R v Mikus CA296/04

[2004] NZCA 361

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA296/04

THE QUEEN

v

JULES GYULA MIKUS

Hearing:         13 October 2004 Coram:  Anderson P

Baragwanath J Paterson J

Appearances: P G Mabey QC for Appellant

P K Hamlin for Crown Judgment:  26 October 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]    This is an appeal against a sentence of six years imprisonment imposed following the appellant’s conviction, on his trial before a High Court Judge (Williams J) and jury on two counts of rape. The offences, which were in respect of the same victim, occurred on successive days in February 1976. At the time of sentencing, June this year, the appellant was 75 years and seven months of age. The offences occurred when he was 47 years old.

R V MIKUS CA CA296/04 [26 October 2004]

[2]    The complainant was a 20 year old woman seeking board near her place of employment. The appellant, who was previously unknown to her, answered her advertisement for board and an arrangement was reached involving the sharing of household expenses and the cooking of meals. The complainant moved into the appellant’s house. Within days he attacked her.

[3]    When the young woman was sitting on a couch the appellant pinned her to the couch, using superior strength, pulled down her stockings and underwear and committed the first offence. Following the incident the victim felt helpless and isolated. She went to work the next day and returned to the house, locking herself in the bathroom. When she eventually emerged from the bathroom the appellant seized her, pulled her into the bedroom and detained her in the bed for a lengthy period, again committing rape upon her. The following day the young woman left the house never to return. She later left New Zealand, without having laid a complaint with the Police, but the offences  came  to  light  in  2003  when  the  victim  returned  to  New Zealand. She explained to the Police what had happened to her in 1976, not it seems by way of a specific complaint but by way of disclosure following her approach to the Police in connection with matters not relevant to the present case.

The reasons for sentence

[4]    Williams J had presided over the trial. He had before him material which included a victim impact statement and a pre-sentence report. The former document showed that the victim had been greatly assisted in her rehabilitation from the crimes she had suffered, by the strength and support of her family. That cannot, of course, mitigate the appellant’s culpability, being a fortuity entirely independent of his conduct.

[5]    The pre-sentence report disclosed a single other offence, that being prior to the offences in question, and of such a nature that Williams J considered it inappropriate to have any regard to it. The situation, then, was that at the time of the offences there were no relevant previous crimes and there had been no convictions entered against the appellant from the time of the rapes down to the present time.

[6]    The report disclosed that the appellant had been born and raised in France, having been a teenager during the German occupation. Following the Second World War he worked in Hungary for a number of years but fled to Austria shortly after the 1956 Hungarian uprising against the Soviet Union. He married, in New Zealand, a woman by whom he had four children and from whom he was divorced in 1974. His present marriage has subsisted for 23 years. The report stated that the appellant is  not a user of alcohol or other drugs. Although continuing to maintain his innocence and thereby showing an absence of insight into his offending behaviour he is nevertheless assessed as a low-risk offender.

[7]    Williams J was faced with a difficulty which confronts all courts with the responsibility of sentencing for offences committed in the distant past. Though the law’s memory is long and the offences cannot of course be forgotten the penalties which attached to offending at a much earlier time, when they may have been significantly different from present consequences, cannot be merely ignored. For example, whereas the present maximum penalty for rape is 20 years, the maximum for that offence in 1976 was 14 years. The common law precedents for penalties imposed within the parameters of the statutory regime, according to the relevant features of offences, were correspondingly lower. R v Pui [1978] 2 NZLR 193, a case referred to by Williams J, provides evidence of the sentencing approach to rapes at about the time the offences in question were committed. This Court noted, at p 198 of the report, that:

…over recent years there has been a consistency in the sentences imposed by Judges of the Supreme Court which demonstrates clearly that while there has been no hesitation to impose severe terms of imprisonment … the medium sentence has continued to be from three to five years, with 83% of all offenders sentenced to terms of imprisonment of between two … and seven years.

[8]    Williams J referred to several other  cases, including R  v Accused [1998]    15 CRNZ 602, which noted that in relation to historical offending the starting point for any sentence must be fixed in the context of the maximum penalty available at the time and, generally, by reference to any discernible sentencing regime of that era.

[9]    Williams J clearly had these approaches in mind when he evaluated the offences in question in terms of the criteria indicated by the Sentencing Act 2002.  He noted that he was obliged to impose the least restrictive appropriate outcome having regard to the circumstances and that the appellant’s age and health needed to come into account as part of his personal background. The Judge concluded that a starting point for the first rape was in the region of five years imprisonment. Williams J regarded the second rape as “a significant aggravating factor” warranting an increase in the period of imprisonment.

[10]   Strictly speaking, an aggravating factor is a factor which aggravates a particular offence but the question of an appropriate sentence in the present case does not turn on semantics. The Judge was quite right, of course, to conclude that  the second offence, although not separated by any great length of time, had to be accounted for with a greater sentence than the first rape warranted on its own. Williams J concluded that having regard to the cases he had examined and the sentencing regime in the late 1970s the appropriate term of imprisonment for the second rape was six years and that such sentence should be served concurrently with the five years imprisonment.

Counsel’s submissions

[11]   Mr Mabey expressed, on behalf of his client, concern that references the Judge had made in the course of sentencing to differences in sentencing levels and Parole Act provisions at the time of the offences, compared with the present situation. Although not suggesting that the sentence was in fact affected by an apprehension that the appellant was lucky in those respects and should be dealt with in a way which might tend to negative the benefits of the former regimes, counsel nevertheless discharged his instructions by submitting that a sense of injustice could be engendered by the fact that such sentiments had been expressed. However, we reject the criticism. It is perfectly plain that Williams J was, with respect, motivated by a humane desire to ameliorate the immediate impact on an elderly man of the pronouncement of a stern custodial sentence.

[12]   More persuasive was counsel’s submission that inadequate weight was given, in terms of mitigation, to his client’s age and the subjectively harsher impact of any sentence of imprisonment on an elderly man. The Judge had said that he was  obliged to have regard to circumstances which included the appellant’s age and health but did not indicate the extent to which, if any, the sentence, otherwise appropriate, should be reduced for such reasons.

[13]   The Crown’s response was that the Judge had specifically noted the need to take such matters into account and that the ultimate sentence of six years imprisonment could not be regarded as manifestly excessive, taking account of the fact of two rapes and what might be termed the breach of trust of the appellant, then a middle-aged man, to a young, isolated and vulnerable victim.

Discussion

[14]   The learned Judge plainly did not find the sentencing exercise easy and nor do we. All the factors which aggravated the offending were identified by Williams J and there can be no issue with the way he examined and brought into account the sentencing regime relevant to the period of offending. But where we consider we must differ from him is in the allowance he made for the appellant’s fairly advanced years. It is recognised that there can be mental or physical characteristics of an offender which so appreciably render the subjective impact of imprisonment greater that, in justice, an otherwise appropriate sentence ought be reduced to take account of that factor.

[15]   It will usually be the case, in a sentencing process, that a starting point for sentencing is identified in terms of the features of the offence. To that starting point will be applied aggravating factors which are not features of the offence and mitigating factors which similarly are not features of the offence. No issue was  taken by Mr Mabey with the starting point of five years. The fact of a second rape warranted an increased sentence, beyond that starting point, but the mitigating factor of age, with its implications as we have discussed, should then have been applied. If it was brought into account by the learned Judge we think insufficient weight was given to that in the overall sentencing exercise. Having regard to that factor we are

of the view that the sentence is manifestly excessive, by the extent of one year. The appeal will be allowed accordingly.

Result

[16]   The appeals against sentence are allowed. The sentence of five years imprisonment is quashed and a sentence of four years imprisonment imposed. The sentence of six years imprisonment is quashed and a sentence of five years imprisonment is imposed. Both sentences are to be served concurrently.

Solicitors:

Crown Solicitors, Auckland