THE QUEEN v ANDREW JAMES CASTLES [2002] NZCA 109 (23 May 2002)

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985.

IN THE court of appeal of new zealand

ca105/02

THE QUEEN

V

ANDREW JAMES CASTLES

Hearing:	20 May 2002
Coram:	Blanchard J Hammond J Salmon J
Appearances:	N M Crutchley for Crown S Manning for Respondent
Judgment:	23 May 2002

judgment of the court delivered by blanchard j

Introduction

[1] The Solicitor-General seeks leave to appeal against an effective sentence of 2½ years imprisonment imposed on Andrew Castles on one charge of sexual violation by unlawful sexual connection.He also received a concurrent sentence of 1½ years for attempting to commit the same act.He had pleaded guilty to both charges after committal for trial.He was aged 18 at the time of the offending.

Facts

[2] The respondent, his six co-offenders, and the victim were all students in the seventh form at Taradale High School.On the evening of 16 October 2001 they attended a party at the home of a fellow student whose parents were away. The victim, who was 17 at the time of the offending and a friend and classmate, was invited to the party by the respondent.A considerable amount of alcohol was consumed by the victim and others but not by the respondent who does not drink alcohol.

[3] The offending covered by the two charges was preceded by an incident at about midnight when the victim was held down in the bathroom of the house and half of each of his eyebrows shaved off by the respondent.

[4] During the evening one of the co-offenders had mentioned to the respondent that he had heard of situations where an embrocation, such as Deep Heat, had been put on a person's genitals or in their anus in anticipation that it would cause irritation.The respondent and the six co-offenders decided to undertake an exercise of this kind on the victim using a broomstick.The respondent found a jar of Vicks VapoRub and smeared some on the end of the broom.After the bathroom incident the victim, affected by alcohol, had gone to sleep in a bedroom.The group entered that room and an attempt was made to insert the broom into the victim's anus.The attempt failed as they had trouble properly removing the victim's trousers.He moaned but may not have fully woken up. During this incident the broom touched his skin between the cheeks of his buttocks.

[5] Some thirty minutes later the group re-entered the bedroom having decided to try again and having given some thought to the roles that each would play in order to effect their purpose of penetrating the victim's anus with the broom handle.The respondent wielded the broom and on this occasion the group succeeded in their object, the respondent pushing the broom approximately 10cm into the anus.The victim felt a severe pain and a burning sensation.The broom remained inside the victim for a couple of seconds being removed when it was clear to the respondent that the victim was in pain.The victim was upset. He attempted to leave the house but collapsed crying and in pain and was persuaded to stay the rest of the night at the house.The next day he was in considerable pain and distress and the police were contacted by his family.

[6] The physical results of the attack were a 1.5cm tear to the victim's anus and severe bruising of that area.There was internal bleeding which continued for more than a week and for several weeks after the incident the victim continued to experience physical discomfort.

Sentencing remarks

[7] There has been a considerable social and emotional effect on the victim who lives in a small community which, at least until the respondent's admissions became known, has to an extent tended to support the offenders.This has caused the victim to feel socially isolated and embarrassed.There have been psychological effects which have required counselling.He was unable to study properly for his bursary exams and failed to gain the necessary grades to enter university.The victim's family has also been placed under great stress as a result of what happened to him and the criminal proceedings.

[8] The sentencing Judge said that the aggravating features were:

[a] The use of the broomstick as a weapon.

[b] The involvement of multiple offenders.

[c] Two attacks with a significant time period between them.

[d] Planning and premeditation, particularly in respect of the second successful violation, with specific tasks being assigned to the offenders.

[e] The victim being initially asleep and essentially powerless to resist.

[f] The injuries sustained by the victim.

[g] The respondent was one of the prime movers in the offending.

[h] The earlier assault upon the same victim by the respondent and others when his eyebrows were shaved.

[9] The mitigating features listed by the Judge in respect of the respondent were:

[a] No previous convictions.

[b] A good background, schooling and sporting record with future prospects looking bright.

[c] Rehabilitation was likely, indeed almost certain.

[d] His age, 18 at the time of the offences.

[e] Guilty pleas.

[f] Obvious remorse and contrition.

[g] (A substantial mitigating feature) his agreement to assist the Crown in giving evidence at the trial of the co-offenders which required "considerable courage given that you will be testifying, as it were, against your friends, all of whom have sought to deflect the large portion of the blame upon you".

[10] The Judge noted that the probation report was sympathetic.He described the respondent as a decent young man with strong Christian links and values and coming from a good family.He did not drink or take any other drug.The Probation Officer had described his offending as inexplicable.The Judge said that the only explanation he could find for the behaviour was group or mob hysteria which fed upon itself whipped up because of senseless notions that macho male behaviour, ritual or schemes sanctioned this as being what men do on occasions.It was accepted that the respondent was unlikely to re-offend again and posed no risk to society.

[11] Turning to sentencing principles, the Judge noted that the maximum term of 20 years imprisonment for this type of sexual violation was the same as for rape.He referred to the requirement of s128B that persons convicted of sexual violation be sentenced to imprisonment unless, having regard to the particular circumstances of the offence or the offender, including the nature of the conduct constituting the offence, the Court was of the opinion that the offender should not be so sentenced.The Judge also referred to s5 of the Criminal Justice Act 1985.Rape, he said, was a crime of serious violence.So was violation of the anus with a broomstick.Although the crimes had nothing to do with sex, even though defined as sexual violation, they were crimes of serious violence involving assaulting a boy with a weapon and penetrating his anus and it was hard, the Judge said, to discern any difference between penetration in this way of a boy's anus with that of penetration of a girl's anus, or for that matter vagina.He said that he did not distinguish between anal and vaginal penetration for the purpose of assessing the gravity of the offending.The fact that the respondent would not have immediately thought this to be sexual violation was not a special circumstance and there were no other circumstances that might classify the offending as being special so as to avoid imprisonment.He also considered that there were no personal circumstances which could avoid imprisonment.Merely being a man in his late teens, a first offender of previous good record and character, would not alone qualify as a special circumstance.

[12] Moving to the question of the appropriate sentence of imprisonment, the Judge said that he could find no case truly comparable.He said that he regarded the violation of the victim's anus with a weapon as at the higher end of sexual violations by unlawful sexual connection.Penetration of the vagina or anus digitally or by an object fell somewhere between indecent assault and sexual violation by way of penile rape.The seriousness depended on the type of penetration, the type of object and all the surrounding circumstances.The motive was not sexual, but in terms of the gravity of the crime in what occurred the Judge repeated that he did not regard that as significant:

In the end I accept that the conventional rape starting point of eight years does not need to be used for all types of penetration.Nevertheless the usual sentence in a case of forceful penetration of the anus or vagina with a weapon would have to be in my view a term of five-six years imprisonment.

Because of the aggravating features involving the initial attempt and the later successful act upon a sleeping and largely helpless victim through the force of numbers, and the use of an object clearly in the form of a weapon, such a term might well, in the absence of other factors, be seen as the norm.Imprisoning young people such as the respondent would, the Judge said, serve little purpose "so far as you are concerned"; but there was the need to deter others from similar behaviour, to recognise the plight of the victim, and to impose some punishment for serious crime and to recognise and reflect community and society denunciation and abhorrence of such behaviour.

[13] The Judge referred to a number of impressive and sensitive references in support of Mr Castles.He expressed sympathy for the respondent and his family, saying that his predicament was a tragedy for him.But the Judge said that he did not forget that it was also a tragedy for the victim and that the victim impact report of the victim and his parents made very sad reading.

[14] He gave credit for the respondent's youth and good record, his good prospects for the future, his plea of guilty and his contrition.He also took account of the cooperation that the respondent had given and would give to the authorities, saying that it required very significant concession and recognition.

[15] The Judge said that a term of two years six months imprisonment was the shortest possible term he could impose and that it was justifiable from a starting point of five years when measured against the substantial discount which was allowed, namely 50% for the respondent's youth, record and guilty plea and courageous cooperation with the Crown.

Submissions

[16] The Solicitor-General on this appeal makes no challenge to the 50% discount.The sole focus is the starting point of five years.This was not a case of penile rape and therefore the starting point of eight years did not automatically apply.But the Judge is said to have erred in approaching the sentencing on the basis that sexual violation with an object must fall somewhere between indecent assault and sexual violation by penile rape in terms of gravity.In the Crown's submission, sexual violation with an object could be qualitatively every bit as serious as rape and in this case the circumstances were of that nature.Counsel pointed out that sentences approximate to, or even in excess of, eight years have been imposed for digital penetration depending on the surrounding circumstances.

