R v DH (CA 364/02) [2003] NZCA 331 (3 April 2003)

Last Updated: 2 August 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 364/02
CA 365/02

THE QUEEN



v



DH (CA 364/02)
PH (CA 365/02)

Hearing: 27 March 2003

Coram: Anderson J Baragwanath J Gendall J

Appearances: P J Kaye and N R Webby for Appellants
K Raftery for Crown

Judgment: 3 April 2003

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1] The appellants PH and DH, who are father and son, appeal against the sentences of 12 years and 11 years imprisonment respectively imposed on them in the High Court at Auckland on 18 October 2002 following pleas of guilty to allegations of sexual offending involving the niece of PH, the cousin of DH, who is now 16 years of age. While the dates of the offending by the respective appellants overlapped, there was no evidence that either knew about the other’s conduct.
[2] PH pleaded guilty to one charge of rape, four charges of sexual violation by unlawful sexual connection and four charges of indecent assault on a girl aged between 12 and 16 years. DH pleaded guilty to three counts of rape, two of sexual violation by unlawful sexual connection and one of indecent assault on a girl under the age of 12.

The facts

[3] The offending by DH covered the period from 23 December 1997 when the complainant was 11, until January 2001 when she was 13. The offending by PH took place between March 2000 and May 2001 while she was between the ages of 12 and 13.
[4] The complainant had had a very close relationship with the wife of PH, the mother of DH, since she was a very young child. That is how the appellants had access to her. Initially the complainant’s family lived in a town out of Auckland and she would travel to Auckland each Friday after school to stay the weekend with her uncle, aunt and cousins, returning home after a Sunday church service or on the Monday. Later the complainant's family moved to Auckland and the complainant continued to stay regularly with her aunt. The abuse occurred throughout the period, normally on a Friday night while the complainant’s aunt was working.
[5] The offending by DH began while the complainant was sleeping by herself in a room in his home, with genital touching over the shorts and underpants which she was wearing. The offending progressed to removal of the complainant’s shorts and underpants and further genital touching followed by painful penile penetration of her anus. DH then raped the complainant causing her pain throughout the episode. Abuse occurred on some five occasions, four of them involving sodomy.
[6] On the final occasion in January 2001, when the complainant was somewhat more mature, the complainant told DH in the course of an episode of rape that if he did not move she would scream and he desisted. The complainant told her mother what had happened and DH admitted his offending to her. During the period of the offending DH was aged between 17 and 19 years. He is now 20.
[7] The offending by PH took place over a shorter period. The first episode commenced with PH kissing his sleeping niece who woke up and rolled away from him. He rolled her back, lifted her T-shirt and began kissing her breasts. When she again rolled away he said “It’s me, uncle; sorry, it will never happen again.” The complainant was so frightened that she was unable to sleep that night.
[8] A second incident occurred after the complainant had been to a church camp during school holidays in July 2000. The complainant woke to find PH kissing her on the mouth. He then kissed her breasts, pulled down her underpants and licked the skin around her genitalia. After further kissing of her breasts and mouth he got up and left the room without saying anything. Not long afterwards she was again wakened by PH kissing her. He removed her clothing again kissing her breasts and genitalia and moved his finger in and out of her vagina. She rolled away and he said “Sorry” and left the room.
[9] Some weeks later PH woke the complainant again and said he wanted to talk to her. He said “I thought you wanted it the first time” which caused her to start crying. He continued to tell her he was sorry and it would not happen again.
[10] At about the end of April 2001 the complainant was again staying at PH’s home. PH went into the lounge and started kissing her on the mouth before pulling up her T-shirt and kissing her breasts. He then pulled her up into a sitting position, removed his pants to reveal his penis to her. He then forced her mouth over his penis seven or eight times. He then stood her up and pulled down her underpants before laying her on the floor. He then proceed to rape her despite her resistance. In response to the pain she was suffering she said “ouch” which led the accused to stop and withdraw his penis. PH said he was sorry and that he needed a trip and some counselling.
[11] After the complainant had told PH’s wife what had happened at a family meeting in the presence of five adults he admitted his offending. At the time of the offending he was in his late thirties.

