R v McLean HC Rotorua T001096

[2001] NZHC 367

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY T001096

THE QUEEN

v

C A McLEAN

Dates of hearing: 27-30 March, 2 and 3 April 2001

Date of sentencing: 11 May 2001

Counsel: John McDonald and Nicky Utting for the Crown
David Bates and Matthew Bates for the accused

SENTENCING OF CHAMBERS J

Reminder to the media

[1] I begin with a reminder to the media because I note that there are many representatives of the news media here today. While I have discharged the suppression order made by Randerson J on 3 August last year, I remind the media of the restriction on publication imposed by s 139 of the Criminal Justice Act 1985. Under that section, no one may publish, in any report or account relating to any proceedings commenced in any court in respect of an offence against any of ss 128 to 142A of the Crimes Act 1961, or in respect of any offence against s 144A of that Act, the name of any person upon or with whom the offence has been or is alleged to have been committed, or any name or particulars likely to lead to the identification of that person. Mr McLean is today being sentenced in respect of an offence against s 128. Accordingly, the name of the complainant may not be published. Nor may any names or particulars likely to lead to her identification be published.

[2] While in this sentence I shall not be mentioning the complainant’s name, I shall be giving particulars which, if published, would be likely to lead to her identification, and counsel too have made submissions which, if published verbatim, would be likely to lead to the complainant’s identification. So, members of the news media, you will need to be alive to that fact. Publishing my sentencing comments verbatim would accordingly breach the Parliamentary restrictions imposed by s 139. Please bear that in mind and, if in doubt, err on the side of caution.

The facts

[3] Mr McLean, you appear today for sentence on two charges in respect of which the jury found you guilty. One is a charge of sexual violation by rape. The other is a charge of assault by a male upon a female.

[4] I deal first with the rape. That took place on 12 December 1997 at the complainant’s mother’s house. Your defence was that no sexual intercourse took place. The jury believed the complainant that sexual intercourse did take place and took place without her consent. The jury obviously disbelieved your denial. I appreciate from the probation report and from what your counsel, Mr David Bates, has said, that you maintain your innocence. Of course, as Mr Bates has acknowledged, I must ignore that. In sentencing you, I must sentence you on the basis of the jury’s finding of guilt.

[5] The rape occurred after you and the complainant returned from a social function. You went into a bedroom in the house. The complainant got into the bed in the room. The complainant’s mother had set up a separate bed for you on some foam rubber squabs. According to the complainant, after she got into bed, you then pulled her down onto your mattress and then forced her to have sexual intercourse with you. She made it clear that she did not want to have sexual intercourse. You persisted. You forced her to open her legs. You pulled her hair. The next morning, you expressed remorse for what you had done. Apart from the violence inherent in the act of rape itself, there appears to have been no other violence apart from the pulling of the complainant’s hair.

[6] The second incident in respect of which you were found guilty occurred on 7 February 1998. On that occasion, you slapped the complainant on the face. You admitted you had done that. Your defence was self-defence. It is clear that the jury excluded that defence. There are two possibilities. One possibility is that they accepted completely the complainant’s evidence, which was to the effect that the assault, the slap, was unprovoked. On that basis, of course, self-defence was a non starter. The other possibility is that the jury accepted your version of events, namely that the complainant hit you and you then responded. Your response, however, was not in self-defence, or alternatively your response involved more force than was reasonable in the circumstances. That too would negate self-defence. My own assessment of the evidence is that the latter possibility is more likely to have been their conclusion. I do not think anything turns on that matter, however. To my mind, the penalty you should face for that offence would be identical whichever of the two possibilities was the jury’s ground for rejecting self-defence.

The maximum penalties

[7] The maximum penalty for sexual violation not involving home invasion is 20 years’ imprisonment. I have given consideration as to whether this was a rape involving home invasion. A rape involving home invasion carries a higher maximum penalty, namely 25 years’ imprisonment. I asked for submissions from counsel on this point. Both Crown counsel and your counsel have submitted that this was not a case coming within the statutory definition of a rape involving home invasion. I agree with those submissions. So you face a maximum on the rape of 20 years. On the assault charge, you face a maximum penalty of 2 years’ imprisonment.

[8] I tell you at the outset, Mr McLean, that a prison sentence is inevitable. The Crown Solicitor, Mr McDonald, drew to my attention s 128B of the Crimes Act 1961. That section provides that everyone who is convicted of sexual violation shall be sentenced to imprisonment unless, having regard to the particular circumstances of the offence or of the offender, including the nature of the conduct constituting the offence, the Court is of the opinion that the offender should not be so sentenced. I am satisfied that there are no particular circumstances of the offence or of you which would render imprisonment inappropriate. Your counsel has sensibly acknowledged that. The only question is the duration of the term of imprisonment. To that question I turn.

The starting point for rape

[9] I consider first the appropriate punishment for rape. It is clearly the more serious of the two offences on which you were found guilty. The Court of Appeal has made it clear that the starting point in a contested rape case is 8 years’ imprisonment: see R v A [1994] 2 NZLR 129 at 131 and R v Tongotongo CA 313/00 28 September 2000 at para [25].

[10] It is also clear that there is no separate regime of sentencing simply because the parties were married or had been in a continuing sexual relationship: see R v N (an accused) [1987] 2 NZLR 268 (CA) at 270 and R v C (283/95) CA 283/95 7 September 1995 at p 3. None of these principles is in dispute today.

[11] I approach this sentencing for rape from a starting point of 8 years.

Aggravating features

[12] Were there any aggravating features to this rape? While you pulled the complainant’s hair during the rape, I do not consider that that action constituted ‘significant violence’ justifying an increase on the starting point: see R v R CA 59/99, 15 June 1999, at para [24].

[13] I have considered the fact that you were at the time a police officer. Mr McDonald has submitted that the fact that you were a police officer ‘should not significantly militate against [you]’.The only impact it might have, the Crown submitted, was that it made the complainant feel more powerless about her situation. She was, of course, concerned about going to the police to complain. She thought that the police would look after each other and would not believe her.

[14] I accept the Crown submission that when you committed the rape you were not acting in the course of duty. I do not believe that the sentence should be higher because you happen to be a police officer. This is not a case where you abused your position of authority, cf R v Fahey CA 184/00 2 November 2000 at para [1]. Rather, you abused the position of trust you held as the complainant’s partner. It is possible that the complainant did feel that it was more difficult to make a complaint because you were a police officer. On balance, though, I think the reason she did not make a complaint earlier is more likely attributed to your promise the following day to treat her from then on like a princess. Your apology for your conduct at that time is, I think, the principal reason why she stayed her hand.

[15] I do not consider that there were any aggravating features to this rape justifying an increase from the starting point.

Mitigating features

[16] Mr Bates, in his very helpful submissions, has submitted that there are two mitigating features which should operate to reduce the sentence you might otherwise serve. The first of these mitigating features is your good character. The second is the fact that you are a first offender.

[17] So far as your good character is concerned, I accept that up until this incident you had an exemplary police career extending over almost 15 years. The Court of Appeal stated in R v Howe [1982] 1 NZLR 618 at 629 that ‘persons who have shown themselves generally law-abiding citizens of good character are usually entitled to invoke their creditable record in mitigation when they come before the Courts, even for quite serious offences’. I accept that general principle. I propose therefore to make an allowance for your past creditable record.

[18] The second matter urged by Mr Bates is that you are a first offender. This consideration to some extent overlaps with the first, although it is possible to be a person of good character while not a first offender and it is also possible to be a first offender without necessarily being judged worthy of a mitigation in sentence on the grounds of good character. It is well established that the fact that a person is a first offender is properly a matter to take into account by way of mitigation. I also note in this regard that up until this matter, you also had a clean disciplinary record with the police.

[19] Accordingly, I accept, Mr McLean, what Mr Bates has said under both those heads. I shall be allowing a reduction on both accounts.

Moderating features

[20] The mitigating features to which I have been referring involve a consideration of aspects personal to you: your good character, the fact that you are a first offender. Mr Bates, however, has raised two other matters which, he says, justify a reduction in the sentence you might otherwise receive. I call these features moderating features rather than mitigating features because they arise from the overall circumstances and not because of something commendable about you.

[21] There are two moderating features which Mr Bates urges me to take into account. The first is the fact that you will suffer much more than any ordinary rapist because of your former position as a police officer. Mr Bates, in the written submissions he filed, refers to what he calls the ‘extreme consequences’ which you will suffer: ‘loss of livelihood, . . . loss of career, . . . loss of professional status, the suffering of humiliation, and the stigma and ignominy of [your] conviction’. The second moderating circumstance Mr Bates asks me to take into account is the fact that the circumstances of your prison sentence are likely to be much more severe than would be suffered by an ordinary rapist in prison. I shall consider those two items in turn.

[22] First of all, what effect, if any, should it have on sentence that you have been dismissed from the police force, lost your career, and suffered extreme public vilification and humiliation? Mr Bates cited three cases to me on this topic. They were R v Bailey [1988] 1 NZLR 109 (CA), Hook v Ralphs (1987) 45 SASR 529, and R v Palmer [1980] 2 CrAppR(S) 93 (CA). Each of these involved police officers who had committed offences. In each case, it was accepted that the police officer concerned either had been or would be dismissed from the force. The principle I take from those cases is that the court should acknowledge that a police officer who offends and who loses his job and his career is entitled to some moderation in penalty on that account. The reasons for this are obvious.

[23] First, a police officer who rapes does incur a significant extra-judicial penalty not suffered by the civilian who rapes in identical circumstances. The police officer loses his job. He loses any prospect of resuming his career on release from prison. He is much more likely to receive widespread publicity of his wrongdoing. (That clearly has happened in this case.) The public humiliation and vilification is much greater.

[24] Secondly, a reduction in penalty would not reduce deterrence so far as other members of the police force are concerned. Every member of the police force will be well aware now of the consequences of committing rape. He would be out of the force. He would suffer public vilification and humiliation. The rarity of serious offending by police officers speaks volumes.

[25] The Fahey decision to which I earlier referred also has some relevance on this topic. The defendant, Dr Fahey, was not, of course, a police officer but he was a person in a position of authority and influence. The Court of Appeal noted that ‘the public vilification and humiliation [suffered by Dr Fahey] constituted harsh punishment even before the sentence commenced’: op.cit at para [33]. That was a factor, the Court of Appeal said, which the sentencing judge had been entitled to take into account by way of moderation of sentence.

[26] I have concluded that some moderation in sentence is justified on this account. Not to recognise the extra-judicial penalties you have suffered because of your conduct would be to treat you unfairly vis-a-vis a rapist who had not suffered the extra-judicial consequences. The effect, however, must be limited because of the countervailing consideration to which the Court of Appeal drew attention in Bailey. That is, one cannot ignore the ‘advantages of upbringing, maturity and training’ which should have led you, Mr McLean, like Mr Bailey, to ‘an easy rejection of such disgraceful conduct’: op. cit at 121.

[27] I now turn to the second moderating circumstance to which Mr Bates referred. Mr Bates submitted that because you have been a serving police officer for approximately 15 years, you can expect to face hostility in the prison environment from some inmates. He has said this may lead to the need for you to spend significant periods in solitary confinement for your own protection. Mr Bates cited a number of authorities supporting the principle that, if circumstances unrelated to the prisoner’s wrongful conduct lead to the prisoner having to endure significant periods of solitary confinement in prison, that is a factor justifying a moderation of sentence. Most of the cases where this factor has been held relevant involve police informers. The principle, however, is also applicable to police officers. The reason informers may be targeted by fellow prisoners is that they have given service to the State leading to the conviction and punishment of wrongdoers. The reason why you may be a target in prison is exactly the same: your vulnerability stems from the service you have given the State as a police officer, which service has no doubt led to the apprehension, conviction, and imprisonment of many wrongdoers.

[28] In response, Mr McDonald has said that how you are treated in jail, at least by the prison authorities, will be your own choice. You will be able to choose to mix with all prisoners, to mix with segregated prisoners only, or to suffer full-time segregation. You, through your counsel, have accepted that that submission correctly reflects the legal and factual position in our prisons. Mr McDonald has therefore made the point that it cannot be said that you will necessarily suffer solitary confinement.

[29] While that may well be the case, there needs to be an element of realism. I suspect the fact is that, at least for a time, your own personal safety is going to necessitate your electing full-time segregation. Prisons are tough places. It would be unrealistic to think you could, at least at the start, mix freely with all other prisoners and expect no harassment, however the diligent the prison authorities are, and however capable you are at looking after yourself.

[30] I therefore conclude that your sentence should be moderated to some extent on thus account. But the moderation should be limited, partly because solitary confinement will be - if it occurs - your own choice, and partly because, while you will have difficulties in prison initially, the effect of being a former police officer in jail will, I am sure, fade over time. Eventually, you will probably become, in fellow-prisoners’ eyes, just another prisoner, not a former cop.

Victim impact statement

[31] I have read the complainant’s victim impact statement. The harm the complainant has suffered is typical of the serious harm suffered by most rape victims. Felicity Leach, registered psychologist, has reported that the complainant presented with classic symptoms of post-traumatic stress disorder. She fairly acknowledges that the symptoms of trauma can be attributed to a number of factors of which the rape is only one. It is clearly, however, a significant factor. Ms Leach is of the view that the complainant, some 3 years after the incident, is still in need of psychological treatment. Long-term psychotherapy is necessary. Because, as I say, the harm, though serious, is typical, it is a neutral factor so far as sentencing is concerned. It does not justify movement up or down from the starting point because, of course, the starting point reflects the normal consequences of rape on the victim.

Reparation

[32] By s 11 of the Criminal Justice Act, I am to consider a sentence of reparation. Subject to s 22, I am required to impose such a sentence unless satisfied that it would be clearly inappropriate to do so. Pursuant to that duty, I ordered the probation officer to prepare a reparation report under s 22. I have considered that report. I am satisfied that the complainant has suffered significant emotional harm as a consequence of the rape which should be compensated if you have the means to do it. The question in this case is whether you do have the means to pay anything.

[33] So far as the probation service has been able to ascertain, your only assets are $1000 in the bank and a superannuation policy worth approximately $77,000. There has been much speculation in the news media in recent weeks as to whether you are entitled to some other sum on your dismissal from the police force. From the information that I have been given, however, as late as this morning, it now seems highly unlikely that you will receive any sum in addition to the amount to which you are entitled by law in respect of your superannuation policy. Your estranged wife has given notice to you and to the Court that she claims an interest in your superannuation policy. This is not the place to assess the validity of her claim or the share to which she may be entitled if she does have a claim. All I can do today is acknowledge that her claim may have validity and clearly it should not be defeated.

[34] Quite apart from that claim on the superannuation policy money, you have debts of $63,000. The principal debt is to your lawyers with respect to the two trials you have faced. Taking into account all these circumstances, I think it is fair to say that you can be described now as insolvent or nearly so.

[35] The Court of Appeal has said in R v Jarvis CA 306/86 2 March 1987 at pp 3-4 that ‘it is a futile task to order payments from someone who has no assets . . . Realities must be recognised. One simply cannot get blood out of a stone. The Court cannot justifiably make an order for payment, enforceable by further penal sanctions against an offender who faces a long prison sentence and who must be accepted as having neither assets nor tangible financial prospects.’ I have concluded that those comments apply in your case.

[36] In the circumstances, there will be no order to pay reparation because you do not have the means to make a payment.

Result on the rape charge

[37] As I said earlier, I begin with a starting point of 8 years. I have identified in the course of this sentencing several mitigating circumstances and several moderating circumstances. It would be unrealistic to give each of them a specific weight or a specific period of time to be applied by way of reduction in sentence. That would be to suggest a mathematical precision which would be illusory. Sentencing, while principled, can never be mathematically precise.

[38] Taking these mitigating and moderating circumstances collectively, I believe they fairly justify a 3 year reduction from the starting point. I accordingly sentence you to 5 years’ imprisonment in respect of the sexual violation charge.

Result on the assault charge

[39] Had the assault been the only offence, it clearly would not have warranted a prison sentence. I have considered whether you should have to pay a fine. I do not think that would be appropriate for the same reason that a reparation order is not possible. What I have decided to do on that charge is impose a short prison sentence concurrent on the other sentence. On that charge, I sentence you to 14 days’ imprisonment, such sentence to be concurrent with the other sentence of imprisonment. The total prison sentence accordingly remains at 5 years.