[17] Ms Crutchley therefore submitted that the starting point should have been eight years.The major aggravating features were, first, that there was a gang assault - seven young men against one.It was not "gang rape" in a sense of multiple penetrations, but the fact of multiple offenders was a seriously aggravating feature.The initial attempted sexual violation itself amounted to a serious indecent assault.On a totality approach, the attempt should be taken into account in fixing the starting point and not subsumed entirely by a concurrent sentence.The deliberate use of an embrocation on both occasions to cause greater pain and further humiliate the victim was also an aggravating feature, as was the premeditation and organisation.There had been physical injury and devastating psychological effects.Ms Crutchley also referred to repeated targeting of the weakest member of the group as part of a course of bullying and the victim's state of physical vulnerability (sleeping and affected by alcohol).

[18] The Crown also submitted that the fact that sexual gratification did not motivate the offending did not distinguish the attack on the victim from other sexual offending.In fact, it was submitted, much sexual offending has more to do with the isolation and humiliation of the victim than with sexual gratification.This particular form of bullying was chosen because, aside from causing pain, such a personal and intimate attack would prove far more demeaning for the victim than any non-sexual violence could.Ms Crutchley said that it seemed inconceivable that this starting point would have been chosen had the victim been a 17 year old girl.

[19] For the respondent, Mr Manning submitted that the Judge was correct to distinguish the facts of this case as not being comparable with sexual violation by rape.It was within his discretion to choose a starting point less than that which applies for rape.The Judge had been faced with a difficult task of sending a deterrent message while at the same time providing a fair sentence to the respondent.The sentence had to recognise "not only the unique facts of the offending but also the extreme mitigating factors". The Judge had achieved this balance by a merciful sentence to the respondent which at the same time sent a clear message of general deterrence.Mr Manning listed as mitigating factors the following:

[a] The respondent volunteered himself to the police.

[b] He made a full admission of his involvement when interviewed.

[c] He cooperated with the police inquiry.

[d] He wrote a letter of apology to the victim within two weeks of the incident occurring.

[e] He pleaded guilty to both charges.

[f] He attended a Restorative Justice Conference with the victim's parents, to whom he apologised.

[g] He was extremely remorseful.

[h] He (has now) given evidence for the Crown in the trial of the co-accused.

[20] On the comparison with penile rape, Mr Manning submitted that the insertion of an object into the victim's anus is "a different physical act" than the insertion of a penis into a vagina or anus.The consequences, in terms of the effect on the victim, are also likely to be different, especially where the perpetrator's motivation was not sexual.Such offending was "qualitatively different from rape".The consequences on a victim were likely to be more harmful where the victim has been the subject of an attack motivated by sexual gratification.The consequences experienced by this victim were said by counsel to be more consistent with the trauma and psychological consequences experienced by a victim of a physical assault, rather than a sexual assault.

[21] It was further submitted that, even if it is determined that the starting point adopted was inadequate, the sentence should nevertheless not be increased because in the circumstances that would be unfair to the respondent and would deter others from cooperating with the Crown.To have his sentence appealed after he had given evidence would send the wrong message both to this respondent and to other persons considering giving assistance to the Crown. The Judge's strong comment that this type of offending would in the norm attract a sentence of five or six years imprisonment already provides a sufficient general deterrent.

Discussion

[22] We agree with counsel for the Crown that the Judge erred when he said that the "usual sentence" in the case of forceful penetration of the anus or vagina with a weapon would be five or six years.But whereas the Courts have been able to fix upon a period of eight years as the starting point for a rape with no special features and where no credit is available for a guilty plea (R v A [1994] 2 NZLR 129) - and the same starting point ought we think to apply generally to an anal rape of a person of either sex if there are no particular aggravating features - the variety of other unlawful sexual connections does not admit of a common starting point.Acts of digital penetration, for example, normally attract a lower starting point.

[23] Instances of vaginal or anal penetration by an object unaccompanied by other offending are relatively rare.Such occurrences are usually accompanied by other separately charged sexual violations or indecencies.Use of an object, particularly a weapon, is, however, a sufficiently gross act that it is to be expected that the appropriate starting point will be at least close to the starting point for rape.But, we repeat, such are the variables of possible offending of this kind that no tariff figure is available to a sentencing Judge.

[24] In this case there was a particular difficulty in determining a starting point.We accept Ms Crutchley's submission that so-called sexual offending is often motivated more by a wish to exercise power over a victim (as appears may have been the case here) than by a desire for sexual gratification.In this respect, there may seem to be little to separate the general character of the present offending from a paradigmatic case of the violent sexual violation of a woman by a man.It is self-evident, however, that the impact and significance of outwardly similar conduct varies considerably according to the context in which it occurs.It would be difficult to compare the trauma experienced by the victim in the present case, for example, with the well-publicised discomfort suffered by sportsmen who had a finger inserted into their anuses in an attempt to discommode them, despite some (merely superficial) similarity in the method of attack.

