R v T (CA 348/01) [2002] NZCA 405 (26 February 2002)

Last Updated: 27 November 2019

PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY s 139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 348/01

THE QUEEN

V

T (CA 348/01)

Hearing:	20 February 2002
Coram:	Anderson J Williams J Baragwanath J
Appearances:	R Wade for Appellant K Raftery for Crown
Judgment:	26 February 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

The nature of the appeal

[1] This is an appeal against a sentence of 7½ years imprisonment imposed on 25 September 2001 following the appellant’s pleas of guilty to offences of indecent assault, sexual violation, attempted sexual violation, assault and attempting to pervert the course of justice. The appeal is brought on the grounds of manifest excess.

The offences

[2] The offences concern four different victims and incidents which occurred during 1994 to 1998. During that time, the appellant and one of the victims were living together as partners. The other victims were a member of the appellant’s extended family, and two sisters who were friends of his partner.
[3] The offending against the extended family member occurred between 1994 and 1996, when she was 14 to 16 years. On a number of occasions, while looking after the victim and a number of other younger relatives, the appellant fondled her breasts. He also walked in on her in the shower and attempted to kiss her and would regularly wake her in the early hours of the morning and undress her from the waist up, lick and suck her breasts and nipples, often leaving bruises. This conduct gave rise to a representative charge of indecent assault. On a number of other occasions, either when no one else was around, or on entering the victim’s bedroom in the early hours of the morning, the appellant, despite the victim’s protests, inserted his fingers into her vagina. In relation to these incidents, the appellant was charged with a representative count of sexual violation by unlawful sexual connection. During one further incident, the appellant grabbed the back of the victim’s head and forced her mouth towards his penis. She closed her mouth and pulled away. The appellant was charged with a specific count of attempted sexual violation.
[4] The offending against one of the friends occurred over the period of a year when, as an 8 year old, she was staying at the appellant’s house. On a number of occasions over this period of time, the appellant touched the victim’s buttocks with his hand. He was charged with a representative count of indecent assault.
[5] The offending against the other older sister occurred on 14 July 1996, while she and her sister were staying at the home of the appellant. On the morning of that day, the victim woke to find the appellant had climbed into her bed. He put his arm around her and began feeling her buttocks. In relation to this conduct, the accused was charged with one specific count of indecent assault.
[6] The charges in respect of the appellant’s partner involved violence and threats. During one incident in 1996, the appellant punched and slapped D. He was, in respect of this attack, charged with male assaults female. On another occasion, the appellant punched the victim and kicked her while she lay on the ground. The appellant only stopped when relatives came to see what was happening and physically restrained him. The attack caused stiffness and bruising, but the victim did not seek medical attention. In relation to this incident, the appellant was charged with injuring with intent.
[7] The last charge relates to an event which took place in 1999 after charges had been laid by the partner and one of the sisters. The appellant encountered his now estranged former partner, and told her to drop the charges against him or she would not see her baby girl again. The child was staying with the appellant’s family in Tonga. This threat gave rise to a charge of attempting to pervert the course of justice.
[8] The appellant pleaded guilty on the morning of his trial and appeared for sentence on 25 September 2001. The Judge dealt with the sexual offending on a concurrent basis but considered that the assault charges and the charge of attempting to pervert the course of justice were most appropriately dealt with on a cumulative basis.
[9] The Judge considered the pivotal charge for sentencing in relation to the sexual offences to be Count 2, the conviction for sexual violation by unlawful sexual connection relating to the digital penetration of the family member. She was of the opinion that there were seriously aggravating features of this offending; the age of the victim, the abuse of trust on the appellant’s part, the number of violations, which were “numerous” on the most favorable analysis, and the fact that in relation to this, and all other charges, the appellant did not admit responsibility and showed no remorse. The Judge adopted as a starting point a sentence of 6½ years imprisonment for the sexual violation charge.
[10] In relation to the other sexual offending, the Judge considered the following terms of imprisonment to be appropriate, these to be served concurrently with the sentence for Count 2:

• Count 1, indecent assault – 3 years,
• Count 3, attempted sexual violation – 4 years,
• Count 4, indecent assault – 18 months,
• Count 5, indecent assault – 12 months.

