R v R (CA235/05) [2005] NZCA 412 (14 December 2005)

Last Updated: 22 January 2014

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR PARTICULARS IDENTIFYING APPELLANT.

˝

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

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA235/05

THE QUEEN

v

_{R (CA235/05)}

Hearing: 1 December 2005

Court: William Young, Baragwanath and Potter JJ Counsel: C J Tennet for Appellant

H M Lawry for Crown

Judgment: 14 December 2005

_{JUDGMENT OF THE COURT}

A Appeal dismissed.

2. Order prohibiting publication of name, address or particulars identifying appellant.

REASONS

_{(Given by Baragwanath J)}

R V R (CA235/05) CA CA235/05 14 December 2005

[1] The appellant pleaded guilty in the District Court at Manukau to six counts of sexual offending against his stepdaughter over a period of some four years and eight months when she was aged between 12 and 16. He now appeals against the sentence of seven years imprisonment imposed upon him by Judge Bouchier.

Background facts

[2] The appellant and the victim’s mother had been in a relationship for six years prior to his arrest, but did not live together permanently. When the victim started intermediate school she began spending time with the appellant in the absence of her mother, using the appellant’s computer and sometimes staying the night with him. The first count charged the appellant with requiring the victim, then 12 years of age, to remove all her clothing and then massaging her naked body front and back. Count 7, as amended, was of sexual violation by digital penetration during the period when the victim was between 13 and 16. The offending began with naked massages and progressed to digital masturbation of the victim on a regular basis. Counts 6 and

11 were of sexual violation when the victim was 15 by connection between the appellant’s tongue and the victim’s genitalia and the penetration of her anus with his finger. The offending began with naked massages and digital masturbation. Digital penetration of the victim’s anus occurred at least once and he used his tongue to perform oral sex on several occasions. Counts 10 and 12 alleged sexual violation between 18 September 2003 and 30 April 2004 when the victim was 16. The counts were of unlawful sexual connection by the penetration of the victim’s vagina with a vibrator and sexual violation by unlawful sexual connection by the penetrating of her anus with a piece of string with beads attached. The offending was associated with digital masturbation and use of the appellant’s tongue to perform oral sex on the victim.

[3] The indignity to the victim was accentuated by the appellant’s filming her being subjected to abuse. At all stages she felt powerless to resist for fear of reprisal by the appellant.

[4] The victim impact statement, which is fully consistent with the appraisal of her by the probation officer, is an intelligent and eloquent account that exhibits a perception and wisdom which bodes well for the victim’s rehabilitation. But it bears out the greatly damaging effects of the appellant’s conduct upon the victim that is to be expected.

[5] In a pre-sentence report the probation officer records that the appellant has taking some responsibility for his offending but maintains that depression due to business losses and the breakdown of his relationship with the victim’s mother partly contributed to the offending. The appellant did attend a support self-help group for some ten months prior to his arrest in April 2005. It is not recognised as a therapeutic rehabilitative group.

[6] The Judge considered that the breach of trust, the vulnerability and harm suffered by the victim and the abusive conduct, including photographing the offending and using objects in the course of it, warranted a sentence on counts 6, 10 and 12 of eight years before mitigation. The Judge recognised as mitigating factors the appellant’s previous good character, co-operation with the police and remorse shown as well as the plea of guilty, which she described as given at a reasonably late stage. After a reduction of one year for the mitigating factors the Judge imposed a term of seven years on counts 6, 10 and 12. On count 11 she imposed a sentence of six years and on the indecent assault count a term of two and a half years. All sentences were ordered to be served concurrently. In view of the guilty plea and the previous good character of the appellant the Judge did not impose a minimum non-parole period.

Submissions on appeal

[7] In his written and oral submissions Mr Tennet submitted that the eight year starting point was excessive and that the discount of one year for mitigating factors was inadequate. He submitted that the relatively late plea was the responsibility not of the appellant but of his former counsel. Mr Lawry supported the Judge’s decision.

