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R v N (CA88/05) [2005] NZCA 397 (23 November 2005)

Last Updated: 21 January 2014

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


IN THE COURT OF APPEAL OF NEW ZEALAND



CA88/05



THE QUEEN




v




N (CA88/05)




Hearing: 15 November 2005

Court: Chambers, Goddard and Rodney Hansen JJ Counsel: P H H Tomlinson for Appellant

J M Jelas for Crown

Judgment: 23 November 2005


JUDGMENT OF THE COURT


The appeal is dismissed.





REASONS


(Given by Chambers J)











R V N (CA88/05) CA CA88/05 23 November 2005

Sexual violation by a stepfather


[1] Over a two and a half year period, the appellant forced his young stepdaughter, who was seven when the offending began and nine when it ended, to endure rape, sodomy, digital penetration, and oral sexual connection. The offending came to light only when the victim attempted to take her own life.

[2] The appellant was charged with a number of offences, including rape and unlawful sexual connection. All charges were representative. The appellant defended the charges. The jury found him guilty on all counts.

[3] The appellant fell to be sentenced immediately after the Sentencing Act 2002 came into force. The Crown had originally suggested that preventive detention might be appropriate. It appears, however, from Baragwanath J’s sentencing remarks, that, as a result of discussion between counsel and the bench, the Crown in the end accepted that the case was not one for preventive detention: HC AK T014080 9 August 2002 at [4]. Instead, Baragwanath J, who had been the trial judge, sentenced the appellant to a term of 15 years’ imprisonment on the main charges, and to lesser terms on two indecent assault charges. All terms were to be served concurrently. He imposed a minimum period of imprisonment of eight years.

[4] The appellant appeared to take his sentence on the chin, but then, just short of the third anniversary of the jury’s verdict, applied for leave to appeal out of time against his sentence. A judge of this court, acting pursuant to ss 388(2) and 393(2) of the Crimes Act 1961, granted an extension of time. The present panel accordingly has been concerned only with the appeal itself.

Issues on the appeal


[5] Baragwanath J adopted a starting point for the overall offending of 15 years’ imprisonment: at [30]. Mr Tomlinson, for the appellant, did not dispute the appropriateness of that starting point. But he did submit that the judge had erred in failing to make any provision for mitigating factors. Those mitigating factors warranted, Mr Tomlinson submitted, a reduction from the starting point of two to

two and a half years. So the first issue on the appeal is whether the judge erred in his assessment that there were no mitigating factors.

[6] The second issue is whether the judge was justified in making an order under s 86 of the Sentencing Act 2002 to impose a minimum period of imprisonment (MPI) that was longer than the period otherwise applicable under s 84(1) of the Parole Act 2002. Even though the appellant’s offending was committed before the Sentencing Act came into force, his amenability to a s 86 order was established by a transitional provision to the Sentencing Act: see s 152. Mr Tomlinson accepted that s 86 potentially applied to the appellant, but submitted that the criteria for the section’s exercise were not made out.

[7] The third issue is whether, assuming this was an appropriate case for an MPI

order, the MPI was too long.

[8] We shall deal with the issues in turn.


Mitigating factors


[9] Mr Tomlinson submitted that there were three mitigating factors which the judge wrongly failed to take into account:

(a) The appellant’s own tragic background;

(b) The appellant’s acceptance of responsibility and acknowledgement of guilt;

(c) The appellant’s remorse.


The appellant’s background


[10] There may be legitimate debate as to whether an appellant’s background should be taken into account when fixing the starting point for the offending or as a mitigating factor. Either is possible: see the discussion in Hall’s Sentencing

(looseleaf ed) at [I.6.1]. What is important is that, if an offender’s background is relevant to culpability, it is taken into account at some point in the sentencing exercise.

[11] In the present case, it was taken into account. The judge specifically referred to the appellant’s own unfortunate background at two points in his sentencing remarks. First, at [23], His Honour said:

Dr Burgess referred also to the facts of the abuse to which you have been subjected. While I was not prepared to accept Mr Borich’s submission that that is a matter to be taken into account in mitigation it is, I consider, a factor that may be considered in appraising the overall gravity of the offending.

[12] And then again the judge said, at [30], after fixing the starting point of

15 years:

In reaching this I take into account Mr Borich’s submissions as to your personal factors, in the absence of which a greater penalty would have been selected.

