R v F
[2018] NZHC 1313
•6 June 2018
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2017-063-836
[2018] NZHC 1313
THE QUEEN v
F
Hearing: 6 June 2018 Appearances:
C H Macklin for the Crown
M J Hine and R W S Rose for the Offender
Judgment:
6 June 2018
SENTENCING BY PALMER J
Solicitors:
Gordon Pilditch, Rotorua Hine Jack Eagle, Tauranga
R v F [2018] NZHC 1313 [6 June 2018]
Introduction
[1] On 27 April 2018, Mr F, now aged 44, was found guilty and convicted at trial of 36 charges of sexual offending against his own daughter. He was convicted of:
(a)14 specific and three representative offences of sexual violation by rape, each carrying a maximum sentence of 20 years’ imprisonment;1
(b)seven specific and six representative charges of sexual violation by unlawful sexual connection, each carrying a maximum sentence of 20 years’ imprisonment;2
(c)one specific offence of indecent assault on a child, carrying a maximum sentence of 10 years’ imprisonment;3
(d)one specific offence of assault with intent to commit sexual violation, carrying a maximum sentence of 10 years’ imprisonment;4
(e)two specific offences of indecent assault, each carrying a maximum sentence of seven years’ imprisonment;5 and
(f)one specific and one representative charge of male assaults female, each carrying a maximum sentence of two years’ imprisonment.6
Approach to sentencing
[2] Sentencing is conducted for the purposes, and according to the principles, set out in ss 7 and 8 of the Sentencing Act 2002. In this case, I have particular regard to the purposes of:
1 Crimes Act 1961, ss 128(1)(a) and 128B.
2 Crimes Act 1961, ss 128(1)(b) and 128B.
3 Crimes Act 1961, s 133(1)(a) (since repealed).
4 Crimes Act 1961, s 129(2).
5 Crimes Act 1961, s 125.
6 Crimes Act 1961, s 194(b).
(a)holding Mr F accountable for the harm done to his victim and the community;
(b)promoting in him a sense of responsibility for, and acknowledgement of that harm;
(c)providing for the interests of the victim;
(d)denouncing his conduct and, if possible, deterring others from committing similar offences; and
(e)protecting the community from him.
[3] I am also required to, and do, take into account the principles of sentencing, particularly:
(a)the need to recognise the gravity and relative seriousness of the offending and the degree of Mr F’s culpability;
(b)the requirement on me to impose the maximum penalty prescribed for an offence, or a penalty near the maximum, if the offending is within or near the most serious of cases unless Mr F’s circumstances make that inappropriate;
(c)the general desirability of consistency in dealing with similar offenders committing similar offences in similar circumstances;
(d)the effect of the offending on the victim and the community; and
(e)the requirement to impose the least restrictive sentence appropriate in the circumstances.
What happened?
General overview
[4] Mr F started offending when the victim was 10 or 11 years old. He did not stop physically, psychologically and sexually abusing her until she ran away from her family and went to the Police at the age of 25. Mr F sexually abused and raped the victim for a period of around 15 years. Of his 36 convictions, Mr F was convicted of 10 representative charges, meaning they happened at least once. The other 26 were specific instances of offending.
[5] The victim’s evidence at trial was harrowing but compelling. She was distressed but consistent in her account of what happened. In denying the allegations Mr F’s lawyer called them vile and disgusting, which they are. The jury, and I, believed the victim’s account of the offending of which Mr F was convicted.
[6] The offending took place both when Mr F was alone with the victim and when others were around. The abuse was frequent, occurring lots of times. It involved sexual intercourse. Sometimes it involved oral sex. Some of the time it also involved him playing with her vagina. Sometimes he would apologise, say he was working on it and promise not to do it again. Mr F did not use contraception and the victim was worried about getting pregnant and having children to her father. At times, he would call her a slut or other names, and threaten to beat her or her friends up.
[7] As she got older, Mr F was controlling and coercive. He questioned why she wanted to drink and her relationships with other men. She was afraid to tell him when she was seeing people. This continued after she moved out of home. Once, when she told him she was sleeping with someone he got jealous and told her it was making him want to take her home and have sex with her. He went through her things and got angry with her when he found condoms. He texted and called her frequently and got angry when she did not reply. When she got older and started to resist, he became violent more often. If she did not do what he wanted he would give her a hiding, bruising her and leaving her feeling sore for days. This happened more in the last six years of the offending when she resisted more.
[8] Mr F was convicted of 10 representative offences. These were one representative offence of rape, one offence of unlawful sexual connection by digital penetration and one of unlawful sexual connection by oral sex in their hometown when the victim was 11 or over. He was convicted of the same representative offences in Rotorua when she was 17 and the same in Hamilton when she was 19 or over. He was also convicted of one representative charge of male assaults female in their hometown spanning the whole period.
