R v Gage

[2013] NZHC 2053

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-001895 [2013] NZHC 2053

THE QUEEN

v

GLEN JAMES GAGE

Hearing:	9 August 2013
Counsel:	JN Foster for the Crown P Kaye for the Prisoner
Judgment:	9 August 2013

SENTENCING NOTES OF ASHER J

Solicitors:

Crown Solicitor, Hamilton.

P Kaye, Auckland.

R v GAGE [2013] NZHC 2053 [9 August 2013]

[1]      Mr Gage you appear for sentence today on 49 charges of which you were found guilty after a trial in this Court.  There were nine types of count with which you were charged, being 22 counts of male assaults female, 12 of injuring with intent to injure, three of assault with a weapon, four of sexual violation by rape, three of sexual violation by unlawful sexual connection, two of threatening to kill, one of intentional damage, one of kidnapping and one of indecent assault.   I summarise

these and set out the maximum terms of imprisonment:

Offence	Number of charges	Act / Section	Maximum penalty
Male assaults female	22 (one representative count)	Crimes Act 1961, s 194(b)	2 years’ imprisonment
Injuring with intent to injure	12	Crimes Act 1961, s 189(2)	5 years’ imprisonment
Assault with a weapon	3	Crimes Act 1961, s 202C(1)(a)	5 years’ imprisonment
Sexual violation by rape	4 (one representative count)	Crimes Act 1961, s 128B	20 years’ imprisonment
Sexual violation by unlawful sexual connection	3	Crimes Act 1961, s 128B	20 years’ imprisonment
Threatening to kill	2	Crimes Act 1961, s 306(a)	7 years’ imprisonment
Intentional damage	1	Crimes Act 1961, s 269(2)(a)	7 years’ imprisonment
Kidnapping	1	Crimes Act 1961, s 209(b)	14 years’ imprisonment
Indecent assault	1	Crimes Act 1961, s 135.	7 years’ imprisonment

[2]      The events in question took place between 1996 and 2011.  There were five victims, Ms A, Ms W, Ms T, Ms G and Ms L. All of them had been a partner to you for varying periods.  It would take a very long time to go through all the facts of the

various counts, and I do not propose to do so.  I will, however, make some general remarks about them.

[3]      All  five  of  the  complainants  are  intelligent,  decent  members  of  our community. There was a pattern in the way by which matters evolved. They entered into  relationships with you  based  on  love and  trust.    They willingly made the decision to live with you believing you to be a good man who they could make their lives with, and it is possible to see why that was so as there is no doubt that you presented as a stable and decent person yourself, able to offer them a secure relationship.

[4]      The pattern in the relationships was that after that initial period of happiness that clearly marked the start of your partnerships, jealousy and anger started to intervene. It was always after they had moved in with you or you had moved in with them, and things had been settled for some weeks or possibly longer, that another side of you would start to emerge.  Unprovoked violence began; a reaction to a perceived slight, perceived disagreement, a look at another man, an action that in some way threatened you.

[5]      Some of the assaults were of a reactive type: a punch, an elbow in the face. Others were much worse.  In four of the five relationships, the violence and anger that you had within you and the complete disregard that you had for your partners as people and how they might feel showed itself, when you raped or violated them in various ways.

[6]      The pattern would be that the complainants, none of whom struck me at all as weak people, would initially hope that the incidents of violence and irrationality on your part were isolated, and would stop. The love that they obviously all felt for you for a period continued to hold them with you for a while, but ultimately matters would deteriorate to the stage where they wanted the relationship to end and to get you out of their lives.  This was not achieved easily as far as I can see, by any of them.

[7]      One of the marks of how the relationships would evolve was your complete lack of remorse as to what you had done to your partners on a day to day basis. You do not seem to have had any awareness, any consciousness of the damage you were doing to them.  You would behave as if nothing had happened.  In any event, they would ultimately manage, as I have said with some difficulty, to end the relationship. Four of the five relationships were marked by the obtaining of protection orders — one during the relationship and the other three at the end.

[8]      It  is  difficult  in  these  summary  words  to  describe  the  nature  of  your offending.  There is such a range to the sort of events that took place.  The most serious offending is the sexual offending.  There were rapes repeatedly of one of the victims, with another insertion of objects and the continued use of those objects against protests, and with another forced anal intercourse.

[9]      The other violence often fell appropriately within the male assaults female category, but sometimes there were incidents of greater seriousness.  Ms Foster has referred to some of these incidents, which I pick out as they demonstrate some of the more serious misconduct.

[10]     There was the deliberate punching of the leg of Ms A, which hurt and bruised her, and then later when for no particular reason you were angry with her again you punched her very hard in the same place causing her leg to be very swollen and sore for a long time.  On another occasion, Ms W was in a service station when there was the threat through the phone of driving your  truck through and into her in the presence of her child.   With Ms T there was the “king hit” to her face, which knocked her unconscious and left her with a scar on her eye. With Ms G, as she tried to escape you with her child, the forced detention, the holding of her against her will, preventing her from escaping you.   With Ms L, the strangling so prolonged and strong that she thought she was going to lose consciousness, and the swinging of her by her breasts.

