R v Geoffrey William Aitken

[2003] NZCA 271

IN THE COURT OF APPEAL OF NEW ZEALAND

CA251/03

THE QUEEN

v

GEOFFREY WILLIAM AITKEN

Coram:McGrath J
Anderson J
Glazebrook J

Counsel:Appellant in person

M F Laracy for Crown

Judgment (on the papers):      26 November 2003 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]       This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001 have been considered by the members of the Court who have conferred and agreed upon this judgment. 

Offence and sentence

[2]       The appellant pleaded guilty on arraignment in the District Court on a count of doing an indecent act with intent to offend, contrary to s126 of the Crimes Act 1961.  The facts were that the appellant and his partner were joined in their bed by the partner’s daughter, a seven year old girl.  When the partner left the room for some reason, the appellant forced the child’s head under the blankets and broke wind in her face.  What might have seemed merely an act of puerile vulgarity has a more indecent connotation in the fact that the appellant was 38 years of age and that he forced the child’s head into the vicinity of his naked genitalia. 

[3]       The indictment had originally contained the more serious charge of indecent assault on a girl under 12 years, as the Judge remarked in his sentencing notes.  Without clearly articulating his reasons, the Judge considered this a matter of concern about the appellant’s potential to do further harm in the community, but he observed that there was not a clear recommendation in the pre-sentence report for a custodial sentence to enable a Kia Marama programme.  He took the view that an appropriate punishment would be community work and accordingly imposed a sentence of 160 hours community work.

Appellant’s submissions

[4]       Mr Aitken filed his own written submissions, the tenor of which is consistent with his having had some tertiary education, as the pre-sentence report discloses. 

[5]       Mr Aitken submitted, in effect, that the Judge misunderstood the nature of the offence, having apparently regarded it as a sexual offence as his reference to Kia Marama suggests.  He further submitted that the Judge took into account an irrelevant matter, namely the fact that Mr Aitken had a computer.  If the Judge was intending to suggest that Mr Aitken accessed pornography through the internet he would be wrong because the computer had no modem and has never been connected to the internet.  The Judge also considered the guilty plea to be late, but in Mr Aitken’s submission the plea was not late in respect of the count in question.  Mr Aitken submitted that he had inadequate time to prepare for sentencing and that overall the nature of the offending was such as to warrant, at the most, 80 hours community service and could have justified conviction and discharge.

Crown submissions

[6]       The Crown submitted that a sentence of community work was appropriate in the circumstances.  The victim was young and vulnerable and had been caused distress by the fact that the offence had occurred not only in her home but when she was in bed.  Further, the appellant did not come before the Court as a first offender.  He has convictions for injuring with intent to injure, common assault, obscene exposure and other matters.  The Crown submitted that the Judge imposed a sentence that was open to him and correct in principle. 

Discussion

[7]       There is no doubt that the appellant’s conduct was indecent and whether or not it had some sexual motivation, there was nevertheless a sexual element in the fact that the victim’s head was forced into the vicinity of the appellant’s naked genitals.  Why a 38 year old man would wish to inflict such obscene indignity on a child is explicable on the basis of some perverted interest which justified a punitive response to deter any future inclination towards such conduct.  Counsel has not been able to direct the Court to a reasonably similar precedent, in the absence of which the sentence becomes very much a matter of discretion and judgment by the Court of first instance.  We have not been persuaded that the sentencing Judge was plainly wrong and the appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington