The Queen v Wilson [2004] NZCA 73; [2004] 3 NZLR 606 (20 May 2004)

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The Queen v Wilson [2004] NZCA 73 (20 May 2004); [2004] 3 NZLR 606

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA453/03THE QUEEN

v

GRANT FRASER WILSON

Hearing: 20 April 2004

Coram: Hammond J William Young J Chambers J

Appearances: B J Horsley and J L Moreland for Crown
M H McIvor for Respondent

Judgment: 20 May 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

[1] Sentencing in cases where there have been serious assaults by a parent or guardian on a very young child, falling short of manslaughter, has always occasioned great concern and gives rise to very real difficulties in practice.
[2] In this case, the Solicitor-General seeks leave to appeal against a sentence of three and a half years imprisonment imposed on the father of a very young child for a series of assaults, culminating in one particularly serious incident which led to the child suffering from a fractured skull.
[3] In the result, we take the view that the sentence actually imposed was manifestly inadequate, and the sentence will be increased to one of six years, with a minimum period of imprisonment of three years.
[4] The burden of this judgment is to explain why we have come to that view. But in so doing we think it appropriate to canvass sentences in cases of this kind both in New Zealand and overseas more fully than would be the case in a routine sentence appeal. This is not a “tariff” case in the conventional sense; nevertheless we think some guidance to sentencing Judges may be helpful in this difficult area.

Background

[5] In October 2003, Mr Wilson stood trial in the Hamilton District Court before Judge Maze and a jury on 14 counts of violence against his daughter, N. This child was born on 6 September 2002. The incidents reflected in the indictment took place between mid October 2002 and the end of November 2002. N was therefore between six and 12 weeks old at the time of these events.
[6] On 22 October 2003 the jury returned verdicts of guilty in respect of the following counts:

• Count 3 - injuring with intent to injure - striking the baby so as to leave, in bruising, a hand-print mark on her head (maximum penalty five years imprisonment);
• Count 6 - causing grievous bodily harm with intent to injure - breaking N’s forearm (maximum penalty seven years imprisonment);
• Count 8 - causing grievous bodily harm with intent to injure - breaking N’s ribs;
• Count 9 - causing grievous bodily harm with intent to injure - breaking N’s collarbone;
• Count 11 - cause grievous bodily harm with intent to cause grievous bodily harm - fracturing N’s skull (maximum penalty 14 years imprisonment);
• Count 14 - causing grievous bodily harm with intent to injure - breaking N’s leg.

[7] Not guilty verdicts were returned on the remaining counts.
[8] On 13 November 2003, Mr Wilson was sentenced to a total of three and a half years imprisonment. The sentence was made up as follows:

• On Count 11, which was easily the most serious count involving fracturing the skull, the Judge sentenced Mr Wilson to three and a half years imprisonment;
• On Counts 6, 8, 9 and 14 the Judge imposed two years four months imprisonment;
• On Count 3, the Judge imposed 12 months imprisonment.

All sentences were to be served concurrently.

[9] The Judge declined an application by the Crown to impose a minimum period of imprisonment. Accordingly, under the current parole provisions, Mr Wilson is required to serve a minimum term of approximately 14 months imprisonment.