[25] This was no mere "prank", as the learned sentencing Judge made very clear, but a group attack involving degradation and deliberate humiliation of the victim.Notwithstanding the probable lack of any intention on the part of the offenders to cause more than temporary discomfort, physical injury and considerable pain was also inflicted.There are features referred to in the victim impact report which resemble to an extent the trauma experienced by women who are the victims of rape.However, it has been difficult for us to assess the full force of the various analogies made by counsel in the course of oral argument without the benefit of a psychological appraisal of the motivation of the offenders, the victim's perception of this motivation and the present (and possibly lasting) psychological effects of the attack upon the victim.But, because it is intended that the sentencing of the co-offenders, now that they have been convicted at trial, will take place this week and it is not desirable that sentencing is delayed, our judgment has to be delivered without such assistance.

[26] Weighing up the limited material before us as best we can, we have reached the conclusion that the appropriate starting point in this case was not less than seven years, rather than the five to six years adopted by the Judge.But it does not follow that the sentence he eventually arrived at should now be disturbed in the context of a Solicitor-General's appeal.

[27] There are two considerations which in combination lead us to the conclusion that this Court should not now interfere with it.The first is that the 50% reduction for mitigating circumstances is not immutable despite its apparent acceptance by both sides.In some cases where there has been both a guilty plea plus cooperation with the police in the form of an agreement to testify for the prosecution in the same or an unrelated matter a total reduction of greater than 50% has in particular circumstances been thought appropriate.An example is found in R v Z(CA138/00), judgment 27 June 2000, in which this Court confirmed a starting point of seven years for a bad case of arson but, allowing the appeal, increased the overall reduction to four years, imposing a sentence of three years.Another instance is R v D(CA43/00), judgment 23 March 2000, where in a drug importation case a guilty plea and cooperation resulted in a four year sentence from a starting point of ten years.In these and like cases the offender was putting himself in some danger in the prison environment and perhaps even after the sentence was served.Danger of the same kind, the risk of retaliation by the person(s) against whom testimony is given, seems very unlikely in the present case but, as Mr Manning pointed out, Mr Castles does not have the benefit of the anonymity which usually applies to such a Crown witness and there may be persons in the prison system who will take a dim view of any prisoner who has cooperated with the police in a prosecution, as Mr Castles is now widely known to have done.Additionally, as the Judge found, the respondent has excellent prospects for rehabilitation and there are the other strong mitigating factors which have been referred to.

[28] The second matter, and the one which in the circumstances carries much the greater weight with us, is the very unusual circumstances surrounding the Crown's action in seeking leave to appeal only after the respondent, unaware of any such possibility, had already given evidence against his co-accused.We were told by Crown counsel that this happened because of the view which was taken of the interim suppression order made by the Judge in which he forbad publication of his sentencing remarks and the sentence imposed until conclusion of the trial of the co-accused.It was thought that this somehow prevented communication with the Solicitor-General concerning the sentence.The decision to apply for leave was therefore not able to be made until after an application for a variation of the order had been made.This apparently did not occur until after Mr Castles' evidence had been given.In our view, the Crown was under a considerable misapprehension in this respect.There was nothing in the order preventing the necessary communication with the Crown Law Office.Be that as it may, however, the feature which strikes us as very unfortunate and as presenting an appearance of unfairness to the respondent is that, despite contact with him before and during the trial in connection with his testimony, which itself extended over the better part of two days, he was not told that the Crown might well appeal against his sentence.Although it is not and could not be suggested on his behalf that there had been anything amounting to an agreement with him or his counsel in exchange for his plea, either concerning length of sentence or fettering the Crown's right to appeal it, we take the view that it was inappropriate that he should have been kept in ignorance of the Crown's dissatisfaction with the sentence and the consequent possibility of an appeal when he was, at the Crown's request, giving evidence in the case to his possible disadvantage.There would, we think, be an appearance of injustice if the Crown could now proceed to appeal.

[29] For these reasons, although the sentence may be considered somewhat below the range available to the Judge, even as an exercise of mercy in the particular circumstances, we are not prepared to disturb it.

Result

[30] Leave to appeal is accordingly refused.

Solicitors:

Crown Law Office, Wellington