The specific offending
[9] In addition to the representative offences, Mr F was convicted of 26 specific offences. The first, of indecent assault on a child, occurred when the victim was 10 or 11 years old. Mr F touched her chest and vagina in bed, saying “shhh it’s alright”.
[10] The second and third offences, of unlawful sexual connection and rape, were in a hallway of the family home when the victim was 11 years old. After school one day, while she was in her school uniform, Mr F pressed her up against the wall of a hallway, played with her genitalia, including putting his fingers inside her genitalia, and then put his penis inside her vagina and had sex with her.
[11] The fourth offence, of unlawful sexual connection, occurred in a car on the way back from Auckland when the victim was 11. Mr F told the victim to put her legs on the dashboard “so I can have a feel”. He put his fingers in her vagina.
[12] The fifth and sixth offences, of unlawful sexual connection and rape, occurred when Mr F was driving the victim, aged 13, after visiting family elsewhere. He stopped, made her open her legs, rubbed his fingers inside her vagina and had sex with her.
[13] The seventh and eighth offences, of unlawful sexual connection and rape, occurred when the victim, aged around 14 to 16, was at home sick from high school one morning, on a mattress in the lounge. Mr F touched her, kissed her breasts and played with her vagina with his fingers including on the inside. After a brief respite when he was interrupted by her younger brother, Mr F had sex with her.
[14] The ninth offence, of rape, occurred the night before Father’s Day in 2007 when the victim was 15. She was recovering from having her tonsils removed and
was lying on the mattress on the floor in the lounge. Mr F had sex with her – he made her get on top of him.
[15] The tenth offence, of rape, occurred on a family holiday at the Awakeri Hot Pools motor camp when the victim was 13 or 14. Mr F told her to get into the caravan, he got on top of her and he had sex with her on the bed in the caravan.
[16] The eleventh offence, of rape when the victim was 18 or 19, occurred in a truck near a one-way Bailey bridge. Mr F stopped the truck, told the victim it would be just a quick one and then he would take her to her friend’s house, which he did.
[17] The twelfth to fifteenth offences, three of rape and one of unlawful sexual connection, occurred at the victim’s flat in Hamilton the evening her cousin had a car accident in July 2012, when the victim was 20. Mr F raped her twice that night and woke her early the next morning and raped her a third time. The last time he rubbed her clitoris with his fingers.
[18] The sixteenth offence, of male assaults female, occurred when Mr F was helping the victim move flat. Mr F slapped her in the face and kicked her in the side.
[19] The seventeenth to twenty-first offences, three of rape and two of unlawful sexual connection, occurred on the victim’s 23rd birthday. Mr F closed all the doors and curtains when he visited her at her flat. He had sex with her on a mattress on the floor of the lounge before dinner, after dinner and then again when he woke her up. He performed oral sex on her on the first occasion of rape.
[20] The twenty-second to twenty-third offences, of indecent assault and rape, occurred after the victim went home feeling sick after a family event on Christmas Eve 2014. She went to sleep in the lounge on a mattress and Mr F came home, touched her and had sex with her, holding her down while she was crying.
[21] The twenty-fourth offence, of assault with intent to commit sexual violation, occurred at the victim’s flat after she finished work late. Mr F rubbed her breasts and put his hands down her pants. He became angry when she would not let him have sex
with her. He squeezed her face, hit her in the face, called her a “fuckin’ bitch”, punched her in the back and said it was all her fault.
[22] The twenty-fifth offence, of rape, occurred on the bonnet of a car near The Base.
[23] The final specific offence, of indecent assault, occurred a few months before her statement to the Police. He was angry, told her to “get the fuck here”, and started touching her and playing with her. She told him to stop because he had promised it wouldn’t happen again but he said “I’m just gonna take it the more you squeeze your legs” and “who’s gonna stop me?”. It only stopped when they were interrupted.
[24] Mr F, the distress you have caused the victim was evident at trial, and is repeated in her victim impact statement. She feels you have taken her life from her. She says she loves you and all she wanted was for you to be her father and protect her. Instead, you were the one who hurt her the most. She struggled to cope and wished she just wasn’t there so she didn’t have to go through it. She tried to kill herself. She says she felt she had to protect you and your family from the horrendous truth. She says your offending made her feel like the bad person, and she worried she deserved it. She says the experience of giving evidence at trial was unbelievably stressful. It is clear she is particularly upset that your offending has cost her in her relationships with her family, especially her mother and brothers. She expresses her hope that you will take responsibility for what you have done.
