R v Goodwin DC Papakura CRI-2010-019-2731 [2011] NZDC 1215 (2 August 2011)

Last Updated: 30 September 2016

IN THE DISTRICT COURT AT PAPAKURA

_{CRI-2010-019-002731}

THE QUEEN

v

_{BRIAN GOODWIN}

Hearing: 2 August 2011

Appearances: S Moala for the Crown

C Wilkinson-Smith for the Prisoner

Judgment: 2 August 2011

_{NOTES OF JUDGE S E C McAUSLAN ON SENTENCING}

[1] Mr Goodwin, you are now for sentence following the guilty verdict of the jury in your trial on 24 May this year on one charge of rape. The date of the rape was on or about 3 December 1982, so it was an historic case.

[2] The victim’s evidence at trial which the jury clearly accepted, was that in

1982, she was 48 and you were 29. She knew you through her sister and brother in law, you were their neighbour for some time, and that was the extent of the acquaintance. On or about 3 December 1982 in the evening you arrived at her home, despite there being no arrangement for you to do so. She had taken a sleeping pill with some wine prior to your arrival. She said she was surprised to see you but let you in. She indicated in her evidence that that was the least embarrassing option for her, to let you in rather than draw the neighbour’s attention to you being on her

_doorstep.

R V GOODWIN DC PAP CRI-2010-019-002731 2 August 2011

[3] At some stage in the evening she fell asleep on the couch in the living room. When she woke up she went to move to her bedroom, and her evidence was she found you on her bed. She was shocked, she said, to find you there. She asked you what you were doing, and then her evidence was that you attacked her. You grabbed her by the wrist and forced her on to the bed. You got on top of her and raped her, and she was punched several times during this episode. Moreover, you made remarks which she considered derogatory at the time. Eventually you left.

[4] Although she told her doctor, her sister and various other people at the time, she did not make a complaint to the police primarily for the reason that she was anxious about the position of complainants at that time, there being little support in her view and that her name would be published. She did not want the publicity.

[5] Eventually she did make a complaint. Between the time that she did so and the trial, in your counsel’s submission, there was a further two and a half years, which has increased the difficulty that you have faced with such historical allegations being made against you.

[6] I have a lengthy victim impact statement, it is an updated one, outlining the matters to which I have referred and noting that she has carried the hurt, fear and humiliation all this time. She considers she has had to live with a nightmare for 33 years. It has had a profound and adverse emotional effect upon her. It comes through this victim impact statement that she feels that it has been in the end a positive thing for her to have taken the matter to trial, even though initially she had not expected it to do so.

[7] In the victim impact statement she notes the bruises that she suffered as a result of being held against her will, and that there was internal bruising and discomfort noted by her GP. That formed part of the evidence at trial. She claims to have suffered financially as a result, although not in terms of loss of income from her employment. Nevertheless the impact of the night she says you raped her has been substantial as set out in this report. She found the whole Court process very difficult, and was relieved that the jury returned the verdict that it did.

[8] The pre-sentence report prepared about you is unremarkable. You are now

57. You are presently on remand. The probation officer notes your background, your stable domestic situation. You have been married for many years and have four children as a result of that relationship. Your work history is also noted and your health problems as emphasised by your counsel. You have difficulties with hypertension, reflux and chronic reoccurring vertigo, and that will make incarceration even more difficult for you.

[9] You provided the probation officer with a number of written testimonials from family members, employers, long term friends, sporting contacts and professional people, describing you as a good family man and a man of good character, who has contributed in no small manner to many aspects of the community. I too have been provided with those, and they do you great credit. The effect upon you will extend to your entire family and your friends, and that will be profound. Because of the nature of the charge the recommendation of the pre- sentence report was one of imprisonment.

[10] I have lengthy submissions from the Crown and your counsel. The Crown has a starting point for your sentence in the range of six to six and a half years’ imprisonment, and the submissions are directed to persuading the Court that that is appropriate. The Crown notes in terms of the Sentencing Act the purposes and principles of sentencing that the Crown submits are relevant. While they are relevant, particularly for sentencing of this kind, denunciation is important, although I accept given your exemplary record for the last 30 years that deterrence for you is not a relevant factor, although deterrence for others may be, and that the principles include the gravity of the offending, the effect on the victim to which I have already referred, and the general desirability of consistency with appropriate sentencing levels.

