R v L
[2016] NZHC 97
•5 February 2016
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-091-003134 [2016] NZHC 97
THE QUEEN
v
L
Hearing: 5 February 2016 Counsel:
J O'Sullivan for the Crown
V Nisbet and N Burt for DefendantIndication:
5 February 2016
SENTENCING REMARKS OF CLIFFORD J
[1] Mr L, you appear for sentencing having been found guilty by a jury in the District Court at Wellington on 4 March 2015 of sexual offending against a young girl, DQ. DQ is the daughter of a close friend of NN, your former partner. Your offending against DQ occurred between September 1995 and September 2001, when DQ was between 7 and 12 years old. The jury, as you have already heard this morning, found you guilty on 11 charges, namely:
(a) three charges of sexual violation by rape; one of which was representative;
R v L [2016] NZHC 97 [5 February 2016]
(b)five charges of unlawful sexual connection, two involving penetrative oral sex, one being representative, and three involving digital penetration of which one, again, was a representative charge;
(c) two charges of indecent assault on a girl, one of those being a representative charge; and
(d) one charge of assault on a child.
[2] The charges attract the following maximum penalties: (a) rape – 20 years’ imprisonment;
(b) sexual violation – 20 years’ imprisonment;
(c) indecency – 10 years’ imprisonment; and
(d) assault on a child – two years’ imprisonment.
[3] You were originally to be sentenced on 9 June 2015 in the District Court. That sentencing was adjourned until 22 July that year. On that date, the Crown indicated it would be applying for preventive detention. Sentencing submissions were not received from the Crown until 15 December. I infer there were delays in obtaining the necessary reports. I adjourned the sentencing that had been set down for 17 December until today.
[4] I would now set out the factual basis of the offending for which you are to be sentenced. I say at the outset, I have read the letters that had been provided in support of Mr L. I know Mr L that you continue to deny the offending. I acknowledge that there are rights of appeal available for you but clearly, and this is more for your family than anyone else, I sentence you on the basis of the jury verdicts that have been delivered and are recorded so far. And I take the facts that are reflected by those verdicts and I do not, in doing that, ignore what has been written to me by the family, but that is the task I have today. Any other considerations are for a different place and a different time.
[5] Your offending against DQ occurred when you were in a long-term relationship with NN. That relationship had begun in approximately 1993, and ended in 2004. NN had two children from a previous relationship: a boy (KN) and a girl (DN, who was born that year). You and NN went on to have two daughters together, BM and CM, born in June 1995 and May 2000 respectively. During that time you and NN lived together as a family, with her son and daughter, and your two daughters, at various locations in the North Island.
[6] Between September 1995 and September 2001 you lived at various addresses in the Wellington area. The opportunity for your offending against DQ arose when you and NN were staying with her mother, or when she was staying with you, either
– as I understand it – with her mother or on her own. At various times DQ lived with her mother in close proximity to you and NN.
[7] Your offending against DQ involved occasions when she was sleeping at your home: you indecently assaulted her, by rubbing her body, and then put your fingers into her vagina. On the first occasion this happened you told DQ that that was your little secret and that she wasn’t to tell anyone. DQ woke the next morning and told her mother what you had done. Her mother did not believe her. That type of offending continued, reflected by the specific and representative charges of indecent assault and unlawful sexual connection you were found guilty of.
[8] Your offending escalated to your putting your penis into DQ’s mouth (penetrative oral sex), reflected in both specific and representative charges, and raping her.
[9] You first raped DQ in September 1995 and that behaviour continued until September 2001 at two addresses. Other than that first occasion, the rape offending at the first address is reflected in the representative charge: some 10 separate occasions were the basis of that charge. The rape offending at the second address reflects a specific occasion, when DQ was staying with you and NN while DQ was on holiday.
[10] The assault charge reflects an occasion when you slapped DQ across the face.
[11] Your offending against DQ stopped when you and NN moved out of the Wellington area, around 2001. I do not need, at this point, to comment in any detail on the obvious seriousness of that offending.
[12] In order to determine your sentence, it is necessary first to place that offending in the context of your offending against NN’s daughter and your step-daughter, DN, your daughter together, BM, and two of NN’s nieces, LK and TN. You are currently serving a 17 year term of imprisonment for that offending.
[13] Following an earlier trial in the District Court at Wellington you were found guilty of 25 offences against those girls. The details of that offending were set out in detail when you were sentenced. It is sufficient for my purposes today if I summarise that offending.
[14] I will do so, as best as I can, chronologically.
[15] Your offending against DN began in 1998. You were then living in the Wellington area. DN was five years old when your offending against her started. You were found guilty on specific charges of digital penetration and indecent assault.
[16] Your offending against DN continued after you had moved away from Wellington. It comprised unlawful sexual connection (digital penetration and non-penetrative oral sex) and indecent assault (touching or rubbing the vagina). That offending was reflected by representative charges. During this period, you assaulted DN once by dragging her down a hallway by her hair. Most seriously, at some time between 1998 and 2003 you anally raped DN twice.
[17] During 2003 and 2004, at a different address, you offended against NN’s nieces, TN and LK. Your offending against these two victims involved digital penetration, indecent assault, on numbers of occasions, and one incident of non-penetrative oral sex with TN. So in other words the kissing and licking of the genitalia is non-penetrative oral sex with TN, not indecent assault against LK.
[18] You began offending against your own daughter, BM, in 2004 when she was nine years old. That offending went on until 2006. And again it involved specific and representative charges of non-penetrative oral sex, digital penetration and indecent acts.
[19] In all, your offending therefore comprises, in terms of R v AM which is a legal reference and you have probably heard it before:1
(a) Rape Band offending: 7 counts (b) USC Band offending: 15 counts (c) Indecency: 12 counts (d) Assault: 2 counts
[20] When assessed overall, I consider that your offending from 1996 to 2006 involves offending of a similar kind and is a connected series of offences. You sexually abused five young girls. Your abuse ranged from the most serious, rape, to less serious incidents (perhaps the least of which was the charge of indecent assault which you were found guilty of for kissing TN). All offending occurred in a familial context: I include in that the offending against DQ. Although she is not a member of your family, her mother was a very good friend of NN’s. Some of the offending occurred when you, as a family, stayed at DQ’s home; others when she stayed at your house, for example, as I understand it, when she was on holiday.
[21] As both the Crown and Mr Nisbet have said, the sentencing approach I adopt will therefore be to identify the end sentence that would have been appropriate had you been sentenced at the same time and on a concurrent basis, for all of that offending. To the extent that that end sentence is higher than the end sentence of
17 years imposed by Judge Hobbs on you, I will impose a sentence that will achieve
that increased term.
1 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
[22] The Court of Appeal has provided guidance for sentencing where the lead offending is either rape, including anal rape and penile penetration of a victim’s mouth, (that offending is described as the Rape Band offending) or for other types of unlawful sexual connection, known as the USC Bands. Deciding which band is appropriate for particular offending involves, amongst other things, an assessment of culpability by reference to 13 factors identified and explained in the case known as R v AM. Those factors are a synthesis of factors found in the Sentencing Act and refer to such matters as the seriousness of the harm caused, the length of time over which the offending took place and other similar considerations. In R v AM, the choice of and placement in the relevant band reflected not only the lead offending, be it rape or USC, but also associated like (sexual) offending. In other cases Courts have identified the starting point sentence for the rape or, as the case may be, USC lead offending first, and then expressly identified an appropriate uplift for the associated sexual offending. As always, what matters is what the end sentence is. It can also be noted that even in the “combined” starting point approach, the Court will need to consider both the criminality of the lead offending, and that of the associated, concurrent, offending.
[23] Your Rape Band offending was against vulnerable young girls, who were effectively family members or in a similar position. You raped DQ on a numbers of occasions over an eight year period. The Crown summary of facts, including as regards the representative charge, identified some 12 occasions of rape. You also put your penis in her mouth on a number of occasions. Your Rape Band offending against DN involved two specific events. The victim impact statements reflect the harm you caused to your victims. Whilst the physical harm you caused was not beyond that inherent in the offending, there is additional psychological and other non-physical harm. Not only were your victims vulnerable, being young, but you offended against them in a family context. The breach of trust is clear. You offended in this way over a considerable period of time. In my view, this combination of factors – assessed in the round as I must do – places your Rape Band offending in the middle of what is called Rape Band 4: I consider that a starting point sentence of
17 years’ imprisonment is appropriate for that offending. Whilst very serious, it cannot be said to be the worst of this type of offending that the courts in New Zealand are confronted with. Compared to the very worst, only two victims
were involved, and whilst there were many rapes, they were not as numerous as, unfortunately, that which represents the very worst type of offending.2
[24] What uplift is then required to reflect the rest of your offending? That offending involved five victims: again they were vulnerable young girls. It occurred in a familial context and the harm to your victims is self-evident. Offending ranged from unlawful sexual connection offending (non-penetrative oral sex and digital penetration) to less serious indecency offending. Again, your offending in this context would appear to have been most serious against DQ and DN: I acknowledge that the later offending against TN and LK was less serious, and less frequent. The offending against your daughter BM, which appears in time to have been the most recent, was an egregious breach of trust and constituted a range of unlawful sexual connection, including making your daughter masturbate you.
[25] Again, looking at this offending, and the relevant aggravating factors, in the round and bearing in mind questions of totality, I consider that an end sentence of
21 years for all that offending is the appropriate sentence as a starting point.
[26] I turn now to consider aggravating and mitigating factors. You do have a reasonably extensive criminal record: however, I do not consider that that is a relevant factor in this context.
[27] There are, in my view, no mitigating factors. Unlike Judge Hobbs, I do not consider that the one year spent on restrictive bail, which you complied, is here a mitigating factor given the scale of your offending.
[28] Therefore, the end sentence, the finite end sentence, I consider appropriate is
21 years.
[29] In terms of any finite sentence I am to impose however, I would need to take account of the end sentence of 17 years imposed upon you by Judge Hobbs.
[30] To achieve an overall sentence of 21 years, I would therefore impose:
2 See the discussion of the Court of Appeal in F v R [2014] NZCA 390.
(a) four year sentences cumulative on your existing 17 year sentences of imprisonment for each of the offences comprising your Rape Band offending against DQ, those sentences to be concurrent as between themselves;
(b) concurrent sentences of five years for each of the charges comprising
USC Band offending against DQ;
(c) concurrent sentences of three years for each of the charges comprising indecency offending against DQ; and
(d)a concurrent sentence of one year for the charges comprising assault offending against DQ;
that is, all of those sentences to be concurrent with the existing sentence of seventeen years you are serving, and concurrent as between themselves.
[31] So in other words there is a four year uplift over the 17 years that you are currently serving.
[32] Looked at in the round, I consider that a minimum period of imprisonment for all of your offending of 10 years is appropriate. You are currently subject to a minimum period of seven years. I therefore impose, or would impose in terms of s 84(4) of the Parole Act, minimum periods of imprisonment of three years on each of the cumulative terms of four years.
[33] I turn now to the question of preventive detention. As the factual pattern of your offending shows, your most serious offending was against DQ and DN, that is the Rape Band offending. That offending against DQ came to an end in 2001, and against DN in 2003. You continued to offend thereafter, on a frequent, but less serious, basis. There has been no offending since your relationship with NN came to an end in terms of any relevant material before me and when, I note, the opportunity for offending – that family context – also came to an end. The inception to that, if I have understood the complicated facts correctly, is your offending in 2005 and 2006
against your daughter BM. Since, as I understand it, you have no longer had contact with BM, you have not offended again.
[34] That pattern of offending does not satisfy me, in terms of the relevant provisions of the Sentencing Act, that preventive detention would be an appropriate sentencing outcome. I have read the two s 88 reports provided. Dr Barry Walsh, a medical psychiatrist, reports your difficult background, drug problems and mental health difficulties. Whilst Dr Barry Walsh recognised, as is the case, a risk of further offending, his conclusion reflected considerable ambiguity, commenting, “I cannot anticipate how this may play out”, referring to what may happen as a result of the interventions you may be exposed to, or have the benefit of, whilst in prison. Like Dr Barry Walsh, Ms Waddington, a psychologist, reported your difficult upbringing, drug and alcohol problems and mental health problems. Ms Waddington provided a less qualified opinion: her opinion was that you represented a medium to high risk of serious sexual re-offending. It is not clear to me, however, that Ms Waddington fully reflected your pattern of offending as I have recorded it in these sentencing notes.
[35] In these circumstances, I consider that the lengthy determinate sentence, together with the MPI I have imposed, together with the options available at the end of a finite sentence provide adequate protection for the community. I therefore decline the Crown’s application to impose preventive detention and without repeating the legal technical way that sentences structured impose an overall sentence on you for all of your offending, in effect, of 21 years.
[36] Thank you Mr L, you may stand down.
Addendum
At the conclusion of my sentencing remarks, and before Mr L had been taken to the cells, Ms O’Sullivan pointed out to me that the MPI I had (before I considered the Crown’s preventive detention application) indicated I would impose on the four-year cumulative sentences was more than the statutory maximum of two-thirds: at my direction Mr L was recalled to Court and I substituted that three-year MPI with one of two years and eight months (two-thirds of four years, the maximum available). As I explained to Mr L, and as now forms part of my sentencing notes:
[37] I will impose the maximum MPI that is possible on those four-year terms, which will be two-thirds of four years which will be, let’s work it out now because we need to write it down, 48 divided by 3, multiplied by 2, 32 months which is two years and eight months. I don’t think we need to be any more accurate than that. So the MPI will be less than 10 years, it will be nine years and eight months.
“Clifford J”
Solicitors:
Crown Solicitor, Wellington
0
0
0