R v Adh HC Hamilton CRI 2006-019-2742
[2007] NZHC 1928
•28 June 2007
ORDER PROHIBITING PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF THE PARTIES AND THEIR CHILDREN [OR ANY IDENTIFIED PARTS OF THE EVIDENCE].
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2006-019-2742
QUEEN
v
A D H
Hearing: 28 June 2007
(Heard at Hamilton)
Appearances: R Mann for Crown
MJ Robb for Prisoner
Judgment: 28 June 2007
Sentence imposed: Attempted rape (x1)
4 years’ imprisonment, cumulative
Indecently assaulting female aged 12 to 16 years (x1)
2 years’ imprisonment, cumulative
Threatens to kill (x4)
1½ years’ imprisonment, concurrent
Injuring with intent to do grievous bodily harm (x3)
1½ years’ imprisonment, concurrent
Attempt to induce indecent act from girl under 12 years
(x1)
3 years’ imprisonment, concurrentInducing indecent act from girl under 12 years (x14)
3 years’ imprisonment, concurrent
Indecently assaulting female under 12 years (x1)
3 years’ imprisonment, concurrent
Indecently assaulting female aged 12 to 16 years (x3)
3 years’ imprisonment, concurrent
Total term of imprisonment: six years’ imprisonmentNo minimum term imposed
SENTENCING NOTES OF ASHER J
Solicitors:
R V A D H HC HAM CRI 2006-019-2742 28 June 2007
Almao Douch PO Box 19173 Hamilton
MJ Robb, Barrister, PO Box 58 Hamilton
[1] Mr H you appear for sentence today having pleaded guilty to the following counts, which I set out in chart form showing the counts, the relevant section of the Crimes Act 1961 which applies, and the maximum penalty for those crimes at the time that they were committed.
Charge Counts Section Max penalty
Threatening to kill/do grievous bodily harm.
Section
306(1)(a).
7 years’ imprisonment.
Attempted rape. 1 Section 129. 10 years’ imprisonment.
Attempt to induce indecent act from girl under 12.
Inducing indecent act from girl under 12.
Sections
133(1)(c) and
72.
14 Section
133(1)(c).
5 years’ imprisonment.
10 years’ imprisonment.
Indecently assaulting female under 12.
Section
133(1)(a).
10 years’ imprisonment.
Indecently assaulting female aged 12-16.
Section
134(2)(a).
7 years’ imprisonment.
Injuring with intent to do grievous bodily harm.
Section
189(2).
5 years’ imprisonment.
The offending can be put into two broad categories of offending involving acts or threats of violence, and sexual offending against your daughters.
[2] Given that the fact that there will be suppression of all names in this judgment, I propose to refer to those involved as your wife and your daughters rather than by name.
[3] You are now 64 years of age. You married on 15 May 1962 when your wife was aged 18. Over the years you and your wife were together you had seven children, four of them girls. From 1966 onwards you drank heavily and the offending began in 1967.
[4] The actual violent assaults were directed against your wife. These assaults included the following:
•Chasing her outside and pushing her head into an exterior chimney, cutting her above the eye.
• Punching her in the face, breaking her false teeth down the middle.
•Strangling your wife and continuing to do so despite the efforts of some of the children and another woman to pull you off. You only desisted when your wife managed to grab a beer bottle from the bench and smash it over your head causing you sufficient injury to make you stop.
•Grabbing your wife and forcing her head into a storage cupboard, applying pressure causing your wife to choke and only ceasing when one of your daughters hit you from behind with a poker causing you to release your grip.
[5] There were also threats to kill. These included the following:
•Holding your wife and various members of your family by gunpoint in the master bedroom and threatening to kill them, and asking them who wanted to be first.
•During violent arguments with your wife grabbing a butcher’s knife and making as if to stab or cut her, and threatening to kill your wife while holding a knife to her face and threatening to cut her throat. This happened twice.
•Holding a firearm against your third daughter’s cheek while she was in bed and telling her not to say anything about what had happened or you would shoot her and bury her in the garden outside her window. You periodically would go into her bedroom with a firearm and remind her of what would happen to her if she told anyone.
[6] There were three daughters involved in the second set of offending. As to your first and oldest daughter the charges include:
•Getting her to masturbate you from her seventh birthday onwards on frequent occasions.
• Requiring her to masturbate you until you ejaculated.
•Forcing her head on to your penis and getting her to suck it until you ejaculated. There are a number of charges relating to this type of event.
[7] As to your third daughter the charges cover the following sorts of actions:
• Requiring her to rub your penis.
•Requiring her to masturbate your penis until you ejaculated. There are a number of charges relating to this. On one occasion when you were forcing her to rub your penis you held a pillow against her face suffocating her until she lost consciousness.
•Requiring her to suck your penis until you ejaculated in her mouth causing her to dry retch. In relation to these charges you would force her head down on to your penis despite her resistance. She would vomit after you had ejaculated. She would often go off after these events and hide somewhere. A number of charges feature you requiring her to carry out some act of sexual gratification with you before you would allow her to do something that she wanted to do; such as on one occasion go and watch a sporting match.