The pre-sentence reports

[12] In the case of PH the probation officer recorded that he accepted full responsibility for his behaviour; he repeatedly stated that he felt deeply remorseful for the hurt he had caused the complainant; he felt that pleading guilty at the first opportunity was a course of action he had decided to make to save her from hardship. The probation officer assessed his risk of reoffending as low because of what he considered to be genuine remorse; sustained efforts to seek sexual abuse counselling; willingness to co-operate with proposals for professional intervention; and the results of a clinical assessment.
[13] In the case of DH, the probation officer assessed the risk of reoffending as high given previous sexually deviant behaviour and inability to recognise the significance of his heavy abuse of alcohol and drugs. The officer considered that he did not fully comprehend the gravity of his offending and that he showed or expressed minimal remorse and was not motivated to change.

The victim impact statement

[14] The victim impact statement by the complainant and her parents recorded depression on the part of the complainant, mood swings and suicidal ideation.

The High Court decision

[15] In the case of PH, the sentencing Judge adopted a starting point for sentencing of 10 years. He found the following aggravating features:

1. Gross continuing abuse of trust in relation to a member of his family who was entitled to his protection. In this respect he regarded PH as more culpable than his son.
2. The offending extended over the period of a year and was of progressively increasing gravity and with a predatory element, taking advantage of the complainant’s close friendship with the appellant’s wife, which is how the complainant was accessible to him.

100. The youth and vulnerability of the complainant were overlapping aggravating factors.

[16] The Judge considered that they warranted adding three years to the 10 year starting point. For the plea of guilty entered on arraignment, acknowledgement of fault, expressions of remorse and actual endeavour to rehabilitate himself, the Judge deducted one year, reaching a term of 12 years.
[17] Because of PH's expressions of remorse and desire to deal with his behavioural problems the Judge decided against imposing an extended minimum parole period.
[18] In the case of DH the Judge selected the same 10 year starting point. He accepted that there was not the same degree of abuse of trust as in the case of his father. But he emphasised that the complainant was entitled to see him as a member of her wider family on whom she could rely for protection and safety. The offending extended to something over a year. The Judge considered that the severe impact on the victim was similar to that caused by his father. He regarded as an aggravating factor an absence of remorse and of willingness to deal with personal drug and alcohol issues. He increased the ten years to twelve for the aggravating factors. Mitigating factors were the plea of guilty and the fact that DH suffers from depression. For these he was given a one year credit. His sentence was of 11 years imprisonment.
[19] The Judge further considered that DH’s lack of remorse, mental health condition and inability to face up to alcohol and drug issues gave rise to a concern for safety within the community that warranted the imposition of a minimum nonparole period of 5.5 years.

Submissions

[20] In their written and oral submissions for the appellants, Mr Kaye and Mr Webby submitted that the sentences of 12 and 11 years imprisonment respectively are manifestly excessive. They argued:

1. the 10 year starting point adopted by the Judge for each of them was too high as were the 13 and 12 year figures reached before mitigation;
2. the one year discount given to each of them for matters of mitigation was inadequate and in disregard of the requirement in s8(g) of the Sentencing Act 2002 to “impose the least restrictive outcome that is appropriate in the circumstances”.

[21] For PH they submitted that, given:

1. DH’s offending took place over a three year period whereas his offending was over a one year period;
2. he has shown remorse for his actions whereas DH has not, or not as fully, and his prospects of rehabilitation are high;

100. the Judge gave too much weight to the age and his breach of trust by PH as aggravating factors

and the sentence of PH is disproportionate to that of DH.

[22] For DH they submitted that the imposition on him of a minimum non-parole period was wrong in principle because the circumstances of his offending were not “sufficiently serious” to “take the offence out of the ordinary range of offending of the particular kind” (s86(3)).
[23] In his written submissions Mr Raftery for the Crown submitted that the sentences imposed were within the range properly available to the sentencing Judge. In his oral submissions Mr Raftery accepted that the factors distinguishing the two cases balanced one another and that the differential sentences could not be sustained.

