R v Megchelse

[2013] NZHC 251

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-088-005112 [2013] NZHC 251

THE QUEEN

v

CASPER MEGCHELSE

Hearing:         19 February 2013

Counsel:         T Robertson for the Crown

J Wickliffe and E McWatt for the Prisoner

Judgment:      19 February 2013

SENTENCING NOTES OF WOOLFORD J

Solicitors:

Crown Solicitor, Auckland.

Public Defence Service, North Shore City, Auckland.

R V MEGCHELSE HC AK CRI-2011-088-005112 [19 February 2013]

Introduction

[1]      Mr Megchelse, on 30 November 2012, you were convicted of the following charges after having been found guilty following a jury trial - four counts of sodomy with a person under 16, seven counts of indecently assaulting a female under 12, one count of doing an indecent act with a girl under 12 and four counts of assault on a child.

[2]      In relation to the first complainant, K, you are for sentence on:

(a)      Four counts of sodomy on a girl under the age of 16, one of which is representative;

(b)Seven counts of indecent assault of a girl under the age of 12 (namely fondling her breasts and vagina and digital penetration of her anus and vagina) three of which are representative; and

(c)      Two counts of assault on a child (namely beating her with a belt) one of which is representative.

[3]      In relation to the second complainant, L, you are for sentence on:

(a)      Two counts of assault on a child (namely beating her with a belt) one of which is representative; and

(b)One count of inducing a girl under the age of 12 to do an indecent act upon you, which is also representative.

[4]      The offences are all alleged to have occurred between 1973 and 1977 - in other words, between 36 and 40 years ago.

Facts

[5]      On 22 February 1973 Mrs C moved herself and her two daughters, L and K, to live with you in Auckland.  K was aged five at this time and L was seven.  You were violent towards K, you stripped her naked and whipped her with a belt.  You committed these assaults more frequently over time.  You would also play a tickling game with K in the bath when you would touch her vagina and breasts.   On four occasions you took K into her bedroom, kissed her and digitally penetrated her anus and vagina before penetrating her anus with your penis.  On one other occasion you penetrated her anus with your penis while you were in the lounge.

[6]      You would also discipline L by beating her with a belt.  You would share a bath with L and get her to play with your penis as a ‘special treat”.  You were also charged with indecently assaulting, sodomising and raping L and injuring her with intent to injure, but the jury were hung on those offences and you are to be retried on them.

Personal circumstances

Prior Convictions

[7]      Mr Megchelse, you have previous convictions for possession for supply and supply of cannabis.   You received sentences of nine months supervision and four months non-residential periodic detention in 1999.

Pre-Sentence Report

[8]      The pre-sentence report recommends a sentence of imprisonment.  You are a

74 year old retired pensioner.  Your daughter reports that you are medically unwell and further incarceration would hugely affect your health.  You continue to deny the sexual offending and express disbelief that these allegations were made against you. You have expressed regret and remorse for your actions with reference to the assault charges.  The report states that your denial of offending would indicate a medium risk of re-offending but this is tempered by your lack of previous offending.

Home Detention Assessment

[9]      You have consented to undergo a sentence of home detention and have signed the agreement form.  However, you were unable to provide an address to undergo an electronically monitored sentence.   In my opinion, however, your offending is not such that a sentence of home detention would be appropriate.

Victim Impact Statements

[10]     Both K and L indicate the offending has had a profound effect on their well- being in later life.   Both cite health problems as a result of the offending and depression.   It has affected their relationships with each other, their mother, and particularly with other men.

Submissions

Crown Submissions

[11]     The Crown recommends a starting point of 12 to 14 years imprisonment.  It mentions no mitigating factors and notes that while your previous criminal record does not require an uplift, it also does not allow a discount to be applied.

Offender’s Submissions

[12]     The defence recommends a starting point of 10 years imprisonment with an uplift of two years for the offending against L.  It notes that your age and ill health are mitigating factors.  It distinguishes many of the cases cited by the Crown.

Sentencing approach

Historic offending

[13]     It is fundamental that an offender can only be charged with offences as they were at the time of the offending and only if the act constituted an offence at the time

of the offending.  Furthermore, an offender should not be subjected to punishment more   severe   than   that   which   applied   at   the   time   the   offending   occurred. Accordingly,  the  Court  of Appeal  has  repeatedly  held  that  a  sentencing  Judge confronted with a case of historical sexual abuse should fix a starting point sentence based upon the sentencing levels at the relevant time.

