R v Minnis CA242/06 [2006] NZCA 498 (23 November 2006)

Last Updated: 6 February 2014

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA242/06

THE QUEEN

v

AARON MINNIS

Hearing: 20 November 2006

Court: O’Regan, Baragwanath and Ronald Young JJ Counsel: S L Baigent for Appellant

S B Edwards for Crown

Judgment: 23 November 2006 at 11 am

_{JUDGMENT OF THE COURT}

A Appeal against sentence allowed.

B The sentences imposed in the District Court (making an effective sentence of 12 years imprisonment) are quashed and in their place we impose an effective sentence of ten years imprisonment made up as follows: eight years imprisonment imposed on count 6 (rape) and concurrent terms of six years imprisonment on the counts of sexual violation (counts 2, 3, 4 and 5) and concurrent sentence of two years imprisonment on count 1 in respect of T; cumulative sentence of two years imprisonment on counts 8, 9 and 10 (concurrent between themselves) in respect of A; and concurrent sentence of two years imprisonment on count 7 in respect of K.

R V AARON MINNIS CA CA242/06 23 November 2006

REASONS OF THE COURT

(Given by Baragwanath J)

[1] The appellant pleaded guilty on arraignment to 12 counts of sexual offending against three girls. He appeals against a sentence of 12 years imprisonment imposed by Judge Walker made up of the following sentences:

Complainant T

1.1 Nine years imprisonment for one count of sexual violation by rape

(specific);

1.2 Five years imprisonment (concurrent) for four counts of sexual violation by unlawful sexual connection (digital and oral) (two representative and two specific);

1.3 Three years imprisonment (concurrent) for one representative count of indecent assault of a girl between 12-16 years;

Complainant A

1.4 Two years imprisonment (cumulative on the nine year sentence in

1.1, above) for three (specific) counts of indecent assault on a girl under 12;

Complainant K

1.5 One years imprisonment (cumulative on the two year sentence in

1.4, above) for one specific count of indecent assault on a girl under

12.

[2] The appellant contends that the cumulative term of 12 years imprisonment breaches the totality principle and is manifestly excessive.

Background facts

[3] The appellant is 31 years of age and has no previous convictions. The offending against T occurred over a period of 12 months from October 1999 to

October 2000 when T was 12-13 years of age. The appellant had befriended the mother of T, her two younger sisters of whom one was another victim, K, and her younger brother. He visited the family regularly and assisted the mother with the children’s care while she recovered from an injury. By gaining her trust he was left to baby-sit the children. He was also alone with T on a number of motorbike rides that started or finished at his house.

[4] The appellant’s offending against T in her home progressed from fondling her breasts and genitals over and under her nightwear to repeated occasions of fondling then digitally penetrating her or licking her vagina. On one occasion at the appellant’s house after a motorbike ride the appellant took T to his bedroom and removed her lower clothing and violated her digitally and orally. He threatened to hurt T if she told anyone what was happening and said she would never be able to ride with him on his motorbike.

[5] On another occasion after a motorbike ride the appellant had full sexual intercourse with T, ejaculating inside her. He continued despite her protests and telling him that it hurt and to leave her alone. The sexual assaults on T stopped when the family moved and for a period the appellant did not visit.

[6] In 2003 he again visited the family, this time not approaching T but spending time with the two younger sisters including helping bathe them. The count of indecent assault in relation to K occurred when she was 10 or 11. The appellant went into the bathroom after K had just had a bath and was clad only in a towel. He fondled her vagina for a couple of minutes, warning her not to tell anyone.

[7] The third victim, A, was the youngest child of a woman who was the girlfriend of a male friend of his. After the couple separated in 2004 the appellant began visiting the family at least once a week, spending time with A who was then five or six years old, watching TV or playing computer games. His visits became more frequent after the death of the mother’s father in late 2004. Two of the three counts of indecent assault on A involved the appellant fondling her vagina, once over clothing when she was in bed and once under her clothing, when she was sitting in the appellant’s lap playing computer games. The third involved his

“blowing raspberries” on A’s stomach just above her pubic line. On at least one of those occasions he threatened to hurt A if she told anyone else.

[8] The appellant’s offending has had a profound impact on each of his three victims. In respect of T it was summarised by the Judge:

[5] ...there are long term and serious consequences of your offending. There has been serious disruption to her life, her development, her schooling, her relationships. She has suffered from depression, has attempted suicide on three occasions. [Her] victim impact statement... sums up the position. She says “Aaron has taken away parts of me I don’t know whether I can get back. I would love to be able to smile and be happy but I find it really hard”.

[9] K has suffered behavioural changes and it is likely that there will be long term effects upon her as a result of the appellant’s offending.

[10] In respect of A a clinical psychologist has reported that very intense psychological intervention is required as a result of the appellant’s offending. She is suffering from post-traumatic stress disorder full details being elaborated in the psychological report. The Judge concluded and we accept that there is no doubt that each victim will suffer long term consequences of the offending.

