R v DC

[2016] NZHC 1984

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985 AND S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANTS PURSUANT TO S 139 OF THE CRIMINAL PROCEDURE ACT 1985 AND S  200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-006715

CRI-2015-092-006508 [2016] NZHC 1984

THE QUEEN

v

DC AND ST

Hearing:	24 August 2016
Appearances:	N Walker and SBT Belk for the Crown M Goodwin and G Ghahraman for DC M Allen and G H Vear for ST
Sentencing:	24 August 2016

SENTENCING NOTES OF WOODHOUSE J

Solicitors:           Crown Solicitors, Manukau

Public Defence Service, Manukau

Counsel:            M Goodwin, Auckland

R v DC AND ST [2016] NZHC 1984 [24 August 2016]

[1]      There are orders that the names and identifying particulars of the victims and the names of the three defendants cannot be published.  However, so that you can more easily follow what I am saying I will use the full names.  The names in the transcript of what I am saying will be made anonymous.

[2]      DC and ST: as you know you appear for sentence for sexual offences against C and J.  C and J are the younger sisters of you S and the younger cousins of you DC.

[3]      I will describe the offences simply in outline.

Offences: DC – C

[4]      DC, your offences against C occurred when she was aged between five and nine years. You were aged over that period between 15 and 19 years.

[5]      The most serious offence was rape when C was aged approximately seven to eight years old.  There was a second offence of assault with intent to rape.  This was your last offence against her when she was aged eight or nine years old.  You tried to get her pants off with the intention of raping her.

[6]      There was one offence of indecent assault when she was aged about five years old.  You dragged her under a bed and rubbed your penis against her, over her clothing and it appears with your clothing on.  There were two further offences of indecent assault when you touched her genitalia and again over her clothing.

DC – J

[7]      There were two offences against J which occurred in the same incident.  The jury found that you raped her then turned her over and sexually violated her anus with your penis.  She was around six years old.  You would have been aged between

20 and 21 years.

[8]      ST - you are to be sentenced for three offences against your sister C which occurred  in  a  single  incident.    There  were  two  offences  of  unlawful  sexual connection by putting your mouth on her genitalia and by forcing your penis into her mouth.  There also was an indecent assault by kissing her on the face and mouth.  C was aged seven or eight years old at the time. You were aged between 14 and 16.

ST – J

[9]      You are also to be sentenced for raping your sister J and for unlawful sexual connection by putting your finger in her vagina.   The charge of rape was a representative charge.  The Crown referred to evidence from J in an evidential video interview that she thought that you had raped her more than two times.  Ms Vear on your behalf referred to a statement by J that she could only remember this occurring on two occasions.  J said she was first raped when she was six or seven years old and she thought it might have happened again.   I am nevertheless satisfied that the sentence must be on the basis there was one rape only.  This was because, to find you guilty, the jury had to be satisfied that you raped her at least once.  I am not satisfied that the jury would necessarily have concluded that there was more than one rape.

[10]     There  was  a single  conviction  for unlawful  sexual  connection  by digital penetration of her vagina.

[11]     Over the total period that I have referred to - when J was aged between six and around nine years - you were aged between 17 and perhaps 21 years.

Victim impact statement

[12]     A victim impact statement has been provided by C but not by J.  That victim impact statement has been read to the Court and I do not need to repeat what is contained in it. I have taken what she has said into account.

[13]     In determining the sentences to be imposed on each of you, it is necessary to fix what is called a starting point.  This is calculated by reference to the seriousness of your offending.  Factors personal to you are then brought into account to increase or decrease the starting point.   There is no basis in the case of either of you to increase the starting point.  It will be reduced.

[14]     The starting point for sexual offences of rape and unlawful sexual connection are to be assessed having regard to, to begin with, a Court of Appeal case R v AM.1

All counsel have referred to this case, and to some other cases. 2    I have taken into

account the submissions made on behalf of each of you, as well as the submissions for the Crown, and the particular cases referred to.  I have also taken account of the overriding principles and purposes of sentencing as recorded in the Sentencing Act

2002.  I will need to separately consider the sentences for each of you, including the starting points for each of you, but some general comment can be made.

