional circumstances.

[15] As a general rule, where each offence is a separate transaction and unrelated to the others in time or subject matter a cumulative sentence is the proper course, unless there is some good reason for making the sentence concurrent.However, the Court, when imposing cumulative sentences, must further consider the total term of imprisonment to ensure that it is not excessive and that there is no double counting of the aggravating factors taken into account in determining the length of each sentence.In the present case, the Court is satisfied that the Judge appropriately imposed the nine months sentence of imprisonment cumulatively with the sentence for the offence of sexual violation.The two incidents were clearly separated in time and place and subject matter.The cumulative sentence was necessary to reflect the overall gravity of the offences, and to comply with the totality principle.

[16] All the grounds of appeal having failed, the appeal against sentence is dismissed.