R v T CA235/01 [2001] NZCA 421 (26 September 2001)

Last Updated: 11 November 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA235/01

THE QUEEN

V

T (CA235/01)

Hearing:	25 September 2001
Coram:	Gault J Keith J Salmon J
Appearances:	I D Farquhar for the Appellant A J F Perkins and T Kupenga for the Crown
Judgment:	26 September 2001

JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1] The appellant was convicted after pleading guilty in the District Court at Rotorua to two charges of sexual violation, one charge of abduction and one charge of theft. He was sentenced to a total of six years imprisonment, made up of five years and three months on the sexual violation and abduction charges and a cumulative sentence of nine months on the theft charge. He appeals against his sentence.
[2] The appellant, who did not know the victim, and his partner were staying at a camping ground on the banks of the Waikato River. On or about [date removed] 2001 he stole a tent from a nearby campsite occupied by the family of the victim of the sexual assaults.
[3] Two days later, after drinking with another camper, the appellant approached the tent in which the victim was sleeping. The victim was an intellectually handicapped girl aged 11 years but with a developmental age of only three or four years. The appellant unzipped the entrance to her tent and crawled inside, waking the victim as he did so. He then began to rub her genitalia with his fingers. That is the subject of the first charge of unlawful sexual connection.
[4] The appellant then removed the victim from her tent against her will and began to lead her away from the tent. The victim wanted to return to her tent but could not as the appellant was holding on to her hand and would not let go. The appellant’s partner called out to him but he turned and ran off with the victim and took her to an isolated area of the camping ground which is among trees and cannot be seen from any of the camp sites. Those actions are subject to the charge of abduction with intent to have sexual intercourse.
[5] At the isolated spot the appellant laid the victim down on a quilt and instructed her to pull down her pyjama pants and underwear. He removed his shorts and underwear and proceeded to masturbate beside the victim while touching her legs, bottom and genitals. That is the subject of the second charge of sexual violation.
[6] On their way back to the campsite his partner discovered the appellant, who was still naked from the waist down. She argued with him and hit him. When he slipped over in a mud puddle on the track the victim escaped and returned to her tent where she remained until daylight. The police were called the next morning but the appellant was not spoken to until several weeks later. He initially denied all contact with the victim but later pleaded guilty to the four charges described above, after other charges had been withdrawn. He explained that his partner was pregnant at the time and would not have sex with him and that he wanted visual stimulation while masturbating.
[7] The sentencing Judge referred to the personal circumstances of the appellant noting that he had some previous convictions but that none was for offending of this type. He accepted that the appellant was remorseful but thought that this was tempered by the fact that he appeared to play down the seriousness of the offending. The Judge rejected defence counsel’s submission that the offences were not premeditated and doubted the appellant’s claim that he was unaware that the victim was intellectually handicapped.
[8] Having noted the mitigating nature of the guilty plea, despite the fact that it had not come, in his view, at the earliest opportunity, the Judge then looked at aggravating factors. The Judge referred to the premeditation, the difference in ages, the repeat nature of the offending and, by analogy, the aspect of home invasion. In respect of the sexual violation charge the Judge referred to the decision of this Court in R v Muavae (CA 238/00, 5 September 2000). That case also involved a conviction for sexual violation of an intellectually handicapped girl and, although it was a Solicitor-General appeal, contained the observation that the offending could well have justified a sentence of up to six years imprisonment. In considering the abduction charge the Judge referred to R v Parker (CA 286/97, 28 August 2000), R v Bond (CA 302/95, 8 November 1995) and R v Reekie (CA 283/93, 15 November 1993), but accepted that there is no set tariff for offending of this type. He concluded in the following terms:

[I]n relation to the sexual violation charges and the abduction charge, the appropriate starting point is one of seven (7) years which I reduce to five (5) years and three (3) months for your guilty plea.

In my view you need to be dealt with cumulatively as well in relation to the theft charge having regard to your previous criminal record and your consistent offending in this area and on that charge you are sentenced to one (1) years imprisonment reduced to nine (9) months. The total effective sentence therefore is one of six (6) years.