[25] The victim has gone through more than anyone should have to endure. You will recognise she is a strong young woman. Hopefully she will now be able to get on with her life with a greater sense of closure.
Starting point
Law of starting points for sexual violation
[26] In sentencing you, first, I set a starting point to the reflect the seriousness of your offending. I set an overall starting point reflecting all your offending against the
victim.7 In its guideline judgment of R v AM in 2010, the Court of Appeal identified different bands of sentences for sexual violation, including rape.8 Rape offending will fall into band three, justifying a starting point between 12 and 18 years’ imprisonment, when it involves two or more of the identified aggravating factors to a high degree, or three to a moderate degree.9 Band four, from 16 to 20 years, is likely to involve the same sorts of factors with multiple offending over considerable periods of time.10 The Court considered repeated rapes of one or more family members over a period of years to be a “paradigm case” of band four offending, and considered offending of that nature involving children and teenagers would attract starting points at the higher end of that band.11
Submissions
[27] Mr Macklin, for the Crown, submits the following aggravating factors are present in your offending: breach of trust; the victim’s vulnerability; harm to the victim; the scale of the offending; and associated violence and controlling behaviour. He submits premeditation and the degree of violation are also aggravating factors, though to a lesser extent. He submits the scale of the offending is the most significant aggravating factor, and is at the most extreme end. He submits the appropriate starting point is between 18 and 20 years’ imprisonment.12
[28] Mr Hine, your counsel, acknowledges all those aggravating factors, except the degree of violation. He acknowledges the matter falls within the upper end of band four. He submits 18 years is the more appropriate starting point having regard to other cases.13
Decision on starting point
[29]Mr F, I consider there are a number of aggravating features of your offending:
7 F (CA 844/2013) v R [2014] NZCA 390 at [19]; R v Chase [2017] NZHC 244 at [19].
8 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
9 At [105].
10 At [108].
11 At [109].
12 With reference to A (CA37/2014) v R [2015] NZCA 377; H (CA123/12) v R [2012] NZCA 479; W (CA247/2010) v R [2010] NZCA 561.
13 A (CA37/2014) v R, above n 12.
(a)You seriously abused your position of trust and authority in relation to the victim.14 You are her biological father. As the Crown submits, there can be no greater relationship of trust.
(b)Separately to that, the victim was particularly vulnerable during the offending in her school years, at least, due to her age.15 For some of that offending she was sick, creating additional vulnerability. I also accept that you created an environment of psychological and physical coercion to ensure she remained vulnerable to you during and after those years.
(c)There was a level of premeditation involved in some of your offending, in that you repeatedly sought out opportunities to offend against the victim when you were alone. This is not a significant aggravating factor.
(d)Beyond the violence inherent in any act of sexual violation, you used intimidation, violence and threats of violence to assert control and coercion over the victim.16 My account of the last specific offence illustrates that. It was consistent with the evidence in relation to the offending more generally.
(e)You have done enormous harm to the victim who tried to take her own life.17 The psychological effects on her will likely last her whole life.
(f)The scale of your offending, 26 specific offences and 10 representative offences over 15 years in multiple locations, is prolonged. The callousness and sense of entitlement demonstrated in the circumstances of many of the offences, such as those in the car, when she was sick, and when she pleaded with you not to, exacerbate that.
14 Sentencing Act 2009, s 9(1)(f), R v AM, above n 8, at [50].
15 Sentencing Act 2009, s 9(1)(g).
16 R v AM, above n 8, at [39].
17 At [47].
[30] The aggravating features of abuse of trust and the victim’s vulnerability, and the scale and duration of the offending and the harm to the victim were all present to a high degree. Associated violence and coercion was present to a moderate degree. Your offending is a paradigm case of band four offending.18 Prolonged offending involving children and teenagers attracts a starting point toward the top of band four for rape.19
[31] I have compared your offending with the circumstances and sentences in a number of other cases at this level, including those cited by counsel. Given the aggravating features of your offending, I consider your offending to be more serious than that in cases which adopt a starting point of up to and including 19 years’ imprisonment.20 It is more equivalent to cases where starting points of 19 and 20 years were adopted in other case law discussed.21 I do not consider it is quite as serious as cases where a starting point of 21 years or more were adopted.22 The scale and duration of the offending and the breach of trust and vulnerability of the victim weigh heavily here. On the basis of consistency with the other cases, I set an overall starting point of 19 and a half years’ imprisonment.
