R v L (CA115/05)

[2006] NZCA 451

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA115/05

CA132/05

THE QUEEN

v

L (CA115/05)

Hearing:         22 August 2006

Court:            Chambers, Randerson and John Hansen JJ Counsel:  P J Davey for Appellant

M A Corlett for Crown

Judgment:      4 September 2006         at 11 am

JUDGMENT OF THE COURT

On a reference back from the Supreme Court, the sentence imposed on the appellant in respect of count 1 in the indictment is reduced to four years nine

months imprisonment.

REASONS OF THE COURT

(Given by Randerson J)

R V L (CA115/05) CA CA115/05  4 September 2006

Introduction

[1]      This  case  is  unusual  in  two  respects.    First,  because  it  involves  sexual offending by a mature woman against a teenage youth and secondly, because the case has been remitted to this Court by the Supreme Court to reassess the appropriate sentence after it set aside one of two convictions entered against the appellant.

[2]      Briefly stated, the appellant was convicted on 11 February 2005 after trial in the High Court on two counts of sexual offending against the victim.   She was acquitted on three other counts of sexual abuse against the same person.   The first count on which the appellant was convicted was one of attempted sexual violation by unlawful sexual connection and the second was actual sexual violation by unlawful sexual  connection  during  non-consensual  sexual  intercourse.     The  offending occurred  before  the  2005  amendment  made  to  s  128  Crimes  Act  1961  which, amongst other things,  made the offences of sexual violation by unlawful sexual connection or rape, gender neutral.

[3]      Laurenson J sentenced the appellant to four and a half years imprisonment on the charge of actual sexual violation and to a concurrent term of three years imprisonment on the charge of attempted sexual violation.

[4]      By  a  judgment  delivered  on  18  July  2005,  this  Court  dismissed  the appellant’s appeal against conviction but allowed an appeal by the Solicitor-General against sentence, increasing it to five and a half years imprisonment.

[5]      There followed a successful appeal by the appellant to the Supreme Court.  In a judgment delivered on 30 March 2006, the Supreme Court allowed the appeal to the extent it related to the attempted sexual violation count and set the conviction on that count aside for jury misdirection.  No re-trial was ordered on that count.   The Supreme  Court  dismissed  the  appeal  against  the  conviction  for  actual  sexual violation and remitted the case to this Court for reassessment of the appropriate sentence.

The facts

[6]      The facts are stated more fully by this Court in [3] to [5] of the judgment of

18 July 2005.  It is sufficient for present purposes to record that, at the time of the offending, the appellant was 49 years of age.   The complainant was related to the appellant and regularly stayed at  her home.   It was not  uncommon for younger members  of  the  appellant’s  family  and  younger  members  of  the  complainant’s family to sleep in the same bed as the appellant.   In early March 2003 while the complainant and the appellant were in the same bed, the appellant began to kiss the complainant and asked him to take off his underwear.  In the complainant’s words:

She grabbed my penis and tried to put it in her vagina but I wouldn’t let it go in.   She tried doing it a couple of times but then I stopped and told her I couldn’t do it.  I was too afraid so I got up and said goodnight and went to sleep.

[7]      About two weeks later, there was a second incident in which the appellant lay on top of the complainant and, on this occasion, she was successful in placing the complainant’s penis in her vagina and intercourse took place without his consent. This incident formed the basis for the conviction for actual sexual violation.

The approach to sentencing in the High Court and Court of Appeal

[8]      Laurenson  J  noted  the  decision  of  this  Court  in  R  v  Herbert  CA70/98

21 May 1998 in which it was stated that no distinction is to be drawn between male and female offenders in sexual abuse offending.  In the light of this, the Crown had submitted that the appropriate starting point for sexual violation by rape was eight years:  R v A [1994] 2 NZLR 129. However, the Judge considered that in view of the actual sentence imposed in Herbert  and  sentences  in  three  High  Court  cases involving sexual offending by a woman against young boys, the appropriate starting point,  taking  into  account  aggravating  factors,  was  six  years  imprisonment. Laurenson J considered it appropriate to deduct 18 months from that starting point for  mitigating  factors  arriving  at  a  final  sentence  of  four  and  a  half  years imprisonment on the charge of actual sexual violation.

[9]      The sentence imposed by Laurenson J focused on the more serious charge of actual sexual violation.  Although of course the charge of attempted sexual violation was referred to by him when outlining the facts, the sentencing notes do not give any reasons for imposing the concurrent three year term of imprisonment on the count of attempted sexual violation.  We accept it is reasonable to infer that the Judge took into account the totality of the offending and treated the charge of actual sexual violation as the lead offence for sentencing purposes.  Given that the sentences were to be concurrent, it may well be that, understandably, neither counsel nor the Judge focused in detail on the proper sentence to  be imposed on the attempted sexual violation charge.

[10]     When this Court considered the Solicitor-General’s appeal against sentence, it was pointed out that in Herbert, the only question was whether the sentence of four years imprisonment was manifestly excessive.  The question of whether an eight year starting point should have been adopted did not arise.   While endorsing the principle expressed in Herbert and in R v A [2003] 1 NZLR 1 that sentencing for sexual violation should be treated as gender neutral, the Court considered that the appropriate starting point in the appellant’s case was in the region of seven to eight years imprisonment rather than the six year starting point adopted by the Judge. Even taking into account the mitigating factors, the Court considered that the sentence had to be increased although, since it was a Solicitor-General’s appeal, not to the extent advocated by the Crown. The sentence was increased from the four and a half years imposed by Laurenson J to five and a half years.

[11]     Again, no separate consideration was given to the appropriate sentence for the charge of attempted sexual violation (no doubt for the same reasons we have already discussed in respect of Laurenson J’s original sentence) and no adjustment was made to the concurrent three year sentence imposed for that charge.

Submissions

[12]     For the appellant, Mr Davey submitted that there should be a twelve month reduction in the overall sentence to reflect the setting aside of the conviction on the attempted sexual violation charge.   On the other hand, Mr Corlett submitted there should be no or only minimal reduction to the sentence.   He submitted that the aggravating factors identified by the Judge continued to apply notwithstanding the setting aside of the conviction on the attempted violation count and that, despite the misdirection found by the Supreme Court, the jury must have concluded that the activities constituting attempted sexual violation had occurred.  Culpability was not lessened, he submitted, because the appellant’s actions showed there was a degree of premeditation and persistence in her pursuit of the complainant.

[13]     Mr Corlett made detailed submissions about the appropriate starting point, pointing out that given the agreed position that the appropriate deduction for mitigating factors was 18 months, Mr Davey’s submission entailed a starting point of six years imprisonment rather than the seven to eight year range adopted by this Court in its judgment of 18 July 2005.

[14]     It is common ground that this Court has jurisdiction to review or reassess the appropriate sentence under s 386(1) Crimes Act 1961 which provides:

386    Powers of appellate courts in special cases

(1)     If on any appeal under section 383 of this Act it appears to the Court of  Appeal  [or  the  Supreme  Court]  that  an  appellant,  though  not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed on the appellant or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment on which the Court considers that the appellant has been properly convicted.

[15]     Section 386(1) gives the Court a discretion to adjust the sentence or sentences even if there is no appeal against sentence before the Court:   Collie v R [1997]

3 NZLR 653 at 665. The approach under s 386(1) is for the Court to consider the

sentence that it thinks proper, not the sentence which it considers the Trial Judge would have given in the changed circumstances:  Collie at 667.

Discussion

[16]     In the unusual circumstances of this case, we do not consider there is any profit in a further discussion of starting points for the offence of sexual violation by unlawful sexual connection perpetrated by a female against a male.  We consider that justice requires some reduction of the sentence to mark the setting aside of the conviction on the charge of attempted sexual violation.  It is proper to infer that both Laurenson J and this Court on appeal took into account the totality of offending on both counts when considering the appropriate sentence.  In neither case was separate consideration given to the extent of culpability attaching to the attempted sexual violation and, before us, neither counsel invited us to give weight to the three year concurrent sentence imposed by Laurenson J on that charge.

[17]     It is necessary to make some assessment  of the contribution  in terms of culpability which the attempted sexual violation count represented in the totality of the offending.  Plainly, the charge of actual sexual violation was rightly regarded as the primary factor in terms of culpability.  We consider that the attempted violation count was in the nature of an unsuccessful preliminary to the actual sexual violation which occurred approximately two weeks later.  While, attempted sexual violation is a relatively serious offence, it attracts only half the maximum term of imprisonment for sexual violation (ten years compared with 20 years).  Attempted sexual violation attracts a slightly higher maximum penalty than indecent assault (seven years maximum), no doubt because attempted sexual violation involves an intention to carry out a more serious act than indecent assault.  But the physical act involved here was a touching of the complainant’s private parts rather than an invasive act of penetration.

[18]     While  not  wishing  to  diminish  the  relative  seriousness  of  an  attempted violation charge, we consider that, in the light of the unusual circumstances and history of this case, and in the context of the overall offending, the attempted sexual violation was relatively minor compared with the actual sexual violation that took

place subsequently.  We consider that the appropriate reduction to mark the setting aside of the conviction for attempted sexual violation is between six and twelve months imprisonment.  We adopt the mid point of nine months which will result in the reduction of the sentence on the remaining count of sexual violation from five and a half years to four years nine months imprisonment.   That sentence will of course run from the date of the sentence originally imposed by Laurenson J on

18 March 2005.

Solicitors:

Crown Law Office, Wellington