THE QUEEN v BRETT JOHN TUNNICLIFFE [2001] NZCA 223 (23 August 2001)

IN THE court of appeal of new zealand

ca118/01

THE QUEEN

V

BRETT JOHN TUNNICLIFFE

Hearing:	23 August 2001
Coram:	Blanchard J Salmon J Potter J
Appearances:	P J B Winter for Appellant K Raftery for Crown
Judgment:	23 August 2001

judgment of the court delivered by blanchard j

[1] The appellant in this case pleaded guilty to two charges of rape and two charges of unlawful sexual connection. He received an overall sentence of 7½ years imprisonment, which he now appeals on the basis that it was manifestly excessive in all the circumstances.

Facts

[2] Between April and August 2000 the appellant, who was 24, boarded with the family of the complainant, then aged 11 years. One day, behind a garage on the property, the appellant kissed the complainant before inducing her to perform oral sex on him. He then penetrated the complainant's vagina with his penis. The appellant was charged in respect of that incident with sexual violation by rape.

[3] On another occasion, when the appellant and complainant were alone in the house, the appellant entered the bathroom when the complainant was in the shower.The appellant again kissed the complainant and penetrated her vagina with his penis. This formed the basis of the second rape charge. In the same incident he also penetrated the complainant's anus with his penis, which resulted in a charge of unlawful sexual connection.

[4] On a third occasion, the appellant was in his bedroom alone. He called out to the complainant to bring him an ashtray. The complainant entered the appellant's bedroom, at which time the appellant removed his underwear and induced the complainant to perform oral sex on him. He pleaded guilty to a second charge of unlawful sexual connection in respect of this occurrence.

[5] When spoken to by Police, the appellant admitted all his offending.

High Court

[6] The sentencing Judge weighed three "competing and not easily reconcilable threads". First, the Judge looked to the effect that the appellant's conduct had on the complainant. While there were signs that she was beginning to recover from the ordeal, the Judge said there still existed a risk of long term difficulties. Secondly, the Judge took into account the community's condemnation of young men who use someone who is virtually a child for their own sexual pleasure. Thirdly, however, while recognising the seriousness of the appellant's offending, the Judge said it was inevitable that, no matter the sentence imposed, the appellant would some day rejoin the community. The sentence imposed therefore also needed to consider the appellant's rehabilitation.

[7]The Judge referred to the appellant's personal circumstances. He described the appellant as having "very clear intellectual ability", despite suffering from serious learning difficulties. There was little risk of reoffending. The appellant understood the enormity of his actions and realised the wrongful nature of his conduct.

[8] The Judge did not differentiate between the appellant's four convictions. One concurrent sentence was deemed appropriate in respect of each of the four counts. The Judge took a starting point of eight years imprisonment. Emphasising the young age of the victim, the duration of the offending and the serious breach of trust involved, the Judge increased this starting point to between 9½ and 10 years. However, in recognition of the appellant's early admissions and his guilty pleas, he sentenced him to concurrent sentences of 7½ years imprisonment.

Submissions for appellant

[9] For the appellant, Mr Winter submitted that although 8 years was the appropriate starting point for sentencing, the Judge had then treated as aggravating features some matters which were not properly to be so regarded. The appellant had recently come to board with the family and was not in such a position of trust vis à vis the complainant as a parent or a relative would have been.There was no evidence of coercion or violence used on the complainant to obtain her submission to the sexual activity.

[10] It was also submitted that there had been insufficient reduction for the guilty pleas, by comparison with other cases to which Mr Winter drew attention. Although Mr Tunnicliffe had not entered his pleas at the earliest moment, he did so, Mr Winter argued, once the charges against him had been finalised. He had also acknowledged his offending to the police at the outset. Furthermore, it was said, the Judge had failed to give sufficient consideration to the remorse demonstrated by the appellant.

[11] Counsel was able to advise us that his client appears to be motivated to rehabilitate himself and wishes to undertake suitable programmes if they are available to him.He is an intelligent man but with adjustment problems after a somewhat difficult childhood.

Decision

[12] Notwithstanding Mr Winter's best efforts, we agree with Mr Raftery that a starting point of 9½ or 10 years for two rapes, and acts of sodomy and oral sex performed on an 11 year old girl - over a four month period - cannot possibly be said to be excessive.Indeed, it could have been rather higher. There was an element of breach of trust.Offending occurred on occasions when the complainant's mother had gone out, leaving him in the home with her as a de facto babysitter.

[13] The discount for the guilty pleas, entered at the second call-over after an amended indictment and summary of facts, was two or 2½ years.While it too could have been higher, in recognition of a very early acceptance of guilt, with pleas being withheld only until the exact charges were settled, the ultimate question is whether the sentence finally arrived at was excessive.

[14] We consider that the sentence of 7½ years was within the range available to the Judge.It is by no means out of line with any of the authorities to which Mr Winter referred, which did not involve offending of the same degree of seriousness.

[15] The appeal is dismissed.

Solicitor:

Crown Solicitor, Auckland