R v Hall CA412/05

[2006] NZCA 410

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA412/05

THE QUEEN

v

LIONEL KENNETH HALL

Hearing:         11 May 2006

Court:            William Young  P, Hammond and Robertson JJ Counsel:     M D Downs and J L Verbiesen for Crown

G E Sawyer for Respondent

Judgment:      17 May 2006

JUDGMENT OF THE COURT

The application for leave to appeal is allowed.  The appeal is allowed.  We set aside the sentences imposed in the District Court in part, and substitute concurrent  sentences of  five  and  a  half years  imprisonment  on  each  of  the sexual violation counts.  The concurrent sentences of 12 months imprisonment

on each of the indecent assault counts will remain in place.

R V LIONEL KENNETH HALL CA CA412/05  17 May 2006

REASONS

(Given by Hammond J)

Introduction

[1]      The  Solicitor-General  applies  for  leave  to  appeal  against  an  effective sentence of four years imprisonment imposed by Judge McKegg in the District Court at Blenheim on Mr Hall for sexual offending against three young female victims.

[2]      The Crown submits that the sentence imposed by the Judge manifestly failed to reflect the totality of offending against these victims.  It submits that a sentence of at least six years imprisonment is required even on a Solicitor-General appeal.

The facts

[3]      Mr Hall’s offending relates to three different victims.  We will refer to those victims as A, B and C.  A was 14 years of age at the relevant time; B was 11; and C, 9.  B and C are sisters.

[4]      Mr Hall was convicted after trial.  It is for the sentencing Judge to settle the facts for sentencing purposes.  In this case the Judge dealt with the facts in only a cursory  fashion.     As  a  general  conclusion,  he  noted  that  the  circumstances surrounding the three complainants “are appallingly similar.   They disclose an apparent and continuing predation by you of young and vulnerable girls”.  We find it necessary to enlarge on what was said at sentencing.

[5]      As to victim A, Mr Hall approached her in her own home when he knew A was alone and babysitting a four-year-old neighbour.  A made Mr Hall a cup of tea and sat  with the toddler  on her  knee.    When  the  child  wandered  off,  Mr  Hall encouraged A to sit on his knee.   She acquiesced.   He then put one of his arms around her, and with his free hand pulled down her top whereupon he kissed her breasts and nipples.  This lasted for about a minute.  Mr Hall was interrupted when an adult occupier of the house came home, and A ran outside.

[6]      Later that year, A and her family went to stay with Mr Hall and his family in Murchison.  One evening while A was watching television in Mr Hall’s bedroom, he entered the room and lay on the bed.  He undid A’s jeans and digitally penetrated her vagina for a few minutes.

[7]      Later, during that same visit Mr Hall entered the toilet while A was using it. At that time he touched her bottom and her breasts.

[8]      These events led to convictions on two counts of indecent assault, and one count of sexual violation.

[9]      As to B, Mr Hall was convicted of one count of sexual violation.  During a period of school holidays in 1998 B and C spent  a week at  Mr Hall’s home in Murchison.  On the way to Murchison, Mr Hall bought B a mini-skirt with buttons on it, telling her that she should keep the three buttons undone.  One evening during their stay, B was watching television on Mr Hall’s bed.   He lay down beside her, removed her underpants, and digitally penetrated her vagina.

[10]     As to C, during the same holiday, C was watching television in the lounge when Mr Hall came into the room and hugged her.   While holding her, he put his right hand down the front of her trousers and into her underwear.  He then proceeded to rub her genitalia, although there was no penetration.  C told him to stop, which he did.  Mr Hall told C not to tell anyone.  These events led to a conviction for indecent assault.

The sentence under appeal

[11]     In the District Court, the Judge divided the offending into two groups: the two counts of sexual violation, and the three counts of indecent assault.  He imposed a sentence of four years imprisonment on the sexual violation counts; and 12 months imprisonment on the counts of indecent assault.  All five sentences were to be served concurrently.