[11] On Counts 6 and 7, male assaults female and assault with intent to injure, sentences of 12 months and 18 months were imposed, these to be served concurrently with each other, but cumulatively on the sentence for Count 2.
[12] In relation to Count 8, the charge of attempting to pervert the course of justice, it was emphasised that the Courts treat this type of offending very seriously because it strikes at the fundamentals of the administration of justice. A deterrent sentence was required. The Judge noted that in Clutterbuck v R CA 372/99, 17 November 1999, this Court indicated a starting point of 3 years for serious cases, but stated that an examination of the relevant decisions shows that a lesser term of imprisonment is regularly imposed. The Judge regarded the threats in this case to be both serious and cruel, warranting a sentence of two years imprisonment, to be served cumulatively.
[13] The 10 years imprisonment represented by the terms of 6½, 1½ and 2 years was reduced by two years to take account of the appellant’s guilty plea. The Judge noted that the plea was made late, on the morning of the trial, and that the explanation tendered by counsel for the accused was that it was only following a change in counsel two weeks prior to trial that serious attention was given to the matter of a guilty plea.
[14] The Judge then considered the sentence in relation to the totality of the offending. She considered the circumstances pleaded in mitigation by counsel for the appellant, the changes in the appellant’s life and also had regard to the seriousness of the offending. She reduced the overall sentence by a further 6 months from 8 to 7½ years. The reductions of 6 months and 2 years were applied to the sentence of 6½ years, which then became 4 years. The overall sentence of 7½ years therefore comprised 4 years in total for the sexual offending, 1½ years cumulative for the assaults, and 2 years cumulative on the previous sentences for the attempt to pervert the course of justice.

Submissions

[15] The appellant submits that the sentence was manifestly excessive, having regard to the guilty plea, the totality principle, and the sentence for the charge of attempting to pervert the course of justice.
[16] The appellant submits that an offender who pleads guilty to sexual allegations deserves more substantial credit than ordinarily allowed. The reason given is that such a course recognises the difficulty for victims giving evidence in such cases, and the real difficulty offenders have in pleading guilty to sexual offences.
[17] The Crown points out that a sentence reduction of 20% was given in relation to the guilty plea and argues that the lateness of the plea meant that the victims had to prepare for giving evidence. It was submitted that the material in the case showed that the plea does not reflect any contrition or remorse on the appellant’s part and argued that while the intervention of counsel may have prompted the plea, it was for the appellant to consider what he had done to his victims and to bear responsibility for his decision in relation to the timing of the plea.
[18] The appellant further submits that the aggregate sentence imposed was excessively harsh, when the changes in the appellant’s life since the commission of the offences and the appellant’s relatively good record and his future prospects are taken into account.
[19] The Crown noted that a further 5% reduction in sentence was made on account of the totality principle, and argues that the question is therefore whether the final sentence imposed can be said to be too long for the appellant’s conduct. It emphasised that there are three separate acts of offending in this case, sexual, domestic violence and attempting to dissuade a witness, and that there are three victims. Attention is also drawn to the four year period over which the offending occurred and the abuse of trust reflected in the appellant’s behaviour. In light of these factors, it was submitted, the ultimate sentence was within the range open to the sentencing judge.
[20] The sentence for attempting to pervert the course of justice was said by counsel to be excessive, especially for being imposed cumulatively. It was submitted that the threats made were uttered in anger rather than in a premeditated way cynically calculated to inhibit the victim from giving evidence. Whilst not depreciating the seriousness in principle of attempts to interfere with justice, counsel urged the Court to assess the appellant’s culpability in terms of an unsophisticated attempt, born of anxiety, by a young man, an immigrant who now had a settled new relationship and a baby son.
[21] The Crown argued that it was entirely appropriate and consistent with principle for the sentence for this offence to be imposed cumulatively, being calculated to prevent the giving of evidence.