[14]     In that respect, in both R v R,1   and R v KJB,2 the Court of Appeal recognised the difficulty of comparing starting points for sentencing purposes, by reference to historical cases; “starting points”, if identified, were generally reflective of all aggravating factors whether related to the offending or the offender.  Accordingly, a sentencing Court should fix a starting point based upon the sentencing regime that applied in the late 1960s to mid 1970s, which recognises the aggravating features of the case.  It is then appropriate to consider whether any reduction should be made from the starting point in order to take account of any mitigating features.3

[15]     This process does not involve attempting to reconstruct the sentencing mores of an earlier time.  Rather, it is about looking at the sentencing regime of that era and trying to achieve consistency with it.4    As Keane J noted in R v RKM:5

Sentences imposed at the time you offended, as the Court of Appeal said in R v Accused,6  had the same essential purposes as apply today: the need to impose a sentence that denounces and deters. What differed was that the maximum term for rape, your lead offences, stood at 14 years not 21 years. Also, indecent assaults then all fell within one general category. Now more serious indecent assaults are charged as sexual violations in their own right.

[16]     The Court of Appeal in R v KJB also indicated that, in following the R v R

approach, it is also necessary to consider more contemporary sentences for historic sex offending of a similar nature.7

1      R v R (CA244/04) CA244/04, 2 November 2004.

2      R v KJB (CA41/07) [2007] NZCA 292. See also R v Fissenden CA364/95, 21 February 1996 and

R v Snowden [2012] NZHC 604 at [5].

3      See R (CA244/04) at [22]; KJB (CA41/07) at [28]-[34].

4      R v Accused [1998] 15 CRNZ 602 at 609.

5      R v RKM HC Hamilton CRI 2009-419-52, 5 November 2009 at [46].

6      R v Accused (CA 463/97)(1998) 15 CRNZ 602.

7      R v KJB (CA41/07) [2007] NZCA 292 at [34]; R v Locke at [52]. See also R v Accused (1998) 16

CRNZ 10 (CA).

Purposes and principles of sentencing (Sentencing Act 2002, ss 7 and 8)

[17]     In assessing the appropriate starting point for your offending, the sentencing purposes that assume particular importance are to hold you accountable for the harm you have done to the victims (s 7(1)(a)), promote in you a sense of responsibility for, and an acknowledgment of, that harm (s 7(1)(b)) and to denounce (s 7(1)(e)) and deter the offending (s 7(1)(f)). As far as it is compatible, any sentence imposed must also assist in your rehabilitation and reintegration (s 7(1)(i)).

[18]     Regarding the principles of sentencing, it is important to bear in mind the gravity (s 8(a)) and seriousness of the offending (s 8(b)); the desirability in maintaining consistency with appropriate sentencing levels (s 8(e)) and the effect of the offending on the victims (s 8(f)).  Also, considering your age and poor health, there is a need to impose the least restrictive outcome appropriate (s 8(g)).

Aggravating and mitigating features

[19]     A number of significant aggravating features are present.  K was particularly vulnerable, being only six years old when the offending began and when the sodomy first occurred (s 9(1)(g)).   The offending amounted to a gross breach of trust (s

9(1)(f)).  You were in a position of trust as the after school carer for the girls while

their mother worked, and as a surrogate father whom they called “papa”.

[20]     The  offending  was  premeditated  (s  9(1)(i)),  repetitive  and  prolonged, extending over a period of three years.  The extent of the effect of the offending on the victims’ childhood, as well as the serious resulting harm caused by the offending is set out in the victim impact statements (s 9(1)(d)).

[21]     There are no mitigating features of the offending.

[22]     Both  the  Crown  and  defence  have  referred  to  cases  involving  historical sexual abuse and those applying contemporary sentencing principles when similar offending came before the Courts at a time proximate to its occurrence.

[23]     In my view, the following decisions are useful in considering the appropriate starting point.  As the lead offence is sodomy, I have looked at other sodomy cases and then will consider the other offences in applying an uplift.

Relevant Cases

[24]     R v Wolland is a 2003 Court of Appeal case which related to offending between 1977 and 1982.8     The offender was the brother-in-law of, and a father figure, to the victim.  The offending initially involved masturbation and oral sex but escalated to acts of sodomy when the victim was aged about nine years old. The jury found this to have occurred a number of times until the victim went to secondary school at around age 12.  The offender was considerably older than the victim.  The

Court of Appeal took no issue with the High Court’s choice of a six year starting point9 which it characterised as “perhaps benevolent”.10

[25]     R v P-T11  features an offender sentenced for numerous instances of sexual offending against children of which repeated instances of sodomy of a boy up to the age of 16 were treated as the lead offences.  Gendall J reviewed other comparable cases and imposed a starting point of 9 years imprisonment.  Gendall J stated that:

On its own the lead sentence in respect of the sodomy counts would justify a starting point of at least six years’ imprisonment.   But the multiple other indecency offending against four young boys and one young girl requires that that starting point be increased to properly reflect your overall culpability.12

[26]     R v Snowden13 involved three counts of sodomy against two different victims, both under 16 years of age, of which one count was representative.  The offending occurred in the 1970s and 1980s.  In the case of each victim the offending continued over a considerable period of time from when the boys were 12 or 13 until they were

18 years old.  For the sodomy charges Mallon J thought a starting point in the region

of eight to nine years imprisonment was appropriate.

8      R v Wolland CA 437/02, 3 June 2003.

9 At [33] & [35].

10 At [37].

11     R v P-T HC Whangarei CRI-2009-088-2118, 14 May 2010.

12 At [18].

13     R v Snowden [2012] NZHC 604.

[27]     R v Locke14 involved sexual offending between 1976 and 1985.  The offender moved in with the victim’s mother and started offending against two boys.   He would fondle their penises and ejaculate on their legs and this eventually progressed to sodomising the boys when they came to stay with him at his house.   He then committed similar offending against another set of two brothers which involved oral sex and sodomy.  Clifford J adopted a starting point of 8 years imprisonment for the lead offence of sodomy.

[28]     R v Hughes15   involved only a single count of sodomy.  However the offender had convictions for previous sexual offending against women.  Accordingly, Peters J imposed a six year starting point to reflect these previous convictions.

[29]     Although  the  cases  referred  to  by  the  Crown  deal  expressly  with  intra- familial  offending  against  young  girls,  the lead  offence  in  each  case  they have referred to, is rape rather than sodomy.

[30]      In Nooana v R16 Mr Nooana was convicted of one count of sexual violation by rape, five of indecent assault and one of an indecent act on two young girls in the

1980’s when he was 17 years old and had come to live with the girls’ family.  In that case a starting point of six years imprisonment for the first rape was adopted, with an uplift of two years for the offending against one of the girls and an uplift of 18 months for the other girl to reach a starting point of nine years and six months imprisonment.

[31]     R v Seuili17 is a Court of Appeal decision where the offender raped two of his partner’s three daughters and indecently assaulted all three of them between 1981 and 1989.  The case involved particularly awful offending against the youngest girl including inserting a deodorant bottle into her vagina and regular rape for several years.  The Judge adopted a starting point of 13 and a half years imprisonment.  He gave a starting point of nine years for the lead offence of rape against the youngest

girl and an uplift of four and a half years for the offending against the other two girls.

14     R v Locke HC CRI-2007-091-1343, 5 September 2008.

15     R v Hughes [2012] NZHC 3313.

16     Nooana v R [2011] NZCA 501.

17     R v Seiuli [2009] NZCA 315.

He arrived at a final sentence of nine years and two months after the discount for the guilty plea. The Court of Appeal considered this sentence was appropriate.

[32]     R v Vollmer18  involved repeated rapes of two sisters, one of whom was as young as four and a half when the rapes began.  It also involved violence and threats against them.  A sentence of 10 years of imprisonment was found by the Court of Appeal to be appropriate.

[33]     In R v AGR19 the offender was for sentence on 19 charges of historical sexual offending including rape, indecent assault, assault on a female and inducing a girl to do indecent acts in respect of three victims between 1963 and 1984.  The first victim was the offender’s eldest daughter.   Over a period of years, the offender regularly assaulted her, fondled her vagina, forced his penis into her mouth and forced her to perform oral sex on him, and simulated sexual intercourse.

[34]     The offending against the second victim, also the offender ’s daughter, began in the mid-1970s when she was six or seven years of age.   On that occasion, the offender digitally penetrated her vagina.  In the early 1980s, she resumed living with her mother.   The offender would regularly visit and indecently assault her.   This progressed to making her masturbate him and, on one occasion, rape.   The third victim  was  the offender’s  granddaughter,  the  daughter of  the  first  victim.    The offender was convicted of one representative charge of inducing a girl under 12 to do an indecent act, namely making her touch his penis.

