BETWEEN J (CA670/2023) Appellant AND THE KING Respondent
[2024] NZCA 454
•18 September 2024 at 11.30 am
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR
IDENTIFYING PARTICULARS OF COMPLAINANT/PERSON UNDER THE
AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY
SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA670/2023
[2024] NZCA 454
BETWEEN J (CA670/2023) Appellant AND THE KING Respondent
| Hearing: | 13 May 2024 |
| Court: | French, Campbell and Cull JJ |
| Counsel: | K R Pascoe for Appellant |
| M J R Blaschke for Respondent |
J was sentenced in the District Court to seven years and six months’
imprisonment by Judge Greig,[1] after he was convicted by a jury of three charges of
doing an indecent act on a child under 12, one of which was a representative charge.[2]
[1] R v [J] [2023] NZDC 22952 [Sentencing decision]. We have anonymised the appellant’s name to
[2] Crimes Act 1961, s 132(3); maximum penalty 10 years’ imprisonment.
J appeals this sentence on two grounds:
(a) the starting point was based on exaggerated aggravating factors— regarding the duration, frequency and nature of the offending—that had
no evidential basis; and
(b) the starting point was excessive and outside the available range.
Background to the offending
The complainant is J’s biological daughter. J was charged with offending
against the complainant when she was five to seven years old, from the start of 2017
to the end of 2019, a period of three years.
J’s offending consisted of using the complainant to masturbate himself. He
would put his penis between the complainant’s legs and thrust back and forth or, on
some occasions, move the complainant back and forth against him. He ejaculated on
at least one occasion. There were two instances of this on which J was found guilty.
The above is undisputed.
There were additional undisputed instances of offending, including at least one
incident of J rubbing the complainant’s vagina while she was in the shower or bath
with him, and at least one incident where he had the complainant masturbate him with
her hand (although this was not a discrete charge).[3] In addition, he showed the
complainant pornography on multiple occasions, often before sexually offending
against her.
[3] Sentencing decision, above n 1, at [3].
The duration and frequency of the offending is a disputed issue on appeal.
There are further aspects of the offending that are contested, including whether the
complainant was clothed during the offending.
The sentencing decision
Prior to the first scheduled date for sentencing, the Crown and defence had
submitted starting points of three and a half to four years’ imprisonment and
three years’ imprisonment respectively. Defence counsel also requested time to obtain
a psychologist’s report on the basis that J had been sexually abused himself as a child.
The Judge issued a minute adjourning the sentencing to allow for the completion of a
s 27 report but also to address the likely sentence he was minded to impose.[4] The
Judge signalled this as follows:[5]
[T]he sentence I had in mind today was double what the Crown were
suggesting. This, in my view, is offending that is close to the worse type of
offending that can be committed in this category of offending and therefore I
was going to give you close to the maximum.
[4] R v [J] DC New Plymouth CRI-2021-043-455, 9 June 2023 [Minute].
[5] At [5].
“For the benefit of counsel”, the Judge said that he was “influenced” by the
decision of R v Nichol, where a starting point of eight and a half years’ imprisonment
was imposed for offending which the Judge considered was “comparable, [but] not as
bad in the sense that Mr Nichol was not offending against his own children”.[6] The
Judge then said:[7]
I acknowledge that that case is an outlier in terms of most other cases but
frankly I cannot understand how some of those other cases arrived at the low
sentences they did.
[6] At [7]; and R v Nichol [2018] NZHC 2739.
[7] Minute, above n 4, at [8].
The Crown subsequently submitted a revised starting point of eight years’
imprisonment.
[10] At sentencing on 17 October 2023, the Judge began by recounting the facts of the offending,[8] a number of which are disputed on appeal as being exaggerated. They include the duration of the offending, the number of incidents, the wearing of clothing,
the overstated mistaken references to the complainant’s seventh birthday and the
comparison of this offending to rape.
[8] Sentencing decision, above n 1, at [2]–[8].
To reach the starting point, the sentencing Judge identified the following
aggravating factors to be present to a very high degree: a breach of trust, the
complainant’s vulnerability (noting that he was not double counting these first two
factors), the offending being intrusive and intense, the long duration of the offending,
repeated incidences, premeditation and harm to the complainant.[9] The Judge held that
the offending was among the most serious of its kind.[10] He found the offending to be
a similar in nature to the offending in R v Nichol,[11] and imposed a starting point of
eight and a half years’ imprisonment.[12]
[9] At [20]–[21] and [25].
[10] At [26].
[11] At [26]; and R v Nichol, above n 6.
[12] Sentencing decision, above n 1, at [30].
The Judge reduced the sentence by one year for J’s background and remorse,[13]
reaching an end sentence of seven years and six months’ imprisonment.[14]
Parties’ positions
The appellant
[13] At [30].
[14] At [31].
Ms Pascoe, for J, submits first that the Judge erred by basing his starting point
on exaggerated aggravating factors of the offending that were not supported by the
evidence. These concerned the findings of fact regarding the duration, frequency and
nature of the offending.
Second, Ms Pascoe submits that the starting point was too high, being
inconsistent with other cases involving similar offending. She relies on this Court’s
decision in Britow v R as the most relevant authority, where a starting point of three
years and three months was upheld on appeal for what Ms Pascoe contends is
comparable offending.[15]
[15] Britow v R [2017] NZCA 229.
The Crown submits that the Judge was justified in his factual findings
regarding the duration, frequency and nature of the offending based on the evidence,
except for the finding regarding the frequency of J’s ejaculating.
The Crown submits that, on the Judge’s factual findings, the starting point was
within the available range. The present offending approached the most serious type
of offending for this charge, the Crown says, which requires a starting point close to
the maximum sentence (of 10 years).[16] The Crown acknowledges that the starting
point is open to challenge if this Court finds that the sentencing Judge substantially
erred in his findings.
Approach on appeal
[16] Sentencing Act 2002, s 8(d); and Crimes Act, s 132(3).
In order to succeed, J must show that there was an error in the sentence reached
and that a different sentence should have been imposed.[17] The Court will not
ordinarily intervene where the sentence is within the range that can properly be
justified by accepted sentencing principles.[18] The Court will usually intervene only if
the sentence is manifestly excessive or wrong in principle.[19]
Is the sentence manifestly excessive?
[17] Criminal Procedure Act 2011, s 250(2).
[18] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[19] At [30]–[36].
As mentioned, the Judge identified this offending as approaching the most
serious type of offending of its nature and relied on the High Court’s decision in
R v Nichol as the precedent authority for his sentencing of J.[20] In Nichol, the starting
point was eight years and six months’ imprisonment for the most serious of five
instances of offending against three children.[21]
[20] Sentencing decision, above n 1, at [26]; and R v Nichol, above n 6.
[21] R v Nichol, above n 6, at [10]–[11].
[19] This Court in Britow v R upheld a starting point of three years and three months’ imprisonment for three charges of similar offending to this case, both in kind and number.[22] As the Crown submits, the available range of starting points for
sentencing on this charge have been largely guided by Britow. From 2014, the range
for starting points for indecent assault on a child under 12 appears to vary from
12 months to four years’ imprisonment, where there were no other sexual violation or
related charges.
[22] Britow v R, above n 15.
In written submissions and again during the hearing, Mr Blaschke for the
Crown raised a concern that the Britow starting point, which is widely adopted for
sentencing on this charge, does not adequately reflect the gravity of this type of
offending with a maximum sentence of 10 years’ imprisonment. He suggested there
has been an element of under sentencing with the implication that this Court should
consider reviewing the authorities to provide guidance by way of a tariff case with
bands of factors involved in this type of offending.
However, this appeal has come before a Divisional Court without notice to the
parties that a tariff sentencing judgment was under consideration. Neither the parties
nor other interested intervenors have been notified to provide the Court with
submissions. The Court of Appeal’s orthodox approach to setting tariff sentencing is
to forewarn parties of its intention and invite submissions from the parties and relevant
intervenors.
We proceed therefore to determine this appeal on the parties’ submissions but
signal that the time appears to be ripe for the Permanent Court to deliver a tariff
sentencing guideline for the charge of indecent assault on a child under 12 years.