Reasons for judgment

[22] This Court has often emphasised the appropriateness of a resulting sentence rather than the mechanism by which it was reached as the matter for appellate consideration. That approach, vindicated by the principle of totality of sentence, leans against an over-elaborate structure which could tend to compartmentalise a pattern of offending.
[23] In the present case the sentence comprises three layers of accumulation, and two steps of reduction, for conduct which, viewed in a reasonably broad way, is a continuum of offences of sexual and other violence and threats to family members and visitors.
[24] Within the domestic situation, so vulnerable to disgraceful breaches of trust such as those exemplified by this case, the appellant molested young girls and beat his wife for remonstrating when she was suspicious of his conduct. The conduct cannot be condoned but whether it warranted an effective starting point of 8 years imprisonment is well open to argument.
[25] The attempt to pervert the course of justice, while not so obviously part of the continuum, has some connection with the other offending, sufficient to indicate a broad view of total offending. The Judge referred to R v Clutterbuck as indicating a starting point of 3 years for serious cases. The two years she held appropriate in this case tends towards the serious category. Clutterbuck was a seasoned criminal whose record included serious violent offences. He had threatened to play an allegedly incriminating tape if his former partner did not withdraw an application for a protection order. Favourable improvements in his lifestyle since the offence were amongst the factors influencing a 12 month sentence imposed at first instance and left untouched by this Court.
[26] The Judge also referred to R v Gemmell CA 257/96, 2 October 1996, a case where the appellant had been sentenced both for arson, which destroyed a house, and attempting to pervert the course of justice, involving hints of violence to a witness in order to dissuade him from giving evidence. Concurrent sentences of 17 months imprisonment were not altered on appeal. The case exemplifies a degree of connectivity between an offence and a later criminal attempt to pervert the course of justice in connection with it.
[27] In R v Hillman CA 14/92, 14 May 1992, this Court examined and reduced a sentence of 3 years imprisonment for a gang member who had tried to persuade a complainant to withdraw a charge of assault against another gang member. There were elements of intimidation, standover tactics and gang overtones. A sentence of 3 years imposed after conviction by a jury was held to be excessive and was reduced, effectively to 18 months. This was found consistent with the requirement for a “condign and deterrent sentence” in cases of this kind.
[28] The length and accumulation of the sentence for attempting to pervert the course of justice render it excessive in comparison with the cases we have mentioned. The structure of the sentence overall does not, with respect, seem sufficiently to recognise the principle of totality, particularly having regard to its reasonably continuous quality. Having regard to these factors, we are persuaded that 10 years, subject to allowance for the guilty pleas, is plainly excessive. The overall offending warranted a sentence not exceeding 8 years, and arguably less. The Judge made an allowance of two years for the guilty pleas. Although counsel for the appellant submitted this was inadequate we take the view that it was somewhat on the generous side. In any event we would not differ from the Judge’s assessment. She was aware of difficulties in connection with representation at an earlier stage of the prosecution, and even belated guilty pleas spare the tragic victims of sexual offences the re-traumatising ordeal of giving evidence at trial. That feature was relied on by counsel for the appellant but we dismiss his submission that on such approach the discount was too low. The factors which bear on the appropriate discount are various. In this case the plea came late and the pre-sentence report suggests an absence of remorse.
[29] Looking at the matter in terms of overall culpability and having regard to the factors we have examined we consider that the ultimate sentence should not have exceeded 6 years imprisonment. How that result is to be achieved in the light of the complexities of the structure of the original sentence becomes a matter of practical expediency. We give effect to our conclusions in the following way. We allow the appeal against the sentences for male assaults female (count 6) and assault with intent to injure (count 7) to the extent that the order that such be served concurrently with each other but cumulatively upon the sentences for counts 1, 3, 4 and 5 be quashed and instead we make an order that counts 6 and 7 be served concurrently with the sentences on counts 1, 3, 4 and 5.

Solicitors
Crown Solicitors, Auckland