The facts

[10] Mr Wilson's partner, C, had been in a relationship with Mr Wilson since approximately Labour Weekend of 2001. C was undertaking university studies. After N's birth, she continued to attend university classes. Shortly after Labour Weekend of 2002, C returned to work on a part-time basis. She worked some evenings at a local tavern. On these occasions, Mr Wilson was solely responsible for the care of N.
[11] On 17 October 2002, Mr Wilson and C took N to the family doctor, for suspected meningitis. During the course of that examination, it was noted that N had bruising on her face that resembled a hand-print.
[12] On 18 October, N was admitted to Waikato Hospital with suspected meningitis and seen by Dr Eleanor Carmichael, who is a senior and very experienced paediatrician employed by Health Waikato. Dr Carmichael noted the hand-print bruise on N’s face.
[13] After her discharge from hospital, N was observed to be unsettled and further bruising occurred. In the result N and C were admitted to the Mother Craft Unit at Waikato Hospital for a period of four days in November of 2002. N was observed to be settled enough during that period. C thereupon resumed her evening work, leaving N in the care of Mr Wilson.
[14] On 29 November 2002, C was at work when she received a telephone call from Mr Wilson. He was concerned about N. He said she had a graze on the back of her head. Mr Wilson told C he would be picking her up in five minutes to take N to the hospital.
[15] On examination at the hospital it was readily apparent that N had been severely injured. She had a 6 by 7 centimetre swelling on the left side of her head behind her left ear, and further bruising at the back of her head. C described the swelling as “a huge lump on the side of her head ... almost half the size of her head”.
[16] On this admission, Mr Wilson was asked several times by medical staff how these injuries had been sustained. He maintained that he did not know. He said he had left the child for twenty to thirty seconds on the floor only to return and notice swelling on the side of her head.
[17] Complete body x-rays and CT scans were undertaken by medical staff. These revealed that N had suffered two skull fractures. The x-rays also revealed numerous fractures, both recent and some more dated, to other parts of her body.
[18] Mr Wilson was subsequently interviewed by police in respect of the injuries sustained by N. In a videotaped interview he acknowledged that he had on numerous occasions been extremely upset with N, to the extent that he had caused some injuries. He said he had particularly sensitive hearing and that the continual crying of N was getting to the point where it was “hurting” him; and that he knew he had to “shut her up to get rid of that noise”. He did admit delivering blows to N's head with an open hand, squeezing N really hard on a number of occasions, and pulling her leg forcibly. He explained that these incidents were borne out of his frustration.
[19] Nevertheless, Mr Wilson did not plead guilty to the charges laid against him. At trial his defence was substantially targeted at blaming C for the injuries. C was cross-examined extensively about her treatment of the child and her suggested inability to cope as a mother. In fairness to C, it is right to record that plainly the jury rejected any such suggestion.
[20] It is now unfortunately necessary to detail the medical injuries somewhat more fully.

• Count 3 - hand print on head. This rested on an assault with sufficient force to leave a hand print on the head. Mr Wilson admitted that he had struck N a few days before she went into hospital.
• Count 6 - broken left forearm. Dr Carmichael's evidence at trial was that this injury would have been caused by a pulling action exerted with more force than that required to dislocate the elbow.
• Count 8 - broken ribs. Dr Carmichael was able to identity eleven rib fractures. In her view, these injuries were between one and six weeks old, and had come about as a result of more than one event. She said that these rib fractures were most likely caused by really hard squeezing which would have left the child in distress and pain for some two or three days.
• Count 9 - fracture of the collarbone. The medical evidence was that this injury was probably caused at the same time as one of the squeezing events. The doctor suggested that in the course of one of these squeezing episodes the thumb would likely have caused the actual injury.
• Counts 11 and 14 - fractures to the skull and broken left leg. These injuries were all said to have come about on the last occasion, being the night of the 29 November 2002. The broken leg was most likely to have been caused by a forceful pulling and twisting action. The fractures to the skull, on the medical evidence, would have been caused by the impact of the head on a flat surface, either a wall or a floor. Mr Wilson suggested that these events had come about when he became frustrated while trying to feed N. He did admit hitting her in the head and then putting her down on the floor while he went to get a nappy. He said N was “bawling”. He admitted to delivering possibly three blows to her head, and later, as he was changing her nappy, pulling her leg forcibly enough to actually fracture it.

[21] The Judge found that N now suffers from a slowness in movement on her right side. She has suffered seizures. There is some risk of longer term consequences. Moreover, it was patently clear that N's early weeks of life were fraught with pain and significant injury.

The sentencing in the District Court

[22] The Judge identified the following aggravating features:

• The significant breach of trust, in that N was a very young infant entitled to rely upon Mr Wilson for protection.
• N's particular vulnerability and defencelessness.
• The repetition of serious violence and extent of the harm done thereby to N, with the potential for very much more significant permanent harm in the case of the skull fractures.
• The actions were deliberate and done with a specified intent, although Her Honour also found that the actions were done in the heat of the moment with a loss of control.

[23] The Judge identified the following mitigating factors:

• Mr Wilson had no previous convictions.
• Mr Wilson had an anger problem, but the Judge said he appeared not to have made a deliberate attempt to actually hide the harm he had caused.
• The Judge also said that it was Mr Wilson who sought medical intervention, “on [his] own initiative at times and so you have saved, in my view, probably the greatest risk to a child injured in those circumstances, that is, being injured and being left without medical intervention because of the fear of the consequences of discovery”.
• Mr Wilson expressed some remorse for what he accepted he did and expressed a clear willingness to undertake counselling and to get help.
• Mr Wilson was under significant stress at the time of the offending.
• Mr Wilson had significant family support, was well regarded, had a good job and was a contributing member of the community.

[24] The Judge approached the sentencing on the footing that it was appropriate to impose a lead sentence on the most serious charge. On that charge she took the view that the appropriate starting point “must be four and a half years”. In reaching that figure the Judge had regard to the aggravating factors. She then reduced the penalty by 12 months to three and a half years “having regard to the stresses in the household, [Mr Wilson's] previous good character and the actual and identified and potential permanent harm done to this child”. The other sentences we have already noted were imposed concurrently.

The grounds of appeal

[25] The Solicitor-General appeals against the sentences imposed, on the basis that they are manifestly inadequate. In particular, it is submitted that:

• The Judge failed to give adequate weight to the totality of the offending;
• The starting point of four and a half years imprisonment for the most serious offence, even if considered alone, was inadequate;
• A starting point of at least seven years should have been adopted for the lead sentence to take into account the criminality described in the further counts (or alternatively, the sentences should have been imposed cumulatively).

[26] The Solicitor-General also contends that the Judge failed to give due consideration to the imposition of a minimum period of imprisonment. It is submitted that Mr Wilson's offending was sufficiently serious to justify a minimum period of imprisonment pursuant to s86 of the Sentencing Act 2002. The aggravating features of multiple counts of violence, inflicted on at least five separate occasions, on a defenceless baby, are said to take this offending out of the ordinary range of offending of its kind. The submission is that a minimum period of imprisonment of at least one half of the sentence should have been imposed.
[27] The Crown contention is that, bearing in mind that this is a Solicitor-General appeal, this Court should adopt a starting point of at least seven years imprisonment. It is suggested that that could be reduced by perhaps one year to allow for the mitigating features identified, and in particular the lack of previous convictions. A minimum period of imprisonment of three years is sought.

The submissions for Mr Wilson

[28] Mr McIvor supported the sentence actually imposed by the Judge. He submitted that the sentence was “an adequate reflection of the denunciation deserved by the prisoner for the particular offending and that there should not be any increase in the current sentence”.
[29] In particular, he stressed what was termed the lack of premeditation, which was said to have two features. First, the offending occurred when Mr Wilson snapped under stress and the offending was in the heat of the moment. Secondly, Mr Wilson was unaware of the extent of the child’s injuries until he was advised of the x-ray results.
[30] Mr McIvor then stressed the mitigating features. He said they were strong factors, and the Judge was “entitled to place significant weight on them”.
[31] Mr McIvor submitted that, overall, “while ... [the sentence] ... may be regarded as a lenient one” it should not be interfered with.
[32] As to the minimum period of imprisonment, counsel did not accept that the circumstances of these events took the offence out of the ordinary range of offending of the particular kind. Mr McIvor said, “It is not uncommon for a young parent to lose control with a crying young child on more than one occasion to the extent that the child was harmed in some way. This is particularly so where the person, like the prisoner, lacks the appropriate skills to deal with first-time parenthood and the problems associated with it.”

The pre-sentence report

[33] Mr Wilson attained School Certificate in 1992. He then left school and obtained a certificate in agricultural skills. He worked on farms until 1995, and then worked in a variety of jobs in the Waikato, some of which had some managerial components. Mr Wilson then returned to work on a dairy farm. He hurt his back in June of 2002. This required an operation. He was thereafter in receipt of accident compensation until N was born. He then returned to work. Employers reported him to be a good worker with some potential, although he was considered to be strong willed at times.
[34] The Probation Service noted an inability on Mr Wilson's part to cope in a helpful way with his negative thoughts and feelings about his partner, and his propensity towards violence when confronted with difficult or escalating situations. Cognitive distortions were observed by the officer throughout the interview in the form of shifting responsibility and down playing his own behaviour. Nevertheless, Mr Wilson did indicate a willingness to undertake counselling and programmes whilst in prison for violence prevention and relationship issues. He said that his reason for doing so is that his long-term goal is to be able to have supervised access with his daughter and to be a good partner and father.

