R v Craig HC Napier CRI-2006-041-2467

[2007] NZHC 1888

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2006-041-2467

THE QUEEN

v

JONATHON CRAIG

Hearing:         21 June 2007

Appearances: Mr S B Manning for Crown

Mr E Forster for Prisoner

Judgment:      21 June 2007

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Napier
Counsel:

Mr E Forster, Hastings

R V CRAIG HC NAP CRI-2006-041-2467  21 June 2007

[1]      Mr Craig, you appear for sentence having pleaded guilty to three charges of sexual violation by sexual connection, one charge of sexual violation by digital penetration and two charges of doing an indecent act.    The maximum penalty on each of the charges of sexual violation is one of 20 years imprisonment.     The maximum penalty in respect of each of the charges of doing an indecent act is seven years imprisonment.

[2]      The charges on which you appear for sentence are sexual offences committed against two young girls in respect of whom you were in a position of trust.

Factual background

[3]      Between December 2005 and August 2006 you were living with your partner at a residential address in Napier.   Prior to this the two of you had come to know the parents of your two victims.   At the time of your offending your victims were aged

6 and 8 years, and attended a primary school that was immediately adjacent to the house property in which you lived.    Perhaps as a result of your proximity to the school, you and your partner came to look after your victims on a regular basis, both after school and on occasions during the weekends.

[4]      Your offending against the younger girl occurred on a regular basis between December 2005 and August 2006.   The charge of doing an indecent act in relation this girl involved you rubbing her genitalia both under and over her clothing.   You also got her to rub your penis both over and under your clothing and you simulated sexual intercourse with your pants removed and with the girl either lying beneath you or sitting on top of you.   The acts of simulated sexual intercourse occurred on a few occasions during this period.     The other indecent acts occurred far more frequently, estimated by you as being approximately three times a week.   These acts have given rise to Count 9 in the indictment.

[5]      Count 8, a charge of sexual violation by unlawful sexual connection, arises as a result of the fact that you accept that you licked the younger girl’s genitalia on four or five separate occasions.

[6]      You have also pleaded guilty to two charges, Counts 1 and 2, that involved you acting in concert with another person.     This person was a boarder at your address between March and August 2006, and he became aware of your offending against the younger girl.   On about four separate occasions you and the boarder got the younger girl to lie on her back and you took turns sexually violating her by oral sexual connection.   You also did indecent acts on her.    You and your co-offender would take turns in performing oral sex on the girl.    Whilst one of you was doing that, the other would rub her stomach and chest area and would kiss her on the forehead and lips.

[7]      Your offending against the older victim was similar to that in relation to the younger victim but it was not as frequent in terms of occurrence.    You sexually violated her orally on a number of occasions by licking her genitalia and this has given rise to Count 10 in the indictment.    You also sexually violated her on one occasion by penetrating her with your finger.     You placed your finger into her vagina and moved it around until it hurt her.   This has given rise to Count 7 in the indictment.

[8]      In addition, you rubbed the girl’s genitalia on a number of occasions both over and under her clothing.   You also got her to rub your penis both over and under your clothing, and you simulated having sexual intercourse with her.

[9]      You told both victims that they were not to tell anybody about the offending because you would get into trouble and their father would give you a hiding.   You also gave them money and sweets.

[10]     The victims eventually told their mother and aunt what you had been doing to them in early August 2006.     Although you initially denied your offending. you entered pleas of guilty upon arraignment in this Court.

Sentencing Act 2002

[11]     Although I do not propose to go into them in detail, I bear in mind the principles and purposes of sentencing as set out in ss 7, 8 and 9 of the Sentencing

Act 2002.    In your case it is necessary to denounce your conduct and to hold you accountable for the crimes that you have committed against both your victims.   It is also important that I impose a sentence that deters both you and other persons from considering embarking on similar conduct in the future.   It is also necessary to take into account the effect that your offending has had on your victims, a matter to which I shall refer shortly.

[12]     Importantly,  however,  I  also  need  to  impose  a  sentence  that  is  broadly consistent with those imposed in other cases.   I say “broadly consistent” because the circumstances of no two cases are ever exactly the same.

[13]     Finally, I need to impose a sentence that is the least restrictive outcome in the circumstances and that, to the extent possible, provides for your rehabilitation and reintegration into the community.   In the present case, as your counsel realistically acknowledges, there is no question that any sentence other than a custodial one would be appropriate.   The real issue is the length that that sentence should be.

Victim impact statements

[14]     As I have indicated, I am required to take into account the effect that your offending has had on the victims of your offending.   The most obvious victims, Mr Craig, are of course the two  girls themselves.     I have read  the victim  impact statements that they have provided and it is clear that the offending has had a very marked effect on them.    They were scared and distressed by what was happening, they did not understand what was happening and during and since the offending at least one of them has suffered from nightmares.   Not surprisingly, they do not trust other people now and, in particular, men.

