R v E (CA166/05) [2005] NZCA 377 (27 September 2005)

Last Updated: 20 January 2014

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA166/05

THE QUEEN

v

E (CA166/05)

Court: Glazebrook, Hammond and Robertson JJ Counsel: L P Iosefa for Appellant

A J Mills for Crown

Judgment (On the papers): 27 September 2005

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS

_{(Given by Glazebrook J)}

Introduction

[1] Mr E was convicted, after a jury trial in the District Court at Christchurch, of two counts of assault on a child, three counts of male assaults female and one count

_{of indecent assault on a girl under the age of 12 years. He was acquitted of one}

R V E (CA166/05) CA CA166/05 27 September 2005

count of male assaults female and one count of threatening to do grievous bodily harm.

[2] Mr E was sentenced on 27 April 2005 to 22 months imprisonment without leave to apply for home detention. He appeals against that sentence on the basis that it was manifestly excessive and that leave to apply for home detention should have been granted.

[3] This appeal against sentence has been heard on the papers under s 392B of the Crimes Act 1961. The relevant materials, including written submissions which have been received in accordance with r 29 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.

Facts

[4] All of the offences committed by Mr E occurred within the context of a domestic situation while he was living with the four complainants.

[5] The three male assaults female counts relate to offending by Mr E against his (now ex) wife, Mrs E. On an occasion between June and July 2003, Mr E returned home after drinking at a friend’s address and hit Mrs E on the right cheek with his left hand, which cracked her tooth. In November 2003 Mr E became violent during a discussion with Mrs E about family matters. He threw her across the kitchen, resulting in her striking her back on a door handle. Mrs E remained on her feet but the incident left a bruise on her back. In December 2003, Mr E was upset that his last cigarette had gone missing and accused Mrs E of having smoked it. He picked up a five-kilogram bag of potatoes and threw it at Mrs E, narrowly missing her.

[6] The complainants in the remaining counts were three of Mrs E’s children, who were Mr E’s stepchildren. The first count of assault on a child was a representative count relating to Mr E’s stepson, who was aged nine years at the time. On one occasion Mr E struck him on his bare buttocks in relation to a perceived

family incident. During another incident Mr E picked him up by the head and shook him. On other occasions he struck him around the back of the head.

[7] The second count of assault on a child related to Mr E slapping his 13 year old stepdaughter across the face after she refused to do a job. This left a considerable mark on her face.

[8] The complainant in the indecent assault count was another of Mr E’s stepdaughters, who was aged 11 years at the time of offending. On or about

16 October 2003, after an evening out drinking, Mr E came home and got into the complainant’s bed. He put his hands down her pyjama pants and placed his hand on her vagina.

Sentencing remarks

[9] Judge Doherty noted that all of Mr E’s offending occurred within the context of his family situation. It was clear to the Judge that there was a considerable amount of violence in Mr and Mrs E’s relationship. The Judge took the view from the evidence at trial that Mr E is a controlling person who gets his own way by exhibiting and exerting violence on those around him.

[10] Judge Doherty noted that Mr E had previously undertaken anger management programmes and a Stopping Driver Offender treatment programme. However, he noted that these programmes did not appear to have worked. Mr E has accumulated

23 previous convictions in the past 15 years, including one for assault in 2000, although most of his convictions were for driving offences, including driving whilst disqualified and giving false particulars. The Judge saw these as indicators that he does not comply with orders of the Court or other authority figures.

[11] He also noted that the Probation Report had not been able to recommend any community based sentence and that the probation officer had opined that rehabilitative interventions would not be appropriate, given Mr E’s denial of guilt. Defence counsel criticised the Probation Report but, in the Judge’s view, Mr E only

had himself to blame for the matters in the report, as he did not appear to engage at all. In the Judge’s view, given his attitude, Mr E has no prospect of rehabilitation.

[12] Judge Doherty considered that the indecent assault was by far the most serious matter. He noted that there was no violence other than the inherent violence in the application of force in that way, and nor was there any penetration. The Judge referred to the emotional impacts on young children who have endured abuse of this nature and considered that this complainant may need far more intervention and counselling in the future. In Judge Doherty’s view, the aggravating features of the indecent assault were the significant breach of trust involved, the deliberate and calculated nature of the indecency, the complainant’s vulnerability due to her age and relationship with Mr E and the impact of his offending on the complainant.

[13] As to the assaults against the children, the evidence of excessive whacking or cuffing on the back of the head indicated gratuitous violence. Judge Doherty considered that he had to put aside the fact that Mr and Mrs E had a dysfunctional and violent relationship and deal with it on the basis that Mr E had been convicted of three separate matters.

[14] In terms of the principles and purposes of sentencing, Judge Doherty considered that the sentence must denounce Mr E’s conduct, as continuing gratuitous and excessive violence in the home is unacceptable. He must be made accountable for his actions and there must also be a deterrent both to Mr E personally and to the wider community. The combination of Mr E’s offending led the Judge to the view that there was no option but a sentence of imprisonment. In Judge Doherty’s view, very little could be said for Mr E in mitigation. Although he was acquitted of two of the charges, there was, in the Judge’s view, a completely meritless defence on those on which he was convicted.

