R v KJB

[2007] NZCA 292

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED: S 139(1) CRIMINAL JUSTICE ACT 1954

IN THE COURT OF APPEAL OF NEW ZEALAND

CA41/07 [2007] NZCA 292

THE QUEEN

v

KJB(CA41/07)

Hearing:         22 May 2007

Court:            William Young P, Baragwanath and Heath JJ Appearances: L L Heah for Appellant

D La Hood for Crown

Judgment:      17 July 2007         at 2 pm

JUDGMENT OF THE COURT

A        The time for appealing against sentence is extended.

B        The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Heath J)

R V KJB CA CA41/07  17 July 2007

The appeal

[1]      KJB seeks an extension of time to appeal against a sentence of 10 years imprisonment imposed following his conviction on fifteen charges involving historical sexual abuse.  The ground of appeal is manifest excess.  At the time that sentence was passed KJB was 62 years old.

Background

[2]      KJB and his wife were charged with a number of serious sexual offences of an historical nature.  The victims were their three daughters.  KJB faced 16 charges. His wife faced two.   They were tried in the High Court at Rotorua in July 2005, before Nicholson J and a jury.

[3]      The offending began in April 1969 and continued until December 1990.  The Crown accepted that KJB was the principal offender, the two charges against Mrs B were brought on the basis that she was a party to his offending.   KJB was found guilty on all but one of the charges brought against him; his wife was found guilty on one of the two charges she faced.

[4]      On  9  September  2005,  KJB  was  sentenced  to  an  effective  term  of imprisonment of 10 years.  His wife was sentenced to a term of one year two months imprisonment and was granted leave to apply for home detention.   She has not appealed against the sentence imposed upon her.

[5]      So far as KJB was concerned, the Judge’s approach to sentencing was to impose  concurrent  sentences  for  all  charges  on  which  the  jury  returned  guilty verdicts.  The Judge chose a charge of sexual violation by rape as the lead charge for sentencing purposes.  That particular charge spanned the period between 1 February

1986 and 6 March 1987.

[6]      All offending took place before the maximum penalty for sexual violation offences was increased from 14 to 20 years imprisonment, following enactment of

the Crimes Amendment Act (No 3) 1993.  For that reason, the guideline decision of

R v A [1994] 2 NZLR 129 (CA) has no application in this case.

[7]      Taking a starting point of 12 years imprisonment on the lead charge, the Judge made an allowance of two years for mitigating factors.   Those factors were KJB’s age at the time of sentencing, his history of bad health, the likelihood of continued poor health and previous good character.  As a result, an end sentence of

10 years imprisonment was imposed.   The Judge was satisfied that the sentence reflected the totality of the offending.

[8]      Although KJB was sentenced on 9 September 2005, his appeal was not filed until 19 January 2007.  KJB seeks an extension of time to appeal against the sentence imposed.

The offending

[9]      The three victims were X (born in April 1967), Y (born in March 1970) and

Z (born in December 1973).

[10]     The offending against X began in April 1974.   KJB was found guilty on a representative charge of indecent assault on a girl under the age of 12 years.  The assault involved touching on her vagina and breasts.  The evidence established that the touching occurred about two to three times a week over that period of five years. That offending began when X was seven years old and continued until she turned 12.

[11]     Between 7 April 1979 and 6 April 1982, the jury found that KJB and his wife indecently assaulted X on one occasion when her pubic hair was shaved.   This occurred when X was aged between 13 and 14 years.   KJB shaved her pubic hair while she lay on a bed.  His wife encouraged that act.  The charge on which both KJB and his wife were found guilty was one of indecent assault on a girl over the age of 12 years and under the age of 16 years.

[12]     Between 7 April 1969 (when X was two years old) and 6 April 1983 (when she was 16 years old) various indecent assaults took place involving the use of a

vibrator on X’s vagina.  These assaults were committed after another man had been sentenced by the Court for sexually assaulting X.   KJB was convicted on a representative charge of indecent assault of a girl of or over the age of 12 years and under the age of 16 years.

[13]     Between 7 April 1975 and 6 April 1999, KJB induced X to do an indecent act upon him, namely using her hand to guide his while he masturbated.