[11] It has to be noted that this offending took place in 1982. The Court is mindful of the authorities for sentencing for rape at that time. In terms of aggravating features the Crown submits that there was a breach of trust. I do not accept that that is an aggravating feature in this case. The acquaintance between you was slight, and although it was as a result of that you were able to enter the house I do not consider

that to be a material factor, and not an aggravating one. I do not accept that there are any elements of home invasion. You were invited in and on her account took advantage of the situation, but that is the extent to which those factors are relevant.

[12] The victim was vulnerable. She was a female on her own at home. She was affected to some degree by taking a sleeping pill and having consumed wine, but again that must be at the lower end of the scale. She was an adult female. In terms of physical violence and denigration, that is an aggravating feature because her evidence was that she was struck repeatedly during the rape, and that you also laughed at her and made degrading comments. She found that highly offensive, and I accept that as an aggravating feature. The effects on her have been profound and longlasting.

[13] There are no mitigating features of the offending, in the Crown’s submission, and I accept that. The Crown submits that the recent Court of Appeal decision offering a guideline judgment for sentencing for sexual violation cases, R v A M is relevant to your sentencing. The Crown sets out the bands, and identifies your situation, based on authorities outlined in that decision, as at the lower end of band two with a starting point for you based on that of nine years, reduced to reflect the increase in penalty from 14 to 20 years. Therefore in the Crown’s submission the starting point should be the six to six and a half years, and a number of authorities are provided in support of that.

[14] In terms of the aggravating and mitigating features relevant to you, the Crown acknowledges the substantial time lapse between the offending and the trial, but notes your previous convictions. You have nothing relevant and I put those to one side. You are entitled to have the Court take into account the substantial time lapse between the offending and conviction, which is nearly 30 years. During that time you have been of good character and a benefit to the community. The Crown submits that a discount from the six to six and a half years would be appropriate, in Ms Moala’s submission, as for an early guilty plea.

[15] Mr Wilkinson-Smith on your behalf does not accept that. He too has considered authorities at the relevant time, together with later ones. He does not

accept the Crown’s interpretation of R v A M, considering that decision was not directed at historical situations. Based on R v Puru, which is a 1984 decision, it is Mr Wilkinson-Smith’s submission that the starting point for you could be three and a half to four years, rather than the far higher starting point advocated by the Crown.

[16] He stresses that in the intervening period there has been no re-offending. You have no criminal history of any significance. You are now 57 and have health difficulties. You have very strong family and community support, and you are otherwise of good character. There has been a delay in bringing the matter to prosecution, the complaint being made in 2008 and the trial not until this year.

[17] He then addresses the aggravating features noted by the Crown, and he does not accept that there was a breach of trust. There had been nothing special about the relationship between you and the victim, and I accept that submission. You were, and the evidence established, mere acquaintances. In terms of home invasion Mr Wilkinson-Smith rejects that as an aggravating feature, and I have already done so.

[18] In terms of physical violence her evidence was of being slapped. It is the defence submission that the violence inflicted was relatively low level. She did, however, give evidence of bruising. There was medical evidence in support of it. So there was some violence inflicted, although I accept that in terms of other authorities it is not at the upper end of the scale.

[19] Mr Wilkinson-Smith notes correctly that the victim did, in fact, report the incident to a number of people, and she made a decision based on what she perceived to be valid reasons, not to proceed with a complaint to the police at the time. Accordingly it is the defence submission that the aggravating features are not such that there should be a significant uplift from the starting point, and I accept that.

[20] Mr Wilkinson-Smith also refers to R v Ryan, and notes that the facts in that case were more serious, as it involved the rape of a 70 year old victim after a burglary. The mitigating factors pertinent to you are stressed by the defence, in particular your good character, noting the Court of Appeal decision of R v Carruthers where the Court recognised that significant years between an offence and

sentencing could mean that the man to be sentenced is not the same man who committed the offences, and that that should be recognised by the sentencing Judge. Then he notes your age and your health and your strong family support.

[21] I am satisfied that the starting point for you should be one of four years’ imprisonment. I do not accept the Crown’s higher figure as appropriate. I also accept that the aggravating features are not such that there should be a significant uplift from that, but that the mitigating factors as far as you are concerned are significant and warrant a reduction. I am satisfied that on the basis of in particular the intervening years but also noting the delay before trial and your health problems, that that warrants for you an end sentence of three years’ imprisonment.

[22] Accordingly you are convicted and sentenced to three years’ imprisonment.

S E C McAuslan

District Court Judge