R v Robinson [2014] NZHC 2827 (13 November 2014)

Last Updated: 1 December 2014

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2013-070-2102 [2014] NZHC 2827

THE QUEEN

v

_{DAVID LESLIE ROBINSON}

Hearing:	12 and 13 November 2014
Counsel:	HA Wrigley for Crown AF Rickard-Simms for Defendant
Sentence:	13 November 2014

_{SENTENCING NOTES OF FOGARTY J}

Solicitors: Ronayne Hollister-Jones Lellmann, Tauranga

Pacific Coast Law, Papamoa

R v ROBINSON [2014] NZHC 2827 [13 November 2014]

[1] Mr Robinson, you appear for sentence after pleading guilty to five charges, all being sexual offences. The first is to a representative charge that between 1

November 1996 and 15 September 1998, did indecently assault the complainant, a girl under the age of 12 years. The particulars being that he touched her upper thigh genital region in bed and pressed your erect penis against her while driving with her on your lap, being an offence under s 133(1)(a) of the Crimes Act.

[2] The second charge, also a representative charge, is that between 1 November

1996 and 31 December 1999, you did sexually violate the same girl by unlawful sexual connection, the particulars being connection occasioned by the penetration of her genitalia by your finger, this being an offence under s 128(1)(b) of the Crimes Act.

[3] The third charge, also a representative charge, was that between 1 November

1996 and 5 [15] September 1998, he induced the same girl, being under the age of

12, to do an indecent act on you, the particulars being placing her hand on your penis, this being an offence under s 133(1)(c) of the Crimes Act.

[4] The fourth charge, also a representative charge, is that you, between

1 November 1996 and 31 December 1999, at Tauranga and Thames, with the intent of offending the same girl, did an indecent act, the particulars being, exposing your erect penis to her and/or rubbing his penis in her presence, being an offence under s 126 of the Crimes Act.

[5] The fifth charge, is also a representative charge, is that you, between 1 May and 31 May 1992, sexually violated another girl by unlawful sexual connection, the particulars being a connection between your mouth and/or tongue and her genitalia, being an offence under s 128 and 128B of the Crimes Act.

[6] These pleas of guilty were taken on what was to be the day of the commencement of a trial, a plea indication having been given the Friday before the trial which obviated the need for the complainants to travel to the trial. You pleaded guilty to the first five counts and an amended count. Originally the counts were going to be 13 counts that would have gone to trial. Katz J recorded in a minute that

the Crown had also provided a combined summary of facts relating to these first five counts which had been agreed with the defence.

[7] When I came to deal with the sentencing, as you have heard yesterday, it appeared at the outset there was a very significant difference in the analysis of experienced counsel, both for the Crown and for yourself, Mr Robinson, as to the application of the guiding decision of the Court of Appeal in a case called R v AM.¹

This is a leading decision of the Court of Appeal that binds this Court and guides sentencing, being these type of cases.

[8] The Court of Appeal separated out offending in these type of cases into three bands, band 1, band 2 and band 3. The Crown argued that this sentencing should be approached at the level of band 3. Mr Rickard-Simms, counsel for defendant, argued it was at the higher end of band 1 or the lower end of band 2. This difference of opinion seemed to me to account for the very significant disparity of the sentences being argued for by each counsel. The Crown submissions argued for a starting point, at a range of 11 to 13 years imprisonment in the written submissions. Counsel for the defendant argued for a start point of around 4 to 5 years. Both these starting points also apply the totality principle. I should say, for the benefit of the public who are here, the “totality principle” is a “stand back and look” at the total sentence when there are a number of counts and then an adjustment.

[9] As a Judge faced with a more than 100 per cent disparity between the two starting points, I explored in oral argument why counsel would be so far apart.

[10] In the course of that exercise, it became apparent that Mr Robinson did not accept the combined summary of facts, an acceptance of which was partly affecting the instructions that Mr Rickard-Simms was given and the nature of the argument he was being forced to run.

[11] The Crown summary of facts (combined) – it’s an unusual document,

probably created out of the exigencies of the very late pleas. I am satisfied, however, that the intent of this document was understood by counsel for the defendant and the

¹ R v AM [2010] NZCA 114.

defendant at the time that he made his decision to plead guilty against the five counts and it was on the basis that the representative charges would be interpreted as including all the conduct in the Crown’s summary of facts (combined).

[12] I am satisfied of this for two reasons. Firstly, the record of the agreement as to how the sentencing would proceed by Katz J which I recorded a moment ago and also because I adjourned the hearing last night to allow Mr Rickard-Simms to obtain confirmation of instructions from his client that he accepted he would be sentenced on this summary of facts (combined) which he obtained.