[15] Bearing in mind the aggravating features of the indecent assault, Judge Doherty sentenced Mr E to 12 months imprisonment on this charge. As to the assaults on the children, the gratuitous and excessive force used by Mr E led the Judge to the view that he should be sentenced to six months imprisonment on each charge, to be served concurrently with each other but cumulatively on the indecent

assault sentence. The Judge accepted that the male assaults female charges were not at the highest end of the scale and that medical care was not necessary, but Mr E’s actions were gratuitous and repetitive. Accordingly, the Judge sentenced him to four months imprisonment on each charge, again to be served concurrently with each other but cumulatively on the other sentences. The total effective sentence was therefore 22 months imprisonment.

[16] Judge Doherty refused leave to apply for home detention. He considered that leave would be inappropriate in view of Mr E’s reaction to the Probation Service, the fact that there is no hope of any rehabilitation for him and the fact that these offences were committed in the home.

Parties’ submissions

Mr E’s submissions

[17] Mr Iosefa, for Mr E, submitted that the sentence of 22 months imprisonment was manifestly excessive in the circumstances of the offending and having regard to sentencing in similar cases.

[18] In relation to the indecent assault charge, Mr Iosefa submitted that the sentence of 12 months imprisonment was excessive. In his submission, it is not clear whether there are going to be any lasting effects on the complainant. There is no indication that she suffered any physical injuries and she had not received any counselling at the time of sentencing. He submitted that there was no actual or threatened violence or particular cruelty in the course of this offending, other than that which inherently exists in offending of this nature. No threats or inducements were made in an attempt to dissuade the complainant from disclosing the offending or to influence her into complying with the offending. In Mr Iosefa’s submission, the indecent act amounted to a momentary touching, there was no premeditation and the offending was an isolated incident.

[19] Mr Iosefa took issue with the Judge’s assessment of Mr E’s actions as

“deliberate and calculated”. In describing his actions in this way, Mr Iosefa

submitted that the Judge had misconstrued the evidence adduced at trial by both the complainant and her mother which variously described Mr E at the time of this offending to be “drunk”, “blotto”, “comotose” and even “asleep”.

[20] In Mr Iosefa’s submission, the Judge also failed to consider the numerous aspects of conflict in the complainant’s evidence. The complainant accepted at trial that she may have been “confused” concerning her recollection of events. Mr Iosefa submitted that, in light of the concerns as to the credibility of the complainant’s allegations and the inconsistency of the statements made by both the complainant and her mother, it was wrong for the Judge to describe the defence as “meritless”.

[21] In relation to the various assaults, Mr Iosefa submitted that, in light of the overall circumstances of the offending, the lack of prior relevant convictions and the limited level of harm to the complainants, the total effective sentence of ten months imprisonment was excessive. In Mr Iosefa’s submission, none of the assaults, if considered individually, would have attracted a custodial penalty but would have more likely resulted in a monetary penalty or other community based sentence. Further, there was, in Mr Iosefa’s submission, a clear conflict in the Judge’s assessment of the gravity of the three male assaults female convictions, as he assessed the violence as gratuitous and excessive but also commented that the offending was not at the highest level.

[22] Mr Iosefa further submitted that leave to apply for home detention should have been granted. He submitted first that Judge Doherty’s assessment as to the gravity of the offending was flawed. He also submitted that Mr E’s personal circumstances support granting leave to him to apply for home detention. In his submission, Judge Doherty failed to take into account the fact that there had been no contact between Mr E and the child complainants since he separated from Mrs E and only a small amount of contact with Mrs E.

[23] Due to the lack of any prospects for contact between Mr E and the complainants, the safety of the victims would not be compromised if leave to apply for home detention was granted. Any concerns regarding possible contact could have been addressed in conditions imposed while on home detention. Mr Iosefa

submitted there is nothing in the victim impact report which would render it inappropriate to grant leave to apply for home detention. The complainant in the indecent assault conviction does not express a specific fear of Mr E, but rather a general concern for her own safety.

[24] Mr Iosefa submitted further that Judge Doherty also failed to consider the stability in Mr E’s personal circumstances. Mr E was in employment and had a permanent address in Christchurch where he lived with his partner. In Mr Iosfea’s submission, too, there was no basis for the Judge’s comment that there was no hope for rehabilitation for Mr E, as no assessment was made concerning his motivation to address the causes of his offending.

Crown submissions

[25] Ms Mills, for the Crown, submitted that the sentence of 22 months imprisonment is neither manifestly excessive nor wrong in principle. In her submission, the sentence reflects the totality of Mr E’s offending and each individual sentence also reflects the seriousness of the offence as is required by s 85(1) and (2) of the Sentencing Act 2002.

[26] Ms Mills pointed to the aggravating features of the indecent assault alone, which involved a significant breach of trust, a significant invasion of the complainant’s privacy and skin on skin contact between Mr E’s hand and the complainant’s genital area. Further, the complainant was particularly vulnerable and the indecent assault has had, and will continue to have, a significant impact on her life.

[27] Ms Mills submitted that the physical assaults on the children, particularly the representative count, suggest a degree of gratuitous violence and again involved an abuse of trust and of Mr E’s position in the house. The three assaults by Mr E on his wife, especially when viewed alongside the assaults on the children, are indicative of a pattern of violence used by Mr E in the household. In Ms Mills’ submission, a combination of concurrent and cumulative sentences was appropriate as there were three distinct categories of offending.

[28] In Ms Mills’ submission, there was little in mitigation that can be said for Mr E, as he has shown no remorse and does not appear willing to accept responsibility for his offending. Accordingly, Ms Mills submitted that, when viewed as a whole, a sentence of 22 months appropriately reflects the totality of Mr E’s violent and sexual offending.

[29] Ms Mills further submitted that the refusal to grant home detention was within Judge Doherty’s discretion given the circumstances and nature of this offending. Ms Mills acknowledged that this Court, in R v Fisher CA347/04

17 December 2004, held that when sentencing for offences committed prior to the amended s 97 coming into force, such as the present offending, s 6 of the Sentencing Act requires the discretion to be exercised in accordance with the “old test”. However, Ms Mills submitted that Fisher must now be considered in light of the Supreme Court’s decision in Morgan v the Superintendent of Rimutaka Prison [2005] NZSC 26; (2005) 21 CRNZ 668. In that case, with some qualifications, the majority interpreted s 6 as applying to a generic increase in the penalty for the particular offence.

[30] Ms Mills submitted that, in this case, however, the result should be the same whether the “old test” or the “new test” applies and the Judge was right to refuse to grant leave to apply for home detention. In Ramsden v Police (2000) 17 CRNZ 444 at [8], Panckhurst J stated that home detention is not a viable option where the gravity of the offending, the protection of the community or particular victims, the need for deterrence and the absence of rehabilitative indicators render home detention inappropriate.

[31] Ms Mills pointed out that Judge Doherty declined to grant leave to apply for home detention because of Mr E’s negative response to the probation service, the fact that the offences were all committed in the home and the fact that the probation officer could see little hope of rehabilitation. In Ms Mills’ submission, the Judge’s views were supported by the facts.

[32] Furthermore, in Ms Mills’ submission, an obvious consideration is whether serving a sentence of imprisonment by way of home detention would give the

offender the opportunity to re-offend. She submitted that, even though Mr E is no longer residing with the complainants, home detention gives him the opportunity to re-offend with other victims, particularly given that he has expressed little remorse and essentially denied his offending.

[33] Ms Mills submitted that this offending has had a serious impact on all the victims, particularly the complainant in the indecent assault charge, and the granting of home detention could create an environment of stress and fear for all the complainants. Therefore, in Ms Mills’ submission, it was within Judge Doherty’s discretion to decline to grant Mr E leave to apply for home detention.

Discussion

[34] In our view an effective sentence of 22 months imprisonment was clearly well within the range available to Judge Doherty for a series of assaults and an indecent assault committed by Mr E in the home against his wife and stepchildren. The sentence, taken as a whole, reflects the totality of his offending, which involved gratuitous violence and significant breaches of trust. The sentences for the individual offences were also appropriate. Indeed, the level of offending in this case could have justified a higher sentence.

[35] A sentence of 12 months imprisonment was by no means excessive for an indecent assault with significant aggravating features (see those referred to by Judge Doherty above at [12]) and virtually nothing in mitigation. Drunkenness is no excuse. As to Mr Iosefa’s submission that the Judge failed to take into account apparent conflicts in the evidence relating to the indecent assault, any such conflicts were a matter for the jury, who clearly must have accepted the complainant’s version of events over Mr E’s.

[36] The sentences of six months imprisonment and four months imprisonment for the assaults against the children and Mrs E respectively were also well within the range available to the Judge. This offending constituted an abuse of Mr E’s position in the family and, in totality, indicated a propensity towards gratuitous domestic violence.

[37] We are also of the view that it was within Judge Doherty’s discretion to decline to grant leave to Mr E to apply for home detention regardless of whether the original or amended s 97 applies to his sentencing. It is therefore not necessary to consider the point whether the Supreme Court decision in Morgan throws any doubt on this Court’s decision in Fisher.

[38] In our view, the Judge’s assessment of the gravity of the offending was accurate. There was also a sound basis for the Judge’s comment that there was no hope of rehabilitation for Mr E. As noted by the Judge, previous rehabilitative efforts appear to have been ineffective and Mr E has expressed no interest in future rehabilitation. Further, any lack of assessment concerning Mr E’s motivation to address the causes of his offending was largely of his own making. Mr E was not forthcoming with information during his interview with the Probation Service, he continued to deny committing the offences and he demonstrated no motivation to address the factors that have contributed to his offending. We also consider that, despite the fact that Mr E is no longer residing with the complainants, it was open to the Judge to take into account the fact that the offences were committed in the home.

Result

[39] We are satisfied both that a sentence of 22 months imprisonment was not manifestly excessive and that it was within the Judge’s discretion to refuse leave to apply for home detention. Accordingly we dismiss Mr E’s appeal against sentence.

Solicitors:

Crown Law Office, Wellington