R v F CA169/03 [2003] NZCA 410 (15 September 2003)

Last Updated: 24 January 2019

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

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA169/03

THE QUEEN

v

F

Coram: McGrath J Anderson J Glazebrook J

Counsel: C J Tennet for Appellant

L Lamprati for Crown

Judgment (On the papers): 15 September 2003

_{JUDGMENT OF THE COURT DELIVERED BY ANDERSON J}

[1] This appeal against conviction 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.

Offence and sentence

[2] The appellant pleaded guilty on indictment to one representative charge of assault on a child, and one charge of indecent assault on a girl aged between 12 and

R V F CA CA169/03 [15 September 2003]

16, contrary to s194(a) and 134(2)(a) of the Crimes Act 1961 respectively. He was sentenced in the District Court at Tauranga to six months imprisonment in respect of the assault charge cumulative on 16 months in respect of the indecent assault charge. A deferment was granted under s100 of the Sentencing Act, as was leave to apply for home detention. The appellant now appeals against his sentence

Background

[3] The appellant, who had been in a long-term relationship with the victim’s mother, was the stepfather of the victim. The representative charge of assault related to four separate incidents.

[4] One night, the victim was sitting in the lounge chewing bubble gum when, without warning, the appellant struck her heavily across the face with his open hand saying “don’t chew like a pig.” This blow caused heavy bleeding to the victim’s nose.

[5] On an afternoon in late 2001, the victim visited a friend on the way home from school. This made her late and the appellant went in his truck to collect her. As soon as she got into the truck, the appellant lost his temper, started yelling abuse at her and struck several heavy blows across her face and shoulder. The victim suffered swelling and soreness to her face and shoulder area.

[6] There is a dispute on this appeal as to whether the appellant hit the victim with an open hand or with a closed hand during the incident. The Judge did not make a specific finding on the point. In our view this is of little significance, the consequences of the force being the most important feature of the assault.

[7] On another afternoon near the end of 2001, the victim went horse riding. On her return she was verbally abused by the appellant who said she should not have gone riding. The appellant took her into the garage and struck her several times across the buttocks with a thick leather belt, leaving heavy welts on the victim’s buttocks.

[8] The final assault to which the charge relates occurred in early 2002, when the victim had initially lied about the location of a calculator. The appellant yelled abuse at the victim before confronting her in her bedroom and hitting her with a bamboo stick across her buttocks and back. This resulted in welts on the victim’s body.

[9] The indecent assault occurred on the morning of the victim’s twelfth birthday. The appellant entered her room at 7am, wearing only a sweatshirt and naked from the waist down. He then lay on top of the victim and caressed her breast. The victim was also able to feel his penis between the middle of her thighs. The victim moved away from the appellant, who then desisted and left.

Grounds of appeal

[10] The appellant advances four main submissions. First, counsel submits that imprisonment was neither the starting point nor necessarily the finishing point. The Judge should have favoured a non-custodial sentence, having regard to the fact that home detention was an inadequate way to address the offender’s work difficulties and the fact that a suspended sentence was no longer available.

[11] Secondly, the offer of reparation, a factor that requires mandatory consideration, was completely overlooked by the Judge.

[12] Thirdly, the view of the victim’s guardian, that the appellant should not go to prison, was not taken into account.

[13] Finally, mitigating factors, including the guilty plea, the fact that the appellant was a first offender, and the recommendations in the pre-sentence report were given insufficient weight.

Crown submissions

[14] The Crown submits that the sentence was within the Judge’s discretion. Counsel emphasises that, in cases concerning sexual offending against children,

unless exceptional circumstances exist, a sentence of imprisonment should be imposed, particularly where a serious breach of trust is involved.

[15] In respect of the indecent assault charge, the Crown emphasises premeditation and the fact the offending occurred in her bedroom.

[16] The Crown submits that all of the mitigating factors raised by the appellant were taken into account by the Judge and given appropriate weight.

Discussion

[17] At the outset, we make it clear that we are quite satisfied that a custodial sentence was appropriate in these circumstances. It will be unusual for there to be other than a custodial sentence in cases of sexual offending against children. Although this was a first offence, we do not consider that less than a custodial sentence was warranted. Nor do the concerns relating to the appellant’s employment carry sufficient weight to avoid such a sentence. First, there was skin to skin contact with the victim’s breast. Secondly, the victim also felt the appellant’s penis between her thighs. Thirdly, there was an element of physical domination; the appellant having lain on top of the victim while molesting her. His exploitation of his adult authority over a child in his care is a serious matter. For these reasons, we consider the Judge was quite correct in imposing a custodial sentence. The question then, is whether the term of imprisonment was manifestly excessive.