The offending

[13] I now turn to the offending. The offending against the first complainant occurred when the defendant was 56 years old, in 1992. He met and began a relationship with the first complainant’s mother. The first complainant was, at that stage, six years old and she and her mother lived together. Her mother was a single parent, carless, unemployed and struggling financially. The defendant immediately began to assist the family by completing jobs around the household and transporting them in his vehicle. In mid-1993 he was arrested and charged with sexually abusing three other children in his family. He was living with his mother at the time and was asked to leave. He then moved into the home of the first complainant and her mother. In 1995 he was imprisoned, following his convictions for this other sexual offending. He was released in 1996. He immediately moved back into the home of the first complainant and her mother.

[14] Over time he assisted the first complainant’s mother by caring for the first complainant. The defendant encouraged the first complainant’s mother to take a job at a pack house in Te Puke and she began working nightshifts approximately five nights a week. Between 1 November 1996 and 5 September 1998, when the girl was then aged 10 to 13 years, he sexually abused her on a frequent basis. The sexual abuse continued for approximately three years, until he moved out of the home. The offending would occur when the first complainant’s mother was either at work, asleep in bed or having a bath. I refer to charge 2 and the representative count of

sexual violation by unlawful connection. I take this as the lead charge against the first complainant. That was common ground between counsel.

[15] The agreed statement of facts proceeds on the basis that on an evening between the two dates, the defendant entered the first complainant’s bedroom where he believed her to be asleep. She was lying on her side, wearing a nightie but no underwear. He stood beside her bed and placed his hand between her upper thighs, near her vagina, leaving his hand there for some time. The first complainant froze with fear and pretended to be asleep. Eventually, the defendant left the complainant’s bedroom without saying a word, believing the first complainant remained asleep. Following this incident, the defendant began to enter the first complainant’s bedroom in the same manner up to five times a week. Within a week of the first instance, he progressed to inserting his index finger within the first complainant’s vagina, each time he entered her bedroom. He would move the finger in and out of her vagina and rub her. This was very painful for the first complainant but she would remain frozen with fear and pretend to be asleep. The defendant would continue for several minutes and eventually leave the room. The first complainant began to wear underwear in the hope that this would deter the defendant. However, the defendant would simply push the underwear aside and insert his index finger into her vagina. On some of these occasions the defendant would remove his erect penis from his pants, still believing the first complainant to be asleep. He would take her hand and place it on his penis, holding it there for several minutes.

[16] As this narrative shows, the offending combined sexual violation by unlawful connection with other offending of indecent assault, reflected in charges 1 and 3.

[17] There was other offending outside her bedroom which was reflected in charge 4. While the first complainant would be watching television, he would stand behind her in the doorway of the lounge, remove his erect penis from his pants and masturbate himself behind the first complainant. On some occasions, she would turn at the sound and look at him, he remaining unconcerned would continue to masturbate himself. He also exposed his penis away from home. On one occasion during a camping trip, also outside the home and reflected as part of the particulars

in count 1, the defendant would take the first complainant for driving lessons. He would sit her either on his knee or between his legs where he would have an erect penis at the time and would pull the first complainant back to press her body against his penis. Often because he wore very short shorts, his erect penis would protrude from the bottom of the shorts.

[18] On one occasion while at the home of the defendant’s father, the first complainant took a nap down in a downstairs bedroom. The defendant came in, he put a hand under the first complainant’s dress, inserted a finger into her vagina. He moved the finger in and out for some time. The assault was prolonged and went on longer than any previous violations. As has become the norm, the first complainant froze with fear and remained still and pretended to be asleep for the duration of the assault.

Band classification

[19] Mr Rickard-Simms essentially submitted in a conclusory way that the offending should warrant a start point at the upper end of band 1, being 2 to 5 years or lower end of band 2, being 4 to 10. He did not do it by any detailed analysis of the Court of Appeal decision.

[20] The Court of Appeal in [120], under the heading “Band 3, 9 to 18 years” said

this:

This band is appropriate for the most serious offending of its type. Band 3 will encompass cases which involve two or more factors increasing culpability to a high degree. For example, a particularly young victim or an extensive period of offending. Similarly, the band will be appropriate where more than three of these factors are present to a moderate degree.

[21] The second case called R v P summarised by the Court of Appeal:².