•Reaching down towards her while she was in bed and inserting your fingers into her vagina.
•A charge of attempted rape where you pushed her on to the bed pushing her head towards your penis. She then ran away and hid. You looked around until you found her after her mother had gone. You then got her to take her pyjamas off, pushed her onto the bed and struggled to place your penis inside her. You were unsuccessful.
•Waking her with your whiskered face on her stomach. Rubbing your penis up and down on her stomach and inserting something into her vagina causing her considerable pain.
[8] As to the fourth daughter, there is one charge where you requested her to come into your bedroom where you were lying naked. You told her to masturbate you. She felt this was wrong and left.
Effect on the victims
[9] I have received victim impact reports from three of the four victims. One of those victims effectively refuses to describe the effect on her. The two that I have from your former wife and your oldest daughter tell a graphic story of fear and suffering. It is clear that your actions towards them have left their lives blighted and sad. They have not led the lives they wished and they blame you. They are full justified to do so. I have no doubt that your other daughters have also suffered in a similar way.
[10] Of course the victims, when events like this occur, extend beyond those who have immediately suffered. It is clear that your actions have divided your family as to what the appropriate reaction should be for your wrongdoing. This in itself has added to the suffering of the victims who find themselves now suffering the added sadness of the division. All of your family, including those who have come here today to support you, whom I acknowledge, have suffered as a consequence of what you have done.
Sentencing principles
[11] I turn to the sentencing principles. Sentencing in cases of historic sexual abuse and violence is difficult because the sentencing tariffs are different today, and attitudes to sexual offending have changed from the 1970s and early 1980s. The correct approach in a case such as this is to sentence adopting starting points that are appropriate having regard to the maximum sentences applicable at the time of the offending, and generally by reference to any discernible sentencing regime applicable at that time: R v Accused (1998) 15 CRNZ 602 (CA). Indeed, s 25(g) of the New Zealand Bill of Rights Act 1990 and s 6 of the Sentencing Act 2002 provide that an offender has a right to have the benefit of an earlier lesser penalty that applied at the time of the offending.
[12] The starting points that have been set out as applying at the time of your offending are considerably lower than they are today. However, it is clear that the Court does not have to endeavour to reconstruct the sentencing mores of an earlier time: R v Accused at 609. Present day attitudes to the particular offending can be adopted in the process of sentencing.
[13] In the 1970s the starting point for rape was five years. The leading case was R v Clark [1987] 1 NZLR 380 (CA). Today the starting point for such a rape would be eight years’ imprisonment. I will approach the task of sentencing by endeavouring to decide what would have been an appropriate starting point for sentence in the relevant timeframe. I will, however, adopt the modern approach set out in R v Taueki [2005] 3 NZLR 372 (CA) of reaching a starting point by examining the facts relating to the offending. I will then go on to consider aggravating and mitigating factors relating to you personally before reaching a final sentence.
Submissions
[14] The Crown, while accepting the difficulty of the task, has submitted that on an overview taking into account the totality principle, a starting point of 10 to 12 years is appropriate. This was achieved by reaching separate starting points for the sexual offending and the violent offending, which the Crown submits are appropriately separated in the circumstances. Mr Robb has not sought to make any firm submission on the appropriate sentence. I will be referring to the positions of counsel in more detail as I go now to the actual circumstances of the offending and the offender.
The offending
The sex offending
[15] I start by referring to four recent cases where Courts have grappled with the appropriate starting point for historic sex offending. In R v W HC TAU T000672
11 May 2001, Chambers J noted that in the 1970s a range of four to seven years was
regarded as acceptable for a single rape of a child or girl, relying on R v Elwin CA290/93 10 August 1994. He noted that it is difficult to determine any starting point for indecent assault whether back in the 1960s or now. In that case he fixed as the appropriate starting point for a case involving a series of serious indecent assaults and a conviction for rape (although the penetration was very slight), a starting point of four years.
[16] In R v M HC WGN CRI 2004-032-3626 22 April 2005, Miller J in relation to acts of indecency in relation to two girls through the 1970s, which had similarities to those in this case, reached a starting point of seven years. In R v Ceato HC HAM CRI 2005-019-8828 28 February 2006 Asher J, in relation to persistent rapes of a daughter from the age of 13 in the 1970s, I fixed a starting point of eight years. Finally, I refer to the Court of Appeal decision of R v Tutty [1998] 3 NZLR 165 where the Court of Appeal, in relation to four representative charges of indecent assault on a girl under 12, upheld a term of imprisonment of six years.
[17] There is a danger in spending too much time discussing the facts of other sentencings. I do note that in R v Tutty the assaults were even more serious than the present, although there was only one child involved. In R v M there was humiliation of the victims. However, the sexual offending here has an element of force and violence (which I do not confuse with the separate charges of violent offending), which was not present in R v M.
