N v The King

[2023] NZHC 2945

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-104

[2023] NZHC 2945

BETWEEN

N

Appellant

AND

THE KING

Respondent

Hearing:

17 October 2023

Appearances:

S Mills for Appellant

A Gordon for Respondent

Judgment:

20 October 2023

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 20 October 2023 at 3.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel: Gordon Pilditch, Rotorua

Lance Lawson, Rotorua South

N v R [2023] NZHC 2945 [20 October 2023]

[1]                 N pleaded guilty in the District Court to two charges of indecently assaulting his teenage daughters. One of the charges was laid as a representative charge on the basis that N had indecently assaulted one of his daughters on approximately six occasions. On 8 September 2023, Judge M A MacKenzie sentenced N to two years three months imprisonment on all charges.1

[2]                 N appeals against sentence. He contends the Judge adopted a starting point for the sentence that was too high and failed to give him adequate discount to reflect mitigating factors. He contends the end sentence should have been one of two years imprisonment or less. Had that been the case, he contends the sentence should have been converted from a sentence of imprisonment to one of home detention.

The offending

[3]                 The first charge relates to a single incident that occurred after N arrived home in an intoxicated state on 20 April 1980. He entered the bedroom of his 15-year-old daughter who was asleep at the time. He got into her bed and held her hands up over her head to prevent her from resisting. He then restrained her arms with one of his hands whilst he put his other hand up her nightie. He then began touching his daughter’s body and fondling her breasts. He also put his fingers inside her underwear and into her genitalia. Whilst this was occurring, he was saying things like “you know you want it tonight” and “I’m going to have you”.

[4]                 The victim screamed out to her brother, who was sleeping in a neighbouring bedroom. At this point N placed his forearm over his daughter’s mouth to stop her from screaming. When his son entered the room N told him to leave and that this was none of his business. His son then left the room.

[5]                 When N eventually left his daughter’s bedroom she jumped through her bedroom window and went to a neighbour’s address. The police were called but, for reasons unknown, the police did not take any further action in relation to this incident. When the police subsequently discussed the incident with N, he denied that it had happened. He said only that he had slapped his daughter during an argument.

1      R v [N] [2023] NZDC 19794.

[6]                 The second, and representative, charge relates to another daughter who was aged between 13 and 16 years at the time of the offending. Between 1982 and 1984 N went into her bedroom on approximately six different occasions. On each occasion he got into her bed wearing only his underwear. He would then remove his daughter’s pyjamas and engage in sexual activity with her. On some occasions, he performed oral sex on her on the outside of her genitalia. On other occasions, he would rub his lower body against her genitalia whilst still wearing his underpants. He would also hold his daughter’s hand and make her rub his penis on top of his underwear. He also touched his daughter’s genitalia using his hands and fingers. The victim cannot recall any instance where there was penetration of her vagina. Each of the incidents would last for approximately 30 minutes. When they finished, N would get out of the bed and return to his bedroom.

The sentence

[7]                 The Judge considered the offending had several aggravating features. The first was the impact the offending had had on N’s daughters. The daughter against whom N offended in 1980 had read her victim impact statement to the Court and the Judge described this as “compelling”. The Judge noted that this victim had suffered significant and long-lasting psychological trauma as a result of N’s offending. Understandably, she also felt badly let down by the authorities who had failed to act on her complaint at the time the offending occurred. N’s other daughter had not provided an impact statement but the Judge considered it likely that the offending would also have resulted in significant and long lasting emotional and psychological trauma for her as well.

[8]                 Secondly, the Judge considered the offending was intrusive. It involved skin on skin contact with both victims and, in the case of the first victim, it involved digital penetration of her genitalia. That incident also involved a degree of force because N had effectively held his daughter down while he offended against her. The offending against the second victim was particularly intrusive because it took place on no fewer six occasions over a two-year period and involved both oral and physical sexual activity.

[9]                 Thirdly, the Judge had considered the victims to be vulnerable because they were teenagers whilst N was an adult male. The offending also happened whilst they were in bed in their own home where they were entitled to feel safe. The fact that the offending occurred against N’s biological daughters was also significant because it resulted in a gross breach of trust. The Judge noted that the victims were entitled to look to N for safety and security given that their mother had died in tragic circumstances some years earlier.