In assessing the gravity of this offending on appeal, we have reviewed the
contested factual findings of the Judge. We consider that not all of his findings are
supported by the evidence. Taking the principle of consistency in sentencing,[23] the
gravity of the offending, and the factual errors into account in combination, we are
satisfied that the sentence of seven years six months’ imprisonment is manifestly
excessive. We now give the reasons for that conclusion.
[23] Sentencing Act, s 8(e).
Section 24(1)(a) of the Sentencing Act 2002 provides that a court is entitled to
accept as proved any fact that was disclosed by evidence at the trial. Relevantly, the
existence of a disputed aggravating fact, being a fact that would extend the sentence,
must be proven beyond a reasonable doubt.[24] In R v Connelly, this Court held:[25]
The Judge in a jury trial is effectively the thirteenth fact finder. Where,
following a verdict(s) of guilty the Judge is required to sentence a prisoner the
Judge is entitled, where the evidence supports it, to reach his or her own view
of the facts relevant to sentencing provided that such view is not inconsistent
with the verdict …
[24] Sentencing Act, s 24(2)(c) and (3).
[25] R v Connelly [2008] NZCA 550 at [14] (citations omitted).
This statement was affirmed in B (CA58/2016) v R, with this Court saying that
“it is up to the Judge to determine the relevant facts but these must be within the
bounds of the jury verdicts”.[26]
[26] B (CA58/2016) v R [2016] NZCA 432 at [76].
As noted, Ms Pascoe contests the accuracy of the Judge’s following factual
findings, which she submits were exaggerated and not supported by the evidence:
(a) that the offending occurred over a roughly two-year period, including “on the day [the complainant] remembers as being her seventh
birthday”;[27]
[27] Sentencing decision, above n 1, at [3], [5] and [7].
(b) that the offending occurred “on multiple occasions, many more than three times” during that above period, that the offending occurred, in
the Judge’s words (not the complainant’s words), “morning, afternoon
and night”, and that “at times” J ejaculated;[28]
[28] At [3], [5] and [7].
(c) that J engaged in “dirty talk” with the complainant in an effort to “get her sexually excited”;[29]
[29] At [4].
(d) that there was “skin on skin” contact between J’s penis and the exterior of the complainant’s vagina during the offending;[30] and
(e) The comparison of the offending to rape, the Judge saying “[i]t was as close to rape as it can be without actual penetration.”[31]
[30] At [3] and [8].
[31] At [6].
We deal with the contested findings, as grouped, below.
Duration
The evidence suggests that the offending occurred over a one-year period,
rather than a two-year period and did not occur on the complainant’s seventh birthday.
In the complainant’s first evidential video interview (EVI), she says the offending
happened when she was six and seven years old, with the final occasion being on or
about her seventh birthday. In the second EVI, the complainant initially said the
offending happened when she was five or six, but she quickly corrected herself,
confirming that she had no memory of any offending happening when she was five,
and apologised for saying otherwise.
We accept the appellant’s submission that the incident alleged to have occurred
on the complainant’s seventh birthday could not have occurred. The complainant’s
seventh birthday was on 5 January 2019. The tenancy at the address where the
offending occurred ended on 1 January 2019 and the complainant did not reside with
the appellant after that time. The Crown does not challenge this.
We find therefore that the Judge made an error when he found that the
offending occurred “over a two-year period, possibly even a three-year period, but I
settle on two years”.[32] The evidence supports the duration of the offending to have
occurred during a one-year period when the complainant was six years of age. Given
that the offending could not have occurred on the complainant’s seventh birthday, we
accept that the Judge’s finding to the contrary, with his rather extravagant language that “her birthday will be ruined for the rest of her life. It will never be a day of
celebration”, overstates the gravity of the offending.[33]
Number of incidents
[32] At [7].
[33] At [5].
There is little difference in the number of incidents asserted by the appellant
and the Judge. The Judge found that “it happened on multiple occasions, many more
than three times,” while the appellant says the evidence supports the offending
occurring between three and 10 times.[34]
[34] At [7].