Resolution

[35] We begin by reaffirming some observations made by a Full Court of this Court in R v Leuta [2002] 1 NZLR 215. The first is that:

Some general observations in respect of which there can be no dispute must be kept in mind. Violence inflicted upon a child is worse than that directed at another adult. Defencelessness and vulnerability are significant features, as is abuse of a position of power and responsibility. The fragility of young children, particularly infants, is frequently referred to, and too often overlooked. The lethal consequences of shaking and striking babies is often enough publicised. There can be little reduction in criminality these days for a claim that the danger was not realised. (para [77])

[36] This Court also said:

Perpetrators, in order to avoid exposure of their insidious behaviour, do not ensure proper care and treatment for their victims. That considerably aggravates their culpability. Physical abuse of a lower order is made greatly worse by failure to alleviate pain or discomfort. Failure to get competent help is not readily to be excused. (para [79])

[37] Leuta was a case of manslaughter in which the appellant had punished her four-and-a-half year old son by striking him repeatedly with a fan belt, thereby causing him injuries from which he later died. She was sentenced to six years imprisonment by the trial Judge. There was then a Solicitor-General appeal to this Court.
[38] The Court of Appeal regarded that sentence as being clearly inadequate in the circumstances of that case. It traversed the contemporary authorities on sentencing for manslaughter. The Court observed that the sentencing Judge in that case would have been justified in imposing a sentence of eight years, but because this was a Solicitor-General appeal, in accordance with the normal practice, no greater increase than the minimum necessary to overcome the inadequacy in the sentence under appeal should be imposed. Therefore leave was granted to appeal against the sentence, and a sentence of seven years imprisonment was substituted for six years. Thomas J, dissenting in part, would have allowed the appeal and substituted a sentence in the range of eight to ten years imprisonment.
[39] On the basis of the authorities this Court referred to in Leuta, it is plain that the sentencing range for the manslaughter of a child in circumstances akin to those in this case has increased, and quite markedly so, from that which was imposed (say) a decade ago. As Leuta demonstrates, starting points of ten years and even more are now regarded as entirely appropriate in particularly bad cases. See also R v Wilson (CA485/03, 11 May 2004; eleven years starting point).
[40] That in turn leads to the issue whether, in bad cases of serious violence against a child which do not result in a death, some older sentences would now be entirely appropriate. This case is a good illustration of the sort of case of serial violence which regrettably are now all too often coming before our courts, and which we are concerned to review.
[41] Whether a sentence can be said to be manifestly inadequate turns firstly on the maximum sentence for the particular offence; then on a consideration of comparable sentences, to the extent that those are considered to be appropriate; and above all, the focus is required to be on the totality of the offending and the culpability of the offender in the particular case.
[42] Turning to comparable cases, the Judge was referred to R v Ross CA190/92, 10 August 1992, which she correctly cited for the proposition that because of the diverse circumstances of ss188 and 189 offences there can be no tariff; and R v Kara CA96/82, 12 July 1982, which the Judge correctly cited for the proposition that causing grievous bodily harm to a child, in the usual course, requires a sentence of imprisonment.
[43] The Judge also referred to R v Sperry, CA191/90 & CA196/90, 3 October 1990, and R v Kershaw, HC PMN CRI 2003-054-2237 29 October 2003, which were both manslaughter cases involving children. The Judge distinguished R v Coe (1997) 15 CRNZ 387 (CA) where seven years was imposed for wounding with reckless disregard because there had been a previous conviction for manslaughter and R v Bissett, HC WHA S002289 1 December 2000, on the footing that (as the Judge saw it) there had been some element of torture involved. We think Coe is of some assistance and indicates that the sentence in this case was too low. The previous manslaughter conviction in itself could not warrant the discrepancy between the sentence in Coe and the three and a half years imposed by the Judge. The Judge had been referred to R v Hereora [1986] 2 NZLR 164 (CA) but she did not mention it in her remarks. We consider that case has some relevance, although we consider that, generally speaking, assaults on children, especially children in the custody and control of the offender, warrant sterner sentences than like assaults on adults.
[44] In our view, the overall sentence here must reflect the fact that this was a sustained series of assaults on a defenceless child aged between six and 12 weeks. The injuries which were sustained were serious, and did cause suffering to this child. In our view this brings this offending into the most serious category of offending against children - that of, on numerous occasions, inflicting intentional injuries to a child over a period of time. And, as this Court emphasised in Leuta, the criminality is not today diminished by a claim that the danger was not appreciated by the perpetrator. As a matter of public policy, our Courts have firmly set their faces against this kind of offending.
[45] Our provisional view was that the kind of offending exhibited in this case could well have attracted a starting point of eight years imprisonment. The only distinguishing feature between this case and manslaughter cases is that, fortuitously, this infant did not die from the injuries she suffered.
[46] New Zealand is not alone in Western jurisdictions in having had to deal with the increasing incidence of cases of this kind. Both as a check on our own provisional view, and for the insights they reveal, we have also considered the position in some other Commonwealth jurisdictions.
[47] We turn first to England. In that jurisdiction there are three general offences for violence not causing death.

