R v Knighton CA362/05 [2005] NZCA 402 (7 December 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

_CA362/05

THE QUEEN

v

BEVAN JOHN KNIGHTON

Hearing: 30 November 2005

Court: Hammond, John Hansen and Doogue JJ Counsel: S J Hembrow for Appellant

A Markham for Crown

Judgment: 7 December 2005

_{JUDGMENT OF THE COURT}

_{The appeal against sentence is dismissed.}

REASONS

_{(Given by Hammond J)}

Introduction

[1] The appellant, Mr Knighton, was convicted after a guilty plea on arraignment of one representative charge of indecent assault of a girl under 12 years (s 133(1)(a)

_{Crimes Act 1961) for which he was sentenced to three years imprisonment.}

R V KNIGHTON CA CA362/05 7 December 2005

[2] At the same time he was convicted on his guilty plea of one representative charge of unlawful sexual intercourse with a girl under 12 years (s 132 Crimes Act

1961) for which he was sentenced to eight years imprisonment.

[3] Both sentences were concurrent and the trial Judge, Judge Erber, directed that there should be a minimum non-parole period of four years imprisonment.

[4] Mr Knighton now appeals against his sentence, and the minimum non-parole period.

Background

[5] The offending occurred over a five-month period in 2003. Mr Knighton was boarding with the complainant (X) and her older brother at their father’s home.

[6] At that time X was 11. Mr Knighton was aged between 18 and 19 years.

[7] Mr Knighton was entrusted to baby-sit the children in the home from time to time. He developed a close relationship with X.

[8] On two occasions when they were alone in the house, Mr Knighton approached X while she was watching television, got on top of her and had full sexual intercourse with her. The agreed summary of facts records that intercourse occurred on a third occasion, but X believed this may have occurred after her

12^th birthday, and no charge was laid in that respect.

[9] X said that she had struggled with Mr Knighton and told him to stop; that she cried; that he removed her lower clothing and had full intercourse with her, causing her severe pain.

[10] In the original indictment there was a charge of rape, but after what Mr Hembrow described as “negotiations” between the defence and the Crown Solicitor, the Crown decided not to proceed on that count, provided guilty pleas were entered on the other two counts.

[11] X was young and in a very difficult situation. Mr Knighton told her that she would be fine and warned her that people would think that it was her fault if she was to tell anyone. Unbeknown to X she had become pregnant. Her condition only came to light when her foster grandmother visited her and discovered that X was seven and a half months pregnant.

[12] Worse was to follow. Shortly after this, X was admitted to hospital with severe abdominal pain and it was discovered that she had contracted chlamydia, a sexually transmitted disease.

[13] Thereafter X gave birth to a baby girl, who was placed for adoption.

[14] Mr Knighton initially denied the allegations. Subsequent DNA tests proved he was the biological father of the child. He thereupon lamely acknowledged that he must be the father, but “could not recall” these incidents.

[15] The circumstances of both X and Mr Knighton raise their own complications and sadness, to which we now turn.

The victim impact report

[16] The very experienced trial Judge described (correctly in our view) the victim impact statement as “amongst the most tragic” he had ever read.

[17] X was sexually naïve. She did not really understand what was happening to her, and she was too afraid and ashamed to tell her parents. She had an ambivalent relationship with Mr Knighton and swung between trying to avoid him, and to treat him as a friend.

[18] Her distress was further exacerbated when Mr Knighton began a relationship with her mother, whom he subsequently married. X attempted to confide in her mother, but she took no action. X is now estranged from her mother. X has had to be relocated to her supportive foster grandmother’s home elsewhere. This had the

distinct effect of uprooting X’s life even further, and separating her from familiar surroundings and her circle of friends at a very vulnerable time in her life.

[19] Understandably, X’s self identity has been hugely compromised: she suffers from chronic anxiety, mood swings and feelings of shame, has difficulty trusting anyone and has become distinctly secretive and withdrawn. These are likely to be on-going effects.

Mr Knighton’s circumstances

[20] Mr Knighton’s intellectual functioning is undeniably below average. He was an academic under achiever. However there was no evidence of any intellectual disability or even borderline disability, and there is no evidence that his cognitive abilities should be taken into account in diminishing his culpability.

[21] Mr Knighton has been assessed as lacking insight into the impact of his offending and being far more concerned with his own situation. He has been evasive and blames the victim. In the view of the probation officer, he was unwilling to address any identified factors relating to his offending. A psychologist’s report suggested Mr Knighton “is indiscriminate in his behaviour with respect to achieving sexual gratification”. He has problems with anger and volatile behaviour and a personality structure marked by depression, impulsivity and instability. The report suggests that there is a high risk of reoffending.