[10]             The Judge then reviewed several sentencing authorities and compared the overall culpability of the offending in those cases with that of N.2 The aggravating features of N’s offending led the Judge to select a starting point of three and a half years imprisonment.3 The Judge then applied a discount of 10 per cent to reflect the guilty pleas.4 These had been entered approximately a week before the trial was due to commence. The Judge also applied a discount of 15 per cent to reflect the fact that, at 80 years of age, N has no other convictions.5 He had never offended before 1980 and has no convictions for offending after 1984. This means he has remained offence- free over the last 40 years. Finally, the Judge applied a discount of 10 per cent to reflect N’s age and the numerous health issues from which he suffers.6

[11]             This  process  led  to  the  Judge  identifying   mitigating  factors  totalling   35 per cent, or 15 months, and produced the end sentence of two years three months imprisonment. This meant a sentence of home detention was not available. The Judge nevertheless observed that, even if the end sentence had been one of less than two years imprisonment, she would not have imposed a sentence of home detention.7

The appeal

[12]             As I have already observed, N challenges both the starting point the Judge adopted and the level of discount she gave to reflect mitigating factors. In relation to the latter, N contends the Judge gave insufficient credit to reflect his guilty pleas, previous good character, age and health issues. He also contends the Judge erred in

2      At [23]–[33].

3 At [33].

4 At [41].

5 At [48].

6 At [49].

7      At [58]–[59].

declining to give him credit for the fact that he had agreed to use his life savings to make a reparation payment in the sum of $5,000 to his daughters.

Was the starting point too high?

[13]             N contends the Judge erred by selecting a starting point of three years six months imprisonment. Mr Mills on N’s behalf submits that, when the relevant authorities are reviewed, a starting point of no more than three years imprisonment was justified. He cites several cases to support this submission.8

[14]             I do not propose to repeat the analysis of sentencing authority undertaken by the Judge at sentencing and by counsel in their submissions on the appeal. There is no tariff, or guideline, judgment of the Court of Appeal for the offence of indecent assault because it can be committed in many different ways. Limited assistance can therefore be gained by a detailed analysis of sentencing decisions. This is because the factual basis on which individual sentences are constructed invariably differs. As a result, other sentencing decisions can only provide a general guide to the starting point to be adopted in a particular case. In exercising this Court’s appellate jurisdiction I consider a better approach in this type of case is to seek guidance from the sentencing regime that applied to historic sexual offending at the time the present offending occurred.

[15]             As Muir J noted in R v Walker,9 the sentence to be imposed for historic sexual offending must be determined in accordance with the principles identified by the Court of Appeal in R v Accused (CA463/97).10 The starting point for the sentence must be fixed by refence to any discernible sentencing regime that was in place when the offending occurred.11 It must also be selected having regard to the maximum sentence prescribed for the charge at the time the offending occurred. In the present case each of the charges to which N entered guilty pleas carried a maximum sentence of seven years imprisonment.

8      R v Richards HC Auckland CRI-2010-004-6987, 15 December 2011; R v TDO [2012] NZHC 2704; R v R [2015] NZHC 2999; and R v M HC Wellington CRI-2006-085-7222, 2 May 2008.

9      R v Walker [2016] NZHC 1667 at [27].

10     R v Accused (CA463/97) (1998) 15 CRNZ 602 (CA).

11     At 609.

[16]             One case that is often cited in in respect of historical sexual offending is       R v W.12 In that case Chambers J observed that the historical starting point for a single serious indecent assault (being one that involves skin on skin contact) would be around two and a half years imprisonment.13 In the present case I consider the aggravating features of the offending against the first victim would clearly require a starting point at that level.

[17]             The first victim was asleep in her bed at night when N entered her bedroom uninvited and initiated sexual activity with her. It involved an element of violence because N physically restrained the victim before engaging in skin on skin contact with her breasts and genital area. It culminated in digital penetration of her genitalia. The offending was aggravated by the vulnerability of the victim and the breach of trust occasioned by N engaging a sexual activity with a daughter who relied on him to provide safety and security. The issue for present purposes is whether, having regard to totality principles, an uplift of twelve months to reflect the offending against the second victim was outside the available range.