• Causing grievous bodily harm with intent: maliciously wounding or causing grievous bodily harm to any person with intent to inflict grievous bodily harm. The maximum sentence for this offence is life imprisonment (s18 of the Offences against the Person Act 1861);
• Inflicting grievous bodily harm: maliciously (intentionally or recklessly) wounding or causing grievous bodily harm to any person. The maximum sentence for this offence is five years imprisonment (s20 of the Offences against the Person Act 1861); and
• Assault occasioning actual bodily harm: the maximum sentence for this offence is five years imprisonment (s47 of the Offences against the Person Act 1861).

[48] The principles to be applied in cases of serious violence against young children were discussed by the Court of Appeal in R v Durkin (1989) 11 Cr App R (S) 313. In that case, Lord Lane CJ said:

It is perhaps worthwhile to pause for a moment to consider the basis upon which the Court must try to arrive at the proper sentence in cases such as these, which are amongst the most difficult which a Judge has to deal with so far as sentencing is concerned.

First of all it is necessary of course to punish someone who has committed this sort of offence. Secondly, it is necessary to provide some sort of expiation of the offence for the defendant. Thirdly, it is necessary to satisfy the public conscience. Fourthly, there is the necessity to deter others from committing this sort of offence, by making it clear that this sort of behaviour will result in condign punishment.

So far as the last matter is concerned, a sudden loss of temper case like this, deterrence of others does not come into it. Certainly so far as this man is concerned, we are quite satisfied that he will never do anything like this again. So there is left the question of punishment and the question of the public conscience. (p 315)

[49] As in this country, the Court of Appeal has been generally reluctant to set tariffs in this area, noting, as we have, the infinite array of possible factual situations, whilst accepting some guidance from the general level of sentencing able to be seen in the body of case law (R v Murray [2009] EWCA Crim 1773; [2002] 1 Cr App R (S) 40).
[50] Again consistently with the jurisprudence in New Zealand, the Court of Appeal has supported higher sentences where an attack, although occurring on a single occasion, was sustained over a period of time. A useful instance is Murray. There the Court of Appeal reduced a sentence from ten to eight years imprisonment imposed on the appellant for a sustained attack of some 15 minutes on a young girl aged two years and three months with whom he lived. The girl was struck several blows and a belt and shoe were also used. Serious though “an attack on a single occasion” is, it is less serious than cases where there are “recurrent episodes of violent cruelty to a child” and cases where “permanent severe damage and disability has been done”. (Murray, supra, at para 11).
[51] The distinction between a single act of violence and repeat serial violence was forcibly made by the Court of Appeal in R v Gayle (1989) 11 Cr App R (S) 345:

As has been said on other occasions, these cases of assaults on little children present notoriously difficult problems for the sentencing court. One of the most important considerations so far as the extent of punishment is concerned is the degree of persistence with which the attacks were committed. A single act arising out of a momentary loss of control, precipitated no doubt by a child’s aggravating behaviour, is one thing. A series of assaults committed on separate occasions is quite another. The former is to some degree forgivable, the latter can regrettably excite little sympathy. (p 436).

[52] The Court of Appeal has also questioned - as we do - whether a distinction between serious acts of violence falling short of manslaughter and cases in which the victim has died, can be separated by a bright line. In R v Goodwin (1981) 3 Cr App R (S) 214 the Court said:

Having regard to the particular circumstances of this case, we ask ourselves whether in reality there is any difference to be shown in sentencing this man seeing that the child has not died. Our conclusion is that it would be unreal to suppose any difference of approach is called for, since it is only by fortuitous chance that the child survives. (p 216)

Having said that, we acknowledge that because human life is considered to be sacred, there has traditionally been a “premium” placed on a homicide. Perhaps the better way to put things is that the serious assaults just short of death shade into the lower end of the manslaughter scale.

[53] Other United Kingdom sentences for the kind of incidents we presently have before us appear to be much stiffer than what was imposed by the Judge in this case. In R v Lowther (1990) 12 Cr App R (S) 299 (CA), Mr Lowther had pleaded guilty to attacking his daughter, then a two-month-old baby. The baby had suffered what were described as “frightful injuries”, including fractured ribs, fractures to her collarbone, arm, leg and skull. The skull injuries caused permanent disability. The offending had taken place on at least two occasions as a result of the appellant, a young man, 22 years old, losing his temper in response to feeding difficulties the baby was experiencing. He was sentenced at trial to 10 years imprisonment even after the guilty plea; this was reduced on appeal to eight years imprisonment.
[54] In another case, Attorney-General’s Reference No 13 of 1991 (1992) 13 Cr App R (S) 650 (CA), the Court of Criminal Appeal had before it a Crown appeal and increased a trial Judge’s sentence from four years to six years imprisonment. There the appellant had pleaded not guilty to five counts of causing grievous bodily harm with intent. The victim was a seven-week-old baby with whom the appellant lived. The child was admitted to hospital with several fractures, the result of blows and twisting on at least two separate occasions. In that case, the Court of Criminal Appeal placed weight on the lack of a skull injury, to distinguish that case from R v Lowther.
[55] Turning now to sentencing levels in Australia, there are a number of reported decisions involving repeated acts of violence against young children where sentences of five years or more have been imposed or upheld on appeal.
[56] Of particular assistance is R v James (1993) 113 FLR 247 (ACT SC). The accused was convicted on one count of recklessly inflicting grievous bodily harm (punishable by imprisonment for ten years); and sentenced to eight years imprisonment. A child aged eight and a half weeks was diagnosed with a series of fractures said to have occurred on at least four occasions over the child’s short life. The injuries were consistent with the child being violently shaken whilst held by the legs, squeezed, thrown onto a bed, and force-fed. The accused pleaded guilty and was remorseful. He had been under severe financial and work-related stress, and had “lost it” when the baby refused to feed. In sentencing this man, Miles CJ said:

In view of the repeated abuse over the period of the second month of a baby’s life, I can come to no other conclusion than that the offence committed by this offender must belong to the worst type of reckless infliction of grievous bodily harm.

Imprisonment can be the only appropriate disposition to mark the seriousness with which the community must surely regard such behaviour. Child abuse is a matter of increasing concern in the community, and possibly of increasing incidence. The argument that imprisonment will not deter other people in similar situations of domestic desperation and alcohol induced rage does not outweigh that essential requirement in this case. (p 252)

[57] By way of summary, increasingly appellate courts (including this Court) have stressed the extreme social concern with child abuse of this character. Secondly, cases in the most serious category - that is, repeated serious violence - come much closer to manslaughter sentencing levels. Thirdly, blows to the head, with their obvious consequences are very seriously regarded. Fourthly, lack of knowledge and appreciation by a defendant of potential injury will not deflect a stiff sentence today. Fifthly, the fact that sentences of this character may not necessarily deter others is not to be seen in this area as reducing the need for firm sentences.
[58] Having regard to the considerations we have just set out, and the review of overseas cases we have undertaken, in our view the lead sentence in this case should have been in the eight year range. The sentence in fact imposed was more appropriate for a serious, prolonged, one-off assault on a very young child. A discount of (perhaps) one year for the mitigating circumstances could have been allowed. Consistent with the usual principle on Solicitor-General appeals, the least sentence that we should impose to reflect the overall criminality of the offending in this case is, in our view, one of six years imprisonment.

The imposition of a minimum period of imprisonment

[59] This is a case in which, at sentencing, the Crown submitted that this offending was sufficiently serious to justify the imposition of a minimum period of imprisonment. The Judge brushed the submission aside. She said “I am not satisfied that the test is met for a minimum sentence of imprisonment to be imposed and I decline the Crown’s invitation to impose one”. She did not give further reasons for her view.
[60] The appropriate approach to s86 is now well established. As this Court noted in R v Brown [2002] 3 NZLR 670, the issue is whether service of one third of the sentence actually imposed would be enough to punish, deter, and denounce the offending. The proper approach is first to determine the appropriate finite sentence; and then to consider whether the particular offending was sufficiently serious to justify a minimum period longer than one third.
[61] The question of whether the offending is sufficiently serious must be considered on an individual and comparative basis (not a generic basis). We think Mr Horsley was correct in his submission that the circumstances of this offending clearly took this case out of the ordinary range of offending for the particular kind. In particular there was the gross breach of trust, the defencelessness of the victim and the serious harm caused to this victim over a period of time.
[62] Again bearing in mind that this is a Solicitor-General appeal, we consider that a minimum period of imprisonment of one half of the term of imprisonment would reflect the appropriate level of punishment, deterrence, and denunciation for the totality of the offending.

Conclusion

[63] In the result we grant the application for leave to appeal. We set aside the sentence of three and a half years imprisonment on Count 11. We substitute for it a sentence of six years imprisonment. The sentences imposed on Counts 6, 8, 9, 14 and 3 (to be served concurrently) will remain in place. Mr Wilson is to serve a minimum term of imprisonment of three years.

Solicitors:
Crown Law Office, Wellington.