R v C (CA 51/00)

[2003] NZCA 439

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS IS PROHIBITED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA51/00

THE QUEEN

v

C (CA 51/00)

Hearing:         22 September 2003

Coram:           Blanchard J Goddard J William Young J

Appearances: D La Hood for Appellant

A Markham for Crown

Judgment:      23 September 2003

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1]      The appellant pleaded guilty to a number of counts involving the sexual abuse of a young woman (“complainant A”) who was both his niece and his adopted daughter:   indecent assault (1), sexual violation by rape (7), sexual violation by unlawful sexual connection (2), assault with a weapon (2) and injuring with intent to

injure (1).  A number of these charges were representative.  The appellant was also

R V C CA CA51/00 [23 September 2003]

convicted at trial of one count of indecently assaulting another niece (“ complainant

B”)

[2]      For these offences the appellant was sentenced in the High Court at Auckland to an effective sentence of 14 years imprisonment.  This was in December 1999.

[3]      We  are  now  required  to  determine  the  appellant’s  appeal  against  that sentence.

Factual Background

[4]      Complainant A arrived in New Zealand from [Country X] when she was 12.  She was adopted by the appellant and his wife.  Within a few weeks of complainant A arriving in New Zealand the appellant began to abuse her sexually.  The sentencing Judge was prepared to accept that this started after complainant A’s 13th  birthday. On the first occasion when this occurred she tried to escape from the house but the appellant seized her, dragged her back and beat her.   Within about a week of this incident the appellant began to rape her.   There were many incidents of sexual violation by rape and other forced sexual acts.  Initially the appellant’s offending was covert but in time his wife learnt what was happening and became complicit in his behaviour.  His arrangement with his wife was that he would seek her consent before raping complainant A and his wife would beat complainant A if she was uncooperative.   At times, the appellant’s wife assisted the appellant by holding complainant A down while the appellant raped her.

[5]      It is unnecessary to dwell on the detail of the offending.   But aspects of it warrant mention:-

1.       The abuse extended over a period of nine years.

2.The appellant took explicit and degrading photographs and video recordings of the abuse with the videos being accompanied by an explanatory “voice over”.   One of the reasons for this was to facilitate blackmail should complainant A contemplate a relationship with a boyfriend.

3.       When  she  was  15,  complainant  A  became  pregnant  to  the  appellant.

Although the appellant wanted her to have the baby, the appellant’s wife forced a miscarriage.

4.At the end of the period covered by the charges, complainant A managed to escape from the house but was tracked down by the appellant and his wife. They shaved her head and eyebrows and beat her unconscious with a table leg. The appellant also raped her.

5.      Following this last set of incidents the complainant managed to escape again;

this time successfully.

6.As a result of the violence she suffered, complainant A has a permanent facial injury.

[6]      Complainant B is complainant A’s sister.   When she was 17, the appellant got into bed with her and indecently assaulted her.  The jury acquitted the appellant of more serious charges relating to complainant B.

[7]      The appellant pleaded guilty to the charges associated with complainant A on the morning of his trial.  This was after unsuccessful challenges to the admissibility of his statements to the police and the highly incriminating photographic and video evidence.  He had also unsuccessfully sought severance of the charges involving the two complainants and had opposed the Crown’s application for orders as to the screening of complainant A when she gave evidence.

[8]      The appellant’s wife defended the charges against her.   So complainant A

was required to give evidence before a jury.

[9]      At the time of sentencing the appellant was 55.  He is of [A and B] ancestry and has one previous conviction for assault on a female.

The sentencing approach of the High Court Judge

[10]     The sentencing Judge had before him victim impact reports, a psychiatric report and a pre-sentence report.   Given the confined nature of the arguments advanced on the appeal, there is no point in us reviewing this material in detail.  It is sufficient to say that the impact of the offending on complainant A was very significant and that there was at best scant evidence of remorse on the part of the appellant.

[11]     In his sentencing remarks, the Judge considered the imposition of a sentence of preventive detention but decided that the public interest could be met with a finite sentence.  He identified a starting point of 16 years.  He then went on

[53]     Some limited reduction is warranted by reason of your age and the pleas of guilty which did give your daughter some relief in relation to the proof which would otherwise have been required from her.   This was, however, to a large degree offset by the lateness of the plea and by your wife’s defence to charges which were laid against her, but which, one has to remember, only arose because of the extent to which you had involved her in your offending.

[54]      Balancing these factors and taking into account the totality of what is presented I have concluded that an appropriate sentence in your case is 14 years imprisonment.

[12]     For the sake of completeness, we record that the appellant’s wife was found guilty by the jury of most of the counts which she faced and she was sentenced to eight  years imprisonment

Argument for the appellant

[13]   The appellant’s counsel accepted that the starting point was within the appropriate range but challenged the two year discount as representing insufficient allowance for the guilty pleas.  His position was that the Judge had “penalised the appellant for his wife’s decision to defend the charges”.  He relied particularly on R v Kolio (unreported CA 219/01, judgment delivered 1 November 2001).  That case was broadly comparable to (although by no means as serious as) the present and the pleas of guilty were very early.   In that case, this Court upheld the sentencing Judge’s starting point of 17 years but held that the two year discount for pleas

allowed by the sentencing Judge (in imposing an effective sentence of 15 years imprisonment) was inadequate.  This Court instead allowed a four year discount for the pleas of guilty and therefore reduced the effective sentence to 13 years imprisonment.

Argument for the Crown

[14]     The Crown response was that the starting point adopted by the Judge in this case was too low and that, in any event, the appellant was only entitled to a “token” discount given the eleventh hour nature of the pleas, their inevitability given the photographic and video evidence,  the prior procedural arguments, the evident lack of remorse and the reality that complainant A was not spared the necessity of giving evidence given the course events took.  This last point does not involve punishing the appellant for his wife’s decision to defend the charges she faced:  rather it is a simple recognition that his pleas of guilty did not have the all the beneficial consequences which normally follow such pleas.  As well, the Judge had no doubt that the appellant’s wife was very much a secondary offender and her offending would never have occurred if it were not for the appellant’s behaviour. So the fact that complainant A had to give evidence against the appellant’s wife was fundamentally a consequence of the appellant’s criminal behaviour.

Discussion

[15]     The key issue for us is the end result rather than the details of the arithmetic by which the sentencing Judge arrived at that sentence.

[16]     The starting point of 16 years adopted by the Judge was very much on the low side.  Kolio was not as bad a case as this (in that the offending took place over less than a year).  Yet, in that case, a starting point of 17 years was upheld.

[17]     We are conscious of the argument advanced on behalf of the appellant that Kolio (which was decided two years after the appellant was sentenced) ought not to be taken necessarily as controlling our assessments of the appropriateness of the starting point adopted by the sentencing Judge in this case.   But we have seen no

clear evidence of any upwards movement between 1999 and 2001 in sentencing levels for offences of this type.

[18]     In any event, the pleas of guilty in Kolio were far more meritorious than the appellant’s pleas of guilty in this case.  They came far earlier.  Further, in Kolio the complainant was not required to give evidence.   On this point we are content to adopt the argument advanced to us on behalf of the Crown.  A plea of guilty which does not spare the complainant of the ordeal of giving evidence is inherently less worthy of recognition than a plea of guilty which does have that consequence.   In those circumstances, we think the two  year discount allowed by the Judge was sufficient to mark the pleas of guilty.

Disposition

[19]     For the reasons given, the appeal is dismissed.

Solicitors:

Sladden Cochrane & Co, Wellington

Crown Law Office, Wellington