[8] The appellant swore and was cross-examined on an affidavit asserting that the delay between the appellant’s arrest on 28 May 2004 until his plea of guilty on

11 April 2005 was in large part due to failure by his counsel to arrange for him to plead at an earlier point. It attached an earlier affidavit sworn by the appellant in support of a complaint to the Law Society.

[9] The appellant’s counsel, Mr Harder, swore an affidavit in opposition but was medically unfit to be cross-examined.

[10] The appellant was cross-examined before us. Crown counsel elicited that following depositions the first callover was on 23 September 2004 when previous counsel was instructed to pass the file to Mr Harder. The appellant acknowledged that by the time he instructed Mr Harder he knew the nature of the Crown case, although he did not accept certain of the allegations on the 13 count indictment. The appellant said that he wanted counsel to engage in negotiations so he could plead guilty to those he accepted, the Crown being invited not to proceed on the others.

[11] Crown counsel cross-examined the appellant on a police notebook entry of

21 February 2005. It recorded Mr Harder’s advice to the police of the appellant’s preparedness to plead to half the charges. On 29 March Mr Harder notified Crown counsel of the appellant’s preparedness to plead guilty to counts 1, 7 or 9, 10 and

11. Further discussions took place between that date and the appellant’s arraignment when he pleaded guilty to six counts in the indictment. Count 6 was extended back from 18 September 2002 to 18 September 2000 so as to embrace the period covered by counts 2, 3 and 4. The Crown offered no evidence on the remaining counts. It is however to be noted that the allegations in counts 2, 3, 4, 5, 8, and 9 were either incorporated in the amendment of count 7 to cover the period which they had embraced or were alternative to counts to which the appellant pleaded guilty. In practical terms only count 13, of minor indecent assault, was removed from the indictment.

[12] The cross-examination effectively dispelled the appellant’s complaint that Mr Harder delayed coming to grips with the case until a very late stage and so was responsible for the belated pleas.

[13] Certainly a plea of guilty, even if late, should receive real recognition in cases of this kind because of the benefit to the complainant: R v Accused (CA430/96) (1997) 14 CRNZ 645, 647-8. We are, however, of the view that the issue of why the plea of guilty was deferred and the fact of its relative lateness are peripheral to the central question in this appeal.

[14] Our ultimate task is to assess whether the sentence was warranted. Section 385(3) provides:

385 Determination of appeals in ordinary cases

...

(3) ... the Court of Appeal..., if it thinks that a different sentence should have been passed, shall either quash the sentence passed and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the Court thinks ought to have been passed or vary, within the limits warranted in law, the sentence or any part of it... and in any other case the Court shall dismiss the appeal.

[15] In R v M CA118/93 11 October 1993 and R v W CA51/99 2 March 2000 sentencing courts did not distinguish between penile penetration and use of an object for similar purposes. R v Castles CA105/02 23 May 2002 is to broadly similar effect.

[16] In R v Salt CA353/04 4 May 2005 cited by Mr Tennet, this Court referred to R v Tranter CA486/03 14 June 2004 which confirmed that there is no tariff sentence for sexual violation by digital penetration. It referred to the increase in the maximum penalty to twenty years and considered that a starting point in excess of five years may well be appropriate in more serious cases.

[17] The present offending goes far beyond the kind of abuse considered in Tranter and Salt. The appellant’s conduct was for practical purposes, indistinguishable from rape. If one adopted the conventional eight year starting point for rape, that would require to be increased for the aggravating factors, first of

the appellant’s abuse of his relationship with his step-daughter, secondly for the enormity of the various indignities to which she was subjected and thirdly for its duration for more than four and a half years. Before mitigation the sentence must have substantially exceeded nine years. If a two year deduction for mitigating factors were substituted for the Judge’s one year, the result would be no less than the seven years fixed by the Judge. In oral argument Mr Tennet appreciated the difficulty of resisting such analysis.

Decision

[18] It follows that the appeal must be and is dismissed.

Solicitors:

Crown Law Office, Wellington