R v L (CA276/01) [2001] NZCA 390 (29 November 2001)

Last Updated: 29 September 2014

PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S.139 OF THE CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND CA276/01

THE QUEEN

V

L Hearing: 29 November 2001

Coram: Anderson J Doogue J

John Hansen J

Appearances: A R Laurenson for the Appellant

J Jelas for the Respondent

Judgment: 29 November 2001.

_{JUDGMENT OF THE COURT DELIVERED BY JOHN HANSEN J}

[1] Following a jury trial, the appellant was found guilty of a representative charge of sexual violation by anal intercourse. He was sentenced to 8 years imprisonment from which he appeals.

[2] The appellant had earlier pleaded guilty to one charge of indecent assault, and one charge of anal intercourse with a boy under 16 years. His guilt in relation to those charges had been indicated from an early stage.

Background

[3] The complainant was a 14 year old boy. His parents separated, and the appellant lived as a flat mate with the complainant, his mother, sister, and another man. The complainant and the accused shared a bedroom. It is apparent that the complainant came to view the appellant as a father figure.

[4] The offending began with the appellant touching the complainant's genitals in bed, and gradually progressed to full anal intercourse. According to the complainant, this occurred on about nine occasions.

[5] The complainant's evidence was that during the last of the offending he covered his ears to block out noises from the appellant, and had tears in eyes, which the complainant considered the appellant must have seen. On that occasion, the appellant apologised to the complainant and said he would never do it again.

Issues on the Appeal

[6] The appeal is advanced on the grounds that the sentence is manifestly excessive, because the sentencing Judge did not take proper account of all of the mitigating factors present in the case, and placed too much emphasis on the aggravating features.

The Sentence

[7] The Judge sentenced on the basis that four acts of intercourse occurred and were non-consensual. He stated it was clear to him throughout the trial that the complainant did not know how to the handle the appellant's advances, and was satisfied the victim never wanted, or agreed, to those advances. He also found the appellant was aware of this.

[8] The Judge identified the following four aggravating features:

(i) Winning the victim's confidence by filling the gap in his life after the separation from his father.

(ii) Breach of confidence arising from the trust placed in the appellant by the complainant's mother.

(iii) The appellant was an intelligent man who knew what was happening and it was wrong and harmful.

(iv) The inevitable disruption to the life of the complainant.

[9] The Judge accepted that the appellant admitted intercourse to the Police from the beginning, was genuinely and sincerely remorseful, and lacked any previous convictions.

[10] The Judge took 8 years as the starting point, and after considering the aggravating and mitigating factors imposed that as the final sentence.

Submissions

[11] Counsel for the appellant submitted that there are a large range of aggravating factors in cases such as this, some more aggravating than others. He particularly pointed to the use of additional violence from those inherent in the commission of the offence charged. In referring to other cases, he said aggravation often arises from the commission of further indignities in the course of the sexual violation, the accused may be acting in concert with others, there may be home invasion, kidnapping, the use of weapons, or threats, and a prolonged period of abuse. He submitted the Judge ignored the absence of these more serious aggravating factors.

[12] Counsel also criticised the sentencing Judge for his failure to give any particular weight to the appellant's difficult upbringing and past history, his personal circumstances, and the repeated return of the complainant to the appellant's bed. He said there was good prospects of rehabilitation because of the insight shown by the appellant, and, further, the trial Judge failed to take into account the appellant's intention, stated in the pre-sentence report, to use such services and facilities made available to him within the prison service to enable him to discover the cause of, and to deal with his offending.

[13] On this basis, it was submitted the sentence imposed on the appellant was an extremely harsh one, given the nature of his offending, and it was out of line with sentences imposed on other offenders who had committed worse offences. Mr Laurenson submitted that the two cases referred to at sentencing by the Crown, (R v Heke (unreported HC, Hamilton S 4/96 20.3.96, Hammond J), and R v Marshall (unreported, HC Hamilton, T29/94 12.4.95, Penlington J)) involved more serious aggravating features than the present case. In addition to those cases, counsel referred to R v Mackwood (CA197/95, judgment 28 March 1996) which, again, was said to be a worse case than this where 8 years was imposed.

[14] The Crown relied upon the sentencing principle that penile penetration of the anus and the vagina are analogous for sentencing purposes, and in those circumstances, 8 years was well within the range available, following conviction after trial of the representative charge involving serious breach of trust and a youthful complainant.

Decision

[15] In our view, the Judge correctly determined the starting point by reference to

R v Tavinor (CA313/94 judgment 27 March 1995), where this Court said:

We are unable to see any distinction between rape and getting a six year old boy to lie on a bed and forcing the penis into the anus causing pain. The starting point before adjustments for aggravating and mitigating features of imprisonment for eight years was fixed for a contested case of rape in the judgment of this Court in R v A [1994] 2

NZLR 129(B)(L) in light of the increased maximum sentence for sexual violation. (Emphasis added)

On appeal the appellant accepts that the starting point was correct.

[16] In this case, there are serious aggravating features. There was the breach of trust, which was perhaps more significant than in many cases. Firstly, the complainant formed a strong relationship with the appellant, and in the absence of his own father, viewed the appellant as a father figure. As well, the complainant's mother considered the appellant to be her best friend and trusted him to care for the

complainant. The offending only commenced once this high level of trust was established.

[17] This was a representative count, and while the complainant gave evidence that sexual violation occurred on nine occasions, the sentencing proceeded on the evidence most favourable to the appellant, i.e. it occurred on only four occasions. There was a pattern of offending that reveals a sad exploitation of a vulnerable and dependent youth.

[18] The complainant was only aged 14 years. The Victim Impact Report makes bleak reading. It records that the complainant suffers from nightmares, loss of self esteem and confidence, and experiences feelings of aggression and anger. He has lost friends, and his school attendance has dropped. He no longer participates in sports he used to enjoy. He had to give evidence in Court, which he found "real scary".

[19] The complainant obviously felt threatened, which is not surprising, given the evidence that the appellant told him he could be "put in jail for what he had done". The appellant also told the complainant "If you tell anyone you are going down".

[20] Given the starting point is 8 years in the absence of aggravating features, the aggravating features here could have justified an increase above that However, the sentencing Judge properly took into account the mitigating matters referred to above, and determined not to increase the sentence.

[21] In our view, the additional mitigating features put forward by counsel in this appeal, while relevant, could not justify any significant reduction. They all relate to the appellant's personal circumstances, and the more serious the offence, the less weight can be given to such circumstances. It is far from unusual for persons appearing for offending of this sort to have experienced significant difficulties during their life before offending in this manner. Indeed in the light of the appellant's position that the anal intercourse was consensual, a position maintained in the pre- sentence report, it could be said he was fortunate that his remorse was accepted as genuine. At the very least, it lessens the impact of that remorse.

[22] The case of Mackwood, referred to by counsel for the appellant, is of limited precedent value. It related to a sentence on a charge of anal intercourse, pursuant to s.142 of the Crimes Act, which carried a maximum penalty of 14 years imprisonment. The charge for which the appellant was found guilty carries a maximum of 20 years.

[23] Eight years is clearly the starting point. The sentencing Judge obviously considered the aggravating and mitigating features neutralised each other, and confirmed the starting point as the sentence. Despite the careful submissions of counsel, we have not been persuaded that the additional mitigating factors warrant the significant reduction contended for.

[24] Such a sentence was clearly within the range available to the appellant. The appeal is dismissed.

Solicitors

Govett Quilliam, New Plymouth for the Appellant

Crown Law, Wellington for the Respondent