In the first EVI, the complainant said the offending occurred 10 times. During
the EVIs, the complainant references at least five discrete incidents of offending. We
do not propose to place an estimate on the real number, but there appears to be
approximately five to 10 incidents, which is within the ranges provided by both the
appellant and the Judge.
Further, the finding that the offending occurred “morning, afternoon and night”
is an available finding on the evidence.[35] Specifically, during the first EVI, when
asked about the different times the offending happened, the complainant said it
occurred during the “night, the afternoon and the morning”. We therefore do not
accept the appellant’s submission on this point.
[35] At [5].
However, we do accept that the complainant gave evidence of the appellant’s
ejaculating in one specific incident of offending only. We consider that it was not open
to the Judge to find that this occurred more than twice, as the phrase “at times” would
suggest.[36] While a finding that J ejaculated was available, a finding of frequent
ejaculation was not.
[36] At [3].
Contrary to the appellant’s submission, we consider it was open to the Judge
to find that the appellant engaged in “dirty talk”,[37] as the complainant gave evidence
to this effect during her second EVI. She said the appellant “used to be offensive about
my nan and he kept saying to me. When he was putting his la hor between my legs I
wonder if can put my la hor between nanny’s legs”. We therefore do not accept the
appellant’s submission on this point.
Skin-on-skin contact
[37] At [4].
Despite the Judge’s finding of skin-on-skin contact, the strongest evidence for
the complainant not wearing clothes during the offending was during the second EVI,
when she was describing offending that occurred while she was showering/bathing.
Of this offending, she said, “I could feel the soap and I could feel bubbles popping.
On my skin …”. We agree that it would be safe to assume she was naked on this
occasion.
However, other than this incident, there is no other direct evidence from the
complainant to suggest she was not wearing clothes during other offending. We
consider the Judge could not have been satisfied to the requisite standard that the
complainant was unclothed during all of the offending.
Rape comparison
At the commencement of his sentencing, the Judge described the offending as
approaching the most serious type of offending of its nature and said that "[i]t was as
close to rape as it can be without actual penetration. It was literally one millimetre
away from penetration.”[38] The Judge recorded Ms Pascoe’s submission that this case
was distinguishable from Nichol, as the defendant there attempted to penetrate one of
the male complainants.[39] As the Judge recorded it, Ms Pascoe described the offending
in Nichol “as close to penetration as you can get.”[40] The Judge stated he agreed but pointed out that Mr Nichol was not charged with that. Yet, the Judge then went onto
to find that the present offending was “as close to penetration as you can get as well.”[41]
[38] At [6].
[39] At [27]; and R v Nichol, above n 6.
[40] Sentencing decision, above n 1, at [27].
[41] At [27] (emphasis added).
The Crown submits that the Judge was entitled to regard Nichol as comparable
and guiding. There, the defendant pleaded guilty to seven charges of indecent assault
on three children. The offending occurred on five separate occasions across five and
a half months. There were three male complainants aged nine or 10 years old at the
time of the offending.[42]
[42] R v Nichol, above n 6, at [2].
We note that the fourth incident of offending in Nichol involved the defendant
pulling down the pants of a sleeping boy and penetrating the boy’s buttocks with his
penis close to the anal entry, such that the boy suffered some discomfort lasting several
days.[43] Justice Toogood took the most serious instance of offending as the lead offence
(the fifth incident), which involved the defendant pinning one of the complainants
against the side of a couch and wall with some force, again with a connection between
the defendant’s penis and the complainant’s anus, although no penetration occurred.[44]
Toogood J said of the contact between penis and anus in that offending, that it fell just
short of unlawful sexual connection.[45]
[43] At [5].
[44] At [5].
[45] At [10(b)].
The aggravating factors of that offending were the use of force and
overpowering of the complainant, contact between penis and anus just falling short of
unlawful sexual connection, the vulnerability of the complainant arising from the
50-year age gap, significant premeditation and grooming (including giving the
complainant sweets, money and food), a breach of trust, and the harm and effect of the
offending on the complainant.[46] Justice Toogood imposed a starting point of eight and
a half years’ imprisonment for the lead offence, which was uplifted by three years for
the balance of the offending.[47]
[46] At [2] and [10].
