R v DJH
[2015] NZHC 1786
•31 July 2015
ORDER FOR PERMANENT SUPPRESSION OF THE PRISONER’S NAME MADE ON 27 MAY 2015, IN ORDER TO PROTECT THE IDENTITY OF
THE COMPLAINANTS – SEE PARA [1] OF THIS JUDGMENT
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2014-070-001585 [2015] NZHC 1786
THE QUEEN
v
DJH
Hearing: 31 July 2015 Appearances:
S A Christensen for Crown
B Nabney for PrisonerJudgment:
31 July 2015
SENTENCING NOTES OF ANDREWS J
R v DJH [2015] NZHC 1786 [31 July 2015]
[1] Mr H, before I start this sentencing judgment, I record that on 27 May 2015, his Honour Justice Brewer made an order for permanent suppression of your name. The reason for this was that although non-publication of the names of your victims applies automatically under the provisions of the Criminal Procedure Act 2011, publication of your name would inevitably lead to them being identified. While I will address you by your name, there may be no publication of it.
Charges
[2] Mr H, you appear for sentence having pleaded guilty in this Court on 27 May of this year to 23 charges in all; being three charges of indecent assault on a girl under 12 years, three charges of doing an indecent act on a girl under 12 years, two charges of indecency with a girl under 12 years, one charge of indecent assault on a girl between 12 and 16 years, one charge of doing an indecent act on a girl between
12 and 16 years, one charge of permitting a girl between 12 and 16 years to do an indecent act, two charges of rape, two charges of sexual violation by rape, four charges of sexual violation by unlawful sexual connection, one charge of incest, and three charges of sexual conduct with a girl under 12. Sixteen of these charges are representative, which means that you have admitted to committing each of those offences at least once during the period specified in the charge.
[3] Your offending continued over a period of some 41 years, between July 1973 and February 2014. You are subject to a range of maximum penalties for the offences, from seven years’ to 20 years’ imprisonment. The 20 year maximum penalty applies to the offences of sexual violation committed after 1 February 1986.
Relevant facts
[4] The charges relate to offending against five victims, being two of your daughters, and three granddaughters. The offending was frequently repeated during the period of your offending. The abuse against the victims included rape, digital penetration and oral sex with the complainants.
[5] The detailed facts are set out in the Crown Summary of Facts, which was read in Court at the time you pleaded guilty to the charges, and I do not repeat them
here. Suffice to say, the abuse was ongoing. The offending against your daughters began when they were as young as four. It continued against one of your daughters until she was 15 and against the other until she was at least 29. Both of your daughters were subjected to numerous rapes, digital penetration and oral sex.
[6] Your offending then continued to the next generation against three of your granddaughters, albeit to a lesser degree of seriousness. You offended against one of your granddaughters when she was four or five by kissing her, then regularly sexually violating her by digital penetration when she was about 13. You touched the genitalia of another granddaughter when she was six, and you indecently assaulted a third granddaughter when she was nine.
[7] You were charged in mid 2014, but did not plead guilty until 27 May 2015.
Victim impact statements
[8] Your victims have prepared reports, or reports have been prepared on their behalf, about the consequences your offending has had for them. One of your daughters remains too traumatised to express how your offending has affected her; that is entirely understandable. Your other daughter speaks of the difficulty she felt growing up, not knowing how she could talk about her parents. She talks about the pain and extreme distress that your abuse caused her. And she says she wants you to get help. The impact on your granddaughters, according to what a social worker has recorded, has also been significant. They do not understand appropriate boundaries, and at least one child suffers from behavioural issues as a result of the offending. There is also ongoing counselling.
Pre-sentence report
[9] You are 68 years old. You have a lengthy history of alcohol abuse, but your criminal history is limited to one drink driving conviction and a series of dishonesty offending which ended in 1987. You have been employed for much of your life in a variety of primary industries and, more recently, working for a mental health trust as a driver. You stopped working when you had a cancer scare, but you reported that you had recovered from that.
[10] In relation to the current offending, you told the report writer that you did not enter guilty pleas initially, as you thought a lot of things were not right, but when your other daughter also made allegations you decided that you were not able to defend the charges and pleaded guilty. Nevertheless you claimed that you do not remember the offending, and you try not to think about it.
[11] You are assessed as having issues with alcohol and sexual arousal and you are assessed at a medium risk of harm, although the risk of re-offending is lower now, given your age. The report writer also suggests that you may benefit from offending related programmes in prison.