[15]     If there are aggravating features of the offences the starting point is likely to be increased. The Crown submitted that there are four aggravating factors.

[16]     The first is the vulnerability of the victims because they were young members of  your family or extended  family in  the ways  and  at  the ages  I have already described.   Your respective counsel accept that this is an aggravating factor to an extent, but submit that it is offset also to an extent by the relative youth of each of you. The Crown acknowledges this.  I will come back to that point.

[17]     The  second  aggravating  factor  referred  to  by  the  Crown  is  harm  to  the victims.  Notwithstanding contrary submissions, I am satisfied that there was harm. There was no evidence of any significant physical harm beyond what is inherent in offences of this nature.  But there certainly has been psychological harm and this is

made clear in the victim impact statement from C.  This includes the very bad effect

1      R v AM [2010] NZCA 114, [2010] NZLR 750.

2      R v Gordon [2009] NZCA 145, Aleki v R [2014] NZCA [2014] NZCA 473, Lennon v R [2012] NZCA 551, V v R [2012] NZCA 465, Hood v R [2012] NZCA 212, R v Bradnock [2014] NZHC

2575 and BB v R [2013] NZCA 139.

this offending has had on the relationships of both victims with other members of their family.  There is also psychological harm, which may be life-long, from the fact of abuse by their own brother and close cousin.

[18]     The third aggravating factor referred to by the Crown is breach of trust.  This is put on the basis that your victims were entitled to trust each of you as older male members of their immediate family.  And that includes you, DC, as a first cousin who clearly spent a lot of time in the victims’ family home.

[19]     There was breach of trust.  Young girls are entitled to trust their older brother and cousin.   But the extent to which this aggravates the offending should not be overstated.  The Crown acknowledged this in the oral submissions that I have heard this  morning  from  Ms  Walker.    The  breach  of  trust  in  these  circumstances  is markedly less serious than the breach of trust that occurs, for example, when there is sexual violation of children by a parent, or by another adult – whether a relative or not - who has direct responsibilities for the care and wellbeing of children.  There will be other examples.

[20]     The fourth aggravating factor referred to by the Crown is said to be the scale of the offending and its duration. Although the charges at least potentially spanned a number of years (and I refer to the charges rather than the actual verdicts), each of you has been found guilty of a limited number of offences.  The jury verdicts do not indicate that there was repeated offending over an extended period of time.

[21]     As to the scale of the offending there is an element of an increased scale of offending because there are two victims.  But again - because of the small number of offences or incidents - this factor cannot be advanced as an aggravating factor of significance.

[22]     The Crown originally submitted that the starting point for you two should be

15 to 16 years imprisonment before reductions for personal factors.   In the oral submissions  this  morning  from  Ms Walker  she  acknowledged  that  the  Crown’s provisional assessment was not justified.  She explained the reasons and I need not go back into that.  The only matter I would mention is an acknowledgment on behalf

of the Crown that reference in written submissions to a case called Gordon, which is a case in turn referred to by the Court of Appeal in R v AM, was not justified as being a comparable case to your offending.3   The end submission for the Crown was that the starting points for you should be 10 to 11 years imprisonment before reductions for personal circumstances.

DC – sentence

[23]     DC – on your behalf Mr Goodwin in his oral submissions submitted that the proper starting point should be in general terms as now submitted by the Crown at around 10 to 11 years.

[24]     In my judgment the starting point should be around 10 to 11 years.   In coming to that conclusion I have taken account of the starting points fixed in a number of other broadly comparable cases.4   It is probably proper to say that I have come to this general conclusion in reading the written submissions from all counsel at the outset.

[25]     I  have  concluded  that  the  starting  point  for  ST  should  be  10  years. Addressing you DC, there are some differences in the nature of the offending and the number of offences.   But I have concluded that the proper course is in fact not to adopt a starting point in your case higher than that of ST.   To an extent it is an exercise of mercy, but also to an extent fine distinctions, in my opinion, should not be drawn.   I also take account of the fact that you are cousins, which may be an unusual factor to take into account, but I consider it is justified in the circumstances of this case.

[26]     Mr Goodwin submitted that the starting point should be reduced by 25 per cent to 30 per cent having regard to three factors of a personal nature.  You have no previous convictions of any relevance, your age at the time of offending, and your

present family circumstances.