[15]     The really worrying thing, Mr Craig, about offending like this is that the effects on your victims may only just be beginning.    What we see now is that the effect of offending like this on a victim are very long lasting.    Sometimes those effects will last an entire lifetime and they affect a victim in all kinds of ways.    In many cases it prevents them from entering into proper relationships with men and

with other people in the future.    They become mistrustful of humanity generally. So offending such as yours as a very real impact on its victims.

[16]     Your victims, though, go wider than just the two girls.    I also have victim impact statements from their parents and it is fair to say that in offending such as this parents are affected, if not as much as the victims, then perhaps more.   Parents see it as their role to protect their children from people like you.     In entrusting their children into your care the parents in this case feel that they have let their children down.    They feel guilty when really, Mr Craig, the only person who should feel guilty is you.

Starting point

[17]     In sentencing you I need to adopt a starting point in respect of the most serious charge because I propose to impose concurrent sentences upon you.    I am satisfied that all of the charges flow from a connected series of events and that it would be inappropriate to sentence other than on a concurrent basis.

[18]     I take the lead, or most serious, charge in the present case to be that of unlawful sexual connection by digital penetration, although, of course, the unlawful sexual connection through the oral acts that you carried out was also very serious.

[19]     As both counsel acknowledge, there is no tariff, or guideline, sentence in relation to offending of this type.    In a case called R v M [2000] 2 NZLR 60 the Court of Appeal suggested that starting points were likely to be within the range of two to five years after trial and before allowing for mitigating factors. In a later case called R v Tranter CA 486/03 14 June 2004, the Court of Appeal considered this range to be “conservative”, and emphasised that the appropriate level of sentence will ultimately depend on the level of offending.   The Court observed that a starting point of more than five years imprisonment may be well be appropriate in serious cases.

[20]     In R v T CA 139/05 26 July 2005 the Court of Appeal observed that the identification  of  appropriate  starting  points  and  end  sentences  in  this  area  is

notoriously difficult.     Few cases are directly comparable on their facts, and the sentencing exercise involves a fine balance of competing considerations.

[21]     Similarly, there is no tariff, or guideline, judgment in relation to the other forms of sexual offending that you committed.   This is because the circumstances of offending such as this varies widely.    The best guide is usually the starting point adopted in cases that are broadly similar.   Your counsel has accepted in his written submissions, however, that prison sentences are generally imposed in cases of sexual offending against children, particularly where a serious breach of trust is involved:  R v M HC WLG CRI-2004-032-3626 22 April 2005 Miller J.

[22]     The  Crown  contends  that  your  offending  should  attract  a  starting  point, before taking into account matters personal to you, of eight to nine years imprisonment.     The Crown has referred me to three cases in support of that submission.   The first of these is a case called R v NRF CRI-2004-04-23845 High Court Auckland 8 February 2005 Cooper J.     The Crown acknowledges that the offending in that case was more serious than that in your case, but points out that a starting point of ten years imprisonment was adopted in that case.

[23]     Next, the Crown referred me to R v Good CRI-2004-57-1350 High Court Auckland 28 June 2006 Keane J.    The Crown submits that the offending in Good was less serious than that in the present case.   In that case the sentencing Judge had adopted a starting point of seven years imprisonment.

[24]     In  R  v  Turner  CA  113/04  4  October  2004  the  offender  had  committed offences against more victims than you did, although the victims were older than were  the  victims  in  your  case.      In  Turner  a  starting  point  of  eight  years imprisonment was upheld.

[25]     Your counsel referred me to R v M HC WLG CRI-2004-032-3626 22 April

2005 in which the offender had pleaded guilty to ten representative counts of indecency against his two daughters.   They had been aged between 4 and 14 years when the offending occurred approximately 30 years prior to the point at which the offender was charged.   The offending involved gross acts of indecency in which the

victim would be required to undress and the offender would rub his penis against her genitals and masturbate.    The victims were also forced to perform oral sex on the offender  and  to  masturbate him.      In  that  case  a  starting  point  of  seven  years imprisonment was adopted.

[26]     Mr Forster also referred me to R v Tutty CA 41/98 7 May 1998 in which the offender had been convicted on seven charges of sexual offending against his stepdaughter.   A sentence of six years imprisonment was ultimately imposed in that case.

[27]     Mr Forster submitted that the circumstances of  your offending were less serious that those in the cases to which he referred, and that a starting point of four to five years imprisonment was appropriate.

[28]     I accept the Crown’s submission that several factors place your offending in a serious category.   These include the following:

a)        The fact that there were two victims.

b)The fact that your victims were of a very young age and for that reason were vulnerable to your conduct.

c)       The fact that the victims’ parents had placed them under your care at the time of the offending.    You abused that trust by your conduct towards your victims whilst they were in your care.

d)The  fact  that  the  offending  occurred  on  a  repetitive  basis  over  a lengthy, that is, eight month period.

e)       The frequency of offending, particularly in relation to the younger complainant.

f)        The  fact  that  your  offending  took  a  number  of  forms  including indecent acts, oral sexual violation and digital penetration.

