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R v S [2012] NZHC 1531 (3 July 2012)

Last Updated: 26 January 2015

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.


IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY



CRI 2010-070-2263 [2012] NZHC 1531



THE QUEEN




v




A S



Hearing: 3 July 2012

Appearances: S A Christensen for Crown

T Richard-Simms for accused

Judgment: 3 July 2012


SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Tauranga, s.christensen@rhjl.co.nz

T Rickard-Simms, Papamoa: rickardt@xtra.co.nz




















R V S HC TAU CRI 2010-070-2263 [3 July 2012]

[1] Mr S , you appear for sentence this morning in respect of six charges of sexual offending upon which you were found guilty by a jury at your trial. All the counts were representative. There were two each of rape and unlawful sexual connection, for which the maximum penalty is 20 years imprisonment, and two of indecent assault on a female under the age of 12, for which the maximum penalty is ten years imprisonment. The victim in each case was your stepdaughter T.

The offending


[2] Between about November 2003 and some time in 2007, you were living with your then wife and her daughter, T, in Tauranga. T was born on 26 November 1996, and so was aged between seven and 10 years at the time of the offending. T had her own bedroom. All of the offending occurred there, mostly late at night. In the early stages you would go to her room some time after she had retired for the night and lie on top of her while you were both fully clothed, but rubbing your penis on the outside of her genitalia. She says that on the first occasion you covered her mouth with your hand and told her to be a “good girl”. Behaviour of this type occurred on numerous occasions.

[3] Gradually, your offending progressed to skin on skin indecent assaults, then to digital penetration of T’s genitalia, and finally to sexual violation by rape. You would remove T’s pyjama bottoms and underwear and your own clothing and engage in sexual intercourse while lying on top of her in her bed. Sometimes that was preceded by digital penetration. T said that you moistened your fingers for that purpose.

[4] Sometimes you told T she was not to tell anyone about what had occurred, and that if she did her mother would have to go away. T’s evidence was that at her young age she believed implicitly what you were saying to her, and she did not disclose the offending to any family member.

[5] In evidence, T told the jury that at its height the offending occurred on up to six nights a week, often when you had returned from working on night shift. Later,

after a change of address, the offences occurred less regularly, perhaps two or three times a week.

[6] In all, these assaults occurred over a period of almost two years, broken by a period of about eight months when you were serving a prison sentence, having pleaded guilty to a charge of sexual intercourse with a female aged between 12 and

16 years. The victim on that occasion was S, your wife’s sister. That offence, like

all of the present offences, was committed in the family home.

Personal circumstances


[7] You are 39 years old and of European ethnicity. Since the events with which the Court is concerned, you have remarried and you and your wife have a family of four young children. Although you left school without qualifications you are plainly a man of some ability. That much is clear from the manner in which you have made rapid progress in two separate industries.

[8] Your home life as you were growing up was happy and settled. You came from a large family which enjoyed a loving and principled upbringing. Your only previous offence was that involving your sister-in-law, S.

[9] The writer of the pre-sentence report notes that you do not accept the jury’s verdict, and consider yourself to have been set up by T and her mother. Mr Rickard- Simms has confirmed this morning that you maintain that view. Accordingly, you are assessed as at a high risk of re-offending, in particular with respect to young girls. The report writer says that you have little motivation to change your behaviour, perhaps unsurprisingly given your protestation that these offences never occurred. I will return to this point a little later.

Statutory purposes and principles


[10] When imposing sentence I am required to have regard to the need to denounce and deter you and others from behaviour of this sort, and so to promote in

you a sense of responsibility and acknowledgement of the harm caused to T, her family and indeed the wider community, and thereby to ensure their protection.

[11] I must take into account the gravity of the offending, and your culpability in comparison with other like cases to ensure that there is a degree of consistency between the sentence I must impose and that to which other like offenders have been sentenced. I am required also to have regard to your rehabilitation prospects and to impose the least severe penalty which is appropriate in all the circumstances.

