R v McMahon CA186/06 [2006] NZCA 476 (1 November 2006)

Last Updated: 4 February 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

_CA186/06

THE QUEEN

v

IAN WILLIAM McMAHON

Hearing: 18 October 2006

Court: William Young P, John Hansen and Rodney Hansen JJ Counsel: P F Gorringe for Appellant

D Johnstone for Respondent

Judgment: 1 November 2006 at 11am

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

R V MCMAHON CA CA186/06 1 November 2006

REASONS

(Given by John Hansen J)

[1] Following trial in the Hamilton High Court the appellant was convicted of two charges of rape, one charge of doing an indecent act with intent to insult or offend, three charges of indecently assaulting a girl of and over the age of 12 and under the age of 16 years, and seven counts of indecently assaulting a girl under the age of 12 years. He was found not guilty by the jury of five counts of indecent assault of a girl under the age of 12 years.

[2] On 26 April 2006 he was sentenced to an effective sentence of seven years by

Nicholson J.

[3] The appellant appealed against both conviction and sentence. He abandoned his appeal against conviction.

Background

[4] The offending occurred in a rural North Island town between April 1966 and August 1974. At the time the victims were aged between seven and fifteen years. Victims A and B were sisters, and lived in close proximity to the appellant. Victim C was related to the appellant by marriage.

[5] In relation to A, the offending started when she was aged about seven or eight and he was about 14 or 15. The appellant took her to a shed, when she was taking a shortcut to the shops, where he touched her genitalia. He gave her lollies and money, and threatened to tell her family that she “wanted it”. Because of this she was frightened and told no-one of the offending. Similar offending occurred on a regular basis over a number of years.

[6] There was a further incident some years later when the appellant offered to teach A to drive. When she was driving the appellant’s van he placed his hands inside her underwear and indecently assaulted her.

[7] B was about a year younger than A. When she was aged eight, the appellant started touching her genitalia when they were both playing with her brothers and sisters. When he managed to get her alone he would put his hand up her skirt and into her underwear, touching her genitalia with his fingers. This happened with weekly frequency over a significant period.

[8] On occasions C stayed with the appellant and his then wife. On other occasions he babysat C and her siblings. The offending started with the appellant rubbing his hands over her body, including rubbing up and down her legs and between her legs. When she cried the appellant told her no-one would believe her if she told them what he had done.

[9] On at least two occasions, while babysitting, the appellant stood in a passage where he could be seen by C, called out to her and masturbated himself. Later he started to go into C’s bedroom where he would put his hand underneath her bedclothes and underwear and digitally penetrate her. On other occasions he not only touched her genitalia, but would also lick it. Ultimately this occurred more frequently than the touching and occurred many times over a two-year period.

[10] On two specific occasions incidents occurred in a vehicle and on a motorbike, which again included digital penetration.

[11] When C was aged about 13 she became concerned about possible harm being caused to a younger sister by the appellant. As a consequence she said to the appellant that if he left her sister alone, C would let him do what he wanted to her. Shortly after this, when babysitting, after the other children had gone to bed, he called C to the lounge. He licked her vagina and inserted his fingers. He then had sexual intercourse with her. Consistent with what she had said, she did not resist.

The appellant ejaculated over her stomach and chest. About a week later this behaviour was repeated.

The Sentence

[12] Nicholson J noted the following aggravating features: (a) the extent of harm to the victims;

(b) the particular vulnerability of the victims because of their young age and their relationship to the appellant;

(c) the degree of premeditation involved, borne out by the continuation of the offending over a considerable period; and

(d) in relation to the rape in particular, it amounted to abuse of trust as the appellant was babysitting during this offending. Indeed that applies to a good deal of the offending in relation to C.

[13] The Judge accepted that the age of the appellant at the time of the offending was a mitigating factor relating to the offender.

[14] He accepted the following personal mitigating factors:

(a) the long delay between the offending and when the appellant was first approached by the police;

(b) given the appellant’s age and stage of life, conviction meant he stood to lose what he had built up in material worth over the years. He also noted that it is unlikely the appellant could return to live in the same rural area after discharge from prison;

(c) the appellant’s otherwise good character;

(d) the appellant’s poor health meant he would find prison a greater hardship than a younger person.

(e) the appellant’s co-operation with the police in that he agreed to a lengthy video interview. (Although we note that the term ‘co- operation’ somewhat overstates things given the not guilty plea); and

(f) there was the consequence that in addition to serving a term of imprisonment the appellant faced the financial burden of meeting the costs of two trials.

[15] The Judge accepted the appellant was to be sentenced according to the appropriate maximum penalties in force at the time of the offending, and consistent with sentences imposed for like offending at that time. In relation to the rapes he took a starting point of six years’ imprisonment, allowing a one year deduction for the mitigating factors set out in [14] above. Accordingly, he sentenced the appellant to five years on each of the rape charges, to be served concurrently.

[16] In respect of the indecent assault offences he took a starting point, taking into account the aggravating factors, of three years’ imprisonment, again allowing a deduction of one year, giving an effective term of imprisonment of two years. He sentenced the appellant on the indecent assault with intent to insult or offend to one year concurrent with the other sentences. He determined that the sentence on the indecent assault charges should be cumulative with the rape sentence, giving the effective sentence of seven years’ imprisonment.

Submissions

[17] Mr Gorringe’s submission focused on s 84 of the Sentencing Act 2002. He submitted that the indecency offences against C were of a similar kind to the rapes. Accordingly, he submitted that a concurrent sentence should have been imposed.