Discussion

[24] Offending against a family member by the head of the house entailed serious abuse by PH of his position of trust. DH also abused the opportunity made available to him by the complainant’s membership of the family. His offending occurred over a sustained period. We are nevertheless satisfied that the sentences imposed in each case were clearly excessive.
[25] In the case of both appellants the Judge rejected the defence submission that he start assessing sentence at the conventional eight year level. We have noted his view that in each case of this type, before assessing aggravating and mitigating features, the starting point should be ten years and that in the case of PH aggravating features were:

1. grave and continuing abuse of trust in relation to a family member;
2. the range of activities engaged in and their increasing gravity which included a predatory element; and

100. the youth and vulnerability of the complainant.

[26] The increase from eight years to ten years as the starting point must have taken the aggravating factors into account. The Judge must have done so again to reach a 13 year ceiling. From that he deducted one year to recognise the mitigating factors, particularly the plea of guilty which spared the complainant from having to give evidence and the expression of remorse, so as to reach the 12 year term.
[27] In the case of PH the offending, while serious, entailed only one episode of rape during which there was exhibition of remorse. We are satisfied that for the such offending, despite the breach of trust, the assessment of 13 years prior to mitigation was excessive. As to that, although the pleas by each appellant were not notified until ten days before trial, we are satisfied by the evidence of PH’s facing the family and of the steps already taken to undergo counselling, the probation officer’s acceptance of his contrition as genuine and, it must be said, an impressive acceptance of responsibility in his letter to the Court, that he should receive greater recognition for contrition than the sentence acknowledged. The ceiling could not reasonably have exceeded 10-11 years. We also consider the allowance for mitigating factors inadequate; it warranted 2 years off an 11 year term.
[28] We accordingly allow PH’s appeal and substitute a nine year term.
[29] In the case of DH the offending was over a longer period. But as the Judge recognised, the degree of abuse of trust was less than in PH’s case. Also of importance is the fact of DH's relative youth. The Judge expressed concern in the case of DH that the remorse exhibited by PH was not present. In imposing a nonparole period exceeding the minimum he said that he was satisfied that DH's lack of remorse, mental health condition and inability to face up to alcohol and drug issues gave rise to concern for safety in the community.
[30] A psychiatric report records that DH had previously been admitted to psychiatric hospital with mood symptoms thought to be explicable by alcohol and drug abuse. He had recently been admitted for suicidal ideation arising in the context of drug and alcohol abuse and his impending appearance before court. The psychiatrist expressed the view that his outlook on human sexuality and what constitutes consent to sexual activity appears to have been significantly distorted by abuses to which he had been exposed in the course of his own process of development.
[31] While the psychiatrist did not consider that mental health issues should significantly influence the type or length of sentence to be imposed, the Full Court in R v Bridger (CA 126/02, 12 December 2002, para 42) has emphasised their importance as a mitigating factor. Our appraisal of DH differs from that of the Judge; we see him as damaged rather than simply lacking remorse.
[32] The Judge employed in his case the same ten year starting point as for PH, added two years for aggravation and deducted one year for mitigation, ending with the 11 year term.
[33] We again regard the 12 year ceiling as excessive. We have noted that in oral argument the Crown were disposed to accept that the differences between DH and his father essentially balance out. We would adopt a similar ceiling for each and make a similar allowance for mitigating factors. We again quash the original sentence and substitute one of nine years imprisonment.
[34] The minimum non-parole issue is one of difficulty but R v Brown [2002] NZCA 243; [2002] 3 NZLR 670 does not support the Judge’s approach of employing the factors referred to at para [29] above to justify the imposition of an extended minimum term. The Full Court stated:

[22] ...consideration of the safety of the community is now the prime factor to be assessed by the Parole Board... It is unnecessary... for the sentencing Court to attempt to assess at the time of sentencing, as the primary focus, the safety of the community in a period commencing after one–third of the sentence has been served.

[23] This suggests that the power to impose a minimum sentence for a serious offender must be intended for cases of such seriousness that the Court considers that, even if there is no danger to the community, release after one–third of the sentence has been served would represent insufficient denunciation, punishment and deterrence in all the circumstances...

[35] DH’s problems with alcohol and drugs, with their effects on his mental health, are pointers not to a need for denunciation, punishment and deterrence but rather to other sentencing policies which do not attract an extended minimum nonparole period.
[36] We accordingly set aside the order extending the minimum parole to be served before eligibility for parole.

Solicitors:
Crown Solicitor, Auckland