R v A(CA269/04) [2004] NZCA 434 (21 October 2004)

Last Updated: 30 December 2018

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

ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA269/04

THE QUEEN

v

A(CA269/04)

Hearing: 14 October 2004

Coram: Hammond J Goddard J Randerson J

Appearances: T M Petherick for Appellant
G C de Graaff for Crown Judgment: 21 October 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

[1] The appellant (A) pleaded guilty in the District Court at Napier to one count of attempted incest, one count of indecent assault, and two counts of inducing an indecent act.

R V A(CA269/04) CA CA269/04 [21 October 2004]

[2] He was sentenced to three years and nine months imprisonment. He now appeals against that sentence.

Background

[3] The victim (V), is A’s daughter. Between July 2001 and September 2003 (when V was aged between 12 and 14) A committed various offences of a sexual nature upon V.

[4] This offending began a few months before A separated from his wife, and continued thereafter, as V remained with him after his wife had left. During this time, A and V slept in the same bed and took baths together. V also accompanied A on business trips.

[5] A attempted to have full sexual intercourse with V, but failed. It was that event which led to the charge of attempted incest. There were other indecencies, including digital penetration, and indecent touchings.

The sentence in the District Court

[6] In Judge Adeane’s view, A had deliberately groomed V for sexual purposes, and then abused her. The Judge found that A was driven by a manipulative and possessive personality. The Judge took the view that the offending was, in a real sense, planned. He noted that A continued to delude himself that V had wanted the relationship to develop in a sexual way, and to believe that it was an understandable development in their relationship.

[7] The Judge thought the case to be aggravated by the gross abuse of trust and paternal duty, the long period of offending, and the likelihood of permanent emotional harm to V.

[8] As to mitigating features, the Judge gave credit for A’s guilty plea, and the absence of previous convictions. He doubted assertions that A had shown insight into his offending, or remorse, and appropriate motivation to change.
[9] In the result, the Judge adopted a starting point of five years imprisonment on the indecency charges. He reduced the sentence to three years nine months, to reflect the guilty pleas. A concurrent sentence of two years was imposed on the conviction for attempted incest. A’s name was suppressed, to protect V.

The submissions for the appellant

[10] Mr Petherick submitted that the starting point adopted by the Judge was too high, as it was inconsistent with other more serious cases; that it was based on material factual errors; arrived at by taking into account inappropriate additional aggravating features; and arrived at after taking mitigating features into account, effectively thereby making the real starting point near the maximum sentence.

[11] Mr Petherick also submitted that a number of other matters were relevant to fixing a starting point: that there was no force used; there was no gratification (in the sense of ejaculation); a lengthy prison sentence could revictimise V; he referred to the favourable treatment rates for incest offenders compared to child molesters outside the family; that A appeared to meet the criteria for inclusion in a community- based therapeutic programme; that there were many positive aspects of A’s relationship with V which should be preserved; that it was recognised that genuine acceptance of responsibility for offending is not easily achieved, but A has made many steps towards that end; and that there are no barriers to rehabilitation.

[12] Mr Petherick further submitted that it would be wrong in principle for a starting point to be imposed which is higher than a situation where penile penetration occurs. He referred to the decision in Attorney-General’s Reference (No. 1 of 1989) (1990) 90 Cr App R 141 (CA) which has often been cited in New Zealand Courts, including this Court. That case adopted a starting point in England for incest on girls between 13 and 16 years of age as being between three and five years imprisonment.

[13] With respect to the factual errors to which we have referred, the Judge had said: “The prisoner, during this period, engaged the girl in mutual sexual touching often approaching sexual violation and in attempts at intercourse which proved unsuccessful.” (Emphasis added.) The submission here is that the summary of facts
did not refer to any violation approaching sexual violation, let alone a repeat situation. Mr Petherick was concerned that the Judge’s comments showed that he sentenced A on the basis that the indecent acts occurred without V’s consent, but that was not the Crown case. As well, he submitted that the Crown case was that there was only one unsuccessful attempt at intercourse.

[14] With respect to mitigating factors, Mr Petherick submitted that A’s guilty plea warranted a significant discount; that A was suffering from the marital breakdown and financial pressure at the time of the offending; that he had demonstrated insight into his offending and its effect on V; that there was a negligible chance of reoffending; and A’s remorse and counselling undertaken voluntarily whilst in custody; and the fact that A has made no attempt to blame V.

The submissions for the Crown

[15] The Crown submitted that the sentence in this case “while stern, is neither manifestly excessive nor inappropriate” in that it reflects the totality of the continuous abuse on the appellant’s young daughter.

[16] The Crown further submitted that, at the end of the day, it is the sentence actually passed which must be considered, rather than the precise process by which it is reached.

The sentencing reports

[17] The District Court and this Court have had the benefit of two careful reports.

[18] First, it appears from the probation officer’s report that A’s wife met A when she was a solo parent. She had two young children, then aged seven years and 18 months, from a previous relationship. She was lonely, and it was only about four months into the relationship with A that she fell pregnant with another child. The relationship appears not to have been a particularly happy one. It began to break down something like six years prior to the actual separation. A’s wife was often the
main breadwinner. A had a cleaning business which got into financial difficulties. He was pursued by the Inland Revenue Department, and declared bankruptcy.

[19] The probation officer took a somewhat sceptical view of A’s account of how the events complained of had developed. He found the account to be “an amalgam of fact and reconstructed circumstances”. The probation officer was concerned about the grooming aspects. He also suggested A had “obsessive” aspects to his personality. The suggestion appears to be that A substituted V for his wife, and had come to rely on her for emotional support. The officer said “this man is a high risk in terms of reoffending, not just because of the present offence, but also because of entrenched patterns of behaviour and his denial of his manipulation”.

[20] A report was submitted for A from a Mr Logan Elliot, a registered psychologist. Mr Elliot suggested that A appears to have little or no understanding of “grooming” and that “there will be a negligible chance of him ever reoffending”. The psychologist did agree that A has a somewhat obsessional personality and is inflexible.

Discussion

[21] As to general sentencing considerations in a case of this nature, the sentencing conundrum which often arises in cases of incest or inappropriate sexual behaviour within a family was articulated by this Court in R v Accused [1994] 3 NZLR 157, in these terms:

Incest is perceived as a crime against the family and society and the sentencing dilemma is that while condemnation and punishment may act as a deterrent, it may destroy the family of which the victim is a member. She in turn is faced with a crisis after disclosure if it leads to the punishment of the father and the rest of the family by his imprisonment, with the consequence loss of his financial support and presence ...

[22] In R v B (an accused) [1983] NZCA 85; [1984] NZLR 261 this Court noted that a sentence in this subject area must be heavy enough to mark society’s concern and rejection of this kind of conduct and the Courts must do what they can to prevent it, although
such conduct is so abnormal and irrational that thought about the possible length of prison sentence is unlikely to have much influence on others.

[23] An important distinction was also made by this Court in R v Accused [1991] 3 NZLR 406, in which case the appellant had been charged on two counts of incest with his daughter, one just before her 16th birthday, and the second when she was in her mid 20s. The Court noted that there are obvious differences between incest by a father with an adolescent daughter under his control, and incest with her as a mature married woman.

[24] Cases concerning parent/child incest or inappropriate sexual contact are particularly difficult sentencing cases, but they turn on their own facts. On the one hand incest or such like behaviours are grave crimes; and on the other, the wellbeing of the victim must be amongst the first considerations. Ultimately, what is involved is an assessment of the circumstances of the particular case.

[25] It is convenient to deal with the circumstances of this offending under three sub-sets: the character of the offending; the kind of exploitation involved; and the effect on the victim and the family.

[26] Turning to the offending itself, in this case it included penetration of V’s genitalia by A’s fingers, and inducing her to indecent acts upon the appellant, as by rubbing his penis with her hand, and rubbing her breasts against his penis. This was accompanied by kissing and fondling. All this in a context of living arrangements in which his daughter shared A’s bed, and his bath, whether at his home or on business trips where she accompanied him. Effectively, as the Crown said, the appellant treated his daughter as his sexual partner or a sort of surrogate wife from the time she was 12 until it was her own disclosure which brought this offending to a halt. There was one attempt at actual sexual intercourse, which was not completed.

[27] As to the exploitation, obviously this was a gross breach of trust. The victim was aged between 12 and 14, and entirely within the care and custody of her father. The offending occurred over a long period, and throughout that period with marked frequency. We accept the sentencing Judge’s assessment that there was in a real
sense a degree of planning here; that the behaviour was manipulative and possessive, and it appears to have had its fundamental roots in the appellant’s own personality as identified in the reports. Inevitably, the severe emotional and social effects on the victim have manifested themselves, and were correctly identified by the sentencing Judge.

[28] In fairness to the appellant, it has to be said that there is a difference of view in the reports which were available to the sentencing Judge as to the prognosis for this man. But the Judge has to be correct that there is an element of uncertainty here because the way things may unfold for him and his family in the future will patently turn on how far, if at all, A responds to specialist counselling and treatment.

[29] As to the very important considerations relating to revictimisation, this is not a case where the complainant and her supportive family seek a merciful sentence to enable the breadwinner to return home. Here the victim’s parents have long since separated, and matters going to the effect on the “family” are not prominent in the material which is available to us with respect to V.

[30] A case such as the present has to be approached on a totality basis. As we have had occasion to observe many times, the question is whether the sentence appropriately reflects the real degree of criminality. How that sentence is actually made up is of less moment. Miss de Graaff appropriately recognised that the sentence was a stern one, and at the top of the range for offending of this particular character, falling short of penile penetration. Nevertheless it was prolonged, continuous and invasive, in gross breach of trust, and of a character which will have a severe life-long impact on this young girl. There is no real question in this case of countervailing considerations affecting the family. The Judge gave an appropriate discount for the guilty pleas and other mitigating factors.

[31] The onus in an appeal such as the present is squarely upon the appellant to satisfy us that the sentence actually imposed was manifestly excessive or wrong in principle. We are not so satisfied and the appeal is accordingly dismissed.

Solicitors:

Gresson Grayson & Calver, Hastings for Appellant Crown Law Office, Wellington