R v "L" (CA358/05)
[2006] NZCA 390
•7 March 2006
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA358/05
THE QUEEN
v
"L" (CA358/05)
Hearing: 22 February 2006
Court: William Young P, Williams and Gendall JJ Counsel: J H Wiles for Appellant
F E Guy Kidd and M J Inwood for Crown
Judgment: 7 March 2006
JUDGMENT OF THE COURT
The appeal against sentence is dismissed
REASONS
(Given by Williams J)
R V "L" (CA358/05) CA CA358/05 7 March 2006
Issue
[1] On 26 May 2005 the appellant, Mr L, pleaded guilty to two counts of incest with a daughter, S, over the years 2002-2005 and one count of indecently assaulting her in 2001-2002 when she was 15. The indecent assault and one of the incest charges were representative counts.
[2] On 2 September 2005 Harrison J sentenced the appellant to five-and-a-half years’ imprisonment on each of the incest counts and two years’ imprisonment on the indecent assault, all terms being concurrent.
[3] Mr L now appeals to this Court on the ground the sentence was manifestly excessive.
Facts
[4] Evidence suggested Mr L was a domineering and manipulative father and husband in a household including his wife and four children. Material before the sentencing Court suggested that for a period prior to and during Mr L’s offending, he and his wife did not sleep together, although whether that arose through her withdrawal or his manipulation remained unclear.
[5] About 2001 Mr L encouraged S to sleep in his bed. From about her 15th birthday onwards he began fondling her breasts and “grooming” her for a sexual relationship. Intercourse first occurred between them in 2002 when she was 16 despite his knowing he “shouldn’t be doing these things to my daughter”. It continued to occur thereafter on at least a weekly basis. All the intercourse was unprotected. S conceived in about April 2004 when she was 17.
[6] Mr L attempted to conceal that he was the father of S’s unborn child and required her to tell inquirers her pregnancy resulted from a “one night stand” at a party.
[7] A child was born in December 2004 and was diagnosed as suffering from Gaucher’s Disease, a rare inherited genetic defect indicative of incestuous conception. The child died a month later.
[8] Mr L continued to deny fatherhood until DNA testing of family members and the baby left him no other option. However, even after pleading guilty, he claimed to the Probation Officer that S’s pregnancy resulted from their only occasion of full sexual intercourse, Before sentencing, however, he acknowledged more frequent offending.
[9] It should be observed that at no time was S unwilling to participate in sexual activity with her father. Material before the sentencing Court showed she fully consented to what occurred. A victim impact statement, written when she was 18, made that clear and even during Mr L’s period in custody on remand, both S and her mother had twice daily contact with him. A psychiatrist’s report obtained by Mr Wiles, Mr L’s counsel, evidenced S’s ambiguous views about her father and future possible effects on her of what had occurred. The psychiatrist, however, noted that research indicates frequent psychiatric consequences for incest victims.
[10] Mrs L’s victim impact report was similarly ambiguous concerning her relationship with the appellant but noted that, as a result of his offending, CYFS had taken all her children from her.
[11] A son of the marriage was, however, very much more robust in his victim impact report. He said the family “has been torn apart by what my father has done to us” and expressed the hope for a lengthy prison sentence for his father, because of a belief that “he will come back from gaol to live with S and my mother and take control of them again”.
Sentencing remarks
[12] After noting the maximum sentences on the charges, the Judge turned to the case he decided was of major assistance, R v Accused (CA263/90) [1991] 3 NZLR
288. In that case, in upholding a sentence of six-and-a-half years’ imprisonment for
frequent intercourse between a stepfather and stepdaughter beginning at the age of eight and continuing for nearly a decade, this Court described (at 289) the overriding features of sentencing in incest cases as being the “utter abhorrence of the community for such conduct” and the “grave impact on the lives of complainants”. Although no starting point for the sentence was mentioned in CA263/90, in the present case Harrison J inferred that it must have been in the region of nine years. Though saying a similar starting point would be appropriate for Mr L, the Judge nonetheless started at eight years’ imprisonment because of what he described (at [12]) as the “totality of your offending and its impact on the family”. He discounted that sentence by two-and-a-half years for the pleas of guilty and other personal circumstances.
Submissions
[13] For Mr L, Mr Wiles submitted the eight year starting point was too high and the ultimate sentence imposed took insufficient regard of the minimal impact on S.
[14] He noted that the offending in CA263/90 started at a much younger age than in Mr L’s case and persisted for much longer with serious psychological effects on the victim already evident at sentencing. Mr L’s offending, he suggested, lasted only about 21 months.
[15] Mr Wiles particularly relied on the decision of a five member Court in R v Accused (CA406/92) [1994] 3 NZLR 157 where the appellant pleaded guilty at an early stage to two sample charges of indecent assault on a girl aged 12-16 years and incest. The indecent assaults occurred before the daughter turned 16 and intercourse took place thereafter. He was sentenced to two-and-a-half years’ imprisonment but bailed pending appeal to this Court. At the Court’s request additional data was adduced as to incest sentencing régimes in Australia, England and Canada. That led to the Crown abandoning its submission that the appellant be imprisoned. The Court imposed a sentence of eight months’ Periodic Detention plus two years supervision with numerous special conditions.
[16] The judgment described it as a “test case about sentencing for incest” (at 159) and noted and cited from various reports recommending non-custodial solutions. The response to the Court’s request for additional information led to the observation that “it may be doubted whether any court sentencing for incest has ever before received so much” (at 162). The judgment included sections on “Survey of Specialist Evidence”, “Psychiatric Opinion and Overseas Experiment” and “Case Law”. The last involved a comprehensive review of the then pertinent cases from England, Canada and New Zealand. The whole of the judgment, particularly that section, repays close reading, but, for the purposes of this case, it is pertinent only to note the later examples and expressions of principle (at 169):
The Solicitor-General was again the appellant in R v Accused (CA 121/89) [1989] 3 NZLR 555, described as probably the worst case of child abuse that had come before the Court since the current wave of such cases began in
1984. It involved one charge of rape, four of incest, four of indecent assault on a girl aged 12, and two of an indecent act on a girl between 12 and 16.
The offences extended over a period of about 12 years, and all were
committed against the appellant’s daughters. At times there was group activity which included the two daughters and the appellant’s son. The Judge had imposed a sentence of six years, but this was increased to ten years, even after giving a reduction of two years for a plea of guilty.
In R v Accused (CA 263/90) [1991] 3 NZLR 288 the Court was concerned with representative charges reflecting a prolonged and varied course of sexual abuse, commencing with minor manual interference with an eight- year-old girl, culminating with full and frequent intercourse and degrading conduct until she was 18 years old. A sentence of six and a half years was upheld.
In R v Accused (CA 126/92) (Court of Appeal, Wellington, CA 126/92,
17 June 1992), a sentence of seven and a half years’ imprisonment was upheld for convictions of incest and unlawful sexual connection with two
daughters aged six and seven, and inducing the elder daughter to do an
indecent act upon him. There had been repeated intercourse with each daughter over a period of a year, and other indecencies, although there were
also a number of mitigating factors.
The latest decision in this Court is R v O’Brien (1993) 10 CRNZ 98, a Solicitor-General’s appeal which resulted in an increase in the effective term from three to six years. The charges comprised four of incest, six of indecent assault, and four of inducing a girl to do an indecent act. The offending involved two daughters and two grand-daughters over a 20-year period. The Court considered a starting point of seven to eight years would not be excessive, and allowing for a plea of guilty, considered the minimum sentence that could have been imposed was six years.
Although the incidence of reported sexual abuse cases has risen dramatically in the eight years since R v B [(an accused) [1984] 1 NZLR 261], there has been no dissent from the principles in that case.
and the following citation from the English decisions (at 169-170) :
The leading case in England is now Attorney-General’s Reference (No 1 of
1989) (1990) 90 Cr App R 141 (CA). The Court of Appeal put forward broad guidelines as to the level of sentence to be imposed for the various
categories of incest on the assumption that there is no plea of guilty. They
are accurately summarised in the headnote at pp 141-142 as follows: "1. Girls over 16.
Three years’ imprisonment down to a nominal penalty would be appropriate depending on the one hand where force was used and the degree of harm, if any, to the girl, and on the other hand, the desirability, where it existed, of keeping family disruption to a minimum. The lower the degree of corruption, the lower the penalty.
2. Girls ages from 13 to 16.
A sentence of between three and five years seemed appropriate. Much the same principles would apply as in the case of a girl over
16.
3. Girls under 13.
If the girl was not far from her thirteenth birthday and there were no particularly adverse or favourable features on a not guilty plea, a term of six years’ imprisonment was appropriate.
4. Aggravating features.
(i) Evidence that the girl suffered physically or psychologically from the incest.
(ii) If the incest continued at frequent intervals over a long period of time.
(iii) If the girl had been threatened or treated violently by or was terrified by the father.
(iv) If the incest had been accompanied by perversions abhorrent to the girl, ie buggery or fellatio.
(v) If the girl had become pregnant by reason of the father failing to take contraceptive measures.
(vi) If the defendant had committed similar offences against more than one girl.
5. Mitigating features.
Possible mitigating features were, inter alia, (a) a plea of guilty;
(b)where there has been a genuine affection on the defendant’s part rather than an intention to use the girl as an outlet for his sexual inclinations;
(c) where the girl had previous sexual experience;
(d) where the girl had made deliberate attempts at seduction;
and
(e) where a shorter term of imprisonment for the father might be of benefit to the victim or the family."
[17] Mr Wiles submitted Mr L’s offending fell into categories 1 and 2 of Attorney- General’s Reference so a sentence of three to five years would have been appropriate. He pointed out that the effect on S appeared nowhere near as grave as in most of the cases reviewed. A sentence at the bottom of this range would, he suggested, have been more appropriate.
[18] For the Crown, Ms Guy Kidd acknowledged the lack of any established tariff for sexual offences of the type with which Mr L was charged. Instances giving rise to charges of incest as opposed to sexual violation or indecent assault on a girl under
16 are relatively rare. She submitted, however, that Mr L’s offending was grave, particularly in that it was committed with his daughter. That meant, she submitted, that CA263/90 was not determinative of the appropriate sentence in Mr L’s case since that complainant was a stepdaughter and the charges were laid under s 131. Indeed, she submitted, morally Mr L’s offending was more serious than in CA263/90 despite the differences in the complainants’ ages. She made the point that many of the authorities on sentencing for incest are now well back in the past and may not mesh with contemporary approaches in sentencing for sexual offending or the provisions of the Sentencing Act 2002 s 8: R v B J K (CA263/05) 7 December 2005 at [29]. Even in England, she noted, there appears to be some reconsideration of, and retreat from, the categories in Attorney-General’s Reference: R v M H [2001]
2 CrAppR (S) 544, 547. She also made the important point that the maximum penalty in England for incest by a man with a female over 13 is seven years’ imprisonment.
[19] Ms Guy Kidd submitted Mr L’s offending was close to the most serious of incest offending given its duration and frequency, the exploitation and breach of trust
involved, the effect on the victim – admittedly, as yet, apparently relatively mild – and, of course, the pregnancy, birth and subsequent death of a grossly genetically deformed child.
[20] Ms Guy Kidd accordingly submitted the appropriate starting point in a contested incest case should be at least four years imprisonment with the aggravating features so often present in such cases doubling that term. That, of course, was the starting point chosen by Harrison J.
[21] While accepting that victims’ interests are a prominent consideration in incest sentencing cases, Ms Guy Kidd submitted they can be outweighed by the principles of deterrence, denunciation and holding the offender accountable in a way which marks society’s deep concern at this form of conduct: R v M (CA517/04) 5 May
2005 at [18] and cases there cited.
[22] Ms Guy Kidd submitted the Judge’s discount for mitigating features of over
30% was appropriate.
Discussion
[23] As the cases reviewed – and a number of others to which reference could have been made – show, there is no accepted tariff for sentencing those charged with incest, though the sentences imposed tend to fall into reasonably predictable, though widely-defined, bands. That may be the reason appeals in incest sentencing cases seem to form a high proportion of such cases which come before Courts.
[24] In our view there is force in the submission that sentencing attitudes to incest offending have tended to firm over the years, particularly since the s 8 principles were enacted. But, as the cases mentioned show, even 15 years ago starting points for such offending of seven to eight years’ imprisonment were not considered excessive.
[25] There is also force in Ms Guy Kidd’s note that English cases such as
Attorney-General’s Reference should perhaps be regarded as of lesser guidance in
New Zealand given the differing maxima and the possible retreat from the categories listed in that case. That point does not appear to have been noted in cases in this country which have cited that authority.
[26] By any measure, Mr L’s offending was towards the most serious end of the incest spectrum. It began with S being “groomed” and indecently assaulted when below the age of consent. It proceeded to full and repeated unprotected sexual intercourse on at least a weekly basis once S passed the age of consent. It resulted in her pregnancy. That, in its turn, resulted in her undergoing the further trauma of childbirth, the discovery her child was grossly deformed and the trauma of the child’s death shortly afterwards.
[27] This is also an appeal where the father made little attempt to persuade S to terminate the pregnancy and, during pregnancy and after the child’s birth, endeavoured to conceal his fatherhood. Even when paternity was established, he initially minimised the extent of his offending, only being prepared to be more candid and enter pleas of guilty when all chance of successfully continuing to deceive was lost.
[28] S’s willing participation in the offending is not to the point and, although the current effect on her seems less marked than in many of the precedent cases, her attitude to her father seems ambivalent and the future effects may well be much worse than currently appear.
[29] In those circumstances, with the Judge, we take the view a starting point of eight years’ imprisonment against a maximum of 10 years was towards the top of, not out of, range.
[30] We are similarly unpersuaded that the Judge’s discount of slightly over 30% was inappropriate for the guilty pleas and the effect on Mr L’s family. Indeed, given the inevitability of conviction on the incest counts and the havoc Mr L’s conduct wreaked within his family, some lesser deduction from the starting point might have been justified.
[31] The result, however, is well within range.
Result
[32] In the result Mr L’s appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington, for Crown
Public Defence Service, Auckland
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