[13] There is no doubt, therefore, that the judge did take into account the appellant’s background in fixing his starting point. He was entitled to approach the sentencing in that way. Further, the judge was clearly right when he said that, but for the appellant’s own tragic background, a greater penalty could have been selected. See, for instance, R v Kolio CA219/01 1 November 2001, to which the judge referred, and in which a starting figure of 17 years’ imprisonment was held justified.

Acceptance of responsibility


[14] Mr Tomlinson submitted that the appellant “was not given sufficient credit for his acceptance of responsibility and acknowledgement of guilt”. Clearly, had the appellant accepted responsibility or acknowledged guilt, a discount for those factors would have been appropriate. But he did not accept responsibility and he did not acknowledge guilt.

[15] As to the latter, acknowledgement of guilt must be demonstrated by a plea of guilty. The appellant pleaded not guilty to all counts. So plainly there was no acknowledgement of guilt.

[16] As to acceptance of responsibility, again we see nothing in the evidence to justify that submission. On the contrary, Ms Jelas, for the Crown, took us to passages in the evidence where it was clear that the appellant tried to blame this little girl for what had occurred between them.

[17] The appellant gave evidence as to the first sexual contact between him and his stepdaughter. The appellant said that he woke up one morning to find his stepdaughter performing oral sex on him. She was looking at him with her “big wide brown eyes fully wide open” and with a huge grin on her face. Not only, according to the appellant, did the complainant consent to this incident: she initiated it and, apparently, greatly enjoyed it.

[18] The appellant then went on to describe other sexual incidents which occurred between them. He described an incident where the complainant was on top of him. His penis became erect and he said something to her like, “Do you want to try, babe?” According to the appellant, she answered “Yeah” and then tried to put her vagina onto his penis. But they then stopped when she said that she couldn’t: “It’s too sore – dad.”

[19] The appellant’s counsel asked him who initiated these sexual episodes. The appellant answered:

It went back and forwards. It would depend – it would all depend on this controlling influence that sometimes got the better of me, sometimes got the better of her, and sometimes it was just the better of both of us.

[20] The appellant went on to describe occasions on which he had initiated the sexual encounter. At other times, he said, the complainant would initiate the encounter. When asked whether his stepdaughter wanted to engage in these sexual activities, he answered “Yes”.

[21] That evidence does not justify any submission that the appellant accepted responsibility for what happened. On the contrary, he was placing the blame squarely on the young complainant and the Devil in his head.

The appellant’s remorse


[22] Mr Tomlinson submitted to us that Baragwanath J had been wrong not to recognise the appellant’s remorse for his offending. But there is a short answer to that: there was no remorse. On the contrary, all the material before the sentencing judge indicated a complete lack of remorse.

[23] Let us quote just the following examples.

[24] The judge had before him a report prepared in February 2002 by Dr Burgess. This report had been prepared at the request of the High Court pursuant to s 121(2)(b)(i) of the Criminal Justice Act 1985 “to address the issue of disability and mental disorder”. In that report Dr Burgess noted that the appellant showed “no remorse...for past and present misdemeanours”.

[25] Dr Burgess saw the appellant again in June that year. In his report of

26 June 2002, he said:

[The appellant] did not accept responsibility for the offences against his stepdaughter. There was no appropriate remorse. [The appellant] rationalised that he had no control of his behaviour because of the demonic influence in the house. He blamed his wife for her “Jezebel spirit”.

He accused his stepdaughter of seducing him. He stated that when he woke up from his intoxicated state he found his daughter sucking his penis. While discussing the offences he showed no emotion.

[26] The appellant was also seen in July 2002 by another psychiatrist, Dr Pramila Fernandez. Dr Fernandez reported to the court as follows:

Throughout the assessment [the appellant] presented with a strong sense of entitlement and showed no empathy towards the victim. He remained entrenched in his religious convictions and failed to accept responsibility for his actions. This can be perceived as total lack of acceptance of responsibility and remorse for the victims.

[27] The probation officer who saw the appellant made a similar observation:

[The appellant] does not accept responsibility for the offences and accordingly his motivation to change must be regarded as low.

[28] In summary, therefore, this challenge to the sentence has not been made out. As to the first “mitigatory” factor, it was taken into account. The other two alleged mitigatory factors did not exist.

Justification for an MPI


[29] Baragwanath J held that an MPI was justified for two reasons (at [33]): (a) Denunciation of the appellant’s conduct;

(b) Consideration of the effect upon the victim.

