R v Hicks CA79/03

[2003] NZCA 420

ORDER PROHIBITING PUBLICATION OF COMPLAINANTS' NAMES AND ANY OTHER PARTICULARS THAT MAY LEAD TO THE IDENTIFICAATION OF THE COMPLAINANTS

IN THE COURT OF APPEAL OF NEW ZEALAND

CA79/03

THE QUEEN

v

ANTHONY GEORGE SIMON HICKS

Hearing:         19 June 2003

Coram:Glazebrook J Heath J Doogue J

Appearances: G D Trainor for Appellant

J M Jelaś for Crown Judgment: 25 June 2003

JUDGMENT OF THE COURT DELIVERED BY HEATH J

Introduction

[1]                  The appellant stood trial, on charges of a sexual nature, in the High Court at Wellington in March 2001. After the commencement of trial, but before the jury’s verdict, he pleaded guilty to the following charges:

R V ANTHONY GEORGE SIMON HICKS CA CA79/03 [25 June 2003]

a)One representative charge of indecent assault of a girl between the age of 5 and 12 years

b)One charge of sexual violation by way of unlawful sexual connection of a child between the age of 5 and 8 years

c)One charge of injuring [removed] (the mother of the two children) with intent to cause grievous bodily harm to her

d)One charge of assaulting a female child; she being a child who was the victim of the indecent assault.

[2]                  The appellant appeared for sentence in the High Court at Wellington on        9 April 2001. He was sentenced to an effective term of imprisonment of 5 years. At para [18] of his sentencing remarks the learned Judge stated:

In all the circumstances and extending to you such leniency as I can that is the very minimum that I can impose.

[3]The appellant seeks to appeal, out of time, against the sentence imposed.

[4]                  Two grounds are advanced in support of the contention that the sentence imposed was manifestly excessive. The first complaint is that the learned Judge imposed a sentence of imprisonment on the charge of injuring with intent to cause grievous bodily harm which was manifestly excessive. The second is that, applying the totality principle, the effective sentenced imposed was also manifestly excessive.

[5]                  This is a case in which we are satisfied that a determination on whether leave to appeal out of time ought to be granted will be governed, primarily, by the merit or otherwise of the grounds of appeal. Accordingly, we consider first the substantive appeal against sentence.

The facts

[6]                  On sentencing, the Judge carefully reviewed the facts on which he intended to sentence the appellant. Our summary is taken, primarily, from the learned Judge’s sentencing remarks.

[7]                  [Factual paragraph removed to comply with suppression banner].

[8]                  In a period between April 1991 and November 1998 the appellant indecently assaulted [child victim] on a number of occasions. The indecencies took the form of fondling, touching in the chest and vaginal region and, on one occasion, removing her undergarments to lie on top of her in circumstances falling short of an attempt to complete an act of sexual intercourse. The young girl was, as the Judge remarked “powerless to resist” and “fearful of telling her mother”. That appears to be the reason why the offending continued, undetected, for so long.

[9]                  The [child victim] was also the subject of an assault which occurred on 20 March 2000. The appellant struck her about the legs, arms and back. Although the victim alleged she was struck with a belt, the appellant contended he used a jandal. In any event, as the Judge rightly remarked, “the assault went beyond what was properly parental discipline”.

[10]              The charge of unlawful sexual connection involved the appellant’s natural daughter. At some time during the period when the family was living in Palmerston North, the appellant entered his [2^nd child victim’s] bedroom and penetrated her by inserting  a finger into her vagina. Although there is some suggestion in the sentencing  remarks of the learned Judge that activity of this type occurred over a three year

period, we note that the Judge reminded himself, expressly, that the charge was not a representative charge. The [2^nd child victim’s]  evidence was that when this sexual violation occurred she was about four or five years of age.

[11]              The charge of injuring with intent to cause grievous bodily harm arose out of an incident involving the appellant and his partner on 20 November 1999. They  were then living in Lower Hutt. Earlier, while the appellant and his partner were living in Palmerston North, his partner obtained a Court order to provide a measure of protection against violent behaviour from the appellant which she feared. However, notwithstanding that generalised fear of violence, the Judge was satisfied that the violence which occurred on 20 November 1999 arose out of drunkenness, in circumstances where the appellant’s will, or degree of self-control had been removed.

[12]              Nevertheless, the assault was serious. On the evidence of his partner, the appellant strangled her, or attempted to strangle her, in a manner intended to render her unconscious. The children were in the house and heard or saw the altercation.  As a result of what occurred his partner was required to see a doctor who diagnosed bleeding of a ruptured blood vessel around the eye socket, as well as other minor injuries.

Sentence imposed by judge

[13]              The Judge approached sentencing having regard, primarily, to the totality principle. While the Judge does not refer explicitly to a starting point it is clear that he used a term of imprisonment of 6 years as his starting point for the totality of the offending. He then gave credit of one year for the late plea of guilty.

[14]              In assessing the appropriate sentence the Judge identified the following aggravating features:

a)The age of the two children at the time of the respective offending

b)The “gross violation” by the appellant of his position of trust [removed] in circumstances in which they could not, dispute their distress, be expected to complain, object or resist;

c)The multiple victims involved.

[15]              In mitigation, the Judge noted the following features which he took into account:

a)The plea of guilty, on the basis indicated; and

b)The remorse expressed by the appellant.

[16]              The Judge recorded that the Victim Impact Statements disclosed serious psychological and emotional harm, both to the children and to the appellant’s partner.

[17]In assessing the appropriate sentence the Judge said:

[15]   Courts recognise the difficulty in fixing tariffs for sexual offending because so much depends upon the individual circumstances. Every individual case is different. Every accused is different. However,  in  this case there is sexual offending against two young girls in the family context with indecent assaults occurring as against the older child on repeated occasions as reflected in the representative charge. The sexual violation of the younger child, although on one occasion only, was particularly serious involving the physical penetration of her. You clearly have an unhealthy disposition towards alcohol, which led you to commit these offences but that is no excuse. As I have said, it is well known that grave harm can be done to young children for this type of offending whether outside or within the confines of the family, and your daughters, apart from being the victims of crimes, have lost a father.

[16]    The sexual violation of the youngest child alone would justify a substantial term of imprisonment of at least four years. For indecent assaults on [child victim] over a protracted period would likewise justify something at least in the region of three years, if not more. The injuring with intent and the assault are aggravating features. Viewed in that total context a sentence of six years imprisonment could well be warranted on the basis of cumulative sentences and in order to reflect the totality of offending.

[18]              With regard to the offending against the children, the Judge sentenced the appellant to imprisonment for

a)3 years and 6 months on the charge of sexual violation by unlawful sexual connection;

b)3 years on the charge of indecent assault; and

c)6 months on the charge of assaulting [child victim].

Those three terms were to be served concurrently.

[19]              On the charge of injuring with intent to cause grievous bodily harm, the Judge imposed a sentence of 18 months imprisonment which was to be cumulative upon other sentences. That made the effective term to be served one of 5 years imprisonment.

The competing contentions

(a)     Submissions for appellant

[20]              Mr Trainor submitted that the Judge failed to give credit for the plea of guilty on the charge of injuring with intent. In making that submission, Mr  Trainor suggests that the principal focus of those involved in the sentencing process was on the crimes of a sexual nature and the impact of those crimes on young victims. To support that view, Mr Trainor has referred us to the Victim Impact Statement of the complainant which refers, primarily, to the effect of the sexual offending on her children and, in turn, on her.

[21]              Mr Trainor submitted that the following matters ought to have been taken into account in mitigation;

a)the plea of the guilty,

b)that the charge involving his partner was not a representative count,

c)the fact that his partner was well enough to work the following day, notwithstanding the injuries suffered,

d)in the struggle leading to the offending, the appellant, himself, suffered an injury at the hands of the victim.

[22]              Having regard to those factors,  Mr  Trainor  submitted  that  a  sentence of 18 months imprisonment on this charge was manifestly excessive.

[23]              Alternatively, he submitted that the totality principle does not justify the imposition of a sentence of the magnitude imposed by the sentencing Judge. In support of this submission Mr Trainor relies upon the uncontroversial proposition that when consecutive sentences are imposed the duty of a sentencer is to ensure the totality of the consecutive sentences is not excessive: see, generally, R v Bradley [1979] 2 NZLR 262 (CA) at 263. Mr Trainor submitted that when consecutive sentences are imposed the final duty of a sentencer is to make sure that the totality of the consecutive sentences is not excessive. He submitted that if the sentencer thinks that the total may be excessive it is his or her duty to reduce the sentence to a sentence which reflects the overall criminality. Mr Trainor submits that an aggregate sentence of 5 years imprisonment must be seen as manifestly excessive.

(b)    Submissions for respondent

[24]              Ms Jelaś joins issue on both points raised by Mr Trainor. First, she submits that a sentence of 18 months imprisonment was within the range available to the sentencing Judge having regard to the seriousness of the offending. Second, she submits that the overall effective sentence cannot be characterised as manifestly excessive.

[25]              In considering the totality principle, Ms Jelaś also refers us to the decision of this Court in R v Bradley. She submits that the question for our determination is

whether the aggregate term is out of proportion to the gravity of offending, when viewed as a whole.

Analysis of competing submissions

(a)     General

[26]              As sentence was imposed on 9 April 2001, the Sentencing Act 2002 [the Act] does not apply. Accordingly, we must determine whether, on sentencing principles applicable prior to the Act coming into force, the sentence for injuring with intent to cause grievous bodily harm was, in the circumstances, manifestly excessive. We must then apply the totality principle to determine whether the effective sentence was within the range available to the Judge.

[27]              In making those observations we note that there is nothing in the Act which would alter the basis on which we approach this appeal. In particular we note the circumstances in which it is appropriate to impose cumulative sentences and the need to apply the totality principle are now reflected in ss83-85 (inclusive) of the Act.

(b)     The injuring with intent charge

[28]              The first question is whether the discrete sentence of 18 months imprisonment imposed on the charge of injuring his partner with intent to cause grievous bodily harm was manifestly excessive. The maximum penalty for which s189(1) of the Crimes Act 1961 provides is one of 10 years imprisonment.

[29]              The offending against the appellant’s partner must be treated as a single incident. Only one charge was laid. That charge was not a representative charge.

[30]              It is fair to say, as Mr Trainor submitted, that the Judge, in stating aggravating and mitigating factors, referred, primarily, to the incidents involving the children. The Judge did, however, also refer, in the context of aggravating features, to the fact that multiple victims existed, “including [the appellant’s] partner, in

relation to the charge of injuring with intent to cause grievous bodily harm”. No specific mention was made, in the context of mitigating features, of the matters raised by Mr Trainor in relation to the charge under s189(1) of the Crimes Act.

[31]              In our view it was appropriate for the Judge to focus, in assessing aggravating and mitigating features, on the totality of the offending. In that way the Judge concentrated on the need to ensure that the effective term of imprisonment was an appropriate community response to the offending viewed as a whole.

[32]If the s189(1) charge is considered in isolation, the combination of:

a)the maximum penalty available for a charge of this nature (10 years imprisonment);

b)the nature of the injuries sustained by his partner;

c)the background of fear of violence under which the appellant’s partner apparently lived for some time; and

d)the intent to cause grievous bodily harm evidenced by the plea of guilty

would place a sentence of 18 months imprisonment in the category of a lenient rather than a manifestly excessive sentence. In making that observation we do not overlook issues of mitigation.

(c)    The totality issue

[33]              The next question is whether it was appropriate for the Judge to impose cumulative sentences. There is no doubt that the offending against the appellant’s partner, by way of serious assault, was different in kind and unconnected to the offending against the children. For that reason alone, a cumulative sentence was justified.

[34]              We agree with counsel for the Crown and the sentencing Judge that the offending against the children involved gross breaches of trust and violence towards vulnerable family members. The representative charge of indecent assault covered a period of over seven years. Over that period the [child victim] was aged between  five and eleven years. While there was only one charge of sexual violation by unlawful connection, that cannot, in any way, minimise the seriousness of that particular offending.

[35]              Significant aggravating features in this case include a continuous pattern of behaviour involving indecent assaults on [child victim] over a period in excess of  7 years, the seriousness of the single charge of unlawful sexual connection with regard to the [2^nd child victim] and the extent of the injuries suffered by the appellant’s partner which, by the plea of guilty, were accepted as having been inflicted with an intent to cause grievous bodily harm. A stern custodial sentence  was required to meet the sentencing goals of denunciation and deterrence. In this particular case the goal of deterrence was relevant both to the appellant personally and to others of like mind.

[36]              The Pre Sentence Report raised a number of matters relating to the personal history of the appellant suggesting a reason why he lapsed into conduct of this type having previously led an extraordinarily disciplined lifestyle. As has been often said, however, those personal factors can have little weight when viewed against serious crimes of a sexual and violent nature.

[37]              In R v Bradley this Court was asked to apply a principle that if the aggregate sentence was substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect was to impose on the offender a crushing sentence not in keeping with his record and prospects a cumulative sentence ought to be reduced to a more appropriate level. That submission was put to the Court in reliance on a decision of the English Court of Appeal in R v Bocskei (1970) 54 Cr App R 519 and by reference to 11 Halsbury’s Laws of England (4^th ed) para 495 and Thomas, Principles of Sentencing (2^nd ed, 1979) at 56-61. In response to  that submission Cooke J, delivering the judgment of the Court, said at 263:

We would hesitate to attempt to refine the principle or to evolve rules of thumb for its application. For our purposes it is sufficient to say that undoubtedly it is crucial in arriving at a sentence for several offences, after considering them individually, to stand back and look in a broad way at the totality of the criminal behaviour

We approach the totality point on the basis outlined by Cooke J in Bradley.

[38]              Applying that test, for the reasons given, the effective sentence imposed cannot, on any view, be said to be manifestly excessive. If anything, the sentence was, as the Judge indicated, the most lenient sentence capable of being imposed.

Result

[39]              For the reasons which we have given we decline to grant leave to appeal out of time and dismiss the appeal.

Solicitors:

Trainor MacLean, Christchurch for Appellant Crown Law Office, Wellington