The starting point


[12] The lead offences here are plainly the representative charges of rape. In R v AM, to which counsel have referred today, the Court of Appeal outlined tariff guidelines for sentencing in cases of sexual violation by rape, or unlawful sexual connection.[1] The Court of Appeal identified four sentencing bands for rape. Bands three and four cover the most serious offences. The prescribed starting point for band three is between 12 and 18 years imprisonment, and for band four between 16 and 20 years imprisonment. It is to be noted that the bands overlap, so that a starting point that is appropriate for a case in the upper reaches of band three, will be much

the same as that for a case in the lower part of band four.

[13] Band three encompasses “offending accompanied by aggravating features at a, relatively speaking, serious level”.[2] It is appropriate for offending which involves two or more aggravating features that increase culpability to a high degree, including a particularly vulnerable victim, or more than three of those factors to a moderate degree. The examples provided by the Court of Appeal for offending which falls within band three bear no resemblance to this case, in that they involve adult female

victims for the most part, and in one instance violent and particularly degrading sexual offending.

[14] Band four, on the other hand, involves the same factors that place the offending towards the higher end of band three, with the distinguishing factor of


multiple offending over considerable periods of time.[3] The Court said that the “paradigm case of offending within this band is that of repeated rapes of one or more family members over a period of years”.[4] The worst cases of that type will attract starting points at the higher end of band four. This band will often, or indeed usually, be appropriate for prolonged sexual offending within a family setting, because these cases are characterised by a breach of trust, one or more vulnerable victims, and offending over a long period.

[15] A number of aggravating features are present in this case: planning and premeditation, a limited degree of violence (or at least intimidation), vulnerability, harm to the victim, offending over a long period of time and the breach of trust arising out of your status as T’s stepfather. Care must be taken, of course, to ensure that such factors are not double counted. There is a degree of conceptual overlap. For example, the scope and scale of the offending overlaps with planning and premeditation because you were able to continue offending for so long only by reason of a degree of planning, which minimised the likelihood of detection. The vulnerability of the victim and the breach of trust also overlap. You exploited your position as a stepfather. That was a significant breach of trust, but you were able to do so only because T was young and vulnerable.

[16] It is also relevant to take into account that you were a well-built adult, while she was a young child. Moreover, the offending occurred in her bed, which was perhaps the one place in which she should have felt most safe and secure.

[17] By way of example I will refer to two cases which bear some similarity to the present case. The first is R v N.[5] That case preceded the decision in R v AM by several years, but it is useful because of its close factual similarity and because the Court of Appeal in R v AM classified it as a band four case.

[18] In R v N the offender had engaged in sustained offending over a two year period against his stepdaughter, who was aged between seven and nine years at the

time. He was found guilty of representative charges of rape, anal rape, digital


penetration and oral sexual connection. A starting point of 15 years imprisonment was adopted there. But as I have already noted, that case preceded R v AM by several years and sentencing levels are somewhat higher now than they were at that time.

[19] A more recent case is W (CA247/10) v R.[6] In that case the offender was convicted of four representative counts of unlawful sexual connection against his foster daughter while she was between the ages of 13 and 16 years. The counts included rape, oral sex and digital penetration. The offences occurred on many occasions, usually late at night when the offender came into the bedroom that the victim shared with her two sisters. There were also two specific counts of rape and one of indecency. The indecent assault was committed against another daughter whom the offender had mistaken for his principal victim, the two girls having exchanged beds for the evening. There was also a serious physical assault on the principal victim. That led to a conviction for injuring with intent to injure.

[20] In that case, the Court of Appeal noted the aggravating features of breach of trust, victim vulnerability, premeditation and scale of the offending. The Court considered that overall culpability was similar to that in R v N. The Court also pointed out the necessity for an assessment of the gravity of each aggravating feature. In that case, the Court observed that the degree of violence involved did not extend beyond that inherent in the offences themselves. There was no additional degradation or detention; there was just one principal victim, and the harm, although inevitably serious, was not exceptional for offending of that type. The Court concluded that the appropriate starting point was 17 years imprisonment.

