R v H
[2015] NZHC 657
•2 April 2015
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2014-087-000551 [2015] NZHC 657
THE QUEEN
v
H
Hearing: 2 April 2015 Appearances:
C A Harold for the Crown
G R Tomlinson for the DefendantSentencing:
2 April 2015
SENTENCING NOTES OF WOOLFORD J
Solicitors: Crown Solicitor, Tauranga
Gowing & Co Limited, Whakatane
R v H [2015] NZHC 657 [2 April 2015]
Summary
[1] Mr H, you were convicted, after a jury trial, of six charges of indecent assault on a young person (one of which was representative) and two charges of sexual violation by unlawful sexual connection (one of which was also representative).
[2] Sexual violation by unlawful sexual connection, under s 128B Crimes Act
1961, carries a maximum penalty of 20 years imprisonment. Indecent assault, under s 134(3) of the Crimes Act 1961, carries a maximum penalty of seven years imprisonment.
[3] Given the jury’s findings, I must now sentence you to an appropriate sentence which reflects the culpability of your offending.
Facts
[4] The facts of your offending are that you, Mr H, sexually violated your
13 year old niece on a number of occasions between December 2013 and March
2014.
[5] The victim lived between two homes on a family property, with her grandmother living in one and her mother in the other. In April 2013, Mr H, you moved to live with your mother, the victim’s grandmother.
[6] You and the victim became close. She had no father, and you became a father figure to her. You helped her when she was having difficulties with her own mother. You helped her with her homework and you gave her financial assistance. Through that closeness, you took advantage of her and sexually offended against her on a number of occasions.
[7] On 11 December 2013, you came in to the victim’s room to wake her up to go to school. You got into bed with her, but then stroked her breasts and touched her vagina. This was the first unlawful sexual connection charge. The second, representative, charge of unlawful sexual connection is that on three to five
occasions, you stroked the victim’s vaginal area, and put your fingers inside her
vagina.
[8] As well as these more serious offences, you also committed six charges of indecent assault, which included trying on one occasion to get her to touch your penis, and one representative charge reflecting that on about five occasions you “humped” the victim, by lying on her and moving your body against hers.
[9] You were acquitted on one other charge of unlawful sexual connection, and the jury were unable to agree on two other counts of indecent assault. I am advised by the Crown this morning that it does not wish to proceed on these two other counts of indecent assault and you are accordingly discharged on Counts 1 and 3 in the indictment.
Victim Impact Statement
[10] The victim impact statement details the extent to which your offending, Mr H, has affected her life. She details that she is now living away from her mother, has had to change schools and leave her friends behind. She explains how much she loved and trusted you and how she wanted to please you because you were good to her.
[11] The victim describes how you turned people in the family against her and her mother, and how they are now made to feel unwelcome by her grandmother and her previously close cousins. She expresses, understandably, her hurt at being punished and excluded from the family and the view that she has been “trespassed” from her grandmother’s house.
[12] She describes the confusion her sisters now experience, feeling they have to choose between sides of the family. She says she wants you to get help, and also to admit what you have done to her so that everyone can move on.
Personal circumstances
Prior Convictions
[13] You have no previous convictions.
Pre-Sentence Report
[14] The pre-sentence report received is somewhat problematic. Mr H, you continue to deny your offending against the victim, and because of that you show no remorse for your actions. Although these are your first convictions, due to the number of offences and your denials, you are assessed as at a medium risk of reoffending and a medium risk of harm to others. I agree with Mr Tomlinson, however, that your risk of reoffending is somewhat lesser than that described in the pre-sentence report. However, your continued denial of the offending will be a barrier to your eligibility for interventions and treatment. You are reluctant to engage in rehabilitation for child sex offending, but are willing to consider psychological assessments more generally.
[15] Apart from your offending, you have been a positive member of the community. You had a good upbringing, have worked for most of your life and report that you have been involved in tutoring and coaching school children and otherwise helping your family and members of the community. You do not drink, except on occasion, and do not use drugs.
Submissions
Crown Submissions
[16] The Crown submits that the representative charge of unlawful sexual connection should be seen as the lead charge for the purposes of sentencing, and that it should be considered as aggravated by the specific unlawful sexual connection charge, and the other range of indecencies which took place. The Crown characterises the offending as serious sexual offending against a vulnerable victim over a period of three and a half months, warranting a starting point of six – seven years imprisonment under Band 2 of the guideline judgment which is R v AM.
[17] The Crown identifies the vulnerability of the victim, the breach of trust involved, the scale of the offending, an element of premeditation or grooming, and the significant harm caused as aggravating features giving rise to added culpability. These factors point towards a sentence in the middle of Band 2.
[18] The Crown concedes that a discount for your previous good character is available.
