R v C (CA104/03)

[2003] NZCA 451

PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA104/03

THE QUEEN

v

C (CA104/03)

Hearing:         19 June 2003

Coram:Glazebrook  J Heath  J Doogue J

Appearances: D G Slater for Appellant

J M Jelaś for Crown

Judgment:      25 June 2003

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1]      This is an appeal against the sentence of 3½ years’ imprisonment imposed

following trial in the Invercargill District Court in respect of an offence of sexual

R V C CA CA104/03 [25 June 2003]

violation by unlawful sexual connection, namely digital penetration.  The appellant was also sentenced to one year’s imprisonment for an associated indecent assault. The sentences are concurrent.

[2]      The  appeal  is  brought  upon  the  basis  that  the  sentence  imposed  was manifestly excessive.  In particular it is submitted that the offence consisted of one incident brief in time and not repeated by a man with no previous offending at all of a remotely like nature.

Background

[3]      The appellant was the de facto partner of an aunt of the complainant.  The complainant looked upon him as an uncle and he looked upon her as a favoured niece.

[4]      On the night of the offence the complainant was asleep in the home of her aunt and the appellant, as she regularly visited them and stayed overnight.   The appellant, who was much the worse for alcohol, entered her room and lay on the bed beside her.  He rubbed her stomach and put his hand under her top and touched her breasts.  He then put his hand down her shorts and digitally penetrated her vagina. The complainant cried and pushed his hand away and ran from the room.   She telephoned for help.  She was so distressed she ran into the street where she received assistance, notwithstanding the early hour of the morning.

[5]      At the trial the appellant gave evidence that he had no recollection whatever of assaulting the complainant.

[6]      The sentencing Judge noted that the appellant acknowledged that at an earlier stage of the evening he had been to the bedroom for the purpose of checking on the complainant.  The Judge accepted that the appellant was heavily under the influence of alcohol.  The jury verdict negated the possibility the appellant mistook the identity of the person to whom he was making the advances.  The Judge acknowledged that the appellant was deeply sorry for what he had done and that the conduct was out of character  and  that  the  episode  was  brief.    He  accepted  that  the  appellant  was

normally a good man who suffered, however, from binge drinking.  The Judge noted the aggravating features of the offending relating to the 13 year old complainant and the breach of trust involved.   He noted also the profound effects upon the complainant.

[7]      The  Judge  took  the  view  that  the  range  of  sentence  available  varied somewhere between 2 and 5 years’ imprisonment.   Having regard to the need for deterring others  from such conduct and  denounce  such  misconduct  upon  young children he regarded the appropriate sentence as that under appeal.

The appeal

[8]      The  appeal  proceeds  upon  the  narrow  basis  already mentioned.    Having regard to the serious breach of trust arising in the case and the age of the complainant and the effects of the offence upon her, the sentencing Judge was clearly justified in taking as both a starting point and a finishing point a figure in the 2-5 years range recognised in R v M [2000] 2 NZLR 60.

[9]      The appellant seeks credit for the brevity of the assault.   The sentencing Judge has already given such  a credit, notwithstanding that that factor is not a mitigating factor but simply the absence of an aggravating factor.   This Court has made plain that once the offence is complete, the damage is done, as was clear in the present case.   A continuation of the offending is an aggravating feature.   That is absent here as the sentencing Judge recognised.

[10]     The sentencing Judge made plain that he also took into account the other factors urged upon us in mitigation and, in particular, the remorse of the appellant, notwithstanding that he went to trial, and his otherwise good character apart from his alcohol abuse problem and some old offending of a different nature.

[11]     Standing back and looking at the matter overall it is impossible to say that a sentence of 3½ years’ imprisonment was outside the range reasonably available to the sentencing Judge.   He was the trial Judge.   He had had the opportunity of assessing  both  the  complainant  and  the  appellant.    He  took  into  account  the

mitigating circumstances urged on behalf of the appellant.  He did not overstate the aggravating circumstances that undoubtedly existed.   The resultant sentence at the midpoint of the range recognised in R v M cannot be said to be manifestly excessive.

Result

[12]     The appeal is dismissed.

Solicitors:

D G Slater, Invercargill for Appellant

Crown Law Office, Wellington