[21] Mr Rickard-Simms has submitted this morning with some force that this case falls towards the top of Band 2, or possibly at the foot of Band 3. In support of that submission he has pointed out certain features of some of the examples given by the Court of Appeal in R v AM. But in my view, this present case plainly falls at the lower end of band 4. It is impossible to escape the conclusion that this is one of those paradigm cases to which the Court referred in R v AM. It is not the most

serious instance of sexual offending within a family setting, but the proper inference

to be drawn from the Court of Appeal’s decision in R v AM is that, in the absence of special circumstances, prolonged offending of this type by a person in a position of trust against a young victim will call for a band four classification.

[22] While each of the typical band 4 aggravating features are present, there are no significant special features which render the offending more serious, in that there was no additional violence or degradation about the offending, there was only one victim, and she did not suffer exceptional trauma. Having said that, I do not downplay for one moment the seriousness of what occurred. T bravely read out in Court this morning her victim impact statement. That was a moving experience, which demonstrated the extent to which serious emotional trauma is inevitable in every case of this sort. T was entitled to expect to be loved and nurtured by you. Instead, she was subjected to a two year ordeal which a young girl should never have had to contemplate, let alone endure. She gets frequent flashbacks of aspects of the nights when you visited her, and endures nightmares that are related to what happened. She has trouble building relationships and does not trust men.

[23] I consider the appropriate starting point to be 16 years imprisonment. This offending is slightly less serious than that in W(CA247/10), in that here there was no oral sex and no overt violence beyond the sexual offending itself.

Adjusting the starting point


[24] One aggravating feature requires recognition - your previous conviction for similar offending involving an underage girl also in the family context. I appreciate that you were not convicted of rape in that instance, and so any uplift must be relatively modest. But something must be added, if only to reflect the fact that you were undeterred by your prison sentence and simply resumed your offending against T as soon as you came home from prison.

[25] There will be an uplift of six months imprisonment for your prior offending.

[26] I turn now to mitigating factors. Mr Rickard-Simms has provided a number of letters from family members and friends. From them a picture emerges of a warm

and caring husband and father who plays an important role in the wider family and a useful one in the community. I accept what is said about you in those materials. Regrettably, much offending of this type is perpetrated by offenders who are otherwise of good character and have much to contribute to society. But the appellate courts have said over and over again that, in the case of serious offending such as this, little weight can be accorded to evidence of previous good character, or to the predicament of those who are now without your support. In a sense they are just as much victims of this offending as T.

[27] As I mentioned to Mr Rickard-Simms this morning, some of the letters provided to me go beyond messages of support. Several challenge the jury’s verdict and raise matters which ought, it is claimed, to have led to a different outcome. Attempts to undermine the jury’s verdict are improper. To the extent that the letters endeavoured to do so, I put them to one side.

[28] Because you maintain your innocence Mr S , there is no suggestion here of remorse for what the jury decided has occurred. You are not to be penalised for that, but of course no discount is available either.

[29] The final mitigating factor relates to the state of your health. The Court is told that you suffer from Chron’s disease, a chronic and debilitating condition particularly affecting the gastro-intestinal tract. The disease can exhibit a number of severe symptoms, including intestinal pain. Symptoms may be alleviated by appropriate medication and attention to diet. Mr Rickard-Simms submits that your term of imprisonment will be rendered more onerous to you by reason of your condition, and that a discrete discount is warranted on that account.

[30] I am prepared to allow a discount. In R v Dargaville, Potter J recently allowed a discount of 15% on health grounds, where the elderly prisoner suffered from type one diabetes and had a number of resulting grave health conditions.[7] Your ill health is not as serious as in that case, but I am prepared to deduct 18 months or

about 10% on that account, a discount that might properly be regarded as generous.



[31] That produces an end sentence of 15 years imprisonment.

Minimum period of imprisonment


[32] Under s 86(1) of the Sentencing Act 2002, the Court is empowered to direct that a prisoner serve up to two-thirds of the end sentence. In practice such a direction is available where the Court is satisfied that consideration for release after one-third of the sentence would plainly constitute an insufficient response in the eyes

of the community.[8] There is jurisdiction to impose a minimum term of up to ten

years imprisonment.