The District Court sentence

[22] The Judge identified the following aggravating features:

• the serious breach of trust whereby Mr Knighton took advantage of a vulnerable girl well under age in circumstances where she was living in a fractured family position;

• the tragic effect on the victim;

• the fact that intercourse occurred more than once and that Mr Knighton sought her for the very purpose of having intercourse with her;

• the intercourse seemed to be very close to rape;

• Mr Knighton infected her with a sexually transmitted disease; and

• Mr Knighton has little remorse and has taken a rather detached view of his culpability.

[23] In the Judge’s view, the only mitigating factor was Mr Knighton’s plea of guilty. The Judge took the view that the offending was close to the most serious case of its type, although not one of the worse category of cases given that there was no accompanying physical violence.

[24] In all the circumstances the Judge considered that a starting point of 12 years imprisonment was appropriate. He gave a discount of four years (or one third) in light of Mr Knighton’s guilty plea, to yield the sentence of eight years imprisonment on the most serious charge.

[25] On the question of the minimum period of imprisonment, based on the law that applied in 2003, with the aggravating features of the offending and the fact that the Judge viewed it as falling under s 8(c) of the Sentencing Act 2000 (that is to say near the most serious case of its kind), the Judge took the view that release after two years and eight months imprisonment would be insufficient deterrence, denunciation and punishment. He accordingly imposed a minimum period of four years.

The grounds of appeal

[26] The appeal is put on two bases. First, that the sentence of eight years imprisonment was manifestly excessive. Secondly, that the non-parole period of four years was manifestly excessive and/or inappropriate. In respect of both aspects of the appeal it is submitted Mr Knighton was 18 years of age at the time of offending; his intellectual development and maturity were less than his chronological

age; he had no previous similar convictions; the early guilty plea; and it is said that the level of the sentence is more akin to the level that would be given on the more serious charge of rape.

Discussion

(i) Sentencing principles

[27] It is trite that the circumstances of the offence of unlawful sexual intercourse vary greatly, and there is no established tariff. This because there is such a wide spectrum of culpability from, at the one end, fully “knowing” and consensual activity between adolescents (which may occur in the context of an affectionate relationship), to, at the other end, conduct which comes much nearer to rape. (See R v Jones CA153/90, 20 July 1990).

[28] A number of authorities were canvassed before us as to the sentences imposed in other particular cases. Inevitably, however, each case turns on its own circumstances.

[29] We do however agree with Ms Markham that there are decisions of this Court which indicate that (in relation to sentencings under s 132) the sentences actually imposed could have been higher. Also a number of the cases are now becoming somewhat dated, and do not sit well with changes in the level of sentences in cognate areas, and for that matter the provisions of the Sentencing Act 2000 itself in ss 8(c) and (d) (as to which see R v Taueki [2005] 3 NZLR 372 at [24]).

(ii) This case

[30] We agree with the sentencing Judge, and the Crown submissions on appeal, that this case cannot be seen as anything other than at the upper end of the admittedly wide spectrum of culpability in cases of unlawful sexual intercourse. In no proper sense of the term was X consenting, and the aggravating features identified by the sentencing Judge added very distinct loadings. A sentencing Judge is required by

s 8(f) of the Sentencing Act 2000 to take into account the effects of the offending on the victim, which were here about as bad as things can get. When this is coupled with Mr Knighton’s unfortunate post event indifference and his view of his own “predicament” we consider that the Judge was well entitled to impose the period of eight years imprisonment.

[31] As to the minimum period of imprisonment, because the offending pre-dated the recent amendments to s 86 of the Sentencing Act 2000, the Judge correctly applied the former test (see R v Brown [2002] 3 NZLR 670). Under that test it was a matter of judicial judgment whether the “sufficiently serious” threshold was passed. And, on appeal, it was incumbent on the appellant to show that the Judge was plainly wrong. We are quite unable to say that both the offending and its consequences were not sufficiently serious for the purposes of s 86, and that the imposition of a minimum non-parole period was plainly wrong.

[32] At that point, it is even more difficult on appeal to dislodge the minimum period actually fixed by the sentencing Judge. Mr Hembrow said everything that he possibly could have said on behalf of the appellant, and by particular reference to the circumstances of this young man. All of that was however before the sentencing Judge, who took it fully and overtly into account. Again, we cannot say that the Judge was plainly wrong in the view of the period of years which he fixed.

[33] The appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington