R v K CA264/02 [2003] NZCA 413 (26 March 2003)

Last Updated: 11 February 2019

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA264/02

THE QUEEN



v



K(CA264/02)

Hearing: 25 March 2003

Coram: Keith J Robertson J Doogue J

Appearances: R Rai and P Goldsworthy for the Appellant
B J Horsley for the Crown

Judgment: 26 March 2003

JUDGMENT OF THE COURT DELIVERD BY ROBERTSON J

[1] The appellant entered guilty pleas in the District Court at New Plymouth to one representative count of sexual violation by digital penetration and one representative count of indecent assault on a girl aged between 10 and 12 years.
[2] The complainant was his daughter. The offending spanned the years 1994, 1995 and 1996 when she was aged 10 to 12.
[3] The appellant, on a frequent basis put his hands underneath his daughter’s clothes, fondled her, put his hands under her underwear and fondled her genital area including, on a number of occasions, digitally penetrating her vagina and sometimes tongue kissing her and fondling her body. On some occasions she was restrained when she struggled to get away from him. The appellant told the child not to say anything to her mother.
[4] During the relevant period the appellant and his wife separated, but he made regular visits to the family. The behaviour continued with indecent assaults on her breasts and genital area.
[5] When spoken to by the Police, the appellant initially admitted touching his daughter’s breasts but denied touching her genital area or digitally penetrating her vagina.
[6] The sentencing Judge categorised this as serious repeated abuse of a vulnerable child by a person in a position of trust. He noted aggravating features as including the breach of trust, the length of time over which the offending occurred, the age of the complainant and the fact that there was some limited force. In particular he noted the significant effects on the complainant.
[7] The Judge at sentencing noted that both counsel had agreed the appropriate sentencing range was between four and six years imprisonment having referred to the decision of this Court in R v E CA259/96, 3 September 1996. It appears to be another incident of lack of precision and clarity as to what is meant by a starting point. The discussion in R v Tawha CA396/02, 26 February 2003 is again relevant:

The starting point is the sentence level appropriate for the nature of the offence before aggravating and mitigating circumstances are considered, not after such circumstances are considered.

[8] The appellant was sentenced to six years imprisonment for the repeated sexual violations and four years imprisonment for the repeated indecencies.
[9] The appeal is advanced on the basis that the sentence was manifestly excessive. In particular it was submitted that the appropriate starting point for offences of sexual violation by digital penetration is between two and five years. Mr Rai argued that, after allowing for the early guilty plea, the Judge must have had in mind a starting point of at least seven and a half years and this was manifestly excessive.
[10] As has become commonplace in appeals such as this, we have been offered references to various previous decisions. The appellant relies particularly on the decision of this Court in R v M [2000] NZCA 24; [2000] 2 NZLR 60, where it was said:

The Court had not set any tariff for cases involving sexual violation by digital penetration, but the cases showed sentence starting points ranging from two years to five years on conviction after trial and before allowing for mitigating factors. R v K (CA82/98) 15 June 1998. R v Talataina (1991) 7 CRNZ 33 (CA356/90) referred to.

[11] Counsel also referred to subsequent decisions of this Court in M v R CA247/01, 1 October 2001 and D v R CA430/96, 20 February 1997 which are consistent with that approach.
[12] The Crown submits, to the contrary, that with repeat digital penetration and indecencies carried out on an almost daily basis for a period of three years on a young daughter, a starting point of seven and a half to eight years imprisonment was certainly not excessive.
[13] Minute dissection of the factual differences in each case do not assist but we are of the view that the offending in R v E was more degrading and invasive and that, although there were fewer charges in the present case, the offending did extend over a longer period of time.
[14] Nothing has been advanced before us to suggest that the limits of sentencing noted by this Court in R v M require to be reconsidered at this time. M’s offending involved two young children, one of whom was only 4 years of age, and that offending occurred over a substantial period of time as well. The Court, on a Solicitor-General appeal, imposed a sentence of three years imprisonment.
[15] In our judgment six years for this offending was an appropriate starting point having given appropriate weighting for the identified aggravating factors. It was at the upper end of the range but, from that, mitigating factors needed to be considered.
[16] The most potent was the early plea of guilty. It was less than three months from the time this man was charged until the case was finally disposed of even allowing for the intervening summer vacation and some psychiatric assessments.
[17] Further, as the Judge noted, the appellant had no previous convictions. There was reference to a depressive illness but it was difficult to see how that impinges on the offending or a proper response to it.
[18] The offending had not occurred for some six years and there was no indication of any other wrongdoing in that time.
[19] In our judgment this is one of those cases where a substantial reduction was due for the plea; D v R. Even if, because of the length of time during which the offending had occurred and the serious breach of trust, there had been an increase from the top of the sentencing range, the sentence, however computed, is outside of the appropriate sentencing discretion.
[20] The appeal is allowed. The sentences imposed in the District Court are quashed. On the charge of sexual violation the appellant is sentenced to four and a half years imprisonment and on the indecency charge to three and a half years in prison. The terms will be served concurrently.

Solicitors:
Till Henderson King, Hamilton
Crown Law Office, Wellington