[29]     Another matter that in my view considerably aggravates your offending is that it occurred, at least on some of the occasions, in concert with another person. That is a factor that was not present in the other cases to which I was referred.

[30]     Taking these matters into account I accept the Crown’s submission that the factors present in your case place it in a category of offending that is at least as serious as that in R v Good, although in that case there was only one victim.    It is certainly less serious than in the case of R v NRF.   For that reason I propose to adopt a starting point of seven years imprisonment on the lead charge of sexual violation by digital penetration.

Aggravating factors

[31]     I do not consider that there are any factors personal to you that operate to increase the starting point that I have adopted.

Mitigating factors

[32]     You appear for sentence at the age of 39 years.     You have no previous convictions and are entitled to credit for that.

[33]     The  probation  report  reveals  that  you  were  fostered  by  another  family between the age of 5 months and 16 years.   It seems that you were in a loving and caring environment during this period although you say that you struggled at school and were picked on and bullied.   It is clear that academically you were very limited and that this has had a significant effect on your life.

[34]     Your counsel has obtained a report from a psychologist that says that you are of extremely limited intellectual ability.  The tests that he carried out revealed that your intellectual ability is in fact extremely low and within the IHC range.    This means among other things that you have been vulnerable to bullying and pressure from others although you seem to have been able to work well in a structured setting. You also have a number of ongoing health issues and are said to be in an emotionally fragile state.

[35]     You  are  obviously  entitled  to  significant  credit  for  your  plea  of  guilty although it was not entered at the earliest possible stage.    I am satisfied, however, that there were reasons for that and that you should not be penalised for that.    I consider that your guilty pleas alone would justify a discount of approximately 20 to

25 per cent from your sentence.

[36]     In addition, however, you are entitled to a further discount to reflect three matters.   The first of these is the fact that you appear for sentence as a first offender. You have no previous convictions.

[37]     The second is that I take into account, to some extent anyway, the fact that you are clearly intellectually impaired.   Under s 9(2) of the Sentencing Act 2002 the Court is entitled to regard intellectual impairment as  a mitigating factor.     The difficulty in this case is to assess just where it fits in in relation to your offending. Mr Forster submitted that it resulted in you having some lack of insight, although he accepted on your behalf that you did know what you were doing.  I consider that that concession is properly made because at the point at which your offending came to light you said that you were glad of it and that it was bad and had to stop.

[38]     I take the view that your intellectual impairment is unlikely to have had any real impact on your offending.    I consider that you are likely to have known what you were doing.   You are likely to have known that what you were doing was wrong and that you should not be doing it.   I do, however, propose to take this matter into account as one of the mitigating factors that operate to reduce your sentence somewhat.

[39]     The third factor, and it is an important one, is that you have indicated that you are prepared to give evidence against your co-offender when he comes to trial. Indeed I am told that yesterday you made a statement to the police and that this will form the basis of your evidence at the trial.

[40]     Although I am told that this is not a case in which the Crown case against your co-offender depends entirely on your evidence, nevertheless I must take into

account  the  assistance  that  you  have  agreed  to  provide  to  the  authorities  in structuring your sentence.

[41]     Taking those matters into account I propose to reduce your sentence by a full third.

Sentence

[42]     On the charge of sexual violation by digital penetration you are sentenced to imprisonment for four years six months.

[43]     On each of the other charges of sexual violation you are sentenced to four years imprisonment.   Those sentences are to be served concurrently with each other and concurrently with the other sentence that I have imposed on the lead charge.

[44]     On each of the charges of doing an indecent act you are sentenced to one year’s  imprisonment.     Those  sentences  are to  be  served  concurrently with  the sentences imposed in respect of all the other charges.

Minimum term of imprisonment

[45]     Given  the  fact  that  I  have  sentenced  you  to  more  than  two  years imprisonment I have the ability under s 86(1) of the Sentencing Act 2002 to order that you serve a minimum period of imprisonment.   I may impose such a sentence if I am satisfied that the period that would otherwise be applicable under s 84(1) of the Parole Act 2002 is insufficient for all or any of the following purposes:

(a)     holding the offender accountable for the harm done to the victim and the community by the offending:

(b)    denouncing the conduct in which the offender was involved:

(c)     deterring the offender or other persons from committing the same or a similar offence:

(d)    protecting the community from the offender.

[46]     In the ordinary course of events you would be eligible for parole after serving just 18 months of your sentence.     In my view that is manifestly insufficient to

achieve the purposes set out in ss 84(1)(a) and (b) of the Act.    The only way in which you can properly be held accountable for the harm that you have done to your victims and the community is for you to serve a reasonably substantial portion of your sentence.    That is also the only basis upon which the Court can properly be seen to denounce your conduct.

[47]     I therefore direct under s 86(2) of the Sentencing Act 2002 that you serve a minimum term of imprisonment of two years three months.

Lang J