O, 26, offended against three Vs aged 3, 4, and 5. V1 was boarding at O’s home. On four occasions he removed her clothing and kissed her buttocks, anus and vagina. O was boarding with the V2’s family. He tried to remove her clothing but desisted and exposed himself to her when she objected. The offending against V3 occurred at a family barbeque when O went off to a secluded area, V3 followed him, apparently without O’s encouragement. O

then pulled down her pants, touched her bottom and licked her vagina. He then rubbed his penis against her buttocks and genitalia.

[22] I am satisfied that this offending against the first complainant, at the very least, was of equal culpability as the case of R v P³ and probably more and, accordingly, on the basis of the offending, against the first complainant only, without taking into account the offending against the second complainant, I regard this as band 3 conduct in terms of the Court of Appeal decision.

[23] Ms Wrigley, for the Crown, in the context of applying band 3, identified five factors going to that assessment:

(a) The planning and grooming involved and showing clear premeditation;

(b) The victm’s vulnerability both as to age and social vulnerability; (c) The harm caused to her;

(d) The scale of offending. She put the scale of offending at five times a week over three years. She included in the scale of offending the range of offending; and

(e) Breach of trust.

[24] Mr Rickard-Simms argued on behalf of his client that the sexual violations did not occur on every occasion, that is the penetration. I accept that. But, in my view, that does not take the offending outside of the Court of Appeal criteria for band

3. We have already seen, when I took you through the case of R v P, the range of conduct the Court of Appeal took into account. The first complainant would not know whether the conduct in any particular occasion would be confined to indecent assault or extend to sexual violation. In terms of the impact of the assault (sexual violation being included as a kind of assault), I consider that the trauma and the

associated psychological injury to this young girl was of a very serious nature and that is reinforced by her eloquent victim impact statement.

[25] I turn to the second complainant. The offending against the second complainant is the subject of the fifth charge, as appears above.

[26] In May 1992, the defendant was 56 years old and residing with his mother. At the time he was in a relationship with a woman. The second complainant is the defendant’s great niece. She was eight years old at the time of the offending and resided with her parents. The defendant made arrangements with his adult niece, the second complainant’s mother, for the second complainant to spend a week of the school holidays with him. He led the second complainant’s mother to believe that his mother, the second complainant’s great grandmother, would be present. This was not the case as she was unwell and was staying with friends. He also led the second complainant’s mother to believe that his partner and her daughter would also be present. This was not the case. His partner and her daughter were absent for at least part of the second complainant’s stay.

[27] The defendant drove to pick up the second complainant, returning with her and took her to his mother’s house where he stayed with her for the first part of the week’s stay. While there he directed her sit on a chair in the living or lounge area, told her he wasn’t going to hurt her before instructing her to lower her pants and underwear. He then knelt on the floor, using his hands to part her legs and began to lick her vagina. As he did so, he had a hand on each of the second complainant’s legs, holding them apart. The second complainant made an excuse to get away and said she needed the toilet. When she came out of the toilet, he repeated the behaviour, having instructed her to sit back down and remove her lower clothing. He eventually stopped. Later in the week the defendant took the second complainant to his partner’s house and while no one else was present, he repeated the same kind of instructions and behaviour.

[28] This is very serious offending, again confirmed by a second moving and eloquent victim impact statement.

[29] For these reasons, I favour the Crown’s analysis for sentencing purposes. But this is not just a situation where I adjust the defendant counsel’s analysis as the starting point was too low. Rather, in these circumstances, having analysed the matter, I adopt the summary of the Crown’s penalty submissions which was as follows.

[30] Applying band 3, the Crown submitted a starting point for the first complainant at 9 to 10 years. The Crown then argued for an uplift for the offending against the second complainant as being required. Under the case authorities preceding R vAM, the offending against the second complainant would have attracted a stand alone sentence between 3 and 4 years, taking the aggravated features that I have set out into account. The Crown submitted on totality, a starting point for the offending between the two victims was warranted in the range of 11 to 13 years, before adjusting for aggravating or mitigating factors personal to the prisoner.

[31] In oral argument, Ms Wrigley, for the Crown, not being the original author of the Crown’s submissions, argued for a range of 11 to 12 years, rather than 11 to 13. I gained the impression she did this partly in order to accommodate adjustment for aggravating and mitigating factors. One of the factors is that some of the offending occurred while the defendant was still on parole. I agree that that is a separate aggravating factor. I think the total offending warranted an addition of one year by reason of the offending on parole and given that the Crown counsel, in oral argument, dropped the totality range before me from 11 to 12, I take that lower estimate. So I take the 12 years and add one year for offending on parole aggravation, ending with an indicative sentence of 13 years before taking into account the application for a discount by reason of the pleas of guilty which avoided

...