[18] There were a number of particular aggravating factors about your actions. They were over a long period. They involved force and threats. They have the element of the grossest possible breach of trust in that you as the father of these children abused them. All three daughters were particularly vulnerable on account of their ages and position. You threatened your third daughter in particular, but I do not take that into account as there are specific charges relating to it. There was, in relation to some of the events, a significant level of premeditation in that you would create opportunities to be alone with your daughters so as to offend against them. On occasions you would wait until your wife was not at home. As I have said, you would manipulate your third daughter by requiring her to engage in sexual conduct
before she was permitted to do something. You have caused, as I have already noted, terrible and irrevocable damage to your children.
[19] I consider that a starting point range of between seven and nine years is appropriate in relation to the sexual offending.
Violent offences
[20] In this area there is even less guidance in the case law as to the appropriate sentence at the time. The maximum penalties were seven years’ imprisonment for threatening to kill or do grievous bodily harm, and five years’ imprisonment for injuring with intent to do grievous bodily harm. The features that aggravate assaults referred to in R v Taueki are a useful measure of gravity in relation to this sort of offending. Here I note in particular that you would assault the victims to the head. You used weapons, including a knife and firearms. Your victims were particularly vulnerable. You inflicted substantial injury to your wife who was clearly in terror of you. You would carry out the violent offending in the presence of your daughters. You used terror and threats as a way of securing silence.
[21] Despite the gravity of these matters I consider that the Crown’s suggested starting point for the violence offending of four to five years is too high. The more appropriate range would be between two-and-a-half to three-and-a-half years.
[22] I consider that the violent offending is of a different kind to the sexual offending and will warrant a cumulative sentence, subject to the principles to which I will now refer.
The starting point
[23] While there is obviously some connection between the violence and the sexual offending, they do warrant separate and cumulative sentences in the sentencing process. I am, however, also mindful of the totality principle and the need when cumulative sentences of imprisonment are imposed to ensure that the total period of imprisonment is not wholly out of proportion to the gravity of the
overall offending. If the starting points for the sexual and violence offendings were combined, the total starting point of up to 12½ years would be justified. I consider, however, that that would be too high. I consider that in all the circumstances the appropriate starting point is 10½ years’ imprisonment.
The offender
[24] I turn to matters relating to you personally. There are three very significant matters that your counsel has properly raised on your behalf, that I take into account in mitigation of your position. I emphasise that there is, of course, absolutely no excuse for what you did, and to your credit today you have not sought to excuse it or play it down in any way.
[25] You have pleaded guilty, and I accept, without delay. I accept that this has been a sincere wish to minimise further suffering of your children. You are genuinely remorseful. The probation officer in the pre-sentence report accepted this and so do I. You have, as the probation officer noted, shown victim empathy and acknowledged the effect that you have had on them. You have indeed, it seems, the support of your sons and one of your daughters.
[26] Your offending, as I have noted, occurred following you becoming an alcoholic. You had, it seemed, started out life in a promising way, finishing an apprenticeship and holding sound jobs. However, your life went on a downward spiral and culminated in you leaving New Zealand for Australia as a homeless alcoholic. In Australia, with the help of the Salvation Army, you have been able to largely overcome your alcohol addiction, and ultimately you became a drug and alcohol counsellor for the Salvation Army. You have supported yourself until a year ago and you have remarried.
[27] Normally the sort of discount that you would be entitled to for the early guilty plea would be in the order of 20-25%. I do propose, however, to give you a greater credit than that because of your genuine remorse. You are also entitled to a credit for the effort you have made to turn your life around over the last 18 years. Needless to say, you have not had any convictions or done anything other than lead a
worthwhile life in that period. I am not, however, prepared to place any significant weight on your health issues. Although you do have a heart problem, it does not seem to me that your health difficulties are so acute that they warrant any separate consideration.
[28] In all the circumstances I consider that a reduction of over 40% of the starting point is appropriate and I propose fixing a final sentence which will result in you serving six years’ imprisonment.
Minimum term
[29] The Crown does not press for a minimum term of imprisonment, and rightly so. It does not seem as if a minimum term of imprisonment could have been imposed at the relevant time in respect of any of this offending.
Suppression
[30] The victims have asked for suppression of names and any details that might lead to their identification. There will be suppression under s 139 of the Criminal Justice Act 1985 of your name and the name of the victims and any other details that are likely to lead to their identification.
Result
[31] I do not need to tell you what terrible things you did to your daughters and your wife and the awful and permanent consequences. I do want to say that if those events had occurred under the current sentencing provisions the term of imprisonment that you would have had to serve would have been much longer.
[32] You are sentenced to six years’ imprisonment in this way. On the attempted rape count, which I will treat as the most serious of the sexual offending counts, which is CR No. 0601901974, you are sentenced to four years’ imprisonment. On the indecent assault involving penetration, which is CR No. 06019021980, you are sentenced to two years imprisonment. That sentence is cumulative.
[33] On all of the other offences relating to the sexual offending you are sentenced to three years’ imprisonment on each, those sentences being concurrent.
[34] On all the other threatening to kill causing grievous bodily harm or injuring with intent charges you are sentenced to one-and-a-half years’ imprisonment, those sentences being concurrent.
[35] The end result then is that you serve a sentence of six years’ imprisonment.
…………………………… Asher J
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