R v CN HC Auckland CRI 2006-092-2334

[2008] NZHC 2432

PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF PRISONER PROHIBITED.

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-2334

THE QUEEN

v

CN

Hearing:         29 July 2008

Counsel:         P K Hamlin and L McDonald for Crown

G Gotlieb for Prisoner

Sentence imposed:     Indecent assault

18 months imprisonment (concurrent)

Standard and special release conditions: see para [40]

Judgment:      29 July 2008

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Counsel:

G Gotlieb, PO Box 47369, Auckland

R V CN HC AK CRI 2006-092-2334  29 July 2008

Introduction

[1]      CN,   you   appear   for   sentence   today   having   pleaded   guilty   to   two representative charges of indecent assault.  The pleas of guilty and convictions were entered on 8 August 2007, almost one year ago.   The maximum penalty for each offence is one of seven years imprisonment.

[2]      You are presently aged 69 years.  You first came before me for sentence on 5

February 2008.  Sentencing has been adjourned on numerous occasions in order to ascertain the relevance of a heart condition from which you suffer to the sentencing process.  I shall refer to the information I have received on that topic later.

[3]      The victim was your grand-daughter.  At the time of the offending, she was aged between 16 and 17 years.

[4]      The offending occurred over a period of 18 months.   It took the form of indecent touching, involving fondling of your grand-daughter’s breast and touching her over her underwear in her vaginal area.  There was no skin to skin contact.

[5]      At the time of the offending you were a de facto caregiver for your grand- daughter while her father was out at work.

[6]      Although your grand-daughter was over 16 years of age at the time of the offending, there are aggravating features arising out of intellectual disabilities from which she suffers.   She is profoundly deaf, has attention deficit disorder and associated learning difficulties.  She also suffers from a serious illness.  She has been assessed intellectually as the equivalent of a non-disabled child of about 8 or 9 years of age.  For all practical purposes, I treat your offending as if it had occurred on a girl under the age of 12 years.  You knew the disabilities from which your grand- daughter suffered.

[7]      I accept the submissions of the Crown that this is offending that ought usually to be marked with a term of imprisonment.   The real issue is whether mitigating

factors relating to your offending, coupled with those personal to you, allow me to impose a sentence of home detention.  A factor that assumes particular importance is your medical condition.

[8]      In order to assess the weight to be given to your medical condition, I heard evidence on 5 February 2008 from Dr Vanniasingham, a specialist vascular surgeon based at Middlemore Hospital.  He gave evidence about “a mounting potential life threatening problem” from which you suffer.

[9]      Subsequently, I have received additional information revealing that you have undergone extensive surgical treatment from that time until today.   I have also received evidence that your medical condition can be managed adequately within the prison system, if you were sentenced to a term of imprisonment.

Submissions

[10]     Mr Hamlin, for the Crown, has submitted to me that a term of imprisonment must be imposed to reflect the gross breach of trust and exploitation of your grand- daughter’s vulnerable position.   He submits that medical issues can properly be addressed within the prison environment.

[11]   The alternative sentence of home detention would not, in Mr Hamlin’s submission, mark the offending adequately, particularly having regard to the obvious traumatic effect your offending has had on the victim.

[12]     Mr Hamlin has also referred to the devastating effect of your offending on overall family dynamics, something which became patently plain in the course of remarks delivered to me today by the complainant’s mother.

[13]     In relation to an issue of home detention, Mr Hamlin points out that your grand-daughter  lives  in  close  proximity  to  your  home,  although  there  is  an alternative address available in Manurewa.  I have received a psychological report on the impact that a sentence of home detention would have on the victim, if granted home detention in the area in which she lives.  It is plain that the victim is deeply

affected by your offending, as one would expect.  She, no doubt, would be seriously harmed further if she thought you were living in close proximity.

[14]     Mr Hamlin submits that I should take a starting point, including aggravating factors relevant to the offence, of between three and three and a half years imprisonment.   Making an allowance for your guilty pleas, your age and medical condition, he submits that your end sentence should not be reduced below two years.

[15]     Mr Gotlieb, while not seeking to minimise the offending in any way, has submitted that it could properly be characterised as moderate in nature, such that it would ordinarily give rise to a short sentence of imprisonment.   He submits that Mr Hamlin’s proposed starting point is too high, based on like cases.

[16]     Because of your age and health concerns, Mr Gotlieb submits that I can properly impose a sentence of home detention.   He submits imprisonment is not required to meet the sentencing goals of deterrence, accountability and denunciation.

[17]     Further, Mr Gotlieb submitted that conditions could be imposed to enable you to continue with the SAFE programme.

[18]     Mr  Gotlieb  reminds  me  that  you  sought  to  initiate  a  restorative  justice meeting but that  your  efforts were rebuffed.   Nevertheless, he  asks  me  to  take account of your offer as tangible evidence of real remorse and an offer to make amends.

[19]     In addition, Mr N, I have received today and Mr Gotlieb has read to the Court, your formal apology to your grand-daughter for your actions.   You have accepted  that  your  behaviour  was  irresponsible  and  wrong  and  that  shame  will always be with you.

[20]     You have no relevant prior convictions.  I treat you as a first offender.

Analysis

[21]     In offending such as this the Court must hold you accountable for the harm done both to the victim and to the community by offending of this nature.  I must provide for the interests of the victim and, if possible, provide reparation for the harm done.

[22]     I am required to denounce the conduct in which you were involved and to deter you and others from committing the same or similar offences in the future.  If possible, I must also endeavour to assist in your rehabilitation and re-integration into the community.

