R v J CA401/01 [2002] NZCA 359 (27 August 2002)

Last Updated: 22 July 2018

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA401/01

THE QUEEN

V

[D S J]

Hearing:	8 August 2002
Coram:	Gault P Anderson J Glazebrook J
Appearances:	C J A McNeely for Appellant J C Pike and J M Jelaś for Crown
Judgment:	27 August 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1] The appellant was convicted following pleas of guilty pursuant to s153A Summary Proceedings Act 1953 in respect of 25 counts of sexual offending ranging from sexual violation by rape to performing an indecent act with an animal. He was sentenced to 12 years imprisonment. As originally filed the appeal related only to sentence. However, prior to this hearing the Crown drew the attention of the Court to an administrative slip resulting in the entry of convictions in respect of 25 counts when the relevant informations and factual summaries related to only 21 counts. In a minute dated 27 March 2002 Anderson J granted leave to appeal against conviction in respect of the surplus informations. Despite indicating that the appeal against conviction would be successful the Court declined to quash the convictions at that time in order to allow for a psychiatric report to be sought pursuant to s121(1) Criminal Justice Act 1985 for the purpose of considering the sentence appeal.

Factual background

[2] The appellant is an 18 year old youth and is the only child of his biological parents who separated when he was two years old. After his parents separation he lived between his mother’s and his father’s homes until he was 16 years old. Each of his parents has gone on to new relationships with unhappy consequences for the appellant. He states that his stepmother beat him almost every day during the periods that he lived with his father. This included an assault with a crescent spanner. Eventually, when he was 13, charges were brought against his stepmother and a restraining order was issued. The complaint resulted in the appellant being rejected by his father. He also described his mother’s first partner as “totally ignoring him” for the duration of their relationship of some nine years.
[3] The charges faced by the appellant covered the period 1999 to 2001. They involved activities with six victims aged at the time of sentencing between five and twelve years. Three of the appellant’s six victims were either related to him by blood or through his step-parents. The other three victims were the children of two of his mother’s friends. One of them cannot talk or walk as the result of a neurogenetic condition known as Angelman’s syndrome. The offending included rape, oral sex, anal sex and anal penetration with instruments, touching of breasts and genitalia and digital penetration. There were also two incidents involving the family dog.
[4] In 1999 the appellant and his mother began living with his mother’s de facto partner. The first victim was this man’s son, a child aged 11 years when the offending began in early 2000 but with a developmental delay of approximately two years. The conduct lasted approximately one year and included three instances of anal intercourse, penetration of the anus with a vibrator and a candle, and two occasions involved oral sex. On one occasion the appellant forced the victim to remove his pants and allow his pet dog to lick the boy’s genitalia. On another occasion the appellant allowed the dog to lick his own genitalia. The victim says that the appellant threatened him and made him cry.
[5] The second victim was the daughter of one of the appellant’s mother’s friends. She was also aged 11 years. The conduct took place over the same period on occasions when the appellant would stay at the home of the victim. The appellant knew that the girl had previously been sexually abused, having been told by her mother. On occasions he indecently assaulted her by touching her breasts and genitalia and forced her to hold his penis. The abuse progressed to rape. She told the police that the appellant threatened to hurt her and said that he would do it again if she told anyone. On one occasion the appellant coerced the first victim and the second victim into having sexual intercourse while he watched, thereby procuring rape.
[6] Also during the same period the third victim, the cousin of the first victim, came to stay for a weekend in the appellant’s home. She was 11 years old at the time of the offending. That weekend a tent was erected in the back yard where all the children slept. On the Saturday night all the children were in the tent, including the appellant (then aged 16 years). That night the appellant instigated a game of “truth, dare or promise” that required all the participants to remove their clothes. During the course of the game the appellant digitally penetrated the victim and forced her to touch his erect penis.
[7] The appellant sexually assaulted the fourth and fifth victims, then aged four and seven, during 2000. Their mother was another friend of the appellant’s mother and he frequently stayed the weekend at their home. During Easter 2000 the victims’ mother employed the appellant to assist in the care of the fifth victim who suffers from Angelman’s syndrome. His responsibilities included bathing and dressing the child. It was while he was bathing this girl that he digitally penetrated her vagina, causing her to bleed and cry. The appellant called for the girl’s mother and told her that the girl had scratched herself. Medical attention was immediately sought, ultimately resulting in the discovery that the girl’s hymen was not intact. This led to a formal complaint to the police and the appellant’s subsequent arrest. In the course of his video statement the appellant admitted this offending and similar offending against the fourth victim that took place when her mother left the child in his care while she went to an appointment.
[8] Sometime between 1 January 2001 and 31 May 2001 the appellant went to stay with his father. While there he sexually abused his eight year old half sister, the sixth victim. This involved rubbing of genitalia and digital penetration on two separate occasions.
[9] Subsequent to his arrest on 26 June 2001 the appellant fully admitted his offending in relation to the first five victims and disclosed his offending in respect of the sixth. The charges were laid in both the Youth Court and the District Court. The appellant intimated pleas of guilty from the outset with formal pleas taken in the District Court on 21 August 2001. The summary charges were discussed at a Family Group Conference with the resulting recommendation that they be transferred to the District Court for sentencing pursuant to s283(o) of the Children Young Persons and their Families Act 1989. In an oral judgment dated 21 August 2001 Judge Boshier declined the jurisdiction of the Youth Court and ordered that the charges be transferred to the District Court for sentencing in accordance with the Family Group Conference recommendation.

Conviction

[10] The surplus informations referred to above were identified by Anderson J as being CR Nos. 1292035999, 1292035988, 1292035989 and 1092035981. They reflect one charge of sexual violation by rape, one charge of sexual violation by unlawful sexual connection and two charges of carrying out an indecent act with a girl under 12. With the agreement of all parties the appeal against conviction on these four surplus informations is allowed and the convictions are accordingly quashed.
[11] Before we turn to consider the sentence appeal we note that in accordance with Anderson J’s direction the Court has received a psychiatric report pursuant to s121 of the Criminal Justice Act 1985 to assist us in the determination of an appropriate sentence.

Sentence

[12] In the course of his sentencing remarks the Judge canvassed in some detail the victim impact reports prepared by the victim’s families. They make sad reading, describing families that have been destroyed by the discovery of the appellant’s behaviour and children with ongoing behavioural difficulties. One of the victims talks about wanting to die because he considers that his life has been ruined by the appellant.
[13] Next, the Judge referred to a report from Mental Health Services which concluded that the appellant bore all the characteristics and features of an adult sexual offender, including minimisation of the nature of his offending behaviour and failure to accept responsibility for his actions. It assessed his risk of re-offending as high.
[14] The aggravating features of the offending identified by the Judge were the number of victims and their young age, the significant effects of the offending upon the victims, the breaches of trust involved, the repetitive and gross nature of the offending, and the fact that two of the victims suffered from intellectual disabilities. The Judge noted that these aggravating features outweighed the mitigating features, namely the appellant’s guilty pleas, his co-operation with the police, his youth, the fact that he was a first offender and that he had expressed remorse after reading the victim impact statements. By reference to the decision of this Court in R v A [1994] 2 NZLR 129 and the totality principle, the Judge took a starting point of 10 years imprisonment. Because he considered that the aggravating features outweighed the mitigating he imposed a lead sentence of 12 years imprisonment in respect of each of the charges of sexual violation by rape. The rest of the sentences were as follows:

• (b) Sexual violation by unlawful sexual connection – 10 years imprisonment on each charge.
• (c) Compelling an indecent act with an animal – 7 years imprisonment.
• (d) Carrying out an indecent act with a girl under 12 – 5 years imprisonment on each charge.
• (e) Inducing an indecent act with a girl under 12 – 5 years imprisonment.
• (f) Inducing an indecent act with a girl aged 12 – 3 ½ years imprisonment on each charge.
• (g) Indecent act with an animal – 18 months imprisonment.

[15] All sentences imposed were concurrent as between each other, resulting in a final sentence of 12 years imprisonment.
[16] It must be noted that although he sentenced the appellant on the four charges for which convictions now have been quashed, because the sentences were concurrent that did not add to the actual sentence to be served. It was not seriously contended that if this had not occurred the Judge would have fixed a sentence lower than 12 years having regard to the totality principle. The true issue on appeal was whether, for this offender, the effective sentence of 12 years is excessive.
[17] In support of the appeal against sentence Ms McNeely submitted that the sentence was manifestly excessive by reference to both the starting point and the ultimate sentence. By reference to R v A she submitted that the appropriate starting point was one of 8 years imprisonment from which the sentence should be arrived at by adjustments for aggravating and mitigating factors. Counsel further argued that the Judge had erred by failing to accord sufficient weight to the appellant’s personal circumstances, namely his youth and unfortunate family and social background.
[18] For the Crown Mr Pike supported the final sentence despite the reduced number of charges by reference to the facts, although conceding that the sentence was a firm one for an offender of the appellant’s years. He emphasised additional aggravating features of the offending as being the threats made to some of the victims and the fact that the appellant continued offending after one of his victims had made a disclosure. In response to the submissions as to the appellant’s youth and family background counsel argued that this was a case in which the need to protect society outweighed competing interests.
[19] It is, of course, somewhat artificial to seek to identify a “starting point” for the total offending in this case by reference to the decision of R v A so far as that decision set a starting point for a single offence of rape by an adult after a contested hearing. We think Mr Pike was close to the mark when he contended that for an adult offender, the range of offending in this case, involving six victims, a sentence moderated by the totality principle would be of the order of 16 years before credit for the guilty pleas and other mitigating factors. On that approach, the sentence of 12 years imposed would reflect an appropriate reduction for the guilty pleas but no allowance for other mitigating factors.
[20] The real difficulty in this case lies in the age and circumstances of the appellant and the influence these should have on the assessment of the appropriate sentence. Earlier concern that the appellant might suffer from some physiological or psychological injury related to physical trauma experienced at the hand of his stepmother has been answered. The helpful psychiatric report of Dr Simpson, Clinical Director and Senior Lecturer in Forensic Psychiatry at the School of Medicine, University of Auckland states:

In relation to the effects of abuse noted in the Minute of the Court, Mr [J] does not appear to have any physical sequelae of the abuse he suffered nor of the motor vehicle accident. There are clear psychological sequelae in terms of his personality difficulties, poor self image, post traumatic memories and self harming behaviour. The car accident was in part of result a low mood and high risk taking behaviour.

[21] The assessment reflects the appellant’s background.

Mr [J] is a young man with a history of marked personal inadequacy, characterized by a lack of confidence in social relationships, unassertiveness and isolation from age appropriate peers. He has suffered periods of major depression, which are responsive to treatment with medication, and long standing feelings of unhappiness, suicidal feelings and self mutilation. He has had problems with control of anger. He is not currently depressed. He shows some features of social anxiety and avoidance of others who may tease him.

The cause of these issues can be clearly seen in the nature of his developmental environment. His parents separated when he was very small and he was physically abused for many years, with his biological parents being unavailable to protect him from it. Overweight and unconfident, he was the butt of bullying from school mates.

The development of his sexuality was misdirected in this context. He became sexually aware and viewed pornographic material, but lacked the interpersonal skills to discharge these feelings appropriately, doing so inappropriately with the ‘available’ young people he looked after. His lack of self confidence, low mood and social anxiety all made such behaviour more likely.

He appears therefore to display a range of sexual behaviour best described as non fixated (interested in age appropriate and age inappropriate partners) bisexual paedophilia. It is not clear what the nature of his true sexuality is, but more likely than not is not specifically paedophilic or homosexual. Rather, these were the ‘available’ sexual partners.