[18] We begin by observing that the Crown’s submissions proceed on the basis of a conviction for indecent assault of a girl under 12, when in fact, following an amendment, the accused was convicted on one charge of indecent assault of a girl between 12 and 16. The former attracts a maximum penalty of ten years imprisonment, the latter, seven years imprisonment. Although we acknowledge, as did the sentencing Judge, that the victim had just turned 12, the appellant is nonetheless entitled to be sentenced based on the range applying to the latter offence.

[19] The Judge began with a starting point of 18 months for the indecent assault charge and eight months for the assault charge. The Judge treated the sentences

cumulatively from the beginning, creating a cumulative starting point of 26 months. He then discounted that by four months in total having regard to the somewhat late guilty plea, the fact that the appellant was a first offender and the totality of the sentence.

[20] The guilty plea was entered on the day of trial and the Crown submits that this meant that the victim still had to endure the psychological preparation for giving evidence. Nevertheless, the child was spared confronting her victimiser in Court in a sexual abuse case. Providing an incentive against continuing victimisation is an important justification for discounting for guilty pleas, particularly in sexual cases.

[21] There were some mitigating factors which, it is said on behalf of the appellant, seem to have been given insufficient weight by the Judge, in particular the appellant’s offer to make financial amends. The appellant offered to pay $2,500, that being the cost of the victim and her mother’s relocation, which they felt they had to do in the wake of the offending. The appellant said he would put this amount on his visa card. Section 10(1) of the Sentencing Act 2002 states as follows:

10 Court must take into account offer, agreement, response, or measure to make amends

(1) In sentencing or otherwise dealing with an offender the court must take into account— (a) any offer of amends, whether financial or by means of the

performance of any work or service, made by or on behalf of the offender

to the victim:

...

(2) In deciding whether and to what extent any matter referred to in subsection (1) should be taken into account, the court must take into account—

(a) whether or not it was genuine and capable of fulfilment; and

(b) whether or not it has been accepted by the victim as expiating or mitigating the wrong.

(Emphasis added)

[22] The pre-sentence report records that the victim’s mother was of the view that reparation was “an acceptable and appropriate option.” The Judge rejected the offer, stating “I do not see that it is appropriate for you to go into debt to do that. Given your existing debts that simply is not an appropriate way of making reparation.” With respect, we think that His Honour goes too far. Although it was open to the Judge to reject an insincere, unacceptable or unrealistic offer, the Judge’s view that it

was simply not appropriate for the appellant to make financial amends, based on his view of what was appropriate for the appellant in his circumstances is, with respect, irrelevant. Unlike reparation, which is imposed by order of the court under s12 of the Act, and must not be imposed where to do so would result in undue hardship for the offender, an offer to make amends is entirely voluntary and no similar proviso attaches.

[23] In any event, it seems to us that the section makes the offer itself a mandatory consideration so long as that offer is genuine, realistic and acceptable. So long as it fulfilled the statutory criteria, it should have been taken into account.

[24] Fourthly, we must look at how the Judge characterised the offending. It is tempting to look at the sexual assault in the context of the history of the physical assaults. The Judge described this as “the graduation” from violence to indecency and counted this as an aggravating factor. But although there was continuous offending it is to be borne in mind that the offences have distinct components and arose out of distinct transactions. It is therefore appropriate that the indecent assault be considered separately. Indeed, that must be the justification for the cumulative sentences.

[25] We also note the decision of R v Winton CA142/92, 9 July 1992. On a conviction for a representative count of indecent assault on a girl between 12 and 16, following a guilty plea, this Court reduced a sentence of 2½ years imprisonment to one of 18 months. As in the present case, the victim was 12 years old and was also the daughter of the appellant’s partner. The nature of the assault in that case was somewhat different, the touching being through the clothes, but unlike the present case, it included the genital area. Overall, the assaults were of a similar degree of seriousness. In that case, 18 months was reached having regard to (i) the fact that there had been continuing sexual offending; and (ii) that the appellant had similar previous convictions, including one for indecent assault and two others for prying into a dwelling house by night. Neither of these two key aggravating factors appears in the present case. As well, there are mitigating factors and cumulative sentencing considerations in the present case that did not arise in that case. When looked at

against this background, the sentence of 16 months for indecent assault may seem excessive.

[26] But finally, we have to examine the sentence in terms of totality, which is the main concern when considering whether a sentence is manifestly excessive. In our view, although the sentence for the indecent assault may, on its own, seem stern, the totality of the offending, involving as it did a number of cruel attacks on a child, warranted a firm response. The total sentence cannot be regarded as manifestly excessive.

Result

[27] The appeal against sentence is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington