R v C (CA245/05) [2005] NZCA 396 (23 November 2005)

Last Updated: 21 January 2014

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

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA245/05

THE QUEEN

v

_{C (CA245/05)}

Hearing: 17 November 2005

Court: O’Regan, Baragwanath and Doogue JJ Counsel: D D Rishworth for Appellant

M F Laracy for Crown

Judgment: 23 November 2005

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS

_{(Given by O’Regan J)}

R V C (CA245/05) CA CA245/05 23 November 2005

Introduction

[1] The appellant pleaded guilty to two representative charges involving the sexual abuse of his natural daughter. The first was a representative charge of sexual violation by unlawful sexual connection covering the period 1 January 1999 –

15 March 2004. The other charge was a charge of sexual violation by rape in the period 1 August 2000 – 15 May 2005. The particulars said that there were three or four incidents of rape. He was sentenced at the District Court to ten years six months imprisonment, with a minimum period of imprisonment of six years. He now appeals against both the sentence and the minimum period of imprisonment.

[2] The sentencing Judge, Judge Perkins, described the offending in the following terms:

The abuse started when the victim was six years old. It consisted of vaginal penetration with fingers at an early stage. It involved other sordid acts of masturbation by yourself in front of the child and it also consisted of oral sex. The offending persisted once or twice a week and when your wife was away from the home. Later you forced the victim to perform oral sex upon you and this behaviour continued until she was approximately 11 years old. You also performed sexual acts, while forcing the child to watch pornographic images on the internet. Later, on occasions, you inserted your penis inside her genitalia and this appears to have occurred apparently on four occasions. It did not involve full penetration nor full acts of sexual intercourse.

District Court sentencing

[3] The Judge referred to the probation report which indicated that the appellant had some previous convictions but none for sexual offending. It reported that the appellant had a good upbringing and was well educated. The Judge expressed doubts as to the insight or remorse of the appellant, based on comments reported in the probation report, but accepted that the appellant’s plea of guilty was probably the greatest sign of remorse. He also noted that the appellant had expressed an intention to undergo rehabilitative counselling while in prison.

[4] The Judge referred to the victim impact report. It recorded the complainant expressing feelings of disgust and of “feeling gross”, and an indication of sadness of

the disintegration of the family unit. He noted that the victim was 12 years old and that the offending had robbed her of her childhood. He said that experience had shown considerable trauma in adult years could be caused by this type of offending.

[5] The Judge noted the relevant provisions of the Sentencing Act, particularly the need to hold the appellant accountable, promote in him a sense of responsibility and provide for the interests of the victim. He said that denunciation and deterrence were strong motivations in sentencing.

[6] The Judge identified the aggravating factors as the grave breach of trust involving the appellant’s own daughter, the age and vulnerability of the victim at the time of the offending (six years old when the offending began and 11 years old when the rapes occurred), the nature and extent of the offending over six years in total, with violation once or twice a week, premeditation (waiting until the appellant’s wife was away before perpetrating the acts), the harmful effects on the victim and the inherent violence involved.

[7] The Judge noted the main mitigating factor was the guilty plea which he said was significant because it indicated remorse, and saved the victim from the further trauma of having to give evidence. He noted the guilty plea was not made at the earliest opportunity, but was made at committal. He also accepted that the appellant had made a confession to the police, having approached the police voluntarily, though he noted the appellant may not have had much choice because the victim had already disclosed the offending. The Judge accepted the appellant had no previous convictions for similar offending, there was no violence or threats against the victim.

[8] The Judge considered a number of authorities and determined that the appropriate starting point was one of 14 years imprisonment. He applied the starting point to both the rape count and the sexual violation count. As to the rapes, he determined that the mitigating circumstances, particularly the guilty plea, justified a discount of 25%, and imposed a term of imprisonment of ten years six months.

[9] As to the sexual violations, the Judge noted that they were in some ways more serious because of the large number of acts which took place and the

degradation to which the victim was subjected. He concluded that the sexual violations were equally serious to the rapes and imposed the same sentence.

[10] The Judge then turned to the minimum period of imprisonment. He cited the decision of this Court in R v Brown [2002] 3 NZLR 670 in which this Court referred to the power to impose a minimum period of imprisonment where the offending was such that release after serving one third of the sentence would represent insufficient denunciation, punishment and deterrence in all the circumstances. The Judge determined that, applying that test, a minimum period of imprisonment of six years was appropriate.

Submissions

[11] On behalf of the appellant, Mr Rishworth submitted that the starting point of

14 years adopted by the Judge was too high. He submitted that there was an absence of aggravating factors and emphasised that:

(a) There was one victim only;

(b) There was no violence or threats of violence (apart from that inherent in the offending);

(c) The appellant voluntarily ceased offending prior to any complaint by the victim, and attended the Police Station voluntarily before a formal complaint was made to the police;

(d) The appellant voluntarily attended counselling after confessing to the offending;

(e) The sexual violation by rape occurred on about four occasions, and involved only partial penetration not full intercourse.

[12] Mr Rishworth also argued that there was insufficient allowance for mitigating factors. He said that the 25% discount provided by the Judge was inadequate for the

guilty plea and the other mitigating factors. He argued that the guilty plea, made at the first callover following committal for trial, was made at an early opportunity and that it justified a 30% discount on its own. He said that the voluntary approach to the police, the remorse, the appellant’s good motivation to address the factors relating to his offending, the appellant’s good work record and personal references and the appellant’s lack of previous relevant convictions were all matters which ought to have been given weight in the assessment of mitigating circumstances. He suggested that an allowance of at least one third ought to have been made.

[13] In relation to the minimum period of imprisonment, Mr Rishworth said that the Judge had failed to take into account the sentencing principles in s 7, 8 and 9 of the Sentencing Act, as contemplated by the decision of this Court in R v Brown at [34]. He said the Judge did not articulate his reasoning as to how he arrived at a six year minimum period of imprisonment, and that the period was too high having regard to the mitigating factors referred to earlier, particularly the appellant’s voluntary attendance at counselling immediately after his confession to the offending, and his good motivation to address the factors relating to his offending.

[14] Counsel for the Crown, Ms Laracy, said that the features of the offending in this case properly justified the starting point adopted by the Judge. She emphasised the following:

(a) The regularity of the abuse, once or twice a week for five years;

(b) The youth of the victim, and the fact that both digital penetration and oral-genital contact started when she was only six years old;

(c) The fact that the victim was regularly shown gross pornographic material from the age of nine;

(d) There were four occasions of rape, albeit short of full penetration; (e) The horrendous breach of trust;

(f) The degree of premeditation;

(g) The abuse followed a clear pattern and the appellant cognisant of the wrongness of what he was doing;

(h) The harm done to the victim and the divisive and destructive effect on the family’s lives.

[15] Ms Laracy said that the fact that the rapes did not involve full penetration did not warrant a lesser sentence: R v Hawkins CA51/02 22 May 2002 at [7]. She argued that the starting point adopted in the present case was consistent with the

15 year starting point upheld by this Court in R v M (CA3/04) CA3/04 23 August

2004. In R v M, the offending involved indecent assaults on the victim from the age of eight years, regular weekly rapes from the age of nine years for approximately two years and incidents of oral sex over about one year. The mitigating circumstances were similar in that case, and a sentence of 11 years was upheld, as was a minimum period of imprisonment of six years, which was approximately 55% of the finite sentence. She argued that the cases cited in R v M also supported the Crown’s submission.

[16] As to the minimum period of imprisonment, Ms Laracy said that the period of six years provided an adequate allowance for mitigating features, and was the same as that upheld in R v M where the mitigating features were similar in nature to those in the present case.

Discussion

[17] Mr Rishworth said all that could be said in support of the appeal against the final sentence, but it is clear to us that there is no basis for intervention. In our view the starting point adopted by the Judge was appropriate for the level of offending, having regard to the aggravating circumstances referred to earlier. The decision of this Court in R v M, and the cases referred to in that decision, make it clear that offending of the present kind involving repeated sexual abuse of a young child, with the inevitable horrendous impacts on the victim, must be met by a strong sentencing response. That is what happened in this case. We therefore reject the contention that the starting point was too high.

[18] We are also satisfied that the allowance made for mitigating factors was sufficient in the present case. We do not minimise the mitigating factors, but nor should they be overstated. For example, the guilty plea was not made at the earliest opportunity, and the victim would have been left in the position of contemplating the prospect of having to give evidence for some months after the charges were laid.

[19] We agree with Mr Rishworth that the sentencing notes do not indicate the way in which the Judge brought to account the factors in ss 7, 8 and 9 in his determination of the length of the minimum period of imprisonment. In the approach mandated by R v Brown (which applies to this case because the offending in this case occurred prior to the change to s 86 by the Sentencing Amendment Act

2004) the determination of the minimum period of imprisonment required a consideration of those factors.

[20] However, the factors which would have influenced the Judge would have been the requirements for denunciation and deterrence which we have emphasised earlier, and to which the Judge also gave particular weight in setting the final sentence: see [5] above. The appellant’s remorse and motivation to address the causes of his offending should be counted in his favour in the present context, but the very significant aggravating factors must equally count against him. Weighing all of those considerations, we are not persuaded that a minimum period of imprisonment of six years was manifestly excessive. So this aspect of the appeal also fails.

Result

[21] The appeal is dismissed.

Solicitors:

Rishworth Wall & Mathieson, Gisborne for Appellant

Crown Law Office, Wellington