[11] The pre-sentence report recorded that the appellant had been unable to form normal relationships with adults and was sexually aroused and gratified by the offending. The probation officer reported that he is ashamed and annoyed at himself and that he feels sad for his victims. The probation officer accepts that the appellant’s insight is uncommon so early in the sentencing process. Such insight and acceptance of the reasons for offending suggests that the prospect of long term rehabilitation with the benefit of treatment will be enhanced. The acceptance of full responsibility for what happened is suggestive of remorse.

[12] Aggravating features of the offending include:

(a) The multiple victims, their ages and vulnerability and the fact that the victims were progressively younger as seen by the appellant redirecting his attention from T when she was 15-16 years old to her younger sister K.

(b) The duration of the offending extending over five to six years, its frequency and escalation particularly as against T, the effect being summarised in her victim impact statement:

After a while, the things he would do to me like put his finger inside me, lick my vagina became normal and I would just let him do what he wanted to do. I didn’t want him to do it but I felt I couldn’t stop him. I’d just watch television and try and ignore him while he was sexually assaulting me.

(c) The gross breaches of trust. The appellant befriended the mother of T and K at a time when she was vulnerable because of her injury. He secured her trust to the extent of allowing him to baby-sit her children and take T on regular outings. A’s mother was also vulnerable, especially after the death of her father, and trusted the appellant to be left alone with her young daughter. Most of the offending occurred in the girls’ own home where they should have felt safe.

(d) Pre-meditation and grooming of his victims. The appellant took advantage of the opportunity to be alone with him and of their interest in motorbike rides in the case of T, and computer games in the case of A.

(e) The threats of harm made to the victims if they told anyone about the offending and in the case of T the threats to stop the motorbike rides which she loved.

(f) The severe emotional and psychological damage caused to the victims. T has attempted suicide on several occasions; K has told her mother that she intends to take her own life and A, at the age of nine, threatens self-harm and she is emotionally distressed, telling the child psychologist that “there are times she feels that dying is the only way for things to be better”.

[13] The Judge considered that the offending against T other than the rape would warrant a six year term having regard to the escalation and persistence of the

offending, coupled with the other aggravating factors relevant to the offending against T. The conventional starting point for the rape of eight years should, he considered, be increased to 12. For the indecent assault on A, which the Judge regarded as distinct and warranting a cumulative sentence, he recorded her young age, the repetitive nature of the offending and the breach of trust and took a starting point of three years. The offending in relation to K he regarded also as distinct and warranting a cumulative sentence. In regard to the direct contact with her vagina and the breach of trust he took a starting point of two years. The total reached was

17 years for which he deducted three in the case of T, one in the case of A and one in the case of K. That is five years for mitigation factors including his guilty plea, resulting in reduction from 17 years to 12 years for the total effective sentence. The Judge considered such result to be appropriate in terms of totality.

[14] As this Court has often stated, how a sentence is reached is of no particular importance; what matters is its ultimate result. But in order to assess the result against other decisions it is often safer to reach a total for aggravating features before mitigation is considered.

[15] As was noted in R v T CA251/02 31 October 2002 at [18]:

It is all too easy, because of the frequency with which appalling sexual abuse of children is exposed, to come to perceive it as, in a sense not unusual. That is not to categorise it as in the ordinary range of offending. The repugnance of the community to the treatment of children in this way must not be dulled by its commonness.

[16] However the 17 year total is high where there has been only a single episode of rape, notwithstanding the other offending against T which included digital and oral sexual violation and the indecent assaults on her sister K and upon A: compare R v TR CA 445/03 13 May 2004. We bear that in mind the very real damage the appellant has done to each victim. We are nevertheless of the view that the simple addition of the three net sentences, each individually appropriate for offending against the respective victim, has reached a figure that is disproportionate. We note that in the Crown submission at sentencing the starting point for all offending was in the range of 10½ to 13½ years before consideration of mitigating factors. We consider a term of 15 years an appropriate starting point.

[17] The factors to be considered in mitigation are the appellant’s pleas of guilty, his previous good record and his insights into the nature and cause of his offending which have led to an expression of remorse – that he is “sad” for the victims. We are not disposed to disagree with the Judge’s effective five year discount for these considerations. That results in a net ten year term.

[18] We therefore allow the appeal and substitute a term of eight years for the rape of T (count 6) and concurrent terms of six years on the counts of sexual violation of T (counts 2, 3, 4 and 5) and a concurrent sentence of two years for the indecent assault of T (count 1); a cumulative sentence of two years on counts 8, 9 and 10 (concurrent between themselves) in relation to A; and a concurrent sentence of two years on count 7 in relation to K.

Solicitors:

Crown Law Office, Wellington