[32] Ms Wrigley has risen, in the course of the delivery of this judgment to indicate that I had misunderstood her, that she did not intend to change the Crown submission from a raise from 11 to 13 years, rather than 11 to 12. I have spent some time since the oral argument analysing what I consider to be the right and fair sentence. I do not think at the end of this analysis, there is a great deal of difference between the starting points of 11 to 13 and 11 to 12. But, in the circumstances, I

think, under the way in which we proceed in law, the argument having been completed last night and I having completed my deliberations, that I will stay with taking the range from 11 to 12. I am happy to record that I had misunderstood the oral submissions of counsel.

[33] I think, if I might observe, part of the difficulty was that Ms Wrigley was talking to submissions also that were prepared by other counsel. So I take 12 years and I add one year for offending on parole aggravation, which ends with an indicative sentence of 13 years before taking into account the application for a discount by reason of pleas of guilty which avoided the need for these complainants to be further traumatised by giving evidence at the trial.

[34] I should add, in case it has not been noticed, that the other aggravating features of this offending, such as abuse of trust, premeditated offending, are included in the criteria that I have applied to lift this case into band 3.

[35] Mr Rickard-Simms sought a discount of more than 10 per cent for the plea. The plea was late and this is significant because it prolongs the anguish of the complainants’ right down to virtually the commencement of the trial. I take into account the fact that the plea was imminent, was known a day or so before the trial, and so the complainants did not have to come to Court on that day. I allow 10 per cent discount, arriving at an indicative end sentence of 11 years, 8 months before considering the age of the defendant.

[36] He is now 78 years old. He is in good health, putting aside that he has suffered from depression. I am not persuaded that there should be a further discount for age. Accordingly, on the lead offence – the second charge of sexual violation – he is sentenced to 11 years, 8 months. On the first charge, he is sentenced to 5 years concurrent. On the third charge, 5 years concurrent. On the fourth charge, one year concurrent. And on the fifth charge against the second victim, 7 years concurrent.

[37] The Crown submits that a minimum period of sentence should be imposed as enabled by s 86, as it was prior to the 2004 amendment.

[38] Section 152 of the Sentencing Act provides that s 86 not apply to an offender convicted of an offence committed before the commencement date, except for a serious violent offender. This law I notice has been in place since 2002.

[39] Counsel have considered the application of s 152 and agree that count 2 is a serious violent offence in terms of s 2 of the Criminal Justice Act 1985 and agree, accordingly, that s 86 is applicable to the count 2 sentence only. Counsel consider s 86 does not apply to count 5 which was committed prior to the introduction of the relevant provisions of the Criminal Justice Act.

[40] The pre-2004 amendment version of s 86 does not have the same detail as to criteria that has to be taken into account by the Court. It reads:

If a Court sentences an offender to a determinate sentence of imprisonment for more than two years for a particular offence, it may at the same time as it sentence the offender order the offender to serve a minimum period of imprisonment in relation to that particular sentence. The Court may impose a minimum period of imprisonment under this section if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act. For the purpose of this section the circumstances of the offence may be regarded as sufficiently serious if the Court is satisfied the circumstances take the offence out of the ordinary range of offending of the particular type. A minimum period of imprisonment imposed under this section must not exceed the lessor of two- thirds of the full term of the sentence or ten years.

[41] Prior to having this notice from counsel as to the application of the earlier version of s 86, I had analysed it under the later version which is more stringent. In that analysis I had disregarded subparas (c) and (d) of s 86 and focused on subparas (a) and (b) which talk about the purposes of holding the offender accountable for the harm done to the victim and the community by the offending and denouncing the conduct in which the offender was involved. Having considered the earlier text of s

86, I consider those criteria are not at all in conflict with the earlier version and fall within circumstances enabling the Court to come to the view that the circumstances of the offence is sufficiently serious to warrant taking the offence out of the ordinary range of offending of this particular kind.

[42] As I said in oral argument, I regard this as particularly serious sexual offending and I am satisfied that I have the power to impose a minimum period of imprisonment.

[43] Mr Rickard-Simms argue against the imposition of a minimum period of imprisonment, again particularly on the age of his client. I am not persuaded. The Crown seek a 50 per cent minimum non-parole period which is below the two-thirds maximum. I agree and I order the defendant to serve a minimum period of five years and ten months imprisonment.

[44] Accordingly, Mr Robinson, you are sentenced to a term of imprisonment of

11 years 8 months, of which you must serve a minimum period of five years and ten months imprisonment.

[45] It was anticipated in Katz J’s minute that there would, as part of the plea agreement, be s 347 discharges of counts 6 to 13. Mr Rickard-Simms has applied, and the Crown agrees, that order is made.