[12]     The Judge identified as aggravating factors in this offending: the youth and vulnerability of the  three  victims,  the  breach  of  trust,  the  premeditation  of  the offending, the presence of skin to skin contact, the impact on the victims, and in relation to A, the repeat offending.

[13]     The  Judge  could  identify  no  mitigating  circumstances  in  relation  to  the offending itself.  As to Mr Hall, these were his first offences.  His state of health (to which we will refer further) was said to be such that a term of imprisonment would fall heavily on him.

[14]     The  Judge  expressly  regarded  four  years  imprisonment   as  being  the appropriate starting point.   Nevertheless, despite the identification of aggravating features, that term was not deviated from in the final sentence.   Presumably this indicated that the Judge considered the four years sufficiently took account of those features.

Crown submissions

[15]     Mr Downs argued that the sentence of four years imprisonment would have been within range for either of the sexual violation charges standing alone.  Because this offending relates to separate victims on separate occasions, he submitted that a cumulative sentence is warranted: see s 84 of the Sentencing Act 2002.

[16]     Counsel referred to R v T CA370/04 27 April 2005 where this Court referred to its earlier statements in R v Mwai (1995) 13 CRNZ 273 at 287 that a cumulative sentence in relation to different victims was “a proper recognition of the cumulative nature and effect, which did not at the same time lead to a sentence that was overall too high”.

[17]     The Crown submits that there is a real risk that, left unaltered, the Judge’s sentencing process effectively ensures that the offender receives no additional sanction for repeated offending against different people.  Comparison is made to the case of R v Te Amo CA435/00 29 March 2001.  In that case, this Court rejected a submission that concurrent sentences should have been imposed in relation to an

assault on a child (the appellant’s daughter) and a threat to kill his partner three and a half days later.   The Court noted that “concurrent  sentences would almost  be a licence to repeated domestic assaults.”

[18]     Having   determined   to   impose   concurrent   sentences,   the   Judge   was nevertheless required to apply the totality principle.   Section 85 of the Sentencing Act 2002 obliges the Judge to choose a lead sentence that reflected the totality of all the  offending,   and   sentences   for  the   other  offences   that   were   individually appropriate.

[19]     The Crown submitted:

[T]he  soundest  way  to  assess  the  totality  of  offending  against  multiple victims is to separately assess the appropriate sentence in relation to each, to add those sentences together, and then to ask the question posed by s 85(2): whether the total period of imprisonment is ‘wholly out of proportion to the gravity of the overall offending’.  That methodology is appropriate whether a cumulative or a concurrent approach is preferred.

[20]     This, in the Crown’s view, provides meaningful recognition of the harm to separate victims.

[21]     Mr Downs said the four-year sentence, as well as being appropriate for a single offence, could be seen as lenient in light of the aggravating features of this offending.  In relation to the offending against A in particular, the sentence would need to be higher to reflect the two additional instances of indecent assault.   He compared  the  case  of  R  v  O  CA193/99  26  October  1999  where  this  Court commented that the act  of digital penetration alone  in the circumstances of the offending (against a 15-year old daughter) would have justified the four-year term of imprisonment.   Although that case involved intra-family offending, Mr Downs pointed to the fact that in the present case the victims are younger.

[22]     On a cumulative basis, it was said that the Judge should have, prior to any question of totality, imposed sentences as follows:

•   four years for the sexual violation and indecent assaults against A;

•   four years for the sexual violation of B; and

•    12 months for the indecent assault of C (although the Crown states this may be considered lenient).

[23]     Mr Downs acknowledged that nine years would be one year more than the starting point for a contested rape of an adult victim.  But he said that this case is, overall, perhaps at least as serious as a single incident of rape.  By comparison with other cases of sexual violation, he submitted that a sentence of no less than six years imprisonment was the minimum which the sentencing Judge could impose.

[24]     Mr Downs reminded us that what was at one time (R v M [2000] 2 NZLR 60) thought to be an appropriate starting point of between two to five years was said to be conservative (given the increase in maximum sentence for sexual violation in

1993 to 20 years), in R v Tranter CA486/03 14 June 2004.

[25]     As to the health issues relating to Mr Hall, Mr Downs argued in his written submissions that  health issues do  not  automatically, or even usually, result  in a reduction of sentence.   He said there is no  evidence of the effect  imprisonment would have on any health issues, while the evidence of Mr Hall’s condition itself is “scant”.  In oral argument, he accepted that some allowance should be made in this case, having regard to Mr Hall’s affidavit (see, infra at [40]).

[26]     As to the lack of previous convictions, Mr Downs referred to R v Weavers

CA482/05 1 March 2006 at [17]:

Previous  good  character  becomes  a  somewhat  hollow  concept  when offending occurs several times a week for the best part of the year.

[27]    Consistent with Solicitor-General appeals, Mr Downs submitted that the sentence should be increased to the lowest level which is properly available, namely, six years imprisonment.

Respondent’s submissions

[28]     For  the   respondent,   Mr  Sawyer   supported  the   sentence   imposed   by Judge McKegg.    He  said  that  although  it  could  be  considered  light,  it  is  not manifestly inadequate.  His argument rests on two bases.

[29]     First, he argued that, on appeal, even where a cumulative sentence might have been appropriate, this Court should be wary of altering the sentence.   Any alteration to a cumulative sentence, the respondent submits, would entail a severe adjustment in order to reflect the principle that “the aggregate term must not be wholly  out  of  proportion  to  the  gravity  of  the  offences”  (R  v  Mahoni  (1998)

15 CRNZ 428 at 435 (CA)).

[30]     Secondly, Mr Sawyer argued there should be no interference which “would result in the reduction of individual sentences to a level which the victims of those offences might well regard as derisory” (R v Mahoni at 435).   The logic of this argument  appears to  be that  the  victims  of the  more  serious  offence  of  sexual violation would have been demeaned by the necessary reduction required by the totality principle, if cumulative sentences had been imposed.

[31]     Mr Sawyer said that Judge McKegg paid proper attention to the principles articulated  in ss 84  and  85  of the  Sentencing  Act  2002.   In instances where  a sentencing Judge has elected to impose cumulative sentences, the period of imprisonment must not be “wholly out of proportion to the gravity of the overall offending” (s 85(2)).   Where a concurrent sentence is imposed, the respondent submits, the approach is to assess the “totality of the offending” and impose that on the most serious offence which, in the present case, was arguably the two counts of sexual violation against A and B.   This, according to the respondent, is precisely what the sentencing Judge did.

[32]     Mr Sawyer referred to R v Tranter for the proposition that there is no tariff sentence  in  cases  for  sexual  violation  by  digital  penetration.    Continuing  with Tranter, he then submitted that it is more helpful to refer to a starting point and then allow for appropriate adjustments to account for mitigating and aggravating features.

He drew attention to the case of R v E CA94/04 21 September 2004 (decided after Tranter).    He  cited  [35]  of  that  case  in  arguing  that  R  v  M  provides  general sentencing parameters:

… the appropriate sentencing level depends upon the circumstances of the offending.  The implication is, of course, that as a generalisation, sentences in cases of sexual violation by unlawful sexual connection will tend to fall within a two to five year range, modified not only by the circumstances of the offending but by such factors as guilty pleas and personal mitigating characteristics.

[33]     Mr Sawyer also submitted that Judge McKegg, having referred to Mr Hall’s state of health, can be assumed to have factored this into his final figure of four years imprisonment.  This would be in keeping with s 8(h) of the Sentencing Act 2002 and established  case  law.    In  contrast  to  the  Crown’s  contention  that  the  medical evidence was “scant”, the respondent submitted that the Judge was well aware of Mr Hall’s condition through information supplied at sentencing and observation of medication requirements (and Mr Hall’s discomfort) throughout the trial.  Although the respondent believes it would be speculative to assess the impact this had on the final sentence, it is submitted that a reduction in the order of two years to one-third would have been appropriate.  This would have meant a starting point of six years, which, the respondent contends, leads to the same result as imposing two cumulative sentences of three years for the two counts of sexual violation.

[34]     Mr Sawyer said that a formal request of the prison to provide an updated medical report had fallen on deaf ears.   We have been provided with an updated affidavit by Mr Hall as to his health.  In essence, Mr Hall deposes that he is afflicted by a number of serious medical problems and he is now confined to a wheel chair.

Discussion

[35]     It is trite that there is no “tariff” for offending of this character.  At the time of R v M   [2000] 2 NZLR 60 it was thought that the range for offending of this character might be two to five years. However this Court has subsequently said (see R v Tranter CA486/03 14 June 2004) that the appropriate sentencing range has to be viewed  in  light  of  the  change  in  maximum  sentence  for  sexual  violation  from

14 years to 20 years imprisonment in 1993.  A starting point in excess of five years may well be appropriate in more serious cases.

[36]     It is useful to refer to the facts of Tranter.   There the offender accosted a 16- year-old schoolgirl as she was walking down the street after midnight.   He put his hand under her skirt and held her forcefully while grasping her in the genital area. This girl attempted to escape and told him to  leave her alone, but the offender aggressively and repeatedly attempted to remove her underwear and grab her genital area.   During the attack, the offender’s fingers partially entered the complainant’s vagina through her underwear.  On appeal from a sentence of three years, O’Regan J for the Court said (at [96]):

In our view the minimum starting point in this case should have been three years, reflecting that this was an attack which, though it involved minimal and fleeting penetration, was a violent sexual assault on a young girl which had traumatic consequences for her. … [W]e do not believe that there are any mitigating factors in this case.

The Court added two years to this starting point to take account of Mr Tranter’s previous convictions, and the fact that this offending took place while on parole for another offence of sexual violation.

[37]     Mr Hall’s case does not involve a comparable degree of violence, or a street attack.  But it has particularly serious features in the breach of trust in each instance, the degree of pre-meditation or even grooming, and the fact of younger and multiple victims.

[38]     Section 85(4) of the Sentencing Act 2002 provides that if only concurrent sentences are to be imposed the most serious offence must receive the penalty that is appropriate for the totality of the offending and lesser sentences must  receive a penalty appropriate to that offence.

[39]     Viewed separately, the offending against  A and B would  have warranted sentences in the order of three and a half and four years.  The lower order offences might have attracted 18 months to two years.  Allowing for the totality principle, we think this case called  for  a  starting  point  of at  least  seven  years  imprisonment (although a higher starting point could not have been criticised).

[40]     As to Mr Hall’s medical condition, by an affidavit of 27 April 2006 he claims to be suffering from:  hypertension; cardiovascular disease; cerebrovascular disease; sleep apnoea; back pain; asthma; arthritis; and strokes.  Mr Hall says he is confined to a wheel-chair, which poses particular problems in going to the toilet in prison.  He says he has had “minor strokes” as a result of which he suffers from “right side weakness”.  He has been hospitalised.  The prison will not allow him morphine, and he receives methadone instead.  Mr Hall is serving his sentence in the Matai 2 unit at Christchurch Prison, which he describes as “the only facility within the unit with disability services”.  He is unable to access the library and is dependent on a “mobile library service”.

[41]     The  Crown  responsibly  agrees  that  some  allowance  should  made  for Mr Hall’s health.   In addition, this is a Solicitor-General appeal and therefore the increase should be to the minimum term consistent with the interests of justice.

[42]     Accordingly, we conclude that the effective sentence imposed on Mr Hall should  be five and a half years imprisonment.   That  will be given effect to  by attaching that term to each of the counts of sexual violation, concurrently.   The concurrent sentences of 12 months imprisonment on each of the indecent assaults will remain in place.

[43]     Leave is given to appeal.  The appeal is allowed, to the extent set out in [42]

above.

Solicitors:

Crown Law Office, Wellington

Gascoigne Wicks, Blenheim for Respondent