[30] There is no doubt that the judge was justified in imposing a s 86 order on the first of those grounds. Denunciation of offending was expressly recognised as a justification for an MPI in R v Brown [2002] 3 NZLR 670 at [35] and [41] (CA). (That decision had not been delivered at the time of Baragwanath J’s sentencing.) This was extremely serious offending. The circumstances of it were quite outside the ordinary range of sexual offending.

[31] Mr Tomlinson concentrated his attack on the second justification given by Baragwanath J. His Honour noted that the complainant was, at the date of sentencing, ten years old. He said that, if no order were made, “she would have reason for possible apprehension that the Parole Board might return you to her life when she is only 15”. He thought that, because of her fragility, it was desirable that she should be “no longer ... a child but a woman” by the time the appellant became eligible for parole: sentencing notes at [34]. His Honour therefore concluded that the appellant “should not be eligible for parole at least until she is 18”. On that basis, the judge fixed the MPI at 8 years.

[32] That approach to s 86 was one which a number of High Court judges took in the months immediately after the Sentencing Act came into force. It was not until this court’s decision in Brown that it became clear that “saving victims from unnecessary concern about relatively early release and from the need to oppose parole” was to be seen “as a consequence rather than a purpose of the section”: Brown at [28]. It is possible, therefore to argue, as Mr Tomlinson did, that Baragwanath J was in error in using concern for the victim as a reason for a s 86 order and her age as the predominant guide to the length of the MPI.

[33] Notwithstanding that, however, there was ample justification for a s 86 order, given the seriousness of the offending and the fact that a five year non-parole period would clearly be insufficient punishment and denunciation of the appalling offending.

[34] We have no hesitation in concluding that a s 86 order was justified.


Length of the MPI


[35] We accept, for reasons just given, that Baragwanath J fixed the eight year period by reasoning which was later disapproved of by this court in Brown. At the same time, we are completely satisfied that an eight year MPI was justified in the circumstances of this case.

[36] Mr Tomlinson sought to persuade us that the length of the MPI was too long. We asked him to refer us to comparable cases with which an MPI of eight years could be said to be out of line. He cited only one case, a High Court sentencing decision in which no MPI had been fixed. This court said recently in R v Murphy CA198/05 ... at [24] that it is rarely helpful in this court to cite High Court sentencing decisions, except in circumstances where this court is engaged in preparing a guideline judgment or is otherwise conducting a thorough review of sentencing with respect to a particular type of offending. It proves nothing to cite an isolated High Court decision. In any event, the circumstances of the case cited were quite different from the circumstances of this offending.

[37] Ms Jelas cited two appellate authorities to us, both with broadly similar facts. The first was R v T (2002) 20 CRNZ 51, in which the appellant was sentenced to

15 years’ imprisonment for prolonged sexual abuse of a young girl. The sentencing judge had fixed an MPI of nine years (60%). This court approved the minimum term. It said at [20]:

Because the minimum sentence was imposed before the guidance given in Brown, we have reviewed the length of the minimum sentence. With multiple offending as is involved here, the application of the totality principle in sentencing gives some proportionality and realism to sentences where full cumulative sentences for all separate offences would be pointless. But a consequence is that eligibility for parole after one-third of the sentence imposed often will be quite inadequate to reflect the appropriate level of punishment, deterrence and denunciation for that total offending. Having regard to the factors to be weighed in accordance with ss 7, 8 and 9 of the Act applicable to the offending by this offender, we are satisfied that the minimum term of 9 years was appropriate in this case.

[38] Those comments are directly applicable here.

[39] Ms Jelas’s other case was R v H (CA 263/03) 6 October 2003. In that case, which also involved multiple offending against a young girl, this court upheld a sentence of 12 years’ imprisonment, with an MPI of six years. The offending in the present case was much worse than the offending in H: it was conducted over a much longer period. Baragwanath J’s MPI of eight years (53%) is fully comparable with the MPI of six years (50%) imposed in H, and later approved by this court.

[40] We may also observe that the appellant was lucky that Baragwanath J decided to defer the sentencing until after the Sentencing Act 2002 came into force. Had Baragwanath J sentenced the appellant when he could have, the appellant would have had to serve two-thirds of his sentence, namely 10 years.

Result


[41] We are satisfied that neither the nominal sentence nor the MPI imposed was manifestly excessive. We dismiss the appeal.

Solicitors:

Peter H H Tomlinson, Auckland, for Appellant

Crown Law Office, Wellington


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