R V DANKS HC ROT CRI 2007-070-5090 [2009] NZHC 595 (21 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                               CRI 2007-070-5090



                                     THE QUEEN



                                            v



                          
 STUART MORRIS DANKS



Hearing:       21 May 2009 (At Hamilton)

Counsel:       H Wrigley for the Crown
               A C Balme
for the Prisoner

Judgment:      21 May 2009


                            SENTENCE OF POTTER J




Solicitors:    Crown Solicitor,
P O Box 13063, Tauranga 3141

Copy to:       A Balme, P O Box 13079, Tauranga Central 3141




R V DANKS HC ROT CRI 2007-070-5090
21 May 2009
Introduction


[1]    Mr Danks: You were found guilty following trial by jury of a representative
charge of rape relating
to the period January 1983 to January 1986 at Tauranga. The
crime of rape at the time of your offending carried a maximum penalty
of fourteen
years imprisonment, although that has subsequently increased to twenty years
imprisonment.


Background facts


[2] 
  The offending came to light when the victim reported it to the Police in
February 2007. She was aged about twelve to fifteen years
at the time of the
offending and was living in Tauranga with her mother and younger sister. You were
in a relationship with her mother.
You would arrive at their home on a Tuesday
night when the victim's mother was at Housie. You would sit in the lounge with the
victim
watching television. Her younger sister would be in bed at the time. You
would pull the victim on to the sofa and try to kiss her.
You pulled down her pants
and inserted your fingers into her vagina. You then forced your penis into her vagina
while you were lying
on top of her. You ejaculated. The girl would then wipe
herself down and go into her bedroom until her mother returned which was
usually
around 10 p.m. She said in evidence that this happened about five times in total
during that period of three years and that
the incidents all followed the same pattern.
She said you were drunk on each occasion.


Pre-sentence report


[3]    A pre-sentence
report has been prepared for the purposes of sentencing.


[4]    Mr Danks is aged 61. He has been living in a stable relationship
for seven
years, although the relationship is of some ten years duration. He has three adult
children, with two of whom he has no
contact. He reported as being an alcoholic for
most of his life, which is consistent with the evidence he gave at trial. He says
he
stopped drinking in approximately February 1983 when he undertook a residential
alcohol programme and claims he lapsed only once
on an occasion before Christmas
in 1983. He has worked most of his life as either a bus or truck driver.


[5]    He denies this
offending, describing the summary of facts as "bull shit". He
does not agree with the jury's verdict. Although he says that he had
black-outs from
his drinking, he claims they were "in the early days" and not around the time of this
offending.


[6]    He is assessed
as being of low risk of re-offending with a reservation
expressed because of his total denial of the offending. Mr Danks has five
previous
drink driving offences between 1974 and 1983, which I accept are not relevant for
this sentencing.


Victim impact statement


[7]    The victim has provided a victim impact statement in which she describes
that when the victim told her mother of this offending
her mother "clammed up" and
she was left feeling alone and scared. She felt safe only when she subsequently went
to live with her
father during her sixth form year. She refers to a period of self
destruction involving drinking and drugs after she left school
and throughout her
twenties. She eventually sought help when she became pregnant, after what she
describes as "ten years of self
destructive living and trying to put the rapes behind
me". For six years she was involved in counselling and taking courses to get
her life
back on track, which took its own toll because for two years she was unable to work
and support herself.


[8]    The Crown has provided a statement of facts in relation
to other sexual abuse
by another man against the victim in the period 1977 to 1987. Clearly the victim
will have been seriously affected
by this offending which was occurring before,
during and after the offending by Mr Danks.
Purposes and principles of sentencing


[9]      The Crown has helpfully referred me to the purposes and principles of
sentencing in ss 7 and 8 of the Sentencing Act 2002
and I take them into account.
The purposes of importance in this case are to hold the prisoner accountable, to
promote in him a sense
of responsibility and denunciation and deterrence. The Court
is required to impose a sentence that achieves the least restrictive
outcome
appropriate in the circumstances.


Aggravating and mitigating factors


[10]     The aggravating factors of this offending
identified by the Crown are not
significantly in dispute:


·     The extent of the harm resulting from the offending. I have already
referred to
      the consequences for the victim of this offending as set out in her victim impact
      statement, and to the caveat
entered by counsel for the prisoner, that the victim
      may well be transferring some of the effects of the other offending against
her to
      this offending. It is not possible of course to assess to what extent that may have
      occurred. But I think it is
undeniable that the fact this young girl was being
      separately, seriously sexually abused by two men at the same time, would
have
      had significant consequences for her.       The prisoner's offending inevitably
      seriously contributed to those consequences.


·     Abuse of trust. Mr Danks was in a relationship with the victim's mother. That
      gave him access to the home and to the
victim. He abused the trust placed in him
      by the victim's mother when she allowed him to be with her daughters while she
 
    went to Housie.


·     Vulnerability of the victim. The victim was at a young and impressionable age,
      twelve to fifteen
years when this offending occurred, and she was in a vulnerable
      situation, at home alone except for her younger sister who
aged about ten at the
      relevant time.
·   Premeditation. The offending took place while the victim's mother was absent.
  
 On the victim's evidence it involved approximately five separate incidents of
    rape over the three year period, preceded in each
case by other indecencies
    including digital penetration, and ending in ejaculation which carried the risk of
    pregnancy. While
there was a degree of opportunism about the offending there
    was also clearly a degree of premeditation.


[11]    There are no
mitigating factors of the offending.


[12]    Factors in mitigation as far as the prisoner personally is concerned, are his
essentially
offence-free record (as I have said I do not regard the drink driving
offences as relevant to this sentencing), and that he has taken
steps to address his
alcoholism which was obviously a seriously contributing factor in this offending.
However, there can be no discount
for remorse as Mr Danks continues to deny this
offending.


Starting point for sentencing


[13]    The Crown submits that a starting
point before taking into account any
mitigating factors should be six and a half to seven and a half years. Mr Balme
submits that
an appropriate starting point is five to five and a half years.


[14]    The recent decision of the Court of Appeal in R v Hockley
 [2009] NZCA 74
is helpful in confirming and clarifying the following principles:


·   Because the sexual offending occurred in the 1980's it is
necessary to impose a
    sentence that is consistent with the sentencing approach at that time rather than in
    accordance with
contemporary standards.


·   In the 1980's the starting point for rape by an adult was five years imprisonment
    before aggravating
factors.


·   There is no shortage of appellate guidance in relation to offending of this sort so
    there is little point in referring
to first instance decisions.
·   In relation to the offending in the Hockley case, which involved one count of
    rape, three representative
counts of indecent assault and one count of possessing
    an objectionable publication, the authorities of R v Crime Appeal CA 48/88
    20 June 1988 and R v Elwin CA 290/93 10 August 1994 provide appropriate
    guidance.


·   It is preferable to regard a clean
record as evidence of "previous good character"
    and thus worthy, at least potentially, of some recognition on sentencing rather
    than being regarded as the absence of an aggravating feature.            (The Court
    commented in Hockley that in that case
where the offending continued over three
    years any such allowance was distinctly limited given the duration of the
    offending
against the complainant and also the charge of possessing an
    objectionable publication).


[15]     R v Clark  (1987) 2 CRNZ 366 is authority that five years should be taken as
the starting point for rape committed by an adult in a contested case in the 1980's.


[16]     In Elwin the Court of Appeal stated at page 8 that in the case of a single rape
of a child or girl, a range of four to
seven years was regarded as acceptable.


[17]     In R v W CA 48/94 7 July 1994, referred to by the Crown, a starting point of
eight
years was taken for two charges of rape of a girl aged twelve between 1987 and
1988, two charges of sexual violation and one charge
of indecent assault. The
starting point seemed to reflect the totality of the prisoner's offending and also the
prisoner's offending
against another child. I find the authority of only moderate
assistance.


[18]     In Hockley the starting point for the single
count of rape taken by the
sentencing Judge was six years which was increased to ten years to take account of
the other offending
of indecent assault and the possession of an objectionable
publication. On appeal the Court of Appeal reduced the starting point
to nine years
but did not take direct issue with the starting point for the single charge of rape of six
years.
[19]   I take as
an initial starting point five years for a single rape. I increase that
starting point by one and a half years to take account of
the aggravating factors to
which I have referred and the victim's evidence that there were approximately five
rapes in this period
of three years.     But the uplift is principally to reflect the
aggravating factors. There must be some uncertainty as to the number
of rapes
found by the jury to have occurred on the basis of the evidence at trial. From the
revised starting point of six and a half
years, I allow a discount of six months for the
prisoner's effectively previous good record and his efforts, which appear to have
been successful, to deal with his serious alcoholism. The end sentence is therefore
six years' imprisonment.


Sentence


[20]  
Please stand Mr Danks


[21]   The sentence I impose on you Mr Danks is six years' imprisonment.


[22]   Please stand down.