[23]     I am required to take account of aggravating circumstances relating to the offending and the seriousness of it, in comparison with other types of offending.  I must give weight to the general desirability of consistency in sentencing.

[24]     I am required to take account of any information provided concerning the effect of the offending on the victim.  Nevertheless, I am required also to impose the least restrictive outcome appropriate in the circumstances.

[25]     Importantly, in this case, I am required to have regard to any circumstances that might mean that a sentence of imprisonment would be disproportionately severe to you.  That issue arises in relation to your health considerations.

[26]     I find that the aggravating features of your offending involve the extent of the emotional harm suffered by the victim as a result of your actions, your gross abuse of trust or authority and your exploitation of her known vulnerability, both through her age and intellectual disability.

[27]     You  have  heard  today the  moving statement  made by the complainant’s mother.  That should demonstrate to you, if it has not become apparent before, of the devastating family consequences your illegal behaviour has brought about.

[28]     In mitigation I take account of your age, your pleas of guilty, your remorse and offer to make amends.  Prior good character can have little relevance in a case such as this.

[29]     To imprison a person the Court must be satisfied that the offending cannot be marked in some other way and a sentence of imprisonment must be imposed to meet the sentencing goals of denunciation, deterrence and accountability.  If imprisonment were not necessary to meet those goals, the obvious sentence is the second most restrictive, namely home detention.

[30]     In my view, the authorities suggest a starting point of around three years imprisonment for this type of offending.  I take account of the nature and duration of the offending in saying that.

[31]     Based  on  Dr  Vanniasingham’s  evidence  at  the  February  hearing,  I  am satisfied that you suffer from a significant cardiac problem requiring regular and life long surveillance.   Close medical monitoring is required but generally, provided medical monitoring can occur in prison, the existence of such a condition ought not to affect the nature of the sentence imposed, though it could impact upon the length of it.

[32]     Mr Hamlin has helpfully provided to me an outline of the events that have occurred both before and after you came before me for sentence in February.   Of significance is the fact that Dr Vanniasingham has advised that the operation undertaken on 20 May 2008 to repair an endo-vascular leak was successful.  On 16

July 2008, the officer in charge was advised by the Counties Mänukau District Health  Board  that  a  consultant  was  “confident”  no  further  surgical  intervention would be required.  You are now to be checked six monthly, the first appointment being 15 December 2008.

[33]     My first task is to assess the weight to be given to your medical condition.  It seems clear that the time provided for you to receive treatment has been fruitful.  The seriousness of the condition that Dr Vanniasingham described to me in February has diminished significantly.  Nevertheless, you will require regular medical attention.  I

am satisfied that can be achieved in the prison system.   By way of analogy your medical condition is much more easily managed in prison than was the unusual disease which afflicted another person in a case called R v Verschaffelt1.  In that case the Court of Appeal allowed a credit of 50% to represent both a guilty plea and the medical condition leaving him to serve a sentence of imprisonment of three years.  In your case, any credit needs to factor in your advancing age.

[34]     The quality of mercy is something to which all Judges are alive but they must also consider the impact of offending on a vulnerable victim, who, it is clear from the psychological report, has suffered  considerable trauma  from  your offending. Compassion works both ways.  Your situation is bad, I acknowledge that.  However, the  complainant’s  is  worse  and  it  is  your  conduct  that  has  brought  about  her condition.   Your conduct, done with full knowledge of her vulnerability and with intent to perform indecent acts upon her.

[35]   I consider that the appropriate starting point for sentence, including all aggravating features relevant to the offence, is three years imprisonment.  You are entitled to appropriate credit for your guilty pleas entered after committal.   I take account of  your willingness to enter into a restorative justice programme  while making clear that it is understandable that the complainant did not wish to engage with you.

[36]     I also allow some credit for your expressed remorse, particularly the apology that has been read in Court today.   I make allowance for your age and medical condition.

[37]     The Court of Appeal has said before that those who offend sexually against children  should  expect  to  go  to  prison.2      As  I  am  satisfied  that  your  medical condition can be managed adequately within the prison system, you must go to jail unless home detention is appropriate.   I have considered carefully whether home detention is an adequate response to your offending in this case.  I regret to say that I do not consider it would be.   In my view, a term of imprisonment is required to

1 [2002] 3 NZLR 772 (CA)

2 R v Meredith-Blythe CA245/95, 19 July 1995

respond adequately to offending which was intentional, persistent and inflicted emotional harm on your grand-daughter.

[38]     Save for the guilty pleas, I allow a significant credit for other mitigating factors of one-third.  The timing of your pleas justifies a credit of 25% of the net provisional sentence.3    Starting with three years imprisonment, a reduction of one- third leaves a two year sentence, from which 25% is deducted for the guilty pleas.

[39]     The end sentence is one of eighteen months imprisonment.  That sentence is concurrent on each charge, meaning that the total period you will serve is 18 months.

[40]     Standard conditions of parole shall apply for six months from the sentence expiry date.  Special conditions are imposed requiring you to live where directed by a probation officer and to undergo such programmes as he or she may require to minimise the risk of re-offending.   They are to take effect for a period up to six months after the sentence expiry date.

[41]     In  fixing the  sentence  I have  taken  account  of  the  fact  that  there  is  no reasonable way in which emotional harm reparation can be offered.  The only asset is a home and it would cause undue distress to your wife if payments were made from that.

[42]     I make an order suppressing the name and identifying particulars of you.  I do that only because to publish your name would identify the complainant.

[43]     Mr N, you are sentenced to a term of imprisonment of 18 months.

[44]     Stand down please.

P R Heath J

3 See R v Fonotia [21007] 3 NZLR 338 at [50] and [51]