R v Aitchison
[2017] NZHC 3218
•19 December 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2014-019-1004 [2017] NZHC 3218
THE QUEEN
v
JASON IAN AITCHISON
Hearing: 19 December 2017 Appearances:
D J McWilliam for the Crown
T Sutcliffe for the DefendantJudgment:
19 December 2017
SENTENCING BY PALMER J
(Amended for publication to anonymise complainants)
Solicitors
Almao Douch, Hamilton
T Sutcliffe, Barrister, Hamilton
R v AITCHISON [2017] NZHC 3218 [19 December 2017]
Introduction
[1] Mr Jason Ian Aitchison has been found guilty of one of charge of sexual violation by rape against each of two girls under s 128 of the Crimes Act 1961. Each was the daughter of a different former partner of Mr Aitchison. He was convicted on
8 November 2017. The offence of rape carries a maximum sentence of 20 years’
imprisonment. I sentence Mr Aitchison today.
Approach to sentencing
[2] Sentencing is conducted for the purposes, and according to the principles, set out in ss 7 and 8 of the Sentencing Act 2002. I have particular regard to the purposes of:
(a) holding Mr Aitchison accountable for the harm done to his victims and the community;
(b)promoting in him a sense of responsibility for, and acknowledgement of that harm;
(c) providing for the interests of the victims;
(d)denouncing his conduct and deterring others from committing similar offences; and
(e) protecting the community from him.
[3] I am also required to take into account principles of sentencing such as:
(a) the need to recognise the gravity of the offending, the degree of Mr
Aitchison’s culpability and the seriousness of his offending;
(b)the importance of consistency in dealing with similar offenders committing similar offences in similar circumstances;
(c) the effect of the offending on the victims and the community; and
(d)the legal requirement that I must impose the least restrictive sentence appropriate in the circumstances.
What happened?
2004/2005 offending
[4] From 2004 to 2005 Mr Aitchison was living with his then-partner and her children, including her daughter. He was 31 to 32 years old. The girl was eight and nine years old at that time. The mother would travel for work, sometimes overnight. When she was away, Mr Aitchison looked after the kids. The girl regarded him like a father. Her evidence was he would call her to go into his and her mother’s room, bribing her with watching TV late or having sweets which her mother did not let her have. Mr Aitchison was convicted of a representative charge of taking the girl into a bedroom, placing her on the bed and raping her. The girl was left sore and bleeding from her vagina.
[5] The victim is now 21 and has provided an eloquent account of the effects of the offending on her. She is unemployed, trying to overcome high anxiety and depression and to forget her childhood. She has said she was not able to experience life as a normal teenager because of what happened to her and no compensation will suffice for the damage caused. She has been diagnosed with Post Traumatic Stress Disorder. She says she is withdrawn, has difficulty trusting anyone and finds it hard to develop and maintain both personal and professional relationships, especially with men.
2012 offending
[6] By 2012, Mr Aitchison, aged 38, had another partner who had a daughter who was 13 years old and living with members of her extended family. The girl had a very low level of intellectual functioning, in the lowest two per cent of the population. She was very vulnerable. In June 2012, Mr Aitchison and his then-partner travelled to the area in which the girl lived for a tangi. Mr Aitchison was convicted of a representative charge of raping the girl between 5 and 14 June while staying with her. She was also left sore and bleeding from her vagina.
[7] The victim is now 18 years old and living with members of her extended family. The impact of the offending on her is not easy to gauge. Her grandmother says she finds it extremely difficult to be comfortable around strangers. She misses her father but her grandmother believes her memories of his death are also associated with the offending. Her grandmother says the victim’s personality has changed, she is not as outgoing as she was and the offending has had a traumatic effect on the family as a whole.
Starting point
[8] First I set a starting point for the sentencing. In the guideline judgment of R v AM the Court of Appeal identified different bands of sentences for different bands of offending.1 Relevant here are bands three and four. Band three, from 12 to 18 years, involves two or more aggravating factors to a high degree or three to a moderate degree. Band four, from 16 to 20 years, is likely to involve multiple offending over considerable periods of time, rather than single instances of rape.
Submissions
[9] Mr McWilliam, for the Crown, submits there was a limited or low level of premeditation involved in the offending but both victims were vulnerable due to age and, for the second complainant, intellectual disability. He submits both suffered physically at the time, have suffered emotional and psychological harm since and the offending involved a significant breach of trust with each complainant. He submits the offending against the first victim involved multiple instances of rape over a period of two years which falls within band four, warranting a starting point of 13 years’ imprisonment. He submits the offending against the second victim in June 2012 involved three instances of rape on the same date and falls within band four, warranting a starting point of 13 to 14 years’ imprisonment.
[10] Mr Sutcliffe acknowledges both victims were vulnerable, Mr Aitchison abused their trust and, while there was an element of pre-meditation, the offending was opportunistic. He submits the second offence involved sex on at least two occasions.
He submits there is no evidence there was violence involved in the offending beyond
1 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
that associated with the acts themselves.2 Mr Sutcliffe notes that Wylie J sentenced Mr Aitchison for two representative rape charges against these two victims, and other representative sexual offending against the first victim in 2015.3 Those convictions were subsequently overturned. Wylie J used a starting point of 13 years for rape of the first victim, uplifted for other offending, and a starting point of 14 years for two representative rape charges against the second victim.
Decision on starting points
[11] I accept the offending was opportunistic, rather than involving significant premeditation, and did not involve violence beyond that associated with the acts themselves. I consider both victims were highly vulnerable; the first because of her age and the second, although a bit older, because of her intellectual disability. These are an aggravating feature of the offending. So is the breach of trust involved, particularly with the first victim who gave evidence that she treated Mr Aitchison as a father-figure. The harm done to both victims is serious, as is evident from their statements, and long-term, particularly for the first victim.