[35]     Stevens J identified as aggravating factors the harm to the victims, the breach of trust, vulnerability of the young victims, premeditation, and use of physical and verbal threats. An overall starting point of eight years and a half years imprisonment was adopted.  Stevens J allowed a discount of 18 months in respect of the offender's age (76), poor health and for lack of previous convictions.  A final sentence of seven

years imprisonment was imposed.

18     R v Vollmer CA408/91, 26 June 1992.

19     R v AGR HC Auckland CRI 2006-92-11084, 13 December 2007.

[36]     In R v RKM20 the offender pleaded guilty to four counts of rape and 14 counts of indecent assault on young girls.   The offending occurred over a 12 year period between 1962 and 1974 against his two daughters (A aged three and B aged seven to nine, respectively) and against his wife's cousin (aged seven or eight).  The offending against his wife’s cousin consisted of a number of indecent assaults over a period of about seven years.  The offending against both the offender’s daughters began with indecent assaults and progressed to rape.  A was 11 and B was 10 when the rapes began.    The  offending  against A was  particularly  serious,  comprising  frequent, repetitive rapes until she was aged 14 and often accompanied by threats to kill her and the rest of her family.   The offender also told A that he would not touch her sisters if she complied and swore her to secrecy.

[37]     Keane J adopted a starting point of 10 years imprisonment to reflect the gross breach of trust, the frequency and duration of the offending, the multiple victims and threats of violence.   Allowance was made for mitigating factors including age, ill heath and guilty pleas. A final sentence of five years imprisonment was imposed.

[38]     In R v KJB21 between April 1969 and December 1990, the offender sexually assaulted his three daughters over a period of 16 years, from a time when they were seven, 12 and five years of age.  The offending comprised both indecent assaults and rape against all three victims.   Nicholson J identified the gross abuse of trust and authority, the vulnerability of the victims, the premeditation, scale of the offending and the harm caused to the victims as particular aggravating features of the case.

[39]     Nicholson J considered the offending against M to be the most serious.   It involved a range of serious indecent assaults progressing to regular rapes, occurring for the first time when M was 11 or 12, and taking place two to three times a week until she left home seven years later.  Had that been the only offending, he would have considered a starting point of 10 years imprisonment was appropriate for all that offending.  However, given the additional offending in respect of A and B, an

overall starting point of 12 years imprisonment was adopted.  A two year deduction

20     R v RKM HC Hamilton CRI 2009-419-52, 5 November 2009.

21     R v KJB HC Rotorua CRI 2004-025-2500, 9 September 2005.

for the offender’s age and poor health was allowed, resulting in a final sentence of 10 years imprisonment. The sentence was upheld on appeal.22

Analysis

Setting a starting point

[40]     In your case, the first step is to fix a starting point, based upon sentencing levels of the relevant time, which recognises the totality of your offending and the aggravating features of the case, and which, as noted, takes account of more contemporary sentences for historic sex offending of a similar nature.  Clearly, the totality of your offending requires recognition not only of the representative charge of sodomy against K but also the other charges of indecent assault against K and the charges relating to L.

[41]     I consider the aggravating features of your offending, to be:

(a)       the gross abuse of your position of trust as a parental figure regarding young girls;

(b)      the irreparable harm you caused them; (c)       the vulnerability of your victims; and

(d)      the premeditated, prolonged, and repetitive nature of your offending;

[42]     I think the cases of R v Locke and Nooana v R and R v AGR offer the best comparisons.23     These cases all involved starting points of eight to 10 years imprisonment.  The Crown rely on R v Seiuli and R v KJB but both of those cases involved offending that was crueller and more serious then the case here.24     R v

Seiuli involved offending over 10 years against three girls where a deodorant bottle

22     R v KJB (CA41/07) [2007] NZCA 292.

23     R v Locke HC CRI-2007-091-1343, 5 September 2008; Nooana v R [2011] NZCA 501; R v AGR

HC Auckland CRI 2006-92-11084, 13 December 2007.

24     R v Seiuli [2009] NZCA 315; R v KJB HC Rotorua CRI-2004-025-2500, 9 September 2005.

was inserted into the youngest girl’s vagina.25   R v KJB involved regular rape of one of the three girls for seven years.26   Similarly, R v RKM involved frequent repetitive rapes and threats to kill which are not present here.27

[43]     In this case the offending was for a shorter period of time and you were not convicted of systemic rape over a number of years as in the above cases.  R v AGR appears a closer comparator where there was one occasion of rape but consistent incidences of indecent assault.28    R v Locke29  and Nooana v R30  similarly, are cases of breach of trust where a new man comes to live with the children’s mother.  They also involve consistent indecent assaults punctuated by acts of rape or sodomy as opposed to constant violent rapes.