[22] While there are assertions throughout the record that the offending began when the appellant was 14 years old, the earliest conduct the subject of charges, according to the summary of facts, is said to have occurred after 1 October 1999. Most of the offending was in the year 2000. The offending therefore spanned a period of some 18 months when the appellant was aged 16 to 17½. It cannot be regarded as other than serious and persistent conduct by a sexually developed young person directed towards young children two of whom were, to his knowledge, disadvantaged, one of them seriously, and over whom he was able to exercise dominance.
[23] It is a matter for real anxiety to contemplate a sentence of imprisonment for 12 years for a youth. As Ms McNeely put it, the sentence amounts to more than two thirds of the life he has lived. But if the offending is of a high degree of seriousness and the prospects of rehabilitation are low, the protection of the public may require such a sentence.
[24] As the Court has said in the past, and as acknowledged by Ms McNeely, the young age of an offender is not of itself necessarily mitigating. New Zealand’s international obligations under art 37(b) United Nations Convention on the Rights of the Child is of course to be borne in mind, but its protection extends also to potential future young victims.
[25] Necessarily, a dominating factor must be the appellant’s prospects of rehabilitation. The sentencing Judge had before him a Mental Health Services report prepared for the Manukau Youth Court under s333 Children, Young Persons and Their Families Act, and a pre-sentence report. Both expressed somewhat negative views of the appellant’s prospects and likelihood of re-offending – described by the Probation Officer as “high”.
[26] Dr Simpson’s report, which was not before the Judge, is less pessimistic:

As noted in other reports, Mr [J] shows many of the cognitive distortions of sex offenders. He is noted by others (M A Laws and A J Simms, probation officer) to be at high risk of reoffending if his behaviour is judged at the current time. In favour of this conclusion is that he does not adequately understand the nature of his dominance over his victims, sees them as competent to decide to engage in such behaviour, minimises his own responsibility, and underestimates the harm he has done. Further, the offending occurred in a variety of contexts and victims, and over a significant period of time (approximately 3 years). It was also intrusive, penetrative abuse which showed little regard for the well being of the victims. Victims were male and female, and involved animals and 2 types of inanimate objects. These factors all reflect to increase the risk of recidivism.

In addition, though, he does now see that aspects of his behaviour are wrong, and perceives that he has a problem that he doesn’t properly understand that he needs help to deal with. He is willing to have help for his problems and has already taken the opportunity to engage in rehabilitation programmes within the prison. He is young, and wants help. He is of normal intelligence and has the cognitive and interpersonal ability to engage in treatment. For sex offenders, occupational skills do not of themselves reduce the risk of recidivism (unlike the effect in violent offenders) but in Mr [J]’s case, anything that will increase his sense of competence, especially interpersonal assertiveness and communication skills, is also likely to be of value.

Thus when the positive potentials for treatment are considered, given also his young age, and if he receives proper treatment for the above issues, his risk of reoffending may be lower than the high risk noted by others.

[27] Where there are prospects that a young person can, with treatment, gain insight into his or her offending and develop the capacity to enter adulthood constructively and without further danger to others, it is surely better to avoid a sentence so long as effectively to crush those prospects. We are persuaded by Dr Simpson’s report that this offending is more likely explained by isolation and lack of self esteem than by a diagnosis of paedophilia. We think the sentence should, so far as possible, offer the appellant a horizon while responding to the seriousness of the offending which cannot be ignored.
[28] After careful consideration we have determined that the sentence should be reduced. Accordingly, the sentences imposed for the offences of rape and sexual violation by unlawful sexual connection are quashed and there are substituted sentences of imprisonment for nine years. The sentences for the other offences stand.
[29] The appeal is allowed to that extent.

Solicitors
Wallace & Co, Auckland, for Appellant
Crown Law Office, Wellington