[12] Mr McWilliam submits sentencing should be based on multiple rapes over a two-year period in relation to the 2004/2005 offending. But at trial, given the address at which the offending occurred and the date of an incapacitating car accident, Mr McWilliam submitted to the jury there was a three-month window, between November
2004 and mid-February 2005 for the offending that was the subject of the charge of which Mr Aitchison was convicted. I accept that offending involved at least one rape in that period.
[13] Mr McWilliam submitted there were three instances of rape on the same date against the second victim in 2012. I am not persuaded of the number beyond reasonable doubt, based on the difficulty the victim had with numbers and time. I sentence on the basis of at least one rape being involved in the second charge of which
Mr Aitchison was convicted.
2 R v AM, above note 1, at [38].
3 R v Aitchison [2015] NZHC 835.
[14] I consider each offence properly lies at the low end of band three as identified by the Court of Appeal. In my view, the vulnerability, breach of trust, scale of the offending and the harm done here means the offending against each victim was broadly comparable. Compared with other cases after the guideline judgment,4 I consider the appropriate starting point is 12 years’ imprisonment for each offence.
Adjustments
[15] It is usual in sentencing to set a starting point based on the offending in question compared with other cases and then to consider adjustments for aggravating or mitigating factors based on personal circumstances or guilty pleas. Here, as both counsel agree, and the Corrections Report suggests, there are no aggravating or mitigating factors based on personal circumstances. And there was no guilty plea; indeed Mr Aitchison continues to deny the offending.
Totality
[16] However, I need to stand back and review the sentence overall, based on the totality of the offending. Mr Aitchison’s offending against each victim must be considered separately and cumulative sentences imposed at least as an initial part of my analysis. But, as both counsel agree, the end sentence must be reviewed to ensure it is not out of proportion to the overall gravity of the overall offending. I am required to ensure that the overall sentence should not have a crushing effect. Some prospect of rehabilitation and release needs to be held out. Both counsel agree that simply adding the two sentences together, which would be 24 years’ imprisonment, would be out of proportion.
[17] Based on other cases,5 Mr McWilliam submits a starting point of 16 to 17 years is appropriate for the totality of offending. The Crown does not agree the overall sentence should be less than that imposed by Wylie J. Mr McWilliam submits we have more information about the vulnerability of the second victim, and the difference in
the number of convictions does not matter. Mr Sutcliffe notes that, in 2015, Wylie J
4 Abraham v R [2012] NZCA 521; R v D [2012] NZHC 629; P (CA672/2013) v R [2015] NZCA 96;
R v Kupa [2014] NZHC 1415; R v S HC Auckland CRI-2010-004-4325, 22 July 2011.
5 R v P (CA176/04), 7 October 2004; R v T (CA445/03), 13 May 2004; R v AM, above note 1; R v N
(CA88/05), 23 November 2005; R v Gordon [2009] NZCA 145.
adopted a totality start point and end sentence, for more charges than these, of 16 years’ imprisonment. He submits something less than that is warranted for the two offences for which he has ultimately been convicted and an end starting point around 13 years would adequately mark Mr Aitchison’s culpability. He points to the difference between the six offences for which Wylie J sentenced Mr Aitchison, with a pattern of increasing seriousness over the period of 2000 to 2009, compared with the two offences for which I am sentencing him in relation to a three-month period and one night, albeit for representative charges. He also questions whether we really know more about the vulnerability of the second victim.
[18] I have considered the other cases cited. I have had regard to Wylie J’s previous sentence, though I am not bound by it. I agree the sentence for these offences should be less than was that of Wylie J. But I do consider the difference between his starting points and overall totality end sentence was on the generous side.
[19] Mr Aitchison I consider the seriousness of your overall offending here against both very vulnerable victims, whose trust you grossly abused and whose lives have suffered significantly, warrants an appreciable uplift on the sentence I would impose for the offending against one of them. On the basis of the totality of the offending, I consider a sentence of 14 and a half years’ imprisonment is not out of proportion to the overall gravity of your overall offending against both victims. I impose this overall sentence by imposing a sentence of 12 years for each offence, uplifted by two and a half years to reflect the other offence, both to be served concurrently.
Minimum period of imprisonment
[20] Finally, under s 86 of the Sentencing Act 2002, I can impose a minimum period of imprisonment. I can only do so if I am satisfied the period otherwise applying is insufficient for the purposes of holding the offender accountable, denouncing his conduct, deterring others or protecting the community. The minimum period must not exceed the lesser of two thirds of a sentence or ten years.
[21] The Crown submits I should impose a minimum period of imprisonment of eight years’ imprisonment, about 50 per cent of the sentence it proposed. Mr Sutcliffe submits I should hesitate before imposing a minimum period because there will be a
lengthy finite sentence, this is not the most serious offending of this type and the Parole
Board is in the best position to decide on the time of release.
[22] Mr Aitchison, your offending is serious. Your denial of it is an impediment to rehabilitation and preventing reoffending. Corrections assesses your likelihood of reoffending as low but your risk of harm to others as high. Given all that, the need to denounce and deter anything similar happening in the future, and the need to protect the community, I impose a 50 per cent minimum period of imprisonment for the totality of the offending.
Sentences
[23] Mr Jason Ian Aitchison, please stand. For each offence of sexual violation by rape I sentence you to imprisonment for 12 years with an uplift of two and a half years to reflect the other offence, so for 14 and a half years in total, and with a minimum period of imprisonment of seven years and three months. The two sentences are to be served concurrently with (at the same time as) each other.
..................................................................
Palmer J