[11]     While none of these are in the worst category of violence we see in this Court, this is serious violence with an element of viciousness to it.  So this is what you must be sentenced on today.

[12]     I have had submissions from the Crown and defence.   Ms Foster for the Crown submits that a starting point, based on the leading Court of Appeal decision1 in this area, should be 17 to 18 years’ imprisonment for the sex offending.  To this, she submits, there must be an uplift for totality of two to three years’ imprisonment, which she submits is conservative.  She asks for the maximum non-parole period of

10 years.

[13]     Mr Kaye on your behalf is understandably reluctant to engage on specific terms, but as he had to recognise, the offending could fall in a range perhaps of between 14 to 16 years’ imprisonment on the basis of that leading decision.   He submits that in relation to the uplift for the other offending, it should be no more than a short term of further imprisonment to avoid a crushing sentence of great length. He submits that no minimum term is in all the circumstances necessary.

[14]     As I have indicated, I am bound in my sentencing by precedent.  The most serious offending is the sexual offending and sentencing in that area is in four bands. The most serious rape band, band four, is where sentences of 16 to 20 years’ imprisonment are imposed. The Court of Appeal has made it clear that in some cases sentences in excess of 20 years can be imposed.  When there has been multiple offending over considerable periods of time, rather than single instances of rape, this band may well apply.   If you were sentenced separately on every count that you faced and those sentences were cumulative, the end sentence would be very long indeed.

[15]     Ms  Foster correctly accepts that the appropriate approach here is not to sentence on a cumulative basis, but rather to sentence on the basis of concurrent sentences within the guidelines.  She submits that this is clearly a case in band four. Mr Kaye submits that it might possibly be seen as towards the top of rape band three.

[16]     I propose adopting the approach of sentencing you on the sexual charges on a concurrent basis, and then addressing the issue of uplift for the other offending.

1      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

[17]     In assessing culpability, there are various standout features of this offending that I have to refer to.  The most significant feature, and why I have decided that your offending most clearly does fall within band four, is the fact that it is multiple offending over a 15 year period against four different victims.   This is sexual offending at a high scale.

[18]     I note that Ms A was subjected to repeated rapes over a three year period, and note the use of the instruments on Ms W.  This sexual offending had elements of violence that go beyond that which is inherent in the act of rape, and so as a second aggravating feature I take into account those acts of violence.

[19]     The third factor, one which was very obvious during the trial, was how your actions involved a serious breach of trust.  These women were vulnerable and had committed themselves to you out of love and you breached their trust in you in a most grave way.

[20]    This brings me to the further factor I take into account in assessing your culpability, which is the very grave effect your actions have had on the victims.  I have already said something about their victim impact statements which make powerful and moving reading.  All of them have had their lives gravely affected by what you have done.  When they were with you when the offending was going on they lived through a period of great misery and physical pain, and now that they are no  longer  with  you  they live  with  the  scars,  some  of  them  physical  but  most seriously mental, that you have left them with. All of their lives are much worse for having met you.

[21]     All of the four victim impact statements (Ms L did not provide one and there can be no criticism for her for that) show that the effects are with them on a day to day basis.  They have all had their ability to trust other people and react with them and enjoy lives affected to greater or lesser extents.

[22]     In the end, a Judge in fixing a figure for such a variety of sexual offending over such a long period has a range.   I have decided not to accept the highest

proposed by the Crown.  I consider that the starting point for the sex offending can be appropriately fixed at 17 years.

[23]     I turn to your other offending, the violent offending, which I have already described.  Mr Kaye has a point when he says that I need to take into account in the sentencing process the requirement to impose the least restrictive outcome that is appropriate in the circumstances.   I also have to take into account the totality principle.  I must not impose a sentence that is out of proportion to the gravity of the overall offending.

[24]     I accept entirely Ms Foster’s submission to me that on an overview your violent offending, or to put it another way all the offending excluding the sex offending, was in itself very serious.  It is not an exaggeration to say that the victims lived in a state of extreme defensiveness bordering on terror as a consequence of your willingness to use your fists, elbows and feet to hurt them when you thought it necessary. While individually none of the assaults are of the most serious type, some of them were as I have identified serious enough.  On an overview they constitute a very serious level of violence. The victims had to live in fear for a very long period.

[25]     So I have to balance the seriousness of this other offending, which in itself could warrant quite a significant sentence, with the need to take into account totality.

[26]     I have decided that the appropriate uplift is two years, which brings the starting point of your sentence of imprisonment to 19 years.

[27]     At this stage it is normal to turn to the personal circumstances of the offender to see whether there should be an uplift or reduction in that starting point.  In your case some obvious points can be made.  Over the period of your offending you have been convicted of seven offences of violence, some of which concern aspects of incidents that you have convicted of in this Court.

[28]     Those convictions are relevant as prior convictions and also because they show that you do not learn anything from a conviction and the imposition of a sentence.  You carried on it seems without pause in your violent behaviour towards

your partners despite the fact that you had been convicted of charges, some of which related to them, and which certainly should have put you on notice that you had a problem with violence.  Undoubtedly you have been lectured by the Courts that you appeared before and told how unacceptable your behaviour was, but you learnt nothing.

[29]    So in ordinary circumstances there would be an uplift for your previous offending and your end sentence would become higher again.  However, Ms Foster has not asked for this and I think she is right to have not done so. The main reason is simply that to add that on as well would be to risk placing upon you a more crushing sentence than should be imposed, and there is also the fact that your misconduct towards  your  partners  has  been  considered  on  an  overview  in  this  sentencing exercise.

[30]     I have the benefit of having a pre-sentence report and reports prepared by a psychiatrist and a psychologist for the purposes of the consideration of a sentence of preventive detention.  In the end, the Crown having received those two reports, has chosen not to seek preventive detention where you would be held in prison for no fixed term until released by the Parole Board.  Given what is in those reports I can understand why the Crown has chosen to take that course of action.

[31]     However,  those  reports  show  that  you  do  not  accept  any  of  the  sexual offending.   You maintain that the complainants have lied about that and colluded with each other.   That suggestion was rejected by the jury and is completely unsustainable given that many of the complainants did not know each other.   It shows a very disturbing self-righteousness on your part and complete lack of awareness.    You  do  accept  that  you  committed  acts  of  violence  towards  your partners.    That  is  something, and  it  was  undoubtedly influential in  the  Crown reaching the decision that it did.  But even in respect of those acts of violence, while accepting  that  they  happened  and  perhaps  should  not  have  happened,  you nevertheless seek to justify your actions on the basis of their conduct rather than your own.

[32]     All this is very curious because you clearly have many worthwhile abilities and features, the very features that undoubtedly attracted the complainants to you in the first place.  You are obviously a good truck driver.  You have worked hard for most of your life.  You seem to be a reliable person in that sense.  You do not have any problem with alcohol or drugs.  You come from a family where your parents clearly love you and support you.  So it is a great mystery as to why you have been so violent and been so wrong, and why you do not realise it. But there it is.

[33]     In the end no-one can be penalised for lack of remorse.  The sentence will be no higher because of these features, but there can be no discount.  As I have said, there is an element of leniency in the sentencing in that there will be no uplift for your aggravating past record.

[34]     So that will be the sentence of 19 years’ imprisonment and I must now turn to the issue of minimum term.  Before I do so, however, I record that you are sentenced on all the male assaults female counts to one year’s imprisonment; on the injuring with intent to injure counts to 18 months’ imprisonment; on the assault with a weapon charges to 18 months’ imprisonment; on the sexual violation by rape charges to 19 years’ imprisonment; on each of the sexual violation by unlawful sexual connection counts to eight years’ imprisonment; on the threatening to kill counts to

18 months’ imprisonment; on the intentional damage count to six months’ imprisonment;  on  the  kidnapping  count  to  18  months’  imprisonment;  and  the indecent assault count to five years’ imprisonment.  All those sentences are to be concurrent.

[35]     I may impose a minimum period of imprisonment longer than the usual parole period if I am satisfied that the normal period is insufficient for the purposes of holding you accountable for the harm you have done to the victims and the community, denouncing your conduct, deterring you and others and protecting the community from you.  These are all considerations that are taken into account in the process of sentencing, and I have taken them into account.  I must now give them particular consideration.

[36]     I have set out the great harm you have done to the victims, all five of them, and thereby to our community.   The sort of long-term repetitive committing of serious crimes must be strongly denounced. You personally have to be deterred from committing this sort of offence in the future, and the community must be protected from you because you are a danger to it.

[37]     In my assessment you are a danger to our community in that history shows you are able to attract partners who will then trust you and place themselves in a situation where they are vulnerable, and that you then move towards violence of the extreme and destructive type that I have outlined.  I have no doubt that a minimum term must be imposed here.  It reflects in particular the scale of your offending and the fact that this has happened time and time again with individual complainants and then to the next one, and the next one, and the next one.

[38]     So what should that minimum term be?  The maximum available is 10 years, that would be a little over 50 per cent.  I have decided that something slightly more merciful  than  that  is  appropriate.    Nevertheless  the  minimum  term  has  to  be extremely long and close to the maximum particularly to deter you and protect the community.

[39]     So the minimum term will be nine and a half years’ imprisonment.

[40]     Will you stand up please Mr Gage.  I sentence you to a term of imprisonment on all counts, broken down in the way I have outlined, of 19 years.  You are to serve a minimum term of nine and a half years’ imprisonment.

[41]     You may stand down.

……………………………..

Asher J