[9] In support of the appeal, Mr Farquhar submitted that the sentence was manifestly excessive. While accepting that there is no tariff for this type of offending it was submitted that the starting point of seven years taken by the Judge was too high having regard to the circumstances of the offending and to the six year indication given in R v Muavae. That was a significantly more serious case than the current case. On mitigating factors, it was submitted that the sentencing Judge failed to give sufficient weight to the appellant’s guilty plea, or any weight to his expressions of remorse and his lack of relevant previous convictions. Finally, the Judge had drawn an inappropriate analogy from the home invasion legislation with the result that the total sentence of six years was excessive. He accepted that the Judge could not be criticised for imposing a cumulative sentence for the theft. That was distinct offending and the appellant had several earlier convictions for dishonesty.
[10] For the Crown Mr Perkins supported the sentence. It was substantial but deservedly so. He listed the aggravating features – the actual and mental age of the victim and the disparity in ages; the abduction for the purpose of sexual intercourse; the intrusion into the tent against the importance of feeling safe when out camping; the appellant’s rejection of the opportunity he had to desist when his partner called out and his disturbing determination to gratify himself with the child; the element of premeditation; the two distinct sets of sexual violation; and the serious effects on the victim and her family. He submitted that an allowance of 25% or one year and nine months was generous on the serious offences having regard to the aggravating features of the offending and the fact that the appellant had little option but to enter a guilty plea.
[11] We do not consider that the sentencing Judge erred in his approach to the sentencing. As the Judge noted, there are no set tariffs for this type of offending and each case depends on its particular circumstances. This offending involves the seriously aggravating features listed by Mr Perkins. We comment on some of them.
[12] First there is the age and condition of the victim. Sexual offending against children is consistently regarded as more serious than similar offending against adults. In this case the victim was not only 11 years old but was intellectually handicapped. She was exploited in a premeditated way. Further, after the appellant’s partner had called out to him, he resumed the abuse when he took the victim away from the campsite into an isolated area. Although there was no evidence of violence beyond that inherent in the offending, violence was unnecessary to achieve the appellant’s objective. There is also the ongoing effect of the offending on the victim and her family. The victim impact statement by the child’s mother tells of the victim’s general withdrawal from everyday life and of her new and increasingly inappropriate sexual awareness. That statement also records the development of difficulties in the victim’s relationship with men, sadly including that with her father.
[13] While we recognise that the circumstances are not in all respects similar to those in the Muavae decision we disagree that this case is so significantly less serious as to warrant a lower starting point than the one taken by the Judge. A starting point of seven years cannot be objected to.
[14] The principal submission in support of the proposition that no proper allowance had been made for the mitigating features of the case was that the allowances made for the guilty plea and the appellant’s remorse were inadequate. Again, we cannot agree. We consider that the Judge was correct to accord little weight to expressions of remorse when the pre-sentencing report indicated that the appellant still seeks to minimise his responsibility for the offending. As to the guilty plea, Mr Farquhar submitted that in the circumstances the plea was entered at an early opportunity and should have qualified for a greater allowance that the one year nine month allowance accorded by the Judge. We prefer Mr Perkins’ submission on this point. An allowance of 25% is within a properly exercised sentencing discretion especially when it appears that the appellant had little choice but to plead guilty given that his partner had observed him with the victim.
[15] On the appropriateness of the home invasion analogy, we accept, as did the Judge, that the home invasion legislation does not apply. However, the courts have long regarded deliberate intrusions into a dwelling at night as an aggravating feature. The Judge was quite entitled to take this into account and he had no need to draw on the legislation to do so.
[16] We conclude by agreeing with the Judge’s view that offending of this type calls for denunciation by a robust and deterrent sentence. We consider that the sentence was one which the Judge could properly impose.
[17] The appeal is accordingly dismissed.

Solicitors:
Crown Solicitor, Auckland