Adjustments for personal factors
[32] I have a report from the Department of Corrections which assesses your likelihood of reoffending as high and as posing a very high risk of harm to others. They say you continue to deny your offending and even portray yourself as the victim. Corrections also advises me that you were a senior Mongrel mob member but you have told them you have stepped away from the crew and the gang come second to my family. They say you demonstrate minimal insight into your overall violent offending history, though you have regret “to some extent”.
[33] It is a matter of regret to me that I do not have more information about your personal background Mr F, to understand better how you came to this point. But I do not.
18 At [109].
19 At [109].
20 See, for example, R v Washer [2017] NZHC 1683.
21 F (CA844/2013) v R, above n 7, T (CA2212/2011) v R [2011] NZCA 203.
22 B (CA196/2010) v R [2011] NZCA 654.
[34] Mr Macklin submits there is nothing that appears to justify a significant adjustment to the starting point. Mr Hine does not dispute that. He advises you do not accept the verdicts of the jury.
[35] On the basis of the information I have, I do not consider any adjustments to the starting point should be made for your personal circumstances. Your previous offending is not sufficiently related to the offending here to warrant an uplift in sentence. Neither does it not allow you to claim a discount for good character. You demonstrate no remorse. There was no guilty plea. If and when you show signs of accepting your offending, I consider you should be assessed for programmes or rehabilitative pathways by the Department of Corrections psychologists. You will only make progress, for yourself and for your future family relationships, if you genuinely acknowledge what you have done, and the impact you have had on your daughter’s life.
[36] I consider 19 and a half years’ imprisonment is not out of proportion to the overall gravity of your offending.
Minimum period of imprisonment
[37] Under s 86 of the Sentencing Act 2002, I can impose a minimum period of imprisonment. Mr F, that would be the period before you will be able to apply for release on parole. I can only do so if I am satisfied the period otherwise applying is insufficient for the purposes of holding the offender accountable, denouncing his conduct, deterring others or protecting the community. The minimum period must not exceed 10 years.
[38] Mr Macklin submits a minimum period of imprisonment of up to 10 years is appropriate to serve the purposes of accountability and protection. Mr Hine submits a 50 per cent minimum period is merited.
[39] I consider there is a clear need to denounce your offending and to hold you accountable for it. I do not consider your release on parole, as soon as you are ordinarily eligible, would do that sufficiently. I consider the current legal test for a minimum period of imprisonment, and the previous legal test that applies to your first
four offences and the representative charges in your hometown,23 are clearly satisfied. I set a minimum period of imprisonment of 50 per cent, or 9 years and nine months,24 on your convictions for rape.
Other consequences
[40] I am also required to explain to you that you will be entered on the Child Sex Offender Register. On your release, your name and information relevant to you and your offending will be placed on the Register. You will be required to report changes to your personal information to the Register, for example changes to your address. The information will not be available to the public, but it can be accessed by Police and Corrections, and may be shared with particular government agencies. It is an offence to fail to comply with your reporting obligations without reasonable excuse, or to provide false or misleading information. Because you have been sentenced to imprisonment for a class 3 offence, you will be required to remain on the Register and comply with the obligations for the rest of your life. Your obligations will begin when are released from custody. You will also receive written notice of your obligations and the applicable penalties from the Registrar.
[41] The victim’s name, address and occupation are automatically suppressed under s 203 of the Criminal Procedure Act 2011. Under s 200(2)(f), I also order suppression of your name and other identifying details, Mr F, in order to protect the identity of the victim.25 If she wishes, she can apply for suppression to be lifted.
Sentences
[42]Mr F, please stand. I sentence you to:
(a)19 years and six months’ imprisonment for each offence of sexual violation by rape, concurrent with the other sentences, with a minimum period of imprisonment of nine years and nine months;
23 R v Brown [2002] 3 NZLR 670 (CA),
24 In my oral remarks, I may have said 10 years, in error. If so, the context of the sentence, and the later remarks, make clear this was in error.
25 P (CA747/2014) v R [2015] NZCA 349 at [32].
(b)10 years’ imprisonment for each offence of sexual violation by unlawful sexual connection, concurrent with the other sentences;
(c)two years’ imprisonment for the offence of indecent assault on a child, concurrent with the other sentences;
(d)three years’ imprisonment for the offence of assault with intent to commit sexual violation, concurrent with the other sentences;
(e)two years’ imprisonment for each offence of indecent assault, concurrent with the other sentences; and
(f)one year’s imprisonment for the representative offence of male assaults female, and two months’ imprisonment on the specific charge of male assaults female, concurrent with the other sentences.
[43] Mr F, that means your end sentence is one of 19 years and six months’ imprisonment. You will be in prison for at least nine years and nine months before there is any possibility of release.
[44]Please stand down.
………………………….
Palmer J