[18] He calculated that approximately half of the indecency sentence related to C, and the other half to A and B. Accordingly, he submitted the final sentence should have been one of six years, as he accepted the offending against A and B was properly treated by the Judge as cumulative.

[19] He orally submitted that a seven year sentence was manifestly excessive for this offending.

[20] For the Crown, Mr Johnstone submitted that the appropriate focus was on the totality of the sentence imposed, which is the proper inquiry, rather than the way in which the individual sentences were structured.

[21] Mr Johnstone further submitted, by reference to relevant authority, that the sentence imposed was not manifestly excessive.

Discussion

[22] This Court stated in R v Barker CA57/01 30 July 2001 at [10]:

We begin by reiterating three sentencing principles:

• With multiple offences the sentence must reflect the totality of the offending.

• In respect of multiple offences this Court will not insist that the total sentence be arrived at in any particular way, and

• the total sentence must represent the overall criminality of the offending and the offender.

[23] And further, at [12]:

Secondly, in imposing a sentence which reflects the totality of the offending this Court will not declare a sentence manifestly excessive because of the particular way in which the sentencing Judge has chosen to construct the sentence, unless the method adopted results in a sentence which is overall clearly too high. This point was made recently by this Court in R v Williams (31 May 2000, CA 91/00) where it was said:

We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending. The issue is what an appropriate sentence for the

various charges which have been admitted or proved. How that is constructed in the particular circumstances is a matter of individual discretion and assessment.

[24] The totality principle has now been accorded statutory recognition in s 85 of the Sentencing Act:

(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4) If only concurrent sentences are to be imposed,—

(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b) each of the lesser offences must receive the penalty appropriate to that offence.

[25] In R v O’Leary CA258/05 3 March 2006, this Court stated at [19]:

The policy behind this section is clear. Where an offender is to be sentenced for multiple offences, individual sentences must be fashioned which reflect the seriousness of each offence. This is an overarching requirement. But, the sentence must also be structured in such a way as to ensure that the total period of imprisonment is not wholly out of proportion to the gravity of the offending. Various options as to how the sentence might be structured are described. Longer concurrent sentences, or a combination of concurrent and cumulative sentences, may have to be preferred.

[26] Therefore, the essential inquiry in this case is whether a sentence of seven years’ imprisonment for this offending is manifestly excessive, rather than the particular way in which the Judge structured the sentences.

[27] This was serious and repeated sexual offending against children. The appellant was found guilty of representative counts of indecent assault against A and B when they were aged between eight and ten, and seven and nine years respectively. Both these representative counts alleged the appellant touched the genitalia of the complainants. He was found not guilty of other charges that alleged different forms of indecency. While the counts allege touching of the genitalia, both A and B gave evidence of digital penetration. The offending in relation to A was over a three-year period, and occurred on a regular basis. In relation to B it was also over a three-year period, and there was evidence it occurred weekly. For indecency offending, it was at the upper level of seriousness.

[28] In relation to C, the indecency offences cover a range of activities, from the rubbing and touching of the body to the touching of the genitalia, and culminating in digital penetration and cunnilingus.

[29] The two rapes must be considered as particularly bad because it is clear that C offered herself as a form of sacrifice to the appellant so that he would not molest her younger sister.

[30] In R v Pawa [1978] 2 NZLR 190, a sentence of ten years’ imprisonment for a rape of a girl aged eight years and nine months was reduced to six years’ imprisonment. At page 191 this Court noted:

We agree that it was a very bad case of rape, but we say that in the sense that any rape of a girl of this age is a very bad case of rape. So far as we are aware no such case has been considered by this Court for very many years. There has to our knowledge been of recent times one case of child rape dealt with by the Supreme Court. In that case a sentence of six years was imposed. But we have had to consider a number of very bad cases of rape, some of young girls or women subjected to gang rapes with accompanying violence and acts of sexual perversion and degradation and some of other women attacked in their homes and often threatened with weapons. In the case of first offenders the general level of sentencing in such cases has run in the region of from four to seven years imprisonment. We should add that those sentences themselves have been at a level which has been increased over recent years as the incidence of such offending has seemed to make longer sentences desirable.

[31] While we note the child was younger in that case, and the Court made reference to very bad cases of rape of young girls or women in violent and degrading circumstances, here the appellant was up for sentence on two separate charges of rape.

[32] In R v Elwin CA290/93 10 August 1994 this Court upheld an effective sentence of six years’ imprisonment for five charges of sexual offending ranging from indecent assault to rape. The offending occurred between 1971 and 1983. The range of the offending was not dissimilar to the present case.

[33] In R v Accused (CA463/97) (1998) 15 CRNZ 602, this Court upheld a sentence of eight years’ imprisonment for ten counts of sexual offending relating to four complainants. The complainants were aged between five and thirteen years, and the charges included rape, attempted rape, indecent acts, inducing indecent acts and indecent assault. In the course of delivering the judgment of this Court, Goddard J made reference to a 1968 Justice Department publication entitled Crime in New Zealand, which recorded at 158:

Between 1950 and 1966 ten men were convicted of raping girls aged ten years or less. The age range of the victims was from eighteen months to ten years. Sentences varied from six years to ten years imprisonment.

[34] In the light of these authorities, while the sentence imposed in this case was stern, it was within the range available to the learned sentencing Judge. We accept it may well have been preferable to impose a sentence of seven years for the rape, with sentences for the indecency offending being concurrent. We do not consider the sentence imposed was out of proportion to the gravity of this offending, notwithstanding the appellant’s age when the offending against A and B occurred. It cannot be said to be manifestly excessive. The appeal is dismissed.

Solicitors:

Meredith Connell, Auckland