[14]     The most serious charge involving X occurred during the period between 7

April 1978 and 14 September 1985.  On the latter date, X left home.   During that time KJB raped her regularly.  The first rape occurred when X was 11 or 12 years old.  Initially, the rapes took place in a room with a locked door.  Later they occurred in her bed.  X was raped between two and three times a week.

[15]     Two further single acts of rape occurred during the same period; on 3 and 6

January 1984 respectively.  X recorded both of those events in her diary.

[16]     The offending involving Y began on 7 March 1982.  Representative charges of indecent assault (touching of the vagina) and rape were brought.   Verdicts of guilty were returned on all charges.

[17]     The rapes of Y continued between 1 February 1986 and 6 March 1987.  The Judge accepted that the intercourse occurred about a dozen times in what was called the “junk room” and then occurred two to three times a week in a bedroom until shortly before Y left home when she turned 16.  In addition, a specific act of sexual violation   by   rape   was   found   proved   by   the   jury;   that   occurred   between

25 March 1986 and 3 April 1986.

[18]     The final charges related to the youngest daughter, Z.   During the period between 17 December 1978 and 16 December 1985, KJB indecently assaulted Z. Between 1 February 1986 and 16 December 1990 he committed sexual violation by unlawful sexual connection, offending that involved digital penetration.  That took place from a time when Z was five years old until she left home, aged 16 years.  The Judge found that this offending occurred about once a week.

[19]     A specific charge of rape of Z was also found proved.  This occurred while

KJB’s wife was in hospital, some time between 14 April 1981 and 3 April 1986.

Grounds of appeal

[20]     Ms Heah (who did not appear for KJB in the High Court) submitted that the starting point used by the sentencing Judge of 12 years imprisonment was too high having regard to the sentencing norms for similar offending during the 1970s and

1980s.  In making that submission, Ms Heah argued that Nicholson J had misapplied the sentencing approach for historical sexual abuse cases articulated by this Court in R v R(CA244/04) CA244/04 2 November 2004.  At [22], Panckhurst J, delivering the judgment of the Court said:

[22] What then is the proper approach? We think that a sentencer confronted with a case of historical sexual abuse should fix a starting point sentence based upon the sentencing levels of the relevant time and which recognises the aggravating features of the case. Then if appropriate allowance is to be made for mitigating features including of course the plea of guilty if there has been one. This, we consider, is a safer course since baseline tariff sentences (before aggravating features)  did  not  exist  until  comparatively recently. Using this approach we are satisfied that the present offending justifies a starting point of six years or more in light of the aggravating features. These are the number and duration of the offences, the violence and degrading conduct which accompanied them, and the enduring effects upon the victim. Such starting point is above the medium sentencing level referred to in Pui [[1978] 2 NZLR 193 (CA)] and indeed towards the upper end of the general sentencing range for rape. This is appropriate given the extent and nature of the present offending.

[21]     During the course of the hearing, another point emerged.   While Ms Heah had not challenged the credit given for mitigating factors, she submitted that account ought to be taken of KJB’s current medical conditions and, in particular, whether age and health issues meant that the end sentence imposed was disproportionately severe. We agreed to explore that point further.   We gave time for Ms Heah to obtain a medical report.  Since the hearing we have received a report from Dr Rambukwelle, a general practitioner from Invercargill who examined KJB at Invercargill Prison on

12 June 2007.  We refer later to the content of that report.

[22]     For  the  Crown,  Mr La Hood  submitted,  with  reference  to  the  sentencing notes, that the Judge was plainly conscious of what was said by this Court in R v R;

referring  to  [22]  of  his  sentencing  remarks.    Mr La Hood  also  submitted  that

Nicholson J applied the approach mandated by R v R in reaching his sentence.

[23]     Mr La Hood referred us to R v Accused (CA463/97) (1998) 15 CRNZ 602 (CA) at 609, where this Court said:

… A Judge passing sentence in the 1990s cannot do so through the eyes of a Judge who might have sat on the case in the 1960s or 1970s, had it come to trial then. The starting point for any sentence must be fixed in the context of the maximum penalty available at the time and generally by reference to any discernible sentencing regime of that era. However, that does not involve attempting to reconstruct the sentencing mores of an earlier time. For example, if a particular type of offending was formerly regarded less seriously than now, present day attitudes must govern the sentencing approach.

[24]     Counsel  for  the  Crown  also  drew  our  attention  to  R  v  DSW  CA334/05

31 July 2006, in which this Court held that reference to sentencing patterns at the date of the offending was only required when a change to the maximum penalty had occurred; cf Morgan v Superintendent, Rimutaka Prison [2005] 3 NZLR 1 (SC). The issue in DSW was whether this Court’s judgment in R v Taueki [2005] 3 NZLR

372  (CA)  could  apply  to  offending  which  occurred  prior  to  delivery  of  that judgment.   An issue of retrospectivity arose, similar to that discussed in Morgan. The Court took the view that Taueki did not herald a “significant change in the sentencing tariff” for offending of the type with which it was there concerned.  Mr La Hood relied upon those observations to submit that current sentencing patterns could be applied to historical offending.

[25]     On the basis of those authorities, Mr La Hood submitted that the starting point of 12 years imprisonment was open to the Judge and that we should not interfere with it.

Application to extend time to appeal

[26]     The Crown has not opposed an extension of time for the appeal to be brought. The type of issues raised, concerning the appropriate approach to sentencing in historical sexual offending involving father and daughters, are sufficient to justify late consideration of this appeal.

[27]     Accordingly, we extend the time for appealing against the sentence imposed.

Analysis of competing submissions

Sentencing methodology

[28]     R v R dealt with prevailing sentencing levels for offences of rape committed in the period between 1970 and 1977.   That judgment does not purport to give guidance on sentencing levels for earlier or subsequent times.

[29]     R v R recognised that sentencing was a less sophisticated art in the 1970s. The modern approach to constructing a starting point for sentence (see R v Taueki) did not exist at that time.  To the extent that Judges referred at all to “starting points” they were reflective of all aggravating features, whether related to the offending or the offender.  At [19], the Court said:

[19]        Consideration of the 1970s decisions also involves the familiar problem  of  comparison,  since  the  circumstances  of  individual  cases invariably differ.   In addition, however, there is the complication that the sentencing method in those days did not involve identification of a starting point, (usually by reference to a tariff judgment of this Court), an upward allowance for aggravating factors followed by a reduction for any mitigating factors.   Moreover, there was not such attention given to spelling out a discernible discount for a guilty plea, as is current practice.  And as Heath J noted at an early point of his sentencing remarks, the maximum penalty for rape and sodomy at the relevant time was 14 years imprisonment, with lesser maximums for the indecent assaults depending upon the age of the complainant (sexual violation by unlawful sexual conduct not then having been statutorily recognised).

[30]     Counsel for the Crown, in R v R, drew the Court’s attention to R v Pawa

[1978] 2 NZLR 190 (CA) in support of a submission that a starting point of at least

10 years imprisonment was required for offending of this nature once aggravating features were brought to account.  In that case, a term of six years imprisonment had been substituted for an original sentence of 10 years following the rape of a young girl on one occasion.  In R v R, Pawa was used to demonstrate the problematic nature of comparing starting points for the purposes of sentencing on historical charges. Panckhurst J said:

[21] This argument, we think, demonstrates the difficulties inherent in using an end sentence imposed in the 1970s in a very serious case of child rape, as if it was a tariff sentence to be adopted as the base point before making an allowance for aggravating features as required by the modern method.  Such was not the approach in the 1970s.   The end sentence of six years imprisonment imposed on Pawa reflected the aggravating features of the case, in particular that it was insidious rape by a stranger of an eight year old child.   Equally, however, the six year sentence took account of such mitigating factors as existed.

[31]     That was the background against which this Court considered the “proper approach” to sentencing in cases involving historical sexual abuse: [22] of R v R, to which we have already referred.   The suggested methodology requires a starting point to be fixed “based upon the sentencing levels of the relevant time and which recognises the aggravating features of the case”.  From that starting point, allowance for mitigating features is made.  That approach was regarded as a “safer course since baseline tariff sentences (before aggravating features) did not exist until comparatively recently”.

[32]     Is that approach inconsistent with what was said in DSW?  The appellant in that case had pleaded guilty to one charge of wounding with intent to cause grievous bodily harm, one charge of assault with intent to commit sexual violation and one (unrelated) driving offence.  In sentencing on the charge of wounding, the sentencing Judge applied the guideline decision in Taueki, even though the offending occurred prior to that decision being delivered.  On appeal, counsel for the appellant argued that the Judge had erred because it amounted to retrospective application of a penalty in excess of that to which the offender may have been subjected at the time the offending occurred.  Counsel submitted that was contrary both to s 25(g) of the New Zealand Bill of Rights Act 1990 and s 6(1) of the Sentencing Act 2002.

[33]     This Court in DSW regarded the law on retrospectivity as having been settled by the Supreme Court in Morgan: see Gault J at [28] and [32], Blanchard J at [77]- [79], Tipping J at [101]-[107] and Henry J at [111]-[114].   Nothing in the later decision of R v Mist [2006] 3 NZLR 145 (SC) was thought to affect that position. Application of Morgan meant that the retrospectivity argument had to fail.

[34]     The  Morgan  and  Mist  decisions  supply  the  context  in  which  DSW

(particularly at [33] and [34]) must be understood.  That approach is not inconsistent

with R v R.  That case requires selection of a starting point consistent with sentencing levels for similar offences at the time the offending actually occurred.  That approach represents   a   more   benevolent   approach   from   the   offender’s   perspective. Accordingly,  R v R  does  not  operate  to  disadvantage  a  person  found  guilty of offences of an historical nature.   We hold that the R v R methodology should be followed.

Was the starting point of 12 years imprisonment appropriate?

[35]     We received from counsel an extensive survey of cases involving historical sexual abuse and those applying contemporary sentencing principles when similar offending came before the Courts at a time proximate to its occurrence.   For the purpose of this appeal, it is necessary to consider some of the authorities cited in some detail.

[36]     Ms Heah referred both to Pawa and R v Pui [1978] 2 NZLR 193 (CA). Pawa involved a single rape of a young girl aged eight years and nine months.   The sentence was reduced from one of 10 years imprisonment to one of six years imprisonment.  The sentencing climate of the day can be gleaned from this Court’s judgment in Pawa in which, at 191-192, Richmond P, for the Court, said:

We agree that it was a very bad case of rape, but we say that in the sense that any rape of a girl of this age is a very bad case of rape.  So far as we are aware no such case has been considered by this Court for very many years. There has to our knowledge been of recent times one case of child rape dealt with  by  the  Supreme  Court.    In  that  case  a  sentence  of  six  years  was imposed.  But we have had to consider a number of very bad cases of rape, some of young girls or women subjected to gang rapes with accompanying violence and acts of sexual perversion and degradation and some of other women attacked in their homes and often threatened with weapons.  In the case of first offenders the general level of sentencing in such cases has run in the region of from [sic] four to seven years imprisonment.  We should add that  those  sentences  themselves  have  been  at  a  level  which  has  been increased over recent years as the incidence of such offending has seemed to make longer sentences desirable.

We are all too well aware that a case of child rape must inevitably provoke strong and even emotional reactions.  It is the kind of case which leads to calls by some sections of the community for a very "hard line" approach to criminal punishment. The reaction is understandable.  But we are also aware that very long sentences  of  imprisonment  do  considerable harm without seeming to achieve any kind of useful object which could not equally be

achieved by a sentence of somewhat lesser duration which would itself be nevertheless regarded as severe; and the Courts cannot allow the imposition of significantly heavier or more severe kinds of punishment than is properly justified and required for the protection of the public interest.

We regret that in the present case the sentencing Judge seems to have felt that he could not approach the matter of sentence with greater moderation. The course which he chose to adopt has left us no alternative but to make a reduction substantial enough to keep the sentence in line with sentences consistently regarded as appropriate in other serious cases of rape.

[37]     Pui was  decided  subsequent  to Pawa.    Unsurprisingly,  the  Court  in  Pui applied Pawa, reducing an effective sentence of 12 years six months imprisonment for the rape of a 41 year old woman (aggravated by an associated charge of wounding)  to  one  of  six  years  six  months  imprisonment,  in  order  to  keep  the sentence in line with those consistently regarded as appropriate in similar cases: at

197.

