[1] Having pleaded guilty to 27 counts involving sexual offending against his daughter over approximately 13 years, the appellant was sentenced to a total of eleven years and four months imprisonment. He was also ordered to serve a minimum non-parole period of seven years. His appeal against sentence is confined to the minimum non-parole component.
[2] The offending began when the complainant was five or six years of age after the complainant told her parents that she had an itchy groin. Having placed cream inside her vagina the appellant began to repeat that process on a regular basis. When the complainant was seven or eight years of age the appellant began inserting objects, including a vibrator and carrots, into her vagina. He began having sexual intercourse with his daughter when she was between eight and twelve years of age. At times sexual intercourse was offered by the appellant to his daughter as an option for avoiding punishment and at other times he would provide her with pocket money for sex. Later the sexual offending extended to oral and anal sex. When she was 19 years of age the complainant confronted her father about the sexual abuse and left home. Over the years the offending had occurred every few days.
[3] The appellant is 49 years of age with no previous convictions. He has been married for 27 years and has four children, the complainant being the oldest. Before a complaint was laid with the police the appellant began attending the SAFE programme. According to the probation officer the appellant’s insight into his offending was minimal. On the other hand, a psychiatric report concluded that the appellant suffered from major depressive and personality disorders and that the prospects of re-offending were minimal. The psychiatrist considered that the appellant’s childhood experiences might have impacted on his offending.
[4] At sentencing the Crown proposed a starting point of 16 - 18 years imprisonment and the defence 15 - 16 years. The Judge adopted a starting point of 17 years. Although the appellant’s guilty pleas had only been entered after committal for trial, the Judge accepted that guilty pleas had been indicated at an earlier time and that the appellant was entitled to a full one third discount. Thus he imposed an overall sentence of eleven years and four months.
[5] The Judge’s comments relating to the imposition of the seven year non-parole period were brief:

[34] In terms of the non-parole period, keeping in mind the statute, I am satisfied that the statutory grounds are made out and there will be a seven year minimum non-parole period which does not exceed two thirds of that sentence just given.

In fact the seven year period was around 62% of the sentence.

[6] A number of points were advanced by Mr Hart in support of the appeal: a substantial discount was required to reflect the appellant’s guilty pleas; the appellant’s genuine motivation to address the cause of his offending, which was reflected by his enrolment in the SAFE programme and other factors, would be frustrated by the length of the non-parole period; insufficient weight had been given to the psychiatrist’s view that the chances of re-offending were minimal and that there were mental health issues; and insufficient weight had been given to the appellant’s remorse and otherwise good character. Taking those factors into account Mr Hart submitted that a minimum non-parole period of four and a half years would have been appropriate.
[7] In response Mr Downs invited the Court to invoke its powers under s 385(3) of the Crimes Act 1961 and increase the sentence of 11 years and four months imprisonment. He submitted that this is one of the worst cases involving sexual abuse of a single victim to come before this Court and that the starting point should have been at least 20 years imprisonment. Initially the Crown also contended that the minimum non-parole period should also be increased, but that submission was abandoned.
[8] Given that the starting point promoted by the Crown at sentencing was effectively adopted by the Judge; the principle that on Solicitor-General appeals any uplift is to the bottom of the available range; the rehabilitative efforts made by the appellant to date; the fact that the appellant challenges the minimum non-parole period only; and that the Crown does not seek any adjustment to the minimum non-parole period, we are not prepared to revisit the sentence imposed by the Judge in this case. Having said that, we agree with the Crown that this offending was amongst the worst involving a single victim to come before this Court and that a starting point of 20 years may well have been near the bottom of the range available to the sentencing Judge.
[9] Now we turn to the minimum non-parole period. It was not disputed by Mr Hart that the Judge was entitled to conclude in terms of s 86(2) of the Sentencing Act 2002 that the Parole Act 2002 period was insufficient to hold the appellant accountable for the harm done to the complainant, to denounce his conduct and to deter others. Thus the only issue is whether the seven year non-parole period was manifestly excessive.
[10] As this Court observed in R v Taueki [2005] 3 NZLR 372 with reference to the length of the minimum non-parole period:

[56] ... the Court is required to take into account (to the extent they are relevant to the particular case) all of the purposes of sentencing in s 7 and the mandatory requirements of ss 8 and 9, just as it must take them into account in setting the finite term ...The setting of the minimum period of imprisonment requires similar analysis to that required for setting the nominal sentence.

Having adopted that approach we have concluded that the minimum non-parole period was not manifestly excessive. Indeed, a minimum period of two thirds would have been available to the Judge.

Outcome

[11] The appeal is dismissed. Publication of name or identifying particulars of complainant is prohibited by s 139 Criminal Justice Act 1985.

Solicitors:
Crown Law Office, Wellington

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