[47] At [11]–[12].
We find the Judge’s language, with the comparison of the present offending to
rape, was excessive. As the Judge himself observed in answer to Counsel’s
submission, Mr Nichol was not charged with penetrative offending.[48] Yet, the Judge
used the very terminology of a rape charge to this offending.[49] Plainly, J was not
charged with such offending either.
Analysis
[48] Sentencing decision, above n 1, at [27].
[49] At [6].
On the corrected facts as we have found them: the duration of the offending
was one year, when the complainant was six; there was one clear incident of skin on
skin with penile contact between the complainant’s thighs; the appellant ejaculated on
one or two occasions; and the offending occurred on multiple occasions, but not on
the complainant’s seventh birthday.
While we share the Judge’s concern as to the “low sentences” for serious
offending on this charge,[50] in adopting Nichol as the guiding authority, we find the
Judge has erred in viewing this offending as comparable. The exaggerated description
of some of the factors in the offending has had the effect of elevating its gravity. This
in turn has wrongly influenced the Judge in adopting the Nichol starting point of
eight years and six months’ imprisonment. Although this offending is serious, we find
that it is not as serious as the offending in Nichol nor closely comparable on the facts
as we have found them.
Starting point
[50] Minute, above n 4, at [8].
As noted, there is no tariff case for offending of this type. However,
Pattison v R provides some guidance on the range of aggravating factors for
consideration at sentencing:[51]
They include the age of the victim, the vulnerability of the victim, the degree
of abuse of trust, the intrusiveness and intensity of the indecent act, the
duration of the offending, whether there were repeated incidents of offending
against the victim, premeditation, the harm occasioned to the victim and
attempts at concealment.
[51] Pattison v R [2019] NZCA 103 at [20].
Here, the Judge found that other than attempts at concealment, all of these
aggravating factors were present to a very high degree.[52] Following from our factual
conclusions reached above, we find that the factors of the intrusiveness and intensity
of the indecent act, and the repeated nature of the offending were not present to the
same degree as the Judge found. The Crown acknowledges that the starting point is
open to challenge if this Court finds that the sentencing Judge substantially erred in
his factual findings.
[52] Sentencing decision, above n 1, at [25].
Both counsel provided a range of sentencing authorities for sexual offending
on children. As noted, the Crown expresses concern at the low sentences for indecent
assaults on children and their inconsistency with similar offending against young
persons and adults. We canvass therefore the starting points adopted in the authorities
provided for offending of this type.
(a) In Britow v R, the District Court set a starting point of three years and three months’ imprisonment and the Court of Appeal upheld this on
appeal.[53]
[53] R v Britow [2016] NZDC 3672; and Britow v R, above n 15.
The appellant was found guilty of three charges of indecent assault on
a child under 12. The complainant was the daughter of the appellant’s
partner, and she was aged between four and seven at the time of the
offending. The offending consisted of the appellant rubbing his penis
on and between the complainant’s buttocks and on top of her genitalia
on a number of occasions.
(b) In Faaosofia v R, the Court of Appeal held that a two-and-a-half-year starting point for the female complainant would have been in range [54]
[54] Faaosofia v R [2022] NZCA 320 at [77].
The appellant was convicted of four charges of doing an indecent act
on a child under 12 against a four-year-old daughter of the appellant’s
partner and a six-year-old neurodivergent nephew of a subsequent
partner. The appellant offended against the female complainant on
three occasions, kissing her and touching her vagina, and offended
against the male complainant on one occasion, although the facts were
contested on appeal. The Court of Appeal held that a
two-and-a-half-year starting point for the female complainant would have been in range, and the overall starting point of three years’
imprisonment was within the available range.
(c) In O (CA643/2009) v R, the Court of Appeal upheld a three-year starting point.[55]
[55] O (CA643/2009) v R [2010] NZCA 609 at [52].
