R v G

[2015] NZHC 2620

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S

203 OF THE CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ACCUSED PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2008-054-6204 [2015] NZHC 2620

THE QUEEN

v

G

Hearing:	23 October 2015
Appearances:	B D Vanderkolk and N Wynne for the Crown S Hewson and C Hollingsworth for G
Sentence:	23 October 2015

SENTENCING REMARKS OF MALLON J

[1]      Mr [G] you are here for sentencing on charges of sexual offending involving seven complainants during the period 1967 and 1992.  You entered guilty pleas to those charges following a sentence indication which I gave on 28 July 2015.1

[2]      A sentence indication proceeds on the basis of the information then before the Court.  The Crown has reviewed the indication in light of the material now before the Court and, with particular emphasis on the powerful victim impact statements so

ably read by your victims in Court today, proposed that this Court could uplift the

1      R v G (Sentence indication of Mallon J) HC Palmerston North CRI-2008-054-6204, 28 July

2015.

R v G [2015] NZHC 2620 [23 October 2015]

sentence indication that I gave to you. As I have explained to him I am satisfied that the significant harm that your offending has caused was anticipated and taken into account when I gave that indication.   It is accepted by your counsel that further information before the Court does not affect the appropriateness of the sentence indication that was given.  Accordingly I will be sentencing you in accordance with it.

The charges

[3]      You entered guilty pleas to 15 charges as follows:

(a)       Complainant J: a representative charge of rape for the period between

1972 and 1975 (when J was between 12 and 14 years old); a representative charge of indecent assault on a girl under 12 years old for the period between 1969 and 1972 (when J was between nine and

11 years old); and a representative charge of indecent assault on a girl between 12 to 16 years old between 1972 and 1975 (when J was 12 to

14 years old).

(b)Complainant A: a representative charge of indecent assault on a girl under 12 during the period 1967 to 1974 (when A was under 12 years old).

(c)      Complainant L: a representative charge of indecent assault on a girl under 12 during the period 1968 to 1975 (beginning when L was about  five  years  old)  and  a  charge  of  indecent  assault  on  a  girl between 12 to 16 on an occasion around 1976/77 (when L was 13 or

14 years old).

(d)Complainant K: a representative charge of indecent assault on a girl under 12 during the period 1969 to 1978 (beginning when K was about three or four years old) and a representative charge of indecent assault on a girl between 12 and 16 between 1978/79 (when K was about 13 years old).

(e)      Complainant W: a representative charge of indecency between a man and a boy between 1973 and 1976 (from when W was about four to six years old).

(f)      Complainant T: a representative charge of indecency between a man and a boy between 1973 and 1976 (when T was between one and four years old).

(g)Complainant  M:  a  representative  charge  of  rape  for  the  period between  1982  and  1983  and  a  representative  charge  of  sexual violation by rape for the period between 1986 and 1992 (when M was aged between six and 16 years old); a charge of rape on an occasion in

1982/83 (when M was aged about six); a representative charge of inducing a girl under 12 to do an indecent act on you in about 1982/83 (when M was about six years old); and a representative charge of indecent assault on a girl aged between 12 to 16 in the period 1989 to

1992.

The summary of facts

[4]      The  first  six  complainants  are  your  biological  children.    The  offending against them spanned the period 1967 to 1979 when you were married to the children’s mother.   The offending occurred at the family home.   In relation to the girls it involved rubbing your erect penis against the complainants, touching their bodies under their night clothes, and having them masturbate you.  This occurred in your bed, their beds, or in the bath.  This sexual abuse occurred regularly.  In relation to the boys it involved having them masturbate you in the bath.  It also involved rape of your eldest daughter on a number of occasions.

[5]      In the early 1980s you separated from your wife.  You became involved with another woman whom you later married.  The seventh complainant is the daughter of your current wife.  The offending against her began soon after the woman and her daughter moved in with you, when the daughter was aged about six years old.  She was  regularly  raped  by  you  in  the  home  you  shared.    On  occasion  this  was

accompanied by threats to kill her and on an occasion to hit her with a bottle.  You also digitally penetrated her vagina and forced your penis into her mouth.

Approach to sentencing

[6]      The offending is to be sentenced on the basis of the then maximum penalties in force2 and the prevailing sentencing levels at the time of the offending.3

The starting point

[7]      With  reference  to  a  number  of  cases,  the  Crown  submitted  that  the appropriate starting point was 11 to 13 years imprisonment.4  Your counsel submitted that the appropriate starting point was 10 years imprisonment, primarily by emphasising the much lesser starting point for a contested rape that prevailed at the relevant time and the principle of totality,5  but recognised that the bottom of the Crown’s starting point might be properly available.

[8]      The most serious offences are the rapes.  The aggravating features of them are that there were two complainants, the complainants were young and vulnerable, the offending involved a gross breach of trust, it occurred over a prolonged period of time, and offending of this kind has inevitably involved long term significant psychological harm for the complainants.

[9]      The aggravating features of the indecencies are that they involved seven complainants and, as with the rapes, the complainants were young and vulnerable, the offending involved a gross breach of trust which your victims have spoken of this morning, it occurred over a prolonged period of time, and it has caused significant

long term psychological harm for the complainants.

2      For the rape offending, the maximum penalty was 14 years imprisonment.   For the indecent assault on a girl under 12, inducing a girl under 12 years to do an indecent act, and indecency between a man and a boy; the maximum penalty was 10 years imprisonment.  For the indecent assault on a girl between 12-16 years, the maximum penalty was seven years imprisonment.

3      Refer, for example, to R v R CA244/04, 2 November 2004; R v KJB (CA41/07) [2007] NZCA

292; R v Jones [2015] NZHC 398; and R v James HC Hamilton CRI-2005-073-249, 1 December

2006.   The guideline sentencing levels in R v AM [2010] NZCA 114, [2010] 2 NZLR 750 therefore do not apply.

4      R v T (1998) 15 CRNZ 602 (CA); R v G (1993) 10 CRNZ 379 (CA); and R v Jones, above n 3.

5      R v Pawa [1978] 2 NZLR 190 (CA); R v Puru [1984] 1 NZLR 248 (CA); R v Te Pou [1985] 2

NZLR 508 (CA); R v Clark [1987] 1 NZLR 380 (CA); R v T and T (1987) 2 CRNZ 503 (CA); R
v B CA332/86, 19 May 1987; and R v B [1984] 1 NZLR 261 (CA).

[10]     I consider it appropriate to look at the offending as a whole, and recognising the principle of totality.  The cases I reviewed supported the starting point range that the Crown proposed.6   I considered that the lowest end of the Crown’s range should be taken for two reasons:

(a)      Although the total number of complainants is high, the rape offending involved two complainants (which is less than in some of the cases), and the rest of the offending was indecency offending.

(b)The least restrictive sentence that meets the principles and purposes of sentencing is to be taken.

[11]     I considered that an overall starting point of 11 years imprisonment was appropriate.

Personal aggravating factors

[12]     There are no personal aggravating factors that warrant an uplift to the starting point.

Personal mitigating factors

Special patient

[13]     You were a special patient for just over two years and seven months (for the period from 31 August 2011 until 17 April 2014) pursuant to an order under s 24(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.  By operation of s

82 of the Sentencing Act 2002, together with ss 90 and 91 of the Parole Act 2002, this time is automatically counted as time served for the purposes set out in s 90(1) of the Parole Act.  Accordingly, because it is automatically taken into account for

those purposes, no discount is applied to the sentence to be imposed for this aspect.

6      The cases referred to by counsel, and other cases such as W (CA172/2013) v R [2014] NZCA

234; Nooana v R [2011] NZCA 501; R v KJB (CA41/07), above n 3; M (CA91/2012) v R [2013] NZCA 325; and R v S [2009] NZCA 315.

Age and ill-health

[14]     You are 77 years old.  There are a number of reports before the Court as a result of the applications concerning your fitness to stand trial and your detention as a special patient.

[15]     The reports indicated that there are a number of issues.   You suffer from moderate to severe hearing loss, Type II diabetes, anxiety, and a degree of cognitive impairment.   You were described in one of the reports as frail, following recent surgery on your bowel and hip.

[16]     An updated report of your physical health has been obtained.   You have developed Bell’s palsy, you have difficulty walking, some difficulty with speech, and there is cognitive decline.  You also have pain from osteoarthritis.  This information confirmed my indication that a generous but available discount to take account of the

impact of imprisonment on you, given your age and poor health, is 20 per cent.7

Guilty pleas

[17]     I confirm my indication that a 20 per cent discount is to be given for your guilty pleas.  This was in accordance with the discount accepted by the Crown as available, notwithstanding the lateness of the guilty pleas.8   As the Crown explained, there were reasons why discussions about possible resolution were instituted late. Given the lengthy history of the matter and the circumstances which culminated in the sentence indication hearing, I regarded the guilty pleas as a significant milestone for you and the seven complainants.  In these circumstances I regarded a generous discount, at the top of the Crown’s proposed range, as being appropriate.

[18]     At the time of the sentence indication there was hope that a restorative justice process would occur.  A number of the victims of your offending are disappointed

that you did not proceed with that.  They had hoped for an apology from you but,

7      For example, M (CA91/2012) v R, above n 6; R v Mikus CA 296/04, 26 October 2004; R v R (CA60/2008) [2008] NZCA 318; and R v James, above n 3.  See also R v Luce [2007] NZCA

476; and Hastie v R [2011] NZCA 498.

8      The Crown submitted that 15 to 20 per cent would be appropriate for guilty pleas.  Counsel for

Mr [G] agrees and seeks a discount of not less than 15 per cent.

sadly for them, that has not been forthcoming.   In the absence of demonstrated remorse no further discount is available to you.

[19]     Allowing a discount of 20 per cent brings the sentence down to seven years.

Sentence

[20]   Accordingly, you are sentenced to a total end sentence of seven years imprisonment.  That sentence is to apply to each of the rape charges concurrently. You are sentenced to concurrent sentences of three years imprisonment on each of the remaining charges.

[21]     You may stand down.

Mallon J