[12] In his submissions on your behalf, Mr Nabney says that you were not willing to engage with the report writer. He suggested that there may have been some cultural reasons for that. However, he has recorded some points made in a report prepared earlier at his request. This refers to significant issues of abuse against you in your early life, and Mr Nabney suggested that these may have contributed to your offending. This morning, Mr Nabney told me that you have stressed that you were not now seeking to make excuses for what had happened.
Sentencing process
[13] The first step in sentencing you is to establish what the lawyers have referred to as the starting point. The starting point is the sentence that would be imposed on the most serious of the charges on which you have been convicted. These are the recent charges of sexual violation by rape. I have to consider the features of your offending that make it more serious, and any features that make it less serious.
[14] The second step is to make necessary adjustments to the starting point to reach the appropriate sentence for all of your offending. I also consider matters that relate to you, personally, because these may also lead me to adjust your final sentence, either upwards or downwards.
[15] In sentencing you I have to take into account the purposes and principles of sentencing. With respect to the purposes of sentencing, I have to hold you accountable – that means, simply, to make you responsible for your own offending.
I have to consider deterring you, and others, and protecting the community. I also have to denounce your offending – what that means is to tell you that your offending is simply not be tolerated. At the same time, the purpose of sentencing any offender is to help the offender to get back into the community to be a useful member of it.
[16] In your case the relevant principles of sentencing are the gravity of your offending, including your culpability for it, the seriousness of your offending in comparison with other types of offences, and the general desirability of maintaining consistency in appropriate sentencing levels. I must take into account any information provided to me about the effect of the offending on your victims. I am directed to impose the least restrictive outcome that is appropriate in the circumstances. Finally, I must take into account any particular circumstances relating to you that mean that any particular sentence would be disproportionately severe.
Starting point
[17] Now I come to the starting point. As I said earlier, I set a starting point by reference to the most serious offence. As I said, in your case it is the charges of rape and sexual violation by rape. When setting the starting point I have to take into account that up until February 1986, the maximum penalty for rape was 14 years’ imprisonment, then it was increased to 20 years.
[18] I will decide on a starting point in relation to the charges of sexual violation by rape against your younger daughter (C) (which occurred after that date) and adjust that starting point for the other offending against C, then decide on the starting points for you offending against your older daughter (H), and the offending against your granddaughters. Then I need to consider what starting point is appropriate for the totality of your offending.
[19] As I said earlier, I have to consider the features of your offending which affect its seriousness. The presence of these features indicates the appropriate starting point. Ms Christensen and Mr Nabney have both submitted that I should take into account that your victims were all vulnerable because of their young age; that your offending was a serious breach of the trust that a child ought to have in her
father or grandfather, that your offending caused them severe harm, with long-lasting effects; and that your offending was of a serious scale, being repetitive abuse over a long period of time. There is absolutely no doubt that each of those features is present in your offending and they contribute to leading me to conclude that it was very serious offending of this kind.
[20] Ms Christensen also submitted that your offending involved planning and premeditation. Mr Nabney submitted that your offending could not be described in this way, as it often occurred after you had been drinking. However, Mr Nabney appropriately acknowledged that the fact that it may have occurred after you had been drinking did not excuse your behaviour. There is no doubt that your offending was, as Ms Christensen submitted, predatory and repetitive, but I am not sure that it involved conscious planning and premeditation. Rather, it appears to me that you simply took the view that you were entitled to do what you did.
[21] Ms Christensen submitted that the starting point in relation to the charges of sexual violation against C (charges 14 to 16, 18 and 19) should be 17 and a half years’ imprisonment. She submitted that this offending occurred over a long period of time, and is close to the top end of the most serious category of offending set out
in the guideline case of R v AM.1 Ms Christensen further submitted that an uplift of
one year should be applied to reflect the remaining offending against C. Mr Nabney accepted that the overall offending against C justifies a starting point of around 18 years. I will adopt a starting point of 18 years and six months’ imprisonment for your offending against C.
[22] Your offending against H included a representative charge of rape over a period of two years, together with other sexual offending over a period of 11 years. Ms Christensen submitted that a starting point of six years’ imprisonment should be adopted for that offending. Mr Nabney accepted that that starting point was appropriate. I will adopt six years as starting point for the offending against H.