[33] The sentencing considerations in ss 7, 8 and 9 of the Sentencing Act, including the circumstances of the offender, are to be taken into account in determining whether to fix a minimum period of imprisonment, and the term of any such period.[9] Minimum periods are routinely imposed where sexual offenders are sentenced to long finite terms. For example in W(CA247/10) v R, a minimum period of nine years was selected, and in R v N the minimum period was eight years.

[34] Ms Christensen for the Crown, did not initially, in her written material, seek the imposition of a minimum period, but today indicated that was an over-sight and she now says the Crown seeks the imposition of a minimum period of imprisonment of 50% of the end sentence. Mr Rickard-Simms opposes any such order and says it is simply not necessary in the circumstances of this case.

[35] As has been alluded to in a number of appeal decisions, including R v AM itself and R v Gordon[10], sexual offending of this type almost always attracts an end sentence significantly in excess of nine years imprisonment and in such cases it is routine to impose a minimum period of imprisonment by reason of the factors which the Court is required to take into account under s 86.

[36] Those factors include the need to hold a prisoner accountable, to reflect the need to denounce and deter, and to protect the community. There is also a need, as


the Court of Appeal said in R v Brown to ensure that the overall sentence is within the range that the public considers amounts to an effective response to the offending.

[37] The need for a minimum period of imprisonment must be carefully considered in cases such as this one, where there is a continued denial of the offending. The probation report writer says the denial of itself gives rise to an elevated risk of re-offending. As to that, Mr Rickard-Simms points out that to some considerable extent the risk of re-offending can be alleviated by the availability of an extended supervision order, for which Mr S would qualify upon release from prison.

[38] That is certainly a factor to be taken into account. However, there is also the fact, as I discussed with Mr Rickard-Simms, that Mr S has apparently lived together with his new family for a period of several years following his offending and prior to apprehension, without any further offending coming to light.

[39] I have given the matter careful consideration, and in the end have decided that there is no warrant for departing from the usual course of imposing a minimum period of imprisonment. Only in relatively rare cases, and in particular where the prospects for rehabilitation are high, would it be appropriate not to impose a minimum period of imprisonment for this type of offending, where the end sentence approaches the length imposed in this case.

[40] In some of the recent appellate decisions, the Court has pointed out that a minimum period of imprisonment of much less than 50% of the end sentence is likely to achieve little by way of a practical result. In my view that observation has force, but it has a particular application in cases where the end sentence is perhaps relatively low.

[41] Having given careful consideration to the factors arising in this case, I have determined that although there ought to be a minimum period of imprisonment, it should be less than the 50% figure. I propose to impose a minimum period of imprisonment of seven years, which is less than the 50% figure sought by the

Crown, but is significantly greater than the one-third minimum period which you would have to serve in any event before you could be considered for parole.

Sentence


[42] On each of the charges of sexual violation by rape and of sexual violation by unlawful sexual connection you are sentenced to 15 years imprisonment. On each of the two counts of indecent assault you are sentenced to three years imprisonment. All sentences are to be served concurrently. The effective sentence is therefore

15 years’ imprisonment.

[43] In respect of each of the charges of rape and of unlawful sexual connection, I

impose a minimum period of imprisonment of seven years.









C J Allan J


[1] R v AM [2010] 2 NZCA 114; [2010] 2 NZLR 750
[2] R v AM at [105].
[3] R v AM at [108].
[4] R v AM at [109].
[5] R v N CA88/05, 23 November 2005.

[6] W(CA247/10) v R [2010] NZCA 561.

[7] R v Dargaville HC Hamilton CRI-2010-019-10234, 9 March 2012.
[8] R v Brown [2002] NZCA 243; [2002] 3 NZLR 670 at [28].
[9] R v Gordon [2009] NZCA 145.
[10] R v Gordon [2009] NZCA 145.


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