The appellant was convicted of six charges of doing an indecent act on
a child under 12 against his niece, aged between 10 and 11 years. The
appellant offended against the complainant on four occasions over
seven months, twice touching the skin outside the complainant’s
vagina, twice rubbing her vaginal area over her clothing, touching her
breasts through clothing and kissing her. The Court of Appeal held that
a three-year starting point was “perhaps stern” but not outside of the
available range.
(d) In R v M (CA387/2009), the Court of Appeal set a starting point of two years’ imprisonment.[56]
[56] R v M (CA387/2009) [2009] NZCA 456 at [17].
The appellant was convicted of two charges of indecent assault against
his female cousin, aged four. The appellant touched the complainant’s
genitalia with his hand and placed her hand on his penis. The Court of
Appeal reduced a two-and-a-half-year starting point to a two-year
starting point.
(e) In Wild v R, the Court of Appeal set a starting point of one year and six months’ imprisonment.[57]
[57] Wild v R [2019] NZCA 189 at [18].
The appellant was convicted of doing an indecent act on a child
under 12 and doing an indecent act on a young person under 16. The
appellant offended against the first female complainant, who was
friends with his daughter, when she was aged between nine and 12, by
twice touching her thighs, breasts and stomach while she was clothed,
and trying to put his hand in her shorts and take off her shirt. Against
the second female complainant, aged 12, the appellant rubbed his penis
inside his pants, said “I want to put my cock in you”, held onto her and
tried to kiss her. The Court of Appeal reduced the starting point from
two years and three months’ imprisonment to one year and six months’
imprisonment.
(f) In Anson v R, the Court of Appeal upheld a four-year starting point.[58] [58] Anson v R [2014] NZCA 135 at [52].
The appellant was convicted of three charges of doing an indecent act
on a child against two of his step grandchildren when the male
complainant was aged 10 to 14 years and the female complainant was
aged 12 to 14 years. The appellant offended against the complainants
semi-regularly over this period by masturbating himself with the boy
and touching the girl’s genitalia. The Court of Appeal said of the
four-year starting point, “if anything, it is lenient”.
(g) In Taylor v R, the High Court upheld a three-year starting point.[59] [59] Taylor v R [2022] NZHC 912 at [37].
The appellant was convicted of two charges each of indecent assault on
a child under 12 and indecent assault on a child under 16 against his
two stepdaughters, who were aged six and four years when the
offending began. The appellant assaulted the complainants five to 10
times each year over eight years by rubbing their vaginas through their
underwear. The High Court described the three-year starting point as
stern but within range.
(h) In R v De Kwant, the High Court imposed a starting point of four years’ imprisonment.[60]
[60] R v De Kwant [2017] NZHC 2291 at [18].
The defendant was convicted of doing an indecent act on a child
under 12 against the son of a close friend of the defendant’s partner,
aged eight to nine years. The defendant masturbated the complainant
12 times over 18 months.
(i) In Forsyth v R, the High Court upheld a starting point of three and a
half years’ imprisonment.[61]
[61] Forsyth v R [2022] NZHC 3361 at [13]–[14].
The appellant was convicted of doing an indecent act on a child
under 12 against a boy that the appellant had a family connection with,
aged between eight and 12 years. On multiple occasions over a
three-year period, the appellant put his hands over the complainant’s
crotch, both under and over clothing, tickled his genitals and
masturbated him. The High Court said the three-and-a-half year
starting point could have been slightly higher.
(j) In R v Lynch, the High Court imposed a starting point of three and a half years’ imprisonment.[62]
[62] R v Lynch [2014] NZHC 1788 at [21].
The defendant was convicted of eight charges of indecent assault
against a girl under 12, aged between nine and 11 years, who was a
relation of his former partner and considered the defendant to be a
father figure. The defendant offended against the complainant over a
three-year period by touching up her skirt between her legs, grabbing
her breast while rubbing his penis, pressing his penis against her bottom
and between her legs with and without clothing, touching her bottom,
and watching pornography with her while touching her chest, bottom
and between her legs on top and under clothes and grinding his penis
against her back.
(k) In R v Benson, the Judge imposed a starting point of six years’ imprisonment.[63] (We note this case included a charge of sexual
[63] R v Benson [2017] NZDC 11773 at [9].
violation by unlawful sexual connection).
