Naylor v The Queen

[2004] NZCA 22

IN THE COURT OF APPEAL OF NEW ZEALAND

CA336/03

THE QUEEN

v

PETER ALAN NAYLOR

Hearing:17 March 2004

Coram:Anderson P
Laurenson J
Paterson J

Appearances:  C L Harder & M J Coxon for the Appellant

D G Johnstone for the Crown

Judgment:19 March 2004 

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

INTRODUCTION

[1]        The appellant, Mr Naylor, has appealed against a sentence of 400 hours community service imposed in the District Court at North Shore on 7 August 2003 following a plea of guilty to one charge of indecent assault laid pursuant to s135 of the Crimes Act 1961. The maximum penalty for this crime is 7 years imprisonment.

Background

[2]        The summary of facts referred to the following matters:

a)The female complainant was walking to her home on Waiheke Island at 12.05am, after completing work.

b)She noticed the appellant about a metre behind her walking his dog. This continued for some distance.

c)At a certain point, the appellant came up behind the complainant, grabbed her with both arms in a bear hug with his groin against her bottom. The appellant let go with one arm and tried to undo the fly to his trousers.

d)The complainant pleaded with him to let her go. She then turned and broke his grip but fell to the ground.

e)The appellant then tried to grab her again but she was able to evade him, pushed him in the face three times and then ran away.

[3]        A victim impact statement revealed that the complainant was very angry at what had been done to her and had clearly been traumatised by the appellant’s actions.

[4]        The sentencing Judge noted that it was fortunate that nothing more serious had happened.

[5]        The Pre-Sentence Report revealed:

a)The appellant is 38 years of age and is employed as a plumber.

b)He has had an unfortunate upbringing and long history of excessive use of alcohol.

c)He denied any knowledge of the assault claiming that he did not remember the day, it was not in his character to offend in this manner and he had been drinking heavily that day.

d)He has a previous criminal history including convictions for common assault in 1996 and 1983.

e)Given his denial, it was not possible to assess the issues of his motivation and readiness to change the factors assessed as being relevant to the offending. It was noted, however, that he has deep-seated problems which will need to be addressed to enable him to remain free of further offending.

f)A custodial sentence was recommended.

[6]        A drug and alcohol assessment was provided to the sentencing Judge. It concluded:

At present there is no indication of alcohol abuse therefore I make no recommendation for any further alcohol/drug interventions at this stage. I have however said to Mr Naylor that because of both his previous drinking as well as a family history of alcoholism, he does fall into an “at risk” category for future problematic drinking and should seek assistance if he notes any increase in alcohol use from its current manageable levels.

[7]        The sentencing Judge noted:

a)Both counsel at sentence had effectively aimed their submissions in support of a non-custodial sentence.

b)Whilst the offending had sinister aspects it is at the lower end of the scale. For example, there was no localised touching of the complainant’s pubic area.

c)The appellant was heavily under the influence of alcohol and could not remember the incident.

d)Voluntary attempts at rehabilitation should be enforced.

e)Any action as a precursor to sexual offending must be treated seriously by the Court, however mitigating factors must be considered as is the requirement under the Sentencing Act 2002 to impose the least restrictive outcome that is appropriate to the circumstances.

f)Aggravating features identified were the lack of remorse and vulnerability of the complainant. In mitigation was the fact that the complainant was saved from having to give evidence as a result of the guilty pleas.

g)Taking all factors into account, the appropriate sentence was 400 hours community work to be followed by 6 months supervision during which time the appellant was to undergo such counselling for alcohol or drug abuse as is decided by the Parole Officer. An order for reparation was also made for the payment of $500 to the complainant.

[8]        Significantly, the Judge made the following reference to the Probation Report.

Applying that principle in particular, it is clear that imprisonment would not be appropriate in this case. As I say, I have the benefit of a Probation Report. It discloses some concerning features surrounding your plea, and the circumstances under which I was asked to give a sentence indication. Despite your plea then, I see that you now, according to the Probation Officer, deny the offending, but he is sceptical as to your assertions, and clearly you cannot in any event remember, because of your intoxication. I intend to deal with the matter on the basis of your plea of guilty, as I must.

I regard your assertions given to the Probation Officer as to the part played by the complainant and your former partner as untrue, and not to your credit. Nevertheless, in an overall assessment of the culpability and criminality of this offending, a non-custodial sentence is still appropriate.

Grounds for appeal

[9]        There were three grounds of appeal. The first was that as the sentence imposed was manifestly excessive based on the appellant’s moderate number of previous offences and the indicative range of sentences imposed in cases of a similar nature but accepting there was no tariff previously defined. Reference was made to three decisions as follows:

In The Queen v Aitken CA251/03 (24 November 2003, Anderson J), the Court of Appeal rejected an appeal against sentence of 160 hours community work for indecent assault. The appellant in that case had forced the seven year-old victim’s head under the blankets of the bed that they were in and broke wind in her face. The Court noted that this act was given an indecent connotation by the fact that the appellant was 38 years old and the child’s head forced into the vicinity of his naked genitalia. Aitken also had previous convictions for injuring with intent to injure, common assault, obscene exposure, “and other matters”.

Similarly, in The Queen v DMR  S 3/03 (HC Auckland, 18 August 2003, France J), the prisoner received a sentence of two years supervision following his guilty plea to one charge of indecent assault on a girl under 12. In that case, as in the present case, the Crown did not seek a sentence of imprisonment; and, while the prisoner’s age (17) was a mitigating factor at sentencing, the fact that he was in a position of trust in relation to the victim (being his 8 year old half sister) was an aggravating factor.

Finally, in the case of R v Taraare CA325/03 (7 August 2003) – perhaps the most relevant case in terms of sentence imposed – the appellant unsuccessfully appealed against his conviction on one count of indecent assault and subsequent sentence of 250 hours community work. In that case, the complainant was an adult patient with the mental capacity of a 2 year old in a 24 hour residential care facility. The appellant, a caregiver at the facility, had allegedly inappropriately touched the complainant’s groin area through her clothing on a number of occasions but was ultimately convicted on only one count and acquitted on two others. On appeal, Keith J, delivering the judgment of the Court said that “…250 hours cannot be said to be manifestly excessive … to deter other holding positions of responsibility over vulnerable members of society from emulating [the appellant’s conduct]”.

[10]     Allied to the first submission was another, namely that the appellant’s use of alcohol was a factor which should be taken into account, not to excuse the offending, but to explain it. His efforts to rid himself of the problem were indicative that there would be a reduction in the likelihood of further offending.

[11]     Having read the Crown’s submissions in reply, we have decided that the three cases relied on by the appellant are of little assistance. Factors which distinguish the present case are:

a)An unprovoked sexual attack.

b)This going beyond a fleeting contact. The complainant in this case had to break away from an initial and then renewed attack.

c)The attempt to undo his fly by the appellant was indicative of far more serious intentions.

d)The previous convictions although dated could not be discounted entirely.

[12]     So far as the appellant’s efforts to cease his use of alcohol, this was clearly a factor taken into account by the Judge.

[13]     The second ground of appeal was that the report of the Probation Officer was unreasonably harsh and lacked balance. We have set out the Judge’s reaction to that report in para [8] above. For our part, we do not consider that the report can fairly be criticised in the manner alleged by the appellant. More importantly, we find that the Judge made a quite independent and balanced assessment of the report.

[14]     The third ground of appeal was that given the circumstances of this offence and those of other offences of a similar nature and magnitude, the imposition of a sentence of 200 hours community work, reduced from 400 hours would be more appropriate. In other words, the sentence imposed was manifestly excessive.

[15]     Again we are clear that this ground should also be rejected, and indeed, quite emphatically. We say this for the following reasons.

a)This was not a minor sexual assault even though the actual violence and injury to the complainant did not produce a serious physical hurt.

b)This was an unprovoked attack on a lone woman late at night.

c)She literally had to fight her way clear twice.

d)There was clear evidence of a sexual intention on the part of the appellant.

e)The complainant was understandably traumatised as a result.

[16]     The Crown submitted that an appropriate sentence would well have been imprisonment as suggested by the Probation Officer. We agree.

[17]     Having determined the matter as set out above, we have no doubt that the appellant has failed to show that the sentence imposed was either manifestly excessive or wrong in principle.

Result

[18]     The appeal is dismissed.

Solicitors:

Crown Solicitor,  Auckland