[23] Then with respect to the offending against your granddaughters, Ms Christensen submitted that the most serious of this offending was the
representative charge of sexual violation by unlawful sexual connection against one of your granddaughters, which occurred on some 50 occasions over a two-year period. By reference to R v AM, Ms Christensen submitted that a starting point of eight years’ imprisonment should be adopted for the offending against your granddaughters. Again, Mr Nabney accepted that this was an appropriate starting point, and that is the starting point that I will adopt.
[24] If those sentences were to be imposed cumulatively, it would result in an overall starting point of 32 years and six months. I have to consider whether that is appropriate, in light of the principle that the overall sentence should reflect the totality of your offending. I do not consider that the starting point should be left that high. I regard your offending, rather than a series of separate instances of offending, as a continuous strain of offending, I have concluded that the appropriate starting point for your offending before I consider personal mitigating factors, is a sentence of 20 years and six months’ imprisonment.
Personal factors
[25] Ms Christensen accepted that you may be given a reduction because of your guilty pleas, and I will turn to that shortly. First, though, I will consider Mr Nabney’s submission that I should allow a discount on account of the early abuse against you. He referred me to the judgment of the Court of Appeal in R v Pitceathly, in support of that submission.2 I accept that the Court of Appeal noted the possibility of a reduction being made on that ground, but the Court went on to say that the Court must be satisfied that the early childhood abuse materially contributed to the offending. I have no evidence as to that but I accept, as did
Ms Christensen, that there is at least a possibility that the abuse contributed to your offending.
[26] I do accept that the medical information annexed to Mr Nabney’s submissions shows that you suffer from a number of long-term ailments, some of which appear to be related to diabetes and this, together with your age, will likely mean that serving a sentence of imprisonment will be more harsh for you than for a
younger person in better health. On that basis, and giving some recognition to your early childhood abuse, I will allow a reduction down to 18 years and six months’ imprisonment.
[27] I come, then, to your guilty plea. It came relatively late, and it appears from the pre-sentence report that you accepted responsibility to only a limited extent. However, the guilty plea has saved your daughters and, in particular, your granddaughters from having to go through the trauma of coming to Court to give evidence against you. Ms Christensen and Mr Nabney accepted that a reduction of around 15 per cent would be appropriate. I accept their submission and that would lead to a final sentence of 15 years and nine months’ imprisonment.
[28] The final matter that I had to consider before this morning was whether I should order you to serve a minimum period of imprisonment. Counsel are now agreed that it is not appropriate, or indeed available in this case, to order you to serve a minimum period of imprisonment. In any event, I would not have imposed a minimum period of imprisonment. This is on account of your age and the fact that in any event a minimum period of imprisonment could only have been imposed for a small portion of your imprisonment. Further you will clearly, under the terms of the Parole Act 2002 be required to serve a certain time of your sentence before you can be considered for parole.
[29] I now come to the point where I will impose sentence, and I ask you to stand.
Sentence
[30] You are being sentenced in groups of offending where the offending is of the same nature. Accordingly, you are sentenced as follows, with all sentences to be served concurrently:
(a) Charges 3 and 7 (H) (rape): 6 years’ imprisonment.
(b)Charges 1 and 4 (H), 12 (C) (indecent assault on a girl under 12): four years’ imprisonment.
(c) Charges 2 and 5 (H), 11 (C) (doing an indecent act on a girl under 12):
four years’ imprisonment.
(d)Charges 6 (H), 13 (C) (permitting a girl under 12 to do an indecent act): four years’ imprisonment.
(e) Charge 8 (H) (indecent assault on a girl 12-16): three years’
imprisonment.
(f) Charge 9 (H) (doing an indecent act on a girl 12-16): three years’
imprisonment.
(g)Charge 10 (H) (permitting a girl 12-16 to do an indecent act): three years’ imprisonment.
(h)Charges 14 and 15 (C) (sexual violation by rape): 15 years and nine months’ imprisonment.
(i)Charges 16, 18, 19 (C) (sexual violation by unlawful sexual connection): nine years’ imprisonment.
(j) Charge 17 (C) (incest): five years’ imprisonment.
(k)Charge 21 (granddaughter) (sexual violation by unlawful sexual connection): seven years’ imprisonment.
(l) Charges 20, 22, 23 (granddaughters) (sexual conduct with girl under
12): three years and six months’ imprisonment.
[31] All of those sentences are to be served concurrently, so the overall sentence
therefore is 15 years and nine months’ imprisonment.
[32] Would you please stand down.
Andrews J
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