[18]             I consider the aggravating features of the offending against the second victim would similarly have justified a starting point of two and a half years imprisonment on a standalone basis. That offending also had aggravating features that were not present in the offending against the first victim. Whilst the offending against the first victim may be viewed as opportunistic and a “one-off” event, the same cannot be said for the offending against the second victim. The offending against her occurred on no fewer than six occasions over a three-year period. It therefore involved a degree of persistence and premeditation on N’s part. Although it did not involve penetration of her genitalia it included several different forms of sexual activity. The offending could also be described as brazen because it occurred at a time when N knew that the first victim had contacted the police about what he had done to her in 1980. He may well have felt emboldened to offend against the second victim because the police had taken no action against him after the first victim laid her complaint.

12     R v W(T000627) HC Tauranga T000627, 11 May 2001.

13 At [12].

[19]             Taking these factors into account I do not consider an uplift of 12 months to be outside the available range taking into account totality principles.

Did the Judge provide inadequate discount to reflect mitigating factors?

Guilty pleas

[20]             The Judge noted that N first appeared before the Court on 18 March 2021. He did not enter guilty pleas until 7 June 2023. Resolution discussions had commenced in February 2022, nearly a year after the charges were first called. However, these did not conclude until approximately a week before the trial was due to commence.

[21]             One of the major areas of discussion during the resolution discussions related to the fact that the Crown had originally charged N with raping the second victim. This involved an incident that allegedly occurred when the second victim was asleep. She did not recall the incident when she woke up but it was witnessed by another person who was prepared to give evidence at the trial. The Crown ultimately agreed not to offer evidence on this charge as part of the overall resolution.

[22]             In this context the Judge referred to the following paragraph from the judgment of the Supreme Court in Hessell v R.14 In that case, the Court observed:

[62] Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example, if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.

[23]             N undoubtedly received a benefit through the Crown’s decision to withdraw the charge of rape. However, the Crown’s decision not to proceed with that charge did not result in N receiving the benefit of being able to plead guilty to a less serious charge in its place. Rather, the Crown’s decision not to proceed with the rape charge

14     Hessell v R [2010] NZSC 135, [2011]1 NZLR 607.

merely removed that charge from the sentencing equation. N had always faced the two charges of indecent assault to which he ultimately pleaded guilty. He did not offer to plead guilty to those charges before the Crown agreed to abandon the charge of rape. The principles referred to in the passage above from Hessell were therefore not engaged.

[24]             The short point for present purposes is that, for whatever reason, there was a substantial delay before N ultimately entered his guilty pleas. This meant the victims were faced with the prospect of giving evidence at the trial until very shortly before it was due to commence.

[25]             There is also another factor that needs to be considered in this context. Ordinarily the entry of guilty pleas constitutes a tangible acceptance of responsibility by the offender. It is taken by both the court and any victims as an acknowledgement by the offender that he or she committed the acts that form the basis of the charges. Victims of the offending are also entitled to regard the entry of guilty pleas as a vindication of their version of events. In the present case N significantly undermined the value of his guilty pleas by subsequently telling the writer of the pre-sentence report that he denied the offending and that it had never happened. He declined to explain why he had entered his guilty pleas.15 This means the pleas did not represent an acceptance by N of full responsibility for the offending.

[26]             For these reasons I do not consider the discount of 10 per cent that the Judge applied fell below the available range. This ground of appeal accordingly fails.

Previous good character

[27]             N had provided several references to the Court to demonstrate that N had contributed significantly to the community over the last 30 years. This included meaningful contributions to worthy community and service organisations of which he was a member for many years. At sentencing Mr Mills had submitted that the Judge should apply a discount of 20 per cent to reflect this factor.

15 The Judge referred to this in some detail in the passage of her remarks set out at [36].

[28]             The Judge considered that a lesser discount of 15 per cent was appropriate. She noted that, although the offending was not continuous, it nevertheless spanned approximately four years.16 The first victim had gone to the police in 1980 and N was thereby on notice that there was an issue about him indecently touching his daughter. Two years later, however, he began offending against the second victim and this continued over a period of approximately two years. The Judge observed that sentencing authorities demonstrate that, where offending takes place over a period of time, this may temper the credit to be given for otherwise good character.

[29]The Judge referred in this context to Parkin v R, in which a discount of

17.5 per cent had been given for previous good character in similar circumstances as the present.17 She noted that the Court in Parkin had received letters attesting to the offender’s good character from approximately 70 referees, all of whom confirmed that the offender had told them of his offending. The Judge noted that this was not the case with the persons who had provided references for N. The Judge also noted that the extent of the offending in N’s case was greater than that in Parkin. This led the Judge to select a discount of 15 per cent to reflect previous good character.

[30]             I can find no fault with the Judge’s reasoning. Another Judge may have given a slightly greater discount but that is not the test. The test is whether the level of discount was below the available range or has resulted in a sentence that is manifestly excessive. For the reasons given by the Judge, I am satisfied that the discount was within the available range and did not result in the sentence being manifestly excessive.

Age and ill health

[31]             The Judge accepted that N is in poor health because of a myriad of health issues. These will require ongoing specialist assessment and care. He is also 80 years of age. These factors led the Judge to reduce the sentence by 10 per cent, which she considered to be broadly consistent with the sentencing authorities to which counsel had referred.18

16     R v [N], above n 1, at [46].

17     At [47], referencing Parkin v R [2018] NZCA 404.

18 At [52].

[32]             As Mr Mills acknowledges, the extent to which these factors can reduce a sentence will depend on the circumstances of both the offence and the offender.19 Generally speaking, however, discounts to reflect this factor are likely to fall within the range of 10 to 15 per cent.

[33]             The courts recognise that ill health can be managed in a prison environment. The discount is given to reflect the fact that an elderly or ill offender is likely to find it more difficult to serve a sentence of imprisonment than would be the case for a younger and/or more healthy person. I agree with the Judge that, although there is no detectable pattern in the authorities, a discount of around 10 per cent is commonly given in cases where an offender suffers from ill health or is of advanced years. The discount given by the Judge was therefore within the available range.

Payment of reparation

[34]             N used his life savings to make a payment of $5,000 to his daughters. In an affidavit filed before sentencing N said he genuinely hoped that this would go some way towards making amends to his daughters for the harm his actions had caused. His daughters had indicated they would accept the payment and it has now been made.

[35]             The Judge declined to give a discount to reflect this factor for the following reasons:

[55]      The offer to make amends needs to be seen in the context of all circumstances. As with other sentencing credits, it is a matter of evaluation. The issue though is that the pre-sentence report makes it clear that you are not remorseful and you do not accept responsibility for the offending. While I acknowledge that you have pleaded guilty, the comments of the pre-sentence report are in stark contrast to your assertion that you genuinely hope that the offer of reparation will start to make amends. The pre-sentence report notes that during the course of the interview, you made it clear that you do not accept the summary of facts, commenting that what the summary of facts is saying is debateable, it did not happen. You did go on to say that you accepted guilty charges. When you were questioned as to why you entered guilty pleas to the matters, you simply said, “I do not think I will answer that.” You are supported in that by others, including your wife and another family member.

[56]      There is no discernible remorse. Remorse is a matter of fact and degree. It needs to be robustly evaluated. It need not be exceptional, but it needs to be genuine and an offer to make amends can be a sign of putting things behind you, trying to move on and can be a tangible expression of

19     M(CA91/12) v R [2013] NZCA 325 at [54].

remorse. While it is a positive step that you are prepared to make the offer of amends and it is a positive step that your daughters are willing to accept it, it is something of a hollow gesture in my view. There is not one shred of remorse and a lack of meaningful acceptance of responsibility in the circumstances and therefore I decline to apply a credit for the offer of amends.

[36]             I agree with the Judge’s approach. An offer of reparation is to reflect a genuine desire to make amends for acknowledged wrongdoing. It cannot be used solely as a means by which to reduce the sentence that would otherwise be imposed. The affidavit in which N said he hoped the payment would go some way to making amends was prepared by his lawyer. His actual views are likely to be those expressed to the writer of the pre-sentence report. Had the pre-sentence report reflected remorse and acceptance of responsibility by N, the position would obviously have been different. In that event the offer to pay reparation would have been a tangible demonstration of those factors. Given that they were absent the Judge was not required to give credit for the offer to make the payment of reparation.

Result

[37]             It follows that none of the grounds on which N has advanced his appeal against sentence have succeeded. The appeal against sentence is accordingly dismissed.

Lang J