Offender’s Submissions
[19] Mr H, your counsel acknowledges that the starting point could be up to five years imprisonment, as the matter falls into the top of Band 1 and bottom of Band 2 of the guideline judgment, R v AM.
[20] Counsel submits that the culpability factors relevant are a breach of trust, and “to a certain extent” the vulnerability of the victim. Any other factors are seen as reflecting culpability insofar as they are a natural part of all sexual offending.
[21] Counsel argues you should receive a 12 month, or 20 per cent discount. This is said to account for your previous good character and the fact that, at the age of 54 and as a first time offender, prison will be particularly difficult for you.
Sentencing approach
[22] Mr H, the sentencing process follows a standard approach under the Sentencing Act 2002 (the Act).1 I must consider the purposes and principles of sentencing, as set out in the Act. I will consider what would be an appropriate starting point for the particular culpability of your offending, and in doing so I will have reference to the guideline tariff case, in which the Court of Appeal has set out specific guidelines which are applicable in sentencing for the crime of unlawful sexual connection. I will then consider any relevant aggravating or mitigating
features personal to you which might require altering this starting point.
1 R v Clifford [2012] 1 NZLR 23 (CA).
[23] In sentencing you, Mr H, I have particular reference to the need for the sentence to demonstrate accountability for harm done to the victim and the community and particularly, responsibility for, and acknowledgment of that harm. There is also a need to denounce and to some extent deter this type of behaviour.2
[24] The relevant principles of sentencing include considering the gravity of the offending, including the degree of culpability, the seriousness of the offending and the effect of the offending on the victim.3
[25] I adopt the representative unlawful sexual connection charge as the lead offence, meaning I will set a sentence in relation to that offence and then will consider whether that adequately reflects the range of other offences you have been convicted of.
[26] The case of R v AM sets out the relevant sentencing criteria in cases of unlawful sexual connection.4 In that case, the Court of Appeal identifies a number of aggravating factors specific to unlawful sexual connection, and then sets out guideline bands which direct broadly the level of conduct necessary to receive different levels of sentence, up to the 20 year maximum sentence of imprisonment. The relevant bands are:
(a) Band one:5 2–5 years imprisonment, appropriate where aggravating features are either not present or present to a limited extent only; and
(b)Band two:6 4–10 years imprisonment, appropriate where two or three aggravating features are present increasing culpability to a moderate degree.
[27] There is evidently overlap between these two categories. The Court also discussed some of the cases which would justify either the use of band one or band
2 Sentencing Act 2002, s 7.
3 Sentencing Act 2002, s 8.
4 R v AM [2010] NZCA 114.
5 At [114].
6 At [117].
two. They highlighted the case of R v Kincaid,7 which could be either the top of band one or the lower end of band two, given “the age disparity between the victim and the offender, the use of a threat, and the fact the incidents occur on more than one occasion.”8
[28] The Court also identified R v C and R v Bell as being at the cusp of bands one and two, because of the breach of the trust of a child and the nature of the sexual activity in C, and the period of offending and added indignity of indecent photographs in Bell.9
[29] I will now refer to four cases to give some comparison to your offending, Mr H. In R v Bell a nine year-old girl, who assisted Mr Bell with his housekeeping in exchange for money, was subject to a number of indecent assaults over six months, culminating in two instances of sexual violation on the same occasion. The sexual violations involved digital penetration and licking the victim’s genitalia. The indecencies included rubbing her vagina through her clothing and licking and sucking her breasts. The offender also took indecent photographs of the victim, and exposed himself to her and asked her to touch his penis. The judge in that case set the starting point at four years imprisonment which was increased by a year for aggravating features, being age, breach of trust, premeditation and repetition.
[30] In the second case I mention, R v Takamore, Mr Takamore kissed and touched the breasts of an 11 year old victim, when she stayed at a shared farm house.10 On one occasion, he drove the victim and his son to the beach and told his son to leave the car. He then began rubbing the victim’s breasts and vagina, and then removed her shorts and inserted his fingers into her vagina. The planning and premeditation, vulnerability of the victim, harm to the victim, and breach of trust justified a starting
point of four years imprisonment.
7 R v Kincaid [1991] 2 NZLR 1 (CA).
8 At [116]
9 R v C (CA43/98), 28 May 1998; R v Bell CA393/05, 28 April 2006.
10 R v Takamore [2013] NZHC 719.
[31] In the third case I mention, that of R v Liaki, the lead offence was two counts of sexual violation of an eight or a nine year old, by digital penetration.11 These offences justified five years imprisonment, with further uplifts for other offending which occurred both against the same victim and others. The offender was a trusted person within the victim’s family, and although the three indecency offences against her were opportunistic the sexual violations involved a degree of planning. This was
seen as above the bottom of Band 2.
[32] The fourth case is R v Rua, in which the Court of Appeal considered the sentence imposed on Mr Rua for two counts of sexual violation by unlawful sexual connection, six charges of doing an indecent act on a young person, as well as one count of attempted sexual violation by unlawful sexual connection.12 The offender was a teacher’s aide at the victim’s school and the stepfather of the victim’s friend. The charges related to touching her inappropriately, kissing her on the mouth, similar “humping” to the case here, and both licking her genitalia and penetrating her with his finger as well as attempting to make her suck his penis. The sentencing Judge
imposed a five and a half year starting point, with reference to the victim’s vulnerability as an 11 year old, the breaches of trust involved in offending against her at school and at a house she had been invited to stay in, acknowledging there was a very low-level planning and the brevity of the violations.
[33] The Court of Appeal upheld the starting point, characterising it as showing the offending was at the lower end of Band 2 given the breach of trust and nature of the activity.13
Analysis
Starting point
[34] Having considered the case of R v AM and the other cases I have just referred to, Mr H, I assess the following aggravating factors as relevant to your offending
against the victim, under s 9 of the Act. First of all:
11 R v Liaki [2013] NZHC 2087.
12 R v Rua [2014] NZCA 599.
13 At [58] and [59].
(a) The extent of any resulting loss, damage, or harm:14 the victim’s impact statement demonstrates the effect on the victim’s day-to-day life, and her interaction with the rest of her family. The long-lasting harm caused to those relationships is a substantial impact on her life as a result of this offending.
(b)Breach of trust or authority:15 the offending occurred in the context of a close family relationship between uncle and niece, in which the relationship was particularly proximate as Mr H, you shared a house with the victim on a regular basis.
(c) Vulnerability of the victim:16 at 13 years old, the victim was vulnerable through her age alone.
(d)Premeditation:17 although the Crown submits that your friendship and relationship with the victim was evidence of grooming, there is nothing, in my view, to suggest this was a deliberate cultivation of a young girl for the intended purpose of later sexually assaulting her. However, I agree that there was some element of premeditation to this offending – this was not a one off incident, but a three month period in which you took multiple opportunities to seek out the victim. Although there was no extensive premeditation, this must be considered as beyond merely opportunistic offending.
[35] There is a relative similarity between the facts of R v Bell and the facts here. In both cases, the offending occurred over a number of months, with two instances of sexual violation accompanied by a number of indecent assaults. Although in the present case the violations were on different dates, and more frequent, the violations in Bell were of a more invasive nature, and photographs of the victim were taken.
Despite Bell being seen as on the cusp of band one and band two, the offending in
14 R v AM, above n 4, at [44] and Sentencing Act, s 9(1)(d).
15 R v AM, above n 4, at [50] and Sentencing Act 2002, s s 9(1)(f).
16 R v AM, above n 4, at [42] and Sentencing Act 2002, s 9(1)(g).
17 R v AM, above n 4, at [42] and Sentencing Act 2002, s 9(1)(i).
this instance is more clearly seen as in band two given the nature of the trusting relationship between you and the victim, H.
[36] However, it is in the bottom end of band two. The types of the violation involved in R v Rua was far more extensive, albeit similar in aggravating factors, and received five and a half year sentences. The offending in this instance is more comparable to R v Liaki, given the vulnerability of the victim, the trust and low-level premeditation. That case warranted a five year starting point. Takamore involved very similar offending, but in a much more concentrated period. I consider that the four year sentence in that case would not be appropriate for this more serious offending.
[37] Considering the aggravating factors I have outlined, in my view, a four and a half year starting point is appropriate. I must also consider the totality of your offending as a whole. Given the six charges of indecent assault which you also face (one of which is representative), I consider an uplift of three months is necessary to reflect your indecent assaults against the victim, particularly their frequency.
[38] Mr H, there are no mitigating factors of your offending which require reducing the starting point in any way.
Personal factors
[39] However, I now turn to consider factors personal to you, which could justify altering the starting point. There are no aggravating factors relating to you personally: you have no previous convictions, and the offence was not committed while you were on bail or any other type of sentence.
[40] The only mitigating feature available is for your previous good character. Although counsel on your behalf has sought to argue that you should also obtain a discount for your age, I do not consider that at 54 you are that old that prison will be significantly worse for you than for others. Although I acknowledge that it will not be an easy transition, no discount by reason of your age is justified on these facts.
[41] However, you have never offended in the past, and have been a positive member of society prior to this offending. I acknowledge that. In the circumstances, a six month discount is appropriate. This brings the final sentence to four years three months imprisonment.
[42] As you did not plead guilty, no further discount is available to you.
Recommendation
[43] Mr H, I impose a sentence of four years and three months imprisonment on the lead charge of sexual violation by unlawful sexual connection.
[44] I also impose the following sentences on your other charges, to be served concurrently:
(a) Four years imprisonment for the specific charge of unlawful sexual connection; and
(b) Three years imprisonment on each charge of indecent assault.
Woolford J