R v A CA311/01

[2002] NZCA 395

PUBLICATION   OF    NAME    OR    IDENTIFYING   PARTICULARS   OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND  CA311/01

THE QUEEN

V

A (CA311/01) Hearing:    19 March 2002

Coram:  Blanchard J Salmon J Chambers J

Appearances:  S D Cullen for Appellant

J C Pike for Crown

Judgment:  26 March 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]      The  appellant  was  convicted  after  pleading  guilty  in  the  High  Court  at Auckland to three representative charges of sexual violation.  He was sentenced to ten years imprisonment on all three charges to be served concurrently.  He appeals against his sentence.

[2]      The appellant was the de facto partner of the victim’s mother, Ms J, from about mid 1989 until April 2000.   The offending commenced in December 1996 when the victim was aged eight and continued until January 1999 when he was aged ten.  During this period the appellant encouraged Ms J to have full sexual intercourse with her son, the victim, on many occasions as well as encouraging them to perform oral sex on each other, again on many occasions.

[3]      The summary of facts to which the appellant pleaded guilty indicates the offending began after the appellant told Ms J he had caught the victim with his hand down his sister’s pants.  Ms J spoke to the victim who denied touching his sister. Ms J and the appellant spoke to the boy about sex.   The appellant provided the victim with a number of pornographic magazines and Ms J told him how to masturbate.

[4]      A few days later the appellant told Ms J that the victim had said he wanted to have sex with his sister and it was as a result of being told this that Ms J had sexual intercourse with the boy.   After the appellant became aware of this he initially chastised her.  But, significantly, he then told her a few days later that the boy had gone to him and said “I want to have sex with Mum.”    Ms J knew of her son’s alleged statements only from the appellant.   The boy never requested sex directly from her.

[5]      The offending continued along these lines with sexual intercourse between Ms J and her son about twice a week, with a short break in 1997, until the boy ran away from home in January 1999. The appellant was present and encouraged the activity on these occasions.  Often the appellant would rehearse his sexual fantasies about Ms J and her son prior to her having sexual intercourse with the boy. The appellant made audiotapes of some sexual acts between Ms J and the boy.

[6]      The appellant’s offending initially came to light as a result of a statement made to police by the victim about his mother.   The appellant was sentenced separately  on  various  cruelty  charges  arising  out  of  this  statement.    Eventually further statements were taken from the boy and the charges the subject of this appeal were laid.

The sentencing remarks

[7]      The Judge in his sentencing remarks noted that he had indicated to counsel that  the  manner  in  which  the  current  charges  came  to  light  indicates  that  the appellant did not make a clean breast of things initially.

[8]      The Judge expressed the Court’s clear position that conduct such as that in which the appellant participated and which he encouraged cannot be tolerated:

… It strikes at the very root of this country’s wellbeing. The unit of a family is what we base our culture on in this country and the activities in which you were involved destroy that culture and that unit.

[9]      The Judge set out the following aggravating factors:

•   The gross breach of trust, in that the appellant was essentially the victim’s de facto father;

•   The duration of the offending, extending over about two years;

•   The effect on the victim, which the Judge considered was totally devastating, presenting him with present and ongoing problems, “probably for the rest of his life”, and

•   The appellant was the instigator of these activities and encouraged them.   The Judge perceived this was the worst feature.  The appellant could have put a stop to the offending.

[10]     As a mitigating factor, the Judge accepted that the appellant pleaded guilty as soon as practically possible when he received “some sound advice.”  The Judge also accepted that the appellant was now remorseful for what he had done.  However, the Judge  could  not  see  what  defence  there  could  have  been  to  the  charges  and concluded  that  the  entitlement  to  any  reduction  was  far  outweighed  by  the aggravating factors, even accepting the appellant’s remorse.

[11]     The Judge referred to the pre-sentence report which set out the appellant’s background as indicating possibly some of the reasons why what had occurred had occurred.  He also referred to the six year sentence imposed on Ms J following her guilty  plea  on  six  representative  charges  of  sexual  violation.     The  Crown

submissions suggested a similar sentence of six years was appropriate, taking a starting point between eight and ten years imprisonment with allowances for the guilty plea and the parity principle.   The Judge stated he could not accept such a sentence would be appropriate.

[12]     The Judge considered that the factual circumstances were very different in Ms J’s case from the appellant’s. Ms J had no prior convictions of any sort. The appellant had seven prior convictions including one conviction for ill treatment of this  child,  one  for  threatening  to  kill,  one  for  injuring with  intent  and  two  for common assault.   Nor in the Judge’s view did Ms J play a leading role in these activities.  The Judge concluded:

… This is a case where what we call the party in my judgment is much more to blame for what has occurred than what we term is the principal;  in other  words,  your  culpability  and  blameworthiness  is much greater because of the part you have played than the blameworthiness and culpability of [Ms J].

[13]      The Judge sentenced the appellant to ten years imprisonment on each count.

Submissions

[14]     In support of the appeal Mr Cullen submitted that there was a disparity between the sentences of ten years imposed on the appellant and six years imposed on Ms J.  He also argued that not enough allowance had been made for his client’s guilty plea.   Counsel responsibly accepted that because Ms J, as well as pleading guilty, had agreed to testify against the appellant if his case proceeded to trial, she had   been   entitled   to   some   credit   not   due   to   him   and   that   accordingly, notwithstanding the stance the Crown apparently took on sentencing, it was to be expected that his sentence would be longer than hers, but not to the extent of a four year difference favouring the person who had actually committed the sexual violations.   Counsel suggested also that the Judge had been wrong to regard the appellant as the instigator and thus the more serious offender.   He had in fact disclosed  his  partner’s  sexual  activities  with  her  child  to  the  police,  although Mr Cullen  accepted  that  in  doing  so  the  appellant  had  minimised  his  own

involvement.  Counsel drew attention also to the appellant’s physical disability and his epilepsy.

[15]    For the Crown, Mr Pike, rightly in our view, conceded at once that in comparison with the sentence of the co-offender 10 years was too high and he agreed that the appellant had not instigated each and every incident of Ms J’s sexual offending.  He had, however, encouraged it, for example, by introducing the use of pornographic magazines.

Decision

[16]     The conduct of the two co-offenders was degrading and disgraceful in the extreme.  That it involved a child, indeed the child of one of them, makes it all the worse.  We consider that Ms J, even allowing for her guilty plea, her assistance to the  police  and  her  own  unfortunate  abused  background,  can  count  herself  as extremely fortunate to have received only a six year sentence.  A substantially longer term of imprisonment would not have been disturbed on appeal.

[17]     Were  it  not  for  the  disparity  with  Ms  J’s  sentence  we  would  not  have interfered with that imposed upon the appellant.  He was plainly the dominant figure in the household and while on some occasions he was not present when the abuse occurred, the contents of the psychological report on the child, which Mr Cullen did not dispute, revealed the extent of his instigation and encouragement.   He plainly obtained a perverted gratification out of what was occurring.  Indeed, he went to the lengths of audiotaping incidents on several occasions.

[18]     However, some adjustment is required because of the substantial disparity in the sentences.  We bear in mind of course that the fact that one offender has received an unduly lenient sentence is not necessarily a ground for interference with the longer sentence passed on another (R v Rameka [1973] 2 NZLR 592). What is required is a balance between removing the appearance of uneven handedness in the administration of justice and the undesirability of imposing a second sentence which is also unduly lenient. The adjustment should be to the minimum extent necessary to achieve this balance.

[19]     We have concluded that the appropriate course in this case is to allow the appeal, quash the 10 year sentences and impose instead, in respect of each of the three convictions, sentences of eight and a half years imprisonment which are to be served concurrently.

Solicitors:

Crown Law Office, Wellington