R v L HC Auckland CRI 2009-004-27917

[2010] NZHC 1160

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-004-27917

THE QUEEN

v

L

Hearing:         13 July 2010

Appearances: R Reed for Crown

R Chambers for L Judgment:    13 July 2010

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Auckland

R Chambers, Auckland

R V L HC AK CRI 2009-004-27917  13 July 2010

[1]      Mr L, you appear for sentence this afternoon having pleaded guilty to a number of sexual offences.   You appear in this Court because, at the request of counsel  for  the  Crown,  the  District  Court  declined  jurisdiction  in  order  that  a sentence of preventive detention might be considered.   To that end the necessary reports  have  been  obtained.    Having  considered  them,  counsel  for  the  Crown indicates that a sentence of preventive detention is no longer sought.  I agree that that is the correct approach.  Accordingly, the issue for this Court today is the length of the finite sentence of imprisonment which must inevitably be imposed.

The offending

[2]      I will summarise your offending as briefly as I can.  All the offences were committed against your step-daughter LL between 1992 and 2002, at a time when she was aged between five and 15 years.  The first group of charges, counts 1—5 are representative.  They  allege  offending  between  1 January  1992  and  3 September

1998, at a time when LL was aged between five and 11 years.  All of these charges carry a maximum term of imprisonment of 14 years.  There is one charge of sexual violation by rape, three of unlawful sexual violation by unlawful sexual connection and one of indecent assault.

[3]     The second group, counts 6—10 inclusive, again allege offending on a representative basis during the period 4 September 1998 and 3 September 2002, when LL was aged between 12—15 years.  The spread of offences during this period is exactly the same as before.  The only difference is that the maximum penalty is altered.   The count of indecent assault carries a maximum penalty of seven years imprisonment; the remainder carry a maximum penalty of 20 years imprisonment.

[4]      Finally, there is a group of offences, counts 11-15 inclusive, laid in respect of a  single  incident  which  occurred  some  time  between  4 September  2001  and

3 September 2002 when LL was 15 years old.  These counts relate to an occasion which you chose to record on video tape.  There is one charge of sexual violation by

rape and four of sexual violation by unlawful sexual connection, each of which carries a maximum penalty of 20 years imprisonment.

[5]      You are 71 years old.  When the offending began LL was five.  The offences appear to have started with fondling, which involved your placing your hand inside her pants in such a way as to touch the outside of her vagina.  That progressed to penetration of her vagina with your finger.  By the time she was six, you would get her to lie on her back, lubricate her thighs, get her to close her legs and then simulate sex while lying on top of her.

[6]      At this early stage, there were incidents in which LL was forced to perform oral sex on you, and when you would lick the outside of her vagina.  Also during this period your offending included the use of foreign objects which you inserted in her vagina and in her anus.

[7]      That state of affairs continued until LL was aged 11 or 12 years.   At that point, the offences escalated.  You began penetrating both her vagina and her anus with your penis.   That seemed to have occurred progressively over time until the point at which you were able to penetrate her vagina fully.  She was in extreme pain, as might be imagined, during these assaults.  You are said to have explained to her at the time that you were doing her a favour, in that she would not have to experience it with anyone else.   The summary of facts discloses that you ejaculated on most occasions.

[8]      There are also charges which relate to the penetration of her vagina and anus with objects such as vibrators and dildos.  LL is able to date this offending, because she knows that it commenced prior to menstruation which first occurred when she was 12 years old.  The offences occurred frequently, whenever her mother was out of the house, and continued until she was 15 years old.

[9]      Counts 11—15 inclusive relate to a single incident which was recorded by you on video tape.  This recorded incident shows you performing oral sex on LL, progressing to full penetration by your penis of her vagina.  You are also seen on the

video tape placing dildos and other objects into her vagina and anus.   In addition there is an episode when she was required to suck your penis.

[10]     When she was 15 years old LL asked you to stop what you were doing to her. It is to your credit to some small degree that you did what she asked.  She remained living  with  you  for  some  years  thereafter,  and  no  further  offending  occurred. Finally, she summoned up the courage to complain about what had happened to her.

Victim impact statement

[11]     LL was only two years old when she became part of your family, at a time when you became her mother’s partner.   At that stage you were all living in the Philippines, where LL’s mother was born.  Later you came to New Zealand.  You were her only father figure, from the time she was very young.   It was therefore natural for her to place her trust in you, and indeed that is what occurred.  By reason of that trust she did not question what was happening to her in the early stages. Later, she realised that your offending was wrong, but she gradually became fearful of you and so effectively was unable to escape.  Of course she had nowhere else to go in any event.  She was physically apprehensive of you, not only by reason of what you were doing to her, but also because you were often violent towards her mother.

[12]     Your relationship with LL’s mother ended when LL was 12.  At that time she wanted to go with her mother but did not do so because she felt that she should stay behind and protect her mother from you.  Regrettably, you tended to control LL to the extent that she found it difficult to visit her mother during her teenage years.  She says that is something very important that she has missed out on.  She hated coming home from school.   She says you would be drunk;   she would have to cook and clean, and then face sexual abuse.   She says she also faced from you continuous criticism about her and everything she did.  She turned to alcohol and marijuana as outlets which enabled her to deal with what was happening, and considers you have damaged her as a person in that she has become submissive and nervous.  But she is relieved that finally she had the courage to speak out about what you have done to her and to her family.

[13]     All of this was related this afternoon by the Officer in charge who was asked by LL to read out in open Court the statement she had provided.  It is to be hoped in some small measure that her important role in today’s proceedings may have assisted the healing process for her.

Pre-sentence report

[14]     You were born in Hamilton and raised in a number of towns in New Zealand. You report various forms of physical and sexual abuse during your formative years, although your accounts to the various report writers are not completely consistent.  It seems that you have been able through much of your life to undertake useful and challenging work and that is to your credit.  Regrettably, your personal relationships have been less satisfactory.   You have been married and divorced five times, and although you have several children you no longer have contact with any of them.  On your account,  your relationship with LL’s mother deteriorated by reason of her behaviour;   in particular her gambling and friends, of whom you disapproved.    I mention that specifically because in endeavouring the account for what you did to LL, you seemed to be suggesting that you were trying to exact revenge on your wife. I suspect that that is simply a piece of rationalisation.  It cannot possibly, of course, begin to explain what you did to LL at a time when she was at her most vulnerable.

[15]     The reports indicate you had a serious motor accident in 1983, and that this may have had some effect on your personality.  The reports speak of memory loss, mood swings, dizziness and headaches.

[16]     You do not have any drug or alcohol problems, but there are some serious health difficulties which include asthma, depression and prostate problems.

[17]     There is a suggestion in the reports that you considered LL to have been a willing participant, in until that she was 15 years old she did not ask you to stop.  But of course, an explanation of that sort is completely unacceptable.  There can be no question of consent or willing participation by a vulnerable young girl who was completely at your mercy.

[18]     You have pleaded guilty, but having said that, the probation report suggests only limited remorse on your part.  The probation officer says there is a tendency to minimise and even to justify what happened.

[19]     The material available to the Court read as a whole, is nevertheless to the effect that your risk of re-offending is low.  That is partly because you are no longer in a position to offend against LL, and because by reason of age and ill health, you are no longer physically able to commit a number of these offences in any event.

[20]     I accept also that the period of almost eight years during which you lived in the same household as LL without further offending, demonstrates an ability on your part to control yourself.   It was for these reasons that the Crown has responsibly accepted that preventive detention would not be an appropriate outcome in this case. I have not overlooked your letter to the Court, which I will mention later.

[21]     You  have  not  appeared  before  any  Court  since  1970.    Even  then  your offending was minor and quite unrelated to behaviour of the sort for which you now appear.  I put your previous list aside for sentencing purposes.

Purposes and principles of sentencing

[22]     I am obliged to take into account the various purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002.  Among the relevant purposes are those of holding  you  accountable for  the  harm  you  have  done  to  LL and  indeed  to  the community as a whole, to hold you responsible for that harm, to denounce what has occurred and to deter you and others from acting in a similar fashion.  Having said that, I must do what I can to assist in your rehabilitation.

Discussion

[23]     Recently, the Court of Appeal delivered its decision in R v AM[1].  In that case, the Court provided guidelines for sentencing Courts in the area of sexual offending.

The Court set out suggested offending bands for both sexual violation by rape and sexual violation by unlawful sexual connection, and identified a number of aggravating factors which might be thought to be relevant to the placement of individual cases within the bands.

[1] [2010] NZCA 114

[24]     Ms Reed submits that this offending falls squarely within band 4, the highest band for rape.  Offending within that band will ordinarily attract a starting point of between 16 and 20 years imprisonment.  Ms Reed argues that no fewer than seven of the aggravating features identified in AM are present here;  there is the immense age gap between you and LL, the degree of premeditation obvious in what you did, a degree of violence, obvious victim vulnerability, significant victim harm, offending on a broad scale both in respect of its duration and the types of activities undertaken, and finally the breach of trust.   I agree that most, if not all of these aggravating factors are present in this case.

[25]     In AM the Court of Appeal indicated that band 4 will in general apply to multiple offending over considerable periods of time, rather than single instances of rape, and that perhaps the paradigm case of offending within the band is that of repeated rapes of one or more family members over a period of years.

[26]     Ms Reed has helpfully referred to R v N[2] and R v M (CA477/07)[3]In the first of these two cases there were multiple instances of sexual violation by rape, sodomy, digital and oral penetration by a stepfather against his 7—9 year old stepdaughter over a period of two and a half years.  The offending came to light when the victim tried  to  take  her  own  life.    This  case  was  referred  to  in  AM,  where  it  was characterised as possibly falling within rape band 3, because there was only one complainant.     Ultimately  however,  the  Court  considered  that,  given  that  the offending occurred over a period of years, and that the effect on the victim was severe, it was better dealt with in band 4.

[2] CA88/05 23 November 2005

[3] [2008] NZCA 168

[27]     Ms Reed says that this case bears some similarity also to R v N, in that both involved multiple sexual violations against a child family member over an extended

period.  She argues, however, that this case was more serious than that because here there was offending over a significantly longer duration accompanied by particularly degrading sexual activity.  I agree with that analysis.

[28]     In R v N a starting point of 15 years imprisonment was upheld.   In R v M (CA477/07) a starting point of 17 years imprisonment was adopted.  After a discount for a guilty plea, a finite sentence of 11 years four months was imposed in respect of

27 charges  of  sexual  offending  (including  sexual  violation  by  rape  and  anal penetration) against the prisoner’s daughter for offending over a period of 13 years, commencing when she was five or six years old.  So the offending there bore distinct similarities to the present case.  The Court of Appeal rejected an appeal against that sentence, holding that the case was among the worst to come before the Court, and that a starting point of 20 years imprisonment might well have been near the bottom of the range available to the sentencing Judge.

[29]     Mr Chambers is concerned that R v AM might not properly be applicable to cases of historic offending.  There may well be substance in that argument in cases where the offending is truly historic:  see R v KJB[4], but I do not regard the offending in this case as being sufficiently historic to justify a departure from the R v AM approach.  The last offences, which were particularly serious, were committed just eight years ago, and indeed represented the culmination of continuous offending over

[4] [2007] NZCA 292

the previous 10 years.

[30]    In general, New Zealand Courts have not allowed significant sentencing discounts in cases of child sexual abuse by reason simply of the lapse of many years between the offending and its discovery, or reporting:  R v M[5].  I am satisfied that it is not appropriate to do so here.

[5] CA147/94 22 July 1994

[31]     I consider that this case falls at the middle of rape band 4 in R v AM, and that it calls for a starting point of 18 years imprisonment.  That starting point reflects the sheer number of aggravating factors which include the age disparity, the length of time for which the offending continued, the seriousness of the offending itself, the

degrading character of much of what occurred, the physical pain which LL must have suffered on many occasions, the degree of premeditation entailed in offending when LL’s mother was out of the house, and finally the complete and utter breach of trust inherent in this truly appalling behaviour.

[32]     LL  was  entitled  to  look  to  you  Mr  L for  love,  guidance  and  emotional security.   Instead, she was put through an ordeal which no young child ought to contemplate, let alone suffer.

[33]     There are no aggravating features other than those already taken into account. There are two principal mitigating features however.   The first concerns your age and medical condition.  I have already mentioned the detail of that.  It is possible that a lengthy period of imprisonment will be somewhat more difficult for you than for someone in a better state of health.  I propose to follow the example of Harrison J in R v H[6] by reducing the starting point by 12 months on health grounds.

[6] HC Whangarei CRI-2004-027-236, 18 November 2004

[34]     That brings me to the discount for your guilty plea.  In all the circumstances I am satisfied the guilty plea was entered at an early stage.  The Court is told that you indicated an intention to plead guilty at a very early point, and did so once the charges were clarified and an agreed statement of facts accepted.  The time frame was approximately eight weeks from arrest to plea.  In those circumstances you are entitled to a discount of about one-third.  That discount will be five years and a half years.

[35]     The discount for the guilty plea takes into account the fact that you have expressed a degree of remorse for what has occurred.  In particular, I note your letter to  the  Court  which  I have  carefully  read.    It  suggests  that  a  glimmer  of  self- awareness may be emerging.  If that is so then it bodes well for your rehabilitation, which ought, in my view, to include your participation in the Te Piriti programme for sexual offenders that is run in prison.

[36]     That produces an end sentence of 11½ years imprisonment.

Minimum period of imprisonment

[37]     The  Crown  seeks  the  imposition  of  a  minimum  period  of  imprisonment pursuant to s 86 of the Sentencing Act.  Responsibly, Mr Chambers does not oppose that course.  Minimum sentences are imposed where sexual offending is especially serious, in order to hold the offender accountable for the harm done to the victim, to denounce and to deter, and to protect the community from the offender.  It reflects the need to ensure that the minimum period actually served properly reflects the gravity of the offending and society’s abhorrence of it.

[38]     It  is  open  to  the  Court  to  impose  a  minimum  period  of  imprisonment equivalent to two-thirds of the end sentence.   However, it will generally not be appropriate to approach that level where there has been a guilty plea, because as is emphasised in R v Gordon[7] a guilty plea must be reflected both in the end sentence and in any minimum period imposed.  In all the circumstances I intend to impose a minimum period of five and a half years, which is just a little less than 50% of the end sentence.

[7] [2009] NZCA 145

Sentence

[39]     Mr  L  on  counts  6—9  inclusive  and  counts  11—15  inclusive  you  are sentenced to a term of 11½ years imprisonment.

[40]     On counts 1—5 inclusive you are sentenced to eight years imprisonment, and on count 10 you are sentenced to three years imprisonment.  All of these terms are to be served concurrently.  The result is a sentence of 11½ years imprisonment.  You will serve a minimum period of five and a half years imprisonment.

C J Allan J