R v C CA100/02 [2002] NZCA 382 (24 July 2002)

Last Updated: 13 January 2019

Publication of name and identifying particulars of complainants prohibited by s139, Criminal Justice Act 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA100/02

THE QUEEN

V

[J P C]

Coram:	Keith J Tipping J Anderson J
Appearances:	J A Westgate for Appellant A Markham for Crown
Judgment (On the papers):	24 July 2002

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1] This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offences and sentence

[2] The appellant was convicted following his pleas of guilty to the following:

• [a] One charge of sexual violation by unlawful sexual connection
• [b] Five charges of inducing a girl under 12 to do an indecent act
• [c] Three charges of indecent assault on a girl under 12
• [d] Two charges of theft from a dwellinghouse

The appellant was sentenced on 4 April 2002 in the District Court at Dunedin to a total of 5 years 3 months imprisonment.

Relevant facts

[3] On 16 January 2002 the police executed a search warrant at the appellant’s address as a result of a complaint made against him. During the search the appellant co-operated fully with the police and made full admissions to the police at a subsequent interview. Located at his address were photographs and videos that the appellant had taken of eight young girls in various indecent poses. One of those girls was the appellant’s daughter. In addition to photographing and videoing his daughter he admitted that he also made her suck his penis while he watched a pornographic movie when she was four years of age. Five of the complainants were friends of his daughter who visited the house to play with her regularly. The remaining two victims were older girls whose houses the appellant entered under the guise of his neighbourhood watch responsibilities and stole from them underwear and photographs of them as smaller children. The appellant kept the photographs and underwear in a collection which included stolen children’s underwear. He also swabbed the underpants for pubic hair, which he placed in his photo album. The offending spanned a period between August 1995 and January 2002.

Grounds of appeal

[4] In support of the appeal the appellant’s written submissions attacked the sentence as manifestly excessive by reference to the starting point of seven years and the ultimate sentence imposed. In respect of the ultimate sentence the appellant submitted that the sentencing judge failed to accord a sufficient discount to reflect the mitigating features of the case, including the appellant’s co-operation with the police, his early guilty plea, and his remorse and insight into the offending.

Reasons

[5] We do not consider the Judge erred in principle or imposed an overall sentence which was outside the range available for this offending. The appellant’s conduct represented very serious offending. It involved gross and repeated breaches of trust in respect of eight young girls, including his own daughter. It occurred over a substantial period of time. The victim impact statements show that the girls and their families have been seriously affected.
[6] As to the ultimate sentence, it was submitted on behalf of the appellant that he should have been accorded a one third discount to reflect the mitigating features of the offending. That was said to be particularly so given that the most serious offence involved his daughter. His co-operation and early guilty plea saved her having to give evidence. There is no fixed amount which a Judge must allow for a plea of guilty. The discount depends on the circumstances of the particular case. In this case, where most of the offending was captured on video or in photographs, we consider that the 25% deduction accorded by the Judge was appropriate and adequately reflected all the relevant factors.
[7] Counsel also submitted that the Judge failed to take adequately into account other mitigating factors involving the appellant’s personal circumstances and the circumstances of the offending. We do not accept this submission. We are not persuaded that he failed to give sufficient weight to the matters referred to by counsel, namely the appellant’s acceptance of responsibility, his willingness to undergo treatment, the fact that he was a first offender and his remorse and insight into his offending. We consider the sentencing Judge appropriately balanced all these factors, indeed all the relevant mitigating factors, against the extent and seriousness of the appellant’s offending.

Decision

[8] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington