P v The Queen

[2017] NZHC 3135

AN ORDER EXISTS PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

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

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV 2017-416-24 [2017] NZHC 3135

BETWEEN

P

Appellant

AND

THE QUEEN Respondent

Hearing:	12 December 2017
Counsel:	T Epati for Appellant J A Eng for Respondent
Judgment:	14 December 2017

JUDGMENT OF ELLIS J

[1]      Mr P pleaded guilty on one charge of indecent assault on a girl aged 12-16, and was found guilty by Judge Cathcart in the District Court at Gisborne on a further three charges involving the same complainant.1  The offending occurred between April 1992

and April 1994.  He was sentenced to two years and one month’s imprisonment.2   He

1      R v P [2017] NZDC 18540.

2      R v P [2017] NZDC 23555.

appeals against sentence on the basis that the discount given for mitigating factors was insufficient, and that home detention should have been imposed.

Facts

[2]      The complainant was Mr P’s step-daughter (D).  Both D and Mr P have name suppression to protect D’s privacy.

[3]      The facts underlying representative charge to which Mr P pleaded guilty were that, between 1 April 1992 and 1 April 1994 (between D’s 13th and 15th birthdays) he indecently touched her breasts. He admitted this offending in his interview and at trial, but said it occurred a few times over a single week.  D said it happened much more frequently and the Judge found that it occurred over the course of a year on an intermittent basis.

[4]      The Judge also found Mr P guilty on a representative charge of touching D’s pubic hair under her knickers or pyjama pants.  Mr P had also partially admitted this offending, accepting that he had touched her “between her legs”. Again, he maintained that this only happened over the same period of around a week.  The Judge rejected this, again finding that it happened over the course of a year.

[5]      The Judge then found Mr P guilty on two specific charges. Both occurred when D’s mother and brothers had left the house in the morning and Mr P had called her into his room to say goodbye before going to school. Most of the time, she said, she would be on top of the blankets and could feel Mr P’s penis “gyrating” against her.  On one occasion, however, he got her hand, put it behind her back, gripped her fingers around his penis and made her masturbate him.3

[6]      The other specific charge involved Mr P putting his hand in D’s knickers and rubbing her clitoris and towards the entrance of her vagina to the point of orgasm. The

victim described this as “the worst” incident.

3      There was a second charge of this nature but the victim was unclear whether it happened a second time, so the Judge found Mr P not guilty of it.

District Court sentencing

[7]      Judge Cathcart took the second specific charge as the lead offence, noting the great emotional trauma and acute embarrassment this had caused to D.  But he noted that there were aggravating features applying to all the offending: breach of trust as her stepfather, repetition over the course of a year, the inherent vulnerability of her young age, an element of premeditation, and skin to skin contact.   He adopted an overall starting point of two years and six months, noting that starting points for historic offending are lower to reflect the sentencing regime that existed at that time.

[8]      The Judge noted that the guilty plea on the first charge was a limited one, and did not reflect the true extent of the offending and attempted to minimise it.  Because Mr P continued to deny the much of the offending, including the most serious incidents, the Judge said there was a “real difficulty” with remorse and with his offer to participate in a restorative justice process.  He said that both remorse and this offer were “of such little weight they are negligible” in Mr P’s case.

[9]      Then the Judge turned to the question of subsequent good character. He noted that the offending happened 22-25 years ago, and that Mr P had not offended since. While the character references provided established a “very good record” and that he was highly respected, the Judge had concerns that some of them did not reflect a balanced view of the offending and were misleading.   One referee, in particular, suggested that D had exaggerated or lied about the offending.4

[10]     Next, the Judge said:

[29]      To the extent I have recognised proper mitigating factors, I reduce the starting point by a period of five months. That arrives at a figure of two years one month's imprisonment. That is above the home detention category. Even if I was minded to have lowered that position to the extent I must consider home detention, I would not have endorsed it.

4      The Judge also declined to discount for health reasons.

[30]      Your offending warrants nothing short of a term of imprisonment. In terms of s 16 Sentencing Act 2002, I am satisfied that no sentence or combination of sentences apart from a term of imprisonment would meet all of the composite principles. Your offending occurred in the context of an abuse of trust against a young girl. There was skin-on- skin contact and you continue to deny the offending.

[11]     He noted that, by virtue of the convictions, Mr P was a registrable offender under the Child Protection (Sex Offender Government Agency Registration) Act 2016.

The appeal

[12]     Ms Epati made it clear that Mr P’s principal ground of appeal is that the discount for Mr P’s subsequent 22-25 years without offending should have been greater.  With somewhat less vigour, she also argued that further, separate discounts for remorse and Mr P’s offer to participate in a restorative justice process were warranted.

[13]     To the extent that either of these grounds gained any traction, Ms Epati submitted that home detention would necessarily become an option and sought (in that event) to have that sentence substituted, particularly in light of the potential impact of a prison sentence on Mr P.

[14]     As far as the subsequent good character discount is concerned, Ms Epati said that the Judge had afforded Mr P (at best) a discount of between 12 and 15 per cent when the authorities suggested that a discount in the vicinity of 25 per cent was appropriate.5  The authorities particularly relied upon by Ms Epati for that submission

were the Court of Appeal’s decisions in R v Carruthers and R v Webb.6

5      Judge Cathcart gave a discount of just under 17 per cent for the guilty plea and the offence free period combined. On the basis of the views expressed by the Judge about the very limited nature of the guilty plea counsel were essentially agreed that the bulk of the discount must be attributed to Mr P’s subsequent good behaviour.

6      R v Carruthers CA401/94, 10 April 1995; R v Webb CA13/04, 17 June 2004.

[15]     In Carruthers there had been 13 years since Mr Carruthers’ indecent assaults against the two victims, who were aged eight and 10 at the time.  In the intervening period Mr Carruthers had brought his life under control, entered a new relationship, and was held in high regard in the community. The Court said:7

In looking at the case in the round, due regard must be had to the lapse of time. It is of course a common feature in the cases of sexual abuse of children which are coming before the Courts in such numbers. Of itself, it is not necessarily a factor of any significance at all. Where for example disclosure has been suppressed by the offender, or by pressures from the very environment, such as the closeness of a family, which enabled the commission of the offence in the first place, plainly the offender can claim no credit … . But where in the years that have intervened the offender has demonstrated that he has overcome his earlier proclivities, and has settled into a normal and law-abiding life, that fact must be recognised. For events have shown that one of the objectives of sentencing, deterrence of the specific offender, is unnecessary. The man to be sentenced today is not the same man who committed the offences. Moreover, the interests of a new family unit, of other children, may need to be considered.

[16]     In  allowing  his  appeal  against  sentence,  the  Court  of  Appeal  afforded

Mr Carruthers a 25 per cent discount for this “good character”.

[17]     Similarly, in Webb the Court referred to Carruthers and concluded that the High Court had been wrong not to discount for good character. A 25 per cent reduction for Mr Webb’s 12 years of law-abiding life since his sexual offending against children was given.

[18]     Ms Epati also referred me to a more recent decision of this Court in R v R, where a discount of 33 per cent was given where 37 years had elapsed since the relevant offending.8

[19]     But Mr Eng pointed to other authorities which (he said) supported the lesser discount afforded by Judge Cathcart.

7      At 4.  Case references and citations omitted.

8      R v R [2015] NZHC 2999.

[20]     In R v Tutty, the Court of Appeal said that at it is not the effluxion of time per se, but the offender’s actions during that time, that may warrant credit.9   In that case, a positive record over 17 years since the offending was offset by Mr Tutty’s continued denial of the offending, lack of remorse and understanding of the harm, and attempts to “cover up” the offending over the years.  No discount was given.

[21]     In R v Seiuli the Court observed that any such discount is discretionary, and is to be balanced against the fact that the appellant was benefitting from the lower sentencing levels that applied at the time of the offending.10  The Court also noted that had the offending come to light at the time, the appellant could not have relied on subsequent good character.   It held that although good character was not wholly irrelevant, no significant weight should be given to it in Mr Seiuli’s case.

[22]     And similarly, in C (CA 186/10) v R, the Court again upheld a decision not to discount, in circumstances where the offending had taken place regularly over four years, and the appellant had given no indication of remorse or understanding of the harm he had caused.11  The Court noted that previous good character can be a “hollow concept” when the offending is frequent and occurs over a long period.

[23]     Mr Eng also referred to very recent cases in which discounts of an order similar to that afforded by Judge Cathcart had been allowed.12

Discussion

[24]     Notwithstanding Ms Epati’s engaging and cogent submissions I am unable to accept that the Judge erred in his approach.    Each case turns on its own facts.  As

Mr Eng submitted, any expression of remorse by Mr P is largely negatived by his continued denial of most of the offending (including the most serious incidents). Even after trial, he maintained that he had no recollection of the offending to which he had

pleaded not guilty, and that he had not been sexually attracted to D.  He is thus in a

9      R v Tutty [1998] 3 NZLR 165 (CA).

10     R v Seiuli [2009] NZCA 315.

11     C (CA 186/10) v R [2010] NZCA 537.

12     Mayo v R [2016] NZCA 34 (18 per cent after 32 years); R v Walker [2016] NZHC 1667 (similar discount after 45 years, and taking into account other mitigating factors).

different position from an offender who pleads guilty as soon as being confronted with historical allegations.

[25]     In terms of steps to seek treatment in the intervening period, Mr P self-reported to the PAC report writer that he had received counselling from his pastor for a time around 2007.  He did not, however, say what the counselling related to; the comment was made in the context of his wife’s illness and death at around that time. And indeed, it would be surprising if it related to the offending, given Mr P’s denial of it.    By contrast, in Carruthers the appellant had pleaded guilty to all charges; impressed his counsellor with his remorse and progress; and completed the Kia Marama programme.13

[26]     For essentially the same reasons, the Judge’s approach to remorse and the restorative justice offer cannot be impugned.   References to other cases where discounts have been afforded do not really assist; the focus must be on the circumstances of the case in hand. And here, Mr P’s continued denial of the majority of the offending necessarily undermined both his expression of remorse and his offer to participate in restorative justice.  It was open to the Judge to decline to discount further on that basis.

[27]     Given that I have concluded that there is no basis for disturbing Mr P’s end sentence he is not therefore eligible for home detention. There is no need to consider that ground of appeal further.

Result

[28]     The appeal against sentence is dismissed.

Rebecca Ellis J

13     In Webb the appellant had “taken psychological advice” in 1991, although it seems there was little else to warrant the 25 per cent discount other than general good character.