3      R v Gordon, above n 2.

4      Lennon v R, R v Bradnock and V v R, above n 2.

[27]     You have two previous convictions for minor offences which I am satisfied should be ignored. They can be simply set to one side.

[28]     Your age at the time of the offences is relevant.   Your offences against C occurred when you were aged between 15 and 19 years and the offences against J occurred when you were aged around 20 years old.  Your age in the earlier period certainly justifies a reasonably substantial reduction from the starting point.   This aspect was discussed in some of the other cases that I have referred to, and there are leading Court of Appeal cases that I do not need to refer to.

[29]     You are now 28 years old.  You have been in a de facto relationship for over seven years and you have two young children.   It is quite clear from the letter I received this morning from your partner that you are a very supportive father who takes your responsibilities in that regard seriously.   Your partner plainly is very supportive of you as are your parents.  You left school at the age of 15 and you have been in full time employment since then, as a responsible member of the community in that regard, with only these matters,  admittedly particularly serious, standing against you.

[30]     What I draw from all of this, coupled with the fact that the last of the offences for which you are now being sentenced occurred at least seven or eight years ago, is that substantial weight can be given to rehabilitation and reintegration, and to the principle of sentencing that it is appropriate to impose the least restrictive outcome that is appropriate in the circumstances.

[31]     There are punitive aspects to sentencing including holding you accountable and deterrence and other matters that must be taken into account.  These are serious offences.  But that does not prevent me, and I am required, if I am satisfied, to take into account these other matters of a rehabilitative nature.

[32]     I  am  satisfied  that  the  overall  reduction  of  30  per  cent  submitted  by Mr Goodwin is certainly justified.  But I have also concluded that the reduction for ST for broadly similar personal factors should be 35 per cent overall based on the submission made by Ms Vear on his behalf.  There are some points of distinction

between your personal circumstances and his, but some of those certainly favour you and in particular  your family responsibilities.   The reduction for  you,  for these reasons, should not be less than the reduction of 35 per cent that I will give to ST.

[33]     The starting point of 10 years will therefore be reduced to an end sentence of six years six months imprisonment.

ST – sentence

[34]     ST – on your behalf Ms Vear submitted that the starting point should be nine to 10 years imprisonment.

[35]     As I have already indicated I have concluded that the appropriate starting point is 10 years imprisonment.

[36]     Ms Vear submitted that there should be a reduction of 25 per cent for your relative  youth at the time of the offences.   This takes account of the fact that, although you were 14 to 16 years old when you offended against C, on a single occasion, you were 17 to 21 when you offended against J.

[37]     I agree that there should be a reduction of 25 per cent.

[38]     You are now aged 25.  You have no previous convictions.  You have been in full-time employment since you left school.   Ms Vear submitted that these factors justify a further reduction of 10 per cent and I accept that submission.

[39]     Reducing the starting point of 10 years by 35 per cent produces the result I

have already indicated for DC of six years and six months imprisonment.

Formal sentences

[40]     I will now impose the formal sentences on you and the two of you should now stand.

[41]     DC your sentences are as follows:

(a)       For the rape of C (charge 6), the rape of J (charge 13) and the sexual violation of J by unlawful sexual connection (charge 14), you are sentenced to imprisonment for six years and six months.

(b)For the offence against C of assault with intent to commit sexual violation (charge 11) you are sentenced to imprisonment for three years.

(c)      For the three offences of indecent assault (charges 1, 3 and 4) you are sentenced to imprisonment for two years.

[42]     All of those sentences are to be served concurrently which means that the total sentence is six years six months.

ST

[43]     ST your sentences are as follows:

(a)      For the two offences against C of sexual violation by unlawful sexual connection (charges 19 and 20) and for the offence against J of rape (charge 21) you are sentenced to imprisonment for six years and six months.

(b)      For the offence against J of unlawful sexual connection (charge 22)

you are sentenced to imprisonment for four years.

(c)      For the offence against C of indecent assault (charge 18) you are sentenced to imprisonment for one year.

[44]     All of your sentences are to be served concurrently, so the total sentence is six years six months.

Woodhouse J