The defendant was convicted of three charges of sexual conduct with a
child under 12 and one charge of sexual violation by unlawful sexual
connection against his partner’s daughter, aged between seven and
eight years. On a number occasions over the course of a year, the
defendant kissed the complainant and put his tongue in her mouth,
touched her genital area over and underneath clothing, digitally
penetrated her vagina and attempted to genitally penetrate her vagina.
There were also occasions where the complainant would wake up in the
morning to find white residue in the crutch of her underwear that could
not be explained, or that her pyjamas and underwear had been removed.
Discussion
The Crown submits that comparing Nichol with other authorities reveals a
conflicted approach to sentencing decisions for sexual offending.[64] The Crown
contends that some authorities have “closed off” the top half of the sentencing range
(against the maximum sentence of 10 years), which is inconsistent with ss 8(c) and (d)
of the Sentencing Act. The Crown further submits that the low starting points for
sexual offending on children that falls short of sexual violation creates an
inconsistency with sexual offending that meets the sexual violation threshold, and
diminishes the gravity of indecency offending against children.
[64] R v Nichol, above n 6.
We acknowledge that the Crown’s submission has merit. It appears that
decisions such as Britow have constrained sentencing decisions for this charge, such
that the most serious offending of this type does not reflect the maximum sentence of
10 years.[65] However, we note too that the Crown has not brought appeals against
similar cases for manifestly inadequate sentences.
[65] Britow v R, above n 15.
As noted earlier, in the absence of a guideline sentencing judgment, it is
appropriate to deal with the present sentence on a basis which is consistent with other
sentences imposed for similar offending when J was sentenced.
The Crown acknowledges that Nichol features very serious offending.[66] The
most significant difference between Nichol and this case is in the intrusiveness of the
indecent act and the level of force involved in Nichol, including pinning a complainant
against furniture and the wall, with penile and anal contact. The offending in Nichol
fell just short of unlawful sexual connection. We are not satisfied that the present
offending, although egregious, was close to penetration or to the facts in Nichol.
[66] R v Nichol, above n 6.
Ms Pascoe submits that the offending is comparable to Britow, warranting a
starting point of three years and three months’ imprisonment.[67] We agree that the
offending is similar. The significant points of difference are that J is the complainant’s
biological father, compared to the partner of the complainant’s mother in Britow, J
showed the complainant pornography and he ejaculated. We consider a starting point
of three years and three months’ imprisonment does not adequately capture the
seriousness of this offending, nor give effect to the purposes and principles of
sentencing, including holding the appellant accountable for the harm he has caused
and denouncing his conduct.[68]
Conclusion
[67] Britow v R, above n 15.
[68] Sentencing Act, ss 7 and 8.
[53] In the absence of appellate tariff guidance, we adopt a starting point of five years’ imprisonment. This starting point balances the seriousness of this offending with the need for consistency in sentencing in light of the current range of
starting points for this type of offending.
The Judge allowed a 12-month reduction to the starting point of eight and a
half years’ imprisonment for the appellant’s background and remorse. This equated to
a 12 per cent reduction, which the appellant’s counsel accepted was within the
appropriate range. We similarly apply a 12 per cent reduction, which equates to
approximately seven months’ imprisonment from the starting point of five years’
imprisonment. This results in the end sentence of four years and five months’
imprisonment.
Results
The appeal against sentence is allowed.
The sentence of seven years and six months’ imprisonment is quashed and
substituted with a sentence of four years and five months’ imprisonment.
Solicitors:
Nicholsons Lawyers, New Plymouth for Appellant
Crown Law Office, Wellington for Respondent
| Judgment: | 18 September 2024 at 11.30 am |
JUDGMENT OF THE COURT
| A | The appeal against sentence is allowed. |
| B | The sentence of seven years and six months’ imprisonment is quashed and |
| substituted with a sentence of four years and five months’ imprisonment. |
REASONS OF THE COURT
(Given by Cull J)
J (CA670/2023) v R [2024] NZCA 454 [18 September 2024]
protect the identity of the complainant.
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