[44]     You  have  no  relevant  previous  convictions.    You  do  have,  as  I  have mentioned, previous convictions for possession for supply and supply of cannabis, but I do not consider that these previous convictions justify an uplift on the starting point.

[45]     I consider that a starting point of nine years imprisonment on the lead charge of sodomy to be appropriate, with an uplift of two years for the additional sexual offending committed against K and L.

Mitigating factors

[46]     You did not plead guilty, so a discount for a guilty plea is not engaged in this case.

[47]     You continue to deny that you committed the offences for which you have been convicted.  You have shown no remorse and demonstrate no personal insight

into your offending.  The pre-sentence report states that your denial of the offending

25 At [10].

26 At [9].

27     R v RKM HC Hamilton CRI 2009-419-52, 5 November 2009 at [17].

28     R v AGR HC Auckland CRI 2006-92-11084, 13 December 2007 at [3].

29 At [10].

30 At [3].

indicates a medium risk of re-offending but this is tempered by your lack of previous offending.

[48]     You are 74 years old.  Old age alone is unlikely to be a significant mitigating factor.    However,  where  the  offender’s  age  means  that  the  sentence  will  be appreciably harsher in its impact, it may be reduced to take account of that fact: R v Mikus.31   In R v Mikus, the offender was 75 years old at the time of the sentencing. In R v KJ,32    Baragwanath J recognised that in the case of elderly offenders, each year of a custodial sentence reduces a substantial proportion of the life left of the offender.33   However, he also noted that in the latest analysis of this principle by the Court of Appeal of England Kay LJ emphasised that:34

while the sentencing Court is always entitled to show a limited degree of mercy to an offender who is of advancing years because of the impact a sentence of imprisonment can have on an offender of that age, the word “limited” is to be emphasised. The sentencer must not make too great an allowance in this regard, thereby shrinking from their duty, however unpleasant it may be to perform.

[49]     The offender before Baragwanath J was 76 years old.   He faced a starting point of 10 years imprisonment on multiple counts of rape.   The Judge allowed a deduction of two years for old age.

[50]     While your age alone is not a particularly mitigating factor, I accept that the combination  of  your  age  and  poor  health  will  make  imprisonment  subjectively hard.35   The Court of Appeal has recently held that age and ill health may be taken into account when considering whether imprisonment will be disproportionately severe.  The Court canvassed previous cases in which discounts had been given of up to 33 per cent.  The upper limit was given in a case involving an extremely unusual medical condition. 36

[51]     Your  daughter,  S,  states  that  you  are medically unwell  and  incarceration would hugely affect your health.  I have seen letters from your doctors outlining your

31     R v Mikus CA296/04 26 October 2004.

32     R v KJ HC Hamilton CRI-2005-073-249 1 December 2006.

33     R v Hunter (1984) 36 SASR 101.

34     Attorney-General’s References Nos 37 & Ors of 2003 [2004] 1 Cr App 499 at [12].

35     R v Gallagher (1993) 9 CRNZ 421.

36     Hastie v R [2011] NZCA 498.

medical condition.  While on remand, I am advised that you have been hospitalised twice for heart problems. You are on medication.

[52]     I am therefore prepared to reduce the sentence of imprisonment that would otherwise be appropriate by 18 months to take account of your age and ill health.  On the lead charges of sodomy I adopt a starting point of 11 years imprisonment, which I reduce by 18 months to arrive at a final figure.  On each of the charges of sodomy you are therefore sentenced to nine years and six months imprisonment to be served concurrently.  On each of the charges of indecent assault, and inducing an indecent act, you are sentenced to four years imprisonment to be served concurrently.   On each of the charges of assault you are sentenced to one year’s imprisonment to be served concurrently.  As the offending took place prior to September 1993, the issue

of a minimum period of imprisonment does not arise.37

……………………………….

Woolford J

37     Davies v R [2011] NZCA 546. The Court of Appeal confirmed this position despite the finding of the Supreme Court in Morgan v Superintendant, Rimutaka Prison [2005] NZSC 26; [2005] 3

NZLR 1 that “penalty” refers to the maximum applicable penalty prescribed for a generic offence. The Court of Appeal held that a minimum period of imprisonment was a discrete “penalty” that engaged s 6 of the Sentencing Act and s 25(g) of the New Zealand Bill of Rights Act 1990.