[38]     The  offending  in  this  case  spanned  a  period  between  April  1969  and December 1990.  While sentencing levels for rape in the 1970s should be used as an appropriate comparator for offending during that period, the lead sentence was based on subsequent offending that occurred between 1 February 1986 and 6 March 1987, when the new offences of sexual violation were created.   For that offending it is necessary to apply the relevant sentencing levels for that same period in order to follow the R v R methodology.

[39]     The approach to rape sentencing in the 1980s was discussed in R v Clark [1987] 1 NZLR 380 (CA). The judgment of the Court in Clark was delivered by Cooke P who said at 383:

Although New Zealand has its own penal and sentencing policy and overseas levels are of course not automatically applicable here, the general level of sexual violation sentencing in New Zealand is currently broadly similar to that in England: as may be seen, for instance, by comparing the range of sentences ultimately imposed in R v Te Pou [1985] 2 NZLR 508 with the range ultimately imposed in R v Billam (1986) 8 Cr App R (S) 48; less fully reported in [1986] 1 All ER 985. As Lord Lane CJ put it in the latter case, for rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as a starting point in a contested case. Aggravating features can include additional violence or indignities, acting in concert with other offenders, the youth or age of the victim, intrusion into a home, kidnapping, the use of weapons, prolonged abuse. That list is not meant to be exhaustive. The three last features are

present in the instant case. Mitigating features can include a guilty plea, especially if it comes early and spares the complainant an ordeal, a feature also present here. The youth of the rapist can be some extenuation, subject to the need to protect the public, but the present defendant was in his late twenties.

[40]     R v A, at 130-131, confirms that the intention in Clark was to apply an initial starting point of five years imprisonment before aggravating and mitigating factors were brought to account.

[41]     On  the  basis  of  Clark  Nicholson J,  having  chosen  a  lead  sentence  for offending between 1986 and 1987, ought to have started from a sentence of five years imprisonment and then added an uplift for aggravating features connected to both the offence and the offender.

[42]     Nicholson J approached his starting point as follows:

[26] The aggravating factors with relation to your offending [KJB] are first, that you grossly abused your position of trust and authority as father of the three victims.

[27] The second aggravating factor is that your victims were particularly vulnerable not only because of their situation as a member of your family but because  of  their  young  ages.    The  age  of  each  victim  at  the  time  the offending first started against them was [X] at 7 years, [Y] at 12 years and [Z] at 5 years.

[28] The third aggravating factor was that your offending was premeditated. You waited for them, you waited while their mother was away, you would lock the room.  You would offend against them at night.  You purchased and used a vibrator.

[29] The next aggravating factor is really more the nature of the offending, its repeated nature and also the fact that it was committed over a period of some 16 years in total.  Also, that it involved three victims.  There was the factor of controlling and dominating behaviour by you to the victims.   A very significant aggravating factor was the harm caused by the offending and this is described in painful detail in three victim impact statement reports which have been provided to the court.  There are no mitigating factors with relation to your offending.

[43]     The Judge took the view that, having regard to all aggravating features, a starting   point   (before   taking   account   of   mitigating   features)   of   12   years imprisonment was appropriate.  The Judge was not referred to Clark.  In effect, the

Judge added a period of seven years to the Clark starting point to reflect the aggravating features to which he referred in [28] and [29] of his sentencing remarks.

[44]     The approach taken in Clark must also be compared with sentences imposed, for offending within a comparable period, of an historical and serial nature.   We consider comparator cases in chronological sequence.

[45]     In R v Accused  (CA121/89) [1989] 3 NZLR 555 (CA), the accused had pleaded guilty to one charge of rape, four of incest, four of indecent assault on a girl aged under 12 and two of an indecent act on a girl aged between 12 and 16 years. All offences had been committed against daughters over a period of about 12 years. On some occasions group activity occurred, involving two daughters and the accused’s son. The sentencing Judge reflected the totality of the offending by imposing a term of imprisonment of six years. The Solicitor-General sought leave to appeal against the sentence on grounds of manifest inadequacy. Delivering the judgment of the Court, Cooke P said, at 559:

Since the current wave of reported or discovered child abuse cases began with R v B (an accused) [1984] 1 NZLR 261 this is probably the worst that has come before this Court. Counsel for the Crown exercised moderation by inviting us to treat the case as in the realm of incest rather than rape. There is an element of the collective sexual degradation and corruption of children in this case which makes it worse than incest. For incest the maximum penalty is 10 years imprisonment, for rape 14 years. But the number of the various offences committed by the accused is such that the maximum cumulative penalties would far exceed his life and be quite unreal.

Certainly he is entitled to some credit for an early guilty plea, even though it was no indication of remorse.  But the credit must be against the true total criminality of his conduct.   For what denunciation of this kind of conduct and the deterrence of others may be worth, these crimes against children must  be  condemned  with  emphasis.    As  has  often  been  said,  they  rob children of their childhood.   Their lasting effects are incalculable.   Even giving the accused a reduction of two years for his guilty plea, this particular accumulation of crimes requires a sentence of 10 years.  That is the sentence proposed by the Crown.  In accepting the Crown submission we imply no criticism of the sentencing Judge; these child abuse cases are especially difficult.

Earlier, the President had observed that in cases involving “prolonged and deeply depraved sexual abuse” of children “the overall gravity of the conduct is the dominating factor”: at 556.

[46]     In R v Vollmer CA408/91 26 June 1992, the appellant challenged an effective sentence of 10 years imprisonment for historical sexual abuse against two children. The offending occurred between 1 January 1979 and ended in 1986.   There were three charges of rape in respect of each of the children, the rapes having occurred from 1984 to 1986, a period broadly similar to the lead charges of rape in this case. The Court acknowledged that a sentence of 10 years imprisonment was “a long one”. However, the Court held that the sentence was justified given the “environment of violence” in which the abuse occurred and the need for a sentence that reflected the degree of culpability, the effects on the victims and the abhorrence of society of the behaviour.  The appeal was dismissed.

[47]     In R v Accused (CA143/93) (1993) 10 CRNZ 379 (CA) an appellant appealed against an effective sentence of 12 years imprisonment, having been convicted of rape, attempted rape and indecencies against five daughters.  The sentencing Judge had taken the maximum term of imprisonment of 14 years as a starting point and had given a credit of two years on account of the appellant’s age, 61 years at the time of sentence.  The nature of the offending was summarised by Eichelbaum CJ at 381:

In summary, there were four convictions for rape relating to three separate daughters  and  one  of  attempted  rape  in  respect  of  a  fourth.  The  other charges, of indecency of various kinds, in many instances were specimen ones covering a constant procession of events. The offending was an almost daily, or nightly, occurrence over a period of years. The anguish of the victims and the damage they have suffered in respect of their whole lives are apparent from the evidence and the victim impact reports. Not surprisingly they have suffered sexual dysfunction as a result of the childhood abuse. They feel confusion as to their childhood, and anger amounting to rage. As a result of the appellant’s conduct, the family fragmented. In order to spare the complainants unnecessary distress we will not quote from the victim impact reports, but all members of the Court have read them. The complainants have suffered further by the trial and the publicity it attracted.

[48]     The appeal against sentence was dismissed, the Court being unpersuaded that the starting point of 14 years imprisonment was inappropriate.  The offending in that case occurred during a period beginning in 1964 and concluding in 1974. Accordingly, in R v Accused (CA143/93) the sentencing levels discussed in Pawa and Pui provided the controlling legal principles.

[49]     In R v Elwin CA290/93 10 August 1994, the accused had been charged with five counts of sexual offending which occurred during the period between 1 January

1971 and some time in 1983.  An effective sentence of six years imprisonment was imposed.  The Court recognised the need to sentence on the basis of the principles applicable at the time of the offending.  Applying cases such as Pawa, Pui and R v Puru [1984] 1 NZLR 248 (CA) the Court, in Elwin, said at 8-9:

… In the case of a single rape of a child or girl a range of four to seven years was regarded as acceptable.  Giving due weight to the mitigating factors, for the catalogue of offending before the Court here no issue can be taken with a sentence of six years following a contested case.  The sentences of five years and four years respectively for the lesser offending may be open to question but they make no difference to the end result.

[50]     In our view, based on those comparator cases, an effective uplift of seven years imprisonment on the notional 12 years starting point identified in Clark was justified.   Gross abuse of his position of trust and authority as a father, the vulnerability of  each  of  the  victims,  the  premeditated,  prolonged  and  repetitive nature of the offending, the degrading conduct of the offender and the inevitable severe harm  caused  to  the  victims  together  justify a  starting  point  of  12  years imprisonment.

Mitigating factors

[51]     On the information before the sentencing Judge, we have no doubt that the credit given for mitigating factors was one within the range available.  However, we have the additional medical report to which we have referred.   The question is whether additional credit ought to be given, having regard to the age and health of the appellant.

[52]     As  this  Court  recognised  in  R  v  Accused  (CA143/93),  at  384,  offending punished after a lengthy period of time may be visited with less severity than if it were more recent; “in the exercise of mercy [a sentencing Court] would be entitled to deal with the matter in that way”.  However, the Court was not persuaded that “as a matter of principle a Judge is bound to do so …”.

[53]     The medical report from Dr Rambukwelle  catalogues  a  series  of serious medical conditions from which KJB suffers.  The weight to be given to the medical practitioner’s report must be gauged by the fact that he has been KJB’s physician since 2002.

[54]     For about 20 years, KJB has suffered from hypertension and hyperlipidaemia (high blood cholesterol and its subgroups).   At the time those conditions were diagnosed in 1987 he also suffered coronary artery disease that was treated through an angioplasty carried out in October and December 1987 at Greenlane Hospital. Bypass surgery followed in 1995.

[55]     In 1996 KJB underwent surgical treatment for narrowing of a major artery in the neck that carries blood to the brain.  Had that surgery not been successful, KJB would have suffered a stroke.

[56]     Arteries carrying blood to KJB’s legs are also affected by atherosclerosis. When Dr Rambukwelle examined KJB at Invercargill Prison he could not feel pulsation of the arteries behind his knees.

[57]     Since 2005 there has been evidence of KJB passing blood with his urine and he now suffers anal leakage of fluid between bowel movements which he alleges relate to an occasion when he was sexually assaulted in custody.

[58]     Dr Rambukwelle reports that KJB presented “as a frail unhappy man, ill looking and coughing spasmodically.   Twice during the examination KJB turned blue in his face during spasms of coughing”.

[59]     Those are the major medical conditions from which KJB suffers.  They are not exhaustive.   Certainly, his medical condition is significantly worse than one would ordinarily expect from a man of his age.  He is taking a variety of medications to control the health problems from which he suffers.

[60]     On one view, KJB has had poor health for many years and, whether or not he is incarcerated, that poor health will continue.   On another view, mercy might be

extended to him so that the effect of a long sentence of imprisonment is not disproportionately severe.

[61]     Because  no  minimum  sentence  was  imposed  (there  was  no  jurisdiction having regard to the times at which the offending occurred) KJB will be eligible to seek parole after serving just over three years six months of his sentence.  To date, he has been in custody for just under two years.

[62]     Further,  the  Chief  Executive  of  the  Department  of  Corrections  has  a discretion  to  release  a  prisoner  from  custody  temporarily  if  that  course  were necessary “for the compassionate or humane treatment of the prisoner”: s 62(2)(a)(ii) Corrections Act 2004.

[63]     We  are  not  satisfied  that  the  report  provided  by  Dr  Rambukwelle  takes matters much further than the medical information before the sentencing Judge.  It is clear  from  Nicholson J’s  remarks  that  he  was  aware  of  numerous  health  issues throughout KJB’s life, of some 32 coronary heart episodes, one stroke, hypoglycaemia and hernia problems.

[64]     Because  the  information  available  to  Nicholson J   was  not  materially dissimilar from that now available to us, we see no basis on which we can interfere with the discretionary assessment  of  an  allowance for  mitigating  circumstances. KJB’s position, so far as his health problems are concerned, remains subject to the protections afforded by both the parole system and the discretion to release for compassionate reasons.

Result

[65]     For those reasons, there is no basis on which  we can  interfere  with  the sentencing Judge’s discretion.  The time for appealing is extended but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington