R v Muavae Ca238/00

[2000] NZCA 442

IN THE COURT OF APPEAL OF NEW ZEALAND  CA 238/00

THE QUEEN

V

IAKOPO AIITAEAO MUAVAE

Hearing:  28 August 2000

Coram:  Thomas J

Goddard J Panckhurst J

Appearances:  M T Davies for the Crown

M D Lloyd for the Respondent

Judgment:  5 September 2000

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

[1]                 This is an appeal by the Solicitor-General against a sentence of 3 years’ imprisonment for charges of kidnapping, sexual violation by unlawful sexual connection and indecent assault of a girl aged 12-16 years.

Background

[2]                 The respondent was convicted by a jury following trial. The victim was a Samoan girl aged 15 years but with a developmental age of only 8 or 9 years. The

respondent, who was a stranger to the complainant, met her at a laundromat. She asked him if he could give her a lift to her home and he agreed. Instead of taking her home however the respondent drove her around Central and West Auckland for several hours, ignoring her repeated requests to take her home and locking the car door to prevent her from getting out. When darkness fell the respondent drove to a public reserve and indecently assaulted and sexually violated the victim by digitally penetrating her. This involved the respondent telling the victim to take her clothes  off and when she refused, removing her clothing himself. He then climbed on top of her, kissed and sucked her breasts and inserted his fingers into her vagina.

[3]                 During the initial two days of trial the respondent’s defence was one of blanket denial, claiming never to have met the victim. However, after the victim had given evidence, and scientific evidence called by the Crown established that an item of her clothing was in the respondent’s possession, he abandoned this defence in favour of a defence of consent. At this point his counsel sought and was granted leave to withdraw. The trial was adjourned briefly whilst new counsel (Mr Lloyd) was appointed and instructed. A degree of consent was then advanced. The respondent was ultimately convicted of unlawful sexual connection, indecent assault and kidnapping and acquitted of further charges alleging similar violations at the same or different locations during the period of detention.

[4]                 The trial Judge imposed sentences of 3 years’ imprisonment on each of the three charges, to be served concurrently: an effective total sentence of 3 years’ imprisonment.

[5]                 The Solicitor-General’s appeal is brought on the grounds that, having regard to the totality of the offending and its aggravating features, the sentence is manifestly inadequate. Mr Davies submitted that the sentence failed to adequately reflect the culpability of the prolonged detention and was “barely sufficient for the sexual offences alone”. The totality of the offending, he contended, put the case into a “class that requires a stern response.” In support he cited the decisions in R v Horton [1991] 3 NZLR 549 and R v Phelps (CA 75/87, 14 May 1987), submitting that a sentence of 4½ years’ imprisonment, such as was imposed in Horton, was the

minimum sentence required to meet the circumstances of this case, given the number and seriousness of the charges.

The Reasoning of the Sentencing Judge

[6]                 The sentencing Judge identified two aggravating factors which he viewed as particularly serious – the mental age of the victim and the disparity in age between the victim and the respondent, who was 55 at the time of the offending. The Judge referred to the abuse of trust arising from those factors. He also noted the prolonged nature of the detention and observed that women are entitled to protection from such behaviour. He referred to the sentencing decision of Williams J in R v Sefo (HC Auckland, T 50/96, 22 May 1996). Sefo, which will be referred to again in more detail, also involved a conviction for sexual violation by digital penetration and a sentence of 3 years’ imprisonment was imposed. Referring to it, the Judge determined that a sentence of similar length was also appropriate in the respondent’s case.

Case for the Respondent

[7]                 The essential submission advanced by Mr Lloyd in opposition to the appeal was that the sentence imposed, whilst at the low end of the available range, was nevertheless within range and thus not manifestly inadequate. He cited the recent decision of this Court in R v M [2000] 2 NZLR 60 in support, and in particular the following passage at 62:

This Court has not attempted to set any tariff for cases involving sexual violation by digital penetration, but the cases show sentences fixed against starting points ranging from two to five years on conviction after trial and before allowing for mitigating factors …

[8]                 On that basis of that passage, Mr  Lloyd submitted that the total sentence of  3 years’ imprisonment imposed in this case was within the range identified in M. He also referred to other cases which involved sexual offending falling short of rape and in which sentences of 3 years’ imprisonment had been imposed. He argued that the facts in Horton and Phelps were more serious than in the present case, as they had involved greater breaches of trust, more serious sexual assault and, in the case of

Phelps, a much younger complainant. Mr Lloyd accepted however, that on its face, the respondent’s offending did have serious aggravating features which might take it into the upper end of the identified range of 2-5 years’ imprisonment: in particular, the abduction and the duration of the detention involved. He frankly conceded that the Crown was justified in contending that the detention was a major aggravating feature. Nevertheless, he submitted that there were aspects of the case “which soften the detention aspect”, such as “overtones of mutuality or consent”, and there was a naivety and lack of predatoriness on the part of the respondent. He emphasised that this Court on appeal should have regard to the advantageous position of the sentencing Judge in assessing the facts and the gravity of the respondent’s actions and the degree of response required by way of sentence. He also submitted that the Victim Impact Statement did not reveal many of the deleterious effects which so often feature as the outcome of sexual offending.

Discussion

[9]                 As has often been said, care must be taken to ensure that an appeal Court does not override the sentencing Judge’s discretion to take a merciful approach, even in cases which would normally call for a deterrent sentence, and particularly where the Judge has presided over the trial and had the opportunity of seeing and hearing the witnesses and assessing the offender’s culpability (R v Donaldson (1997) 14 CRNZ 537, 550 (CA)).

[10]             It is also necessary to bear in mind that this appeal is brought by the Solicitor- General, so that the sentence should not be increased unless the Court is satisfied that the circumstances of the offending clearly demonstrate that the sentence is manifestly inadequate or that some error of sentencing principle has occurred: R v Pue [1974] 2 NZLR 392 (CA). Furthermore, even if the Court is persuaded that the sentence should be increased on the grounds of manifest inadequacy or error of principle, the sentence should only be increased to the level which accords with the lower range of appropriate sentences (R v Simm (CA 148/81, 9 October 1981)).

[11]             Failure by the sentencing Judge to properly consider the totality principle when imposing concurrent sentences can be an error which justifies revisiting a

sentence (R v Jeffries [1992] 1 NZLR 134, 137). The Judge in this case expressly noted the decision in Sefo and referred to another decision submitted by Mr Lloyd. He enumerated and emphasised the aggravating and mitigating factors. However, he may have erred in failing to sufficiently consider the totality of the sentence required to reflect the gravity of all of the offending in this case, including the lengthy period of detention.

[12]             Sefo also involved a charge of sexual violation by digital penetration.  In  Sefo, the complainant, a 26 year old Samoan woman, was walking to work when Mr Sefo drove past and offered to give her a lift in his car. He told her that he was a minister of religion and this advice, coupled with the fact that he was Samoan, induced her to accept his offer. After some conversation, he drove her to an isolated spot, professed to love her and proceeded to touch her, digitally penetrating her vagina as well as attempting to fondle her breasts. Throughout the offending she called out to him to desist, which he eventually did. He then drove her to her place  of work. He was sentenced to 3 years’ imprisonment.

[13]             As with all cases, Sefo turns on its own facts. It has features which  distinguish it from the present case. Sefo involved only one charge, that of sexual violation by unlawful sexual connection. No charge of kidnapping was laid, nor was there a charge of indecent assault. The detention, so far as can be gleaned from the facts, was short-lived, as opposed to the considerable period of detention involved in this case. Nor was there as significant an age disparity as in this case, or the special feature of a mentally impaired victim.

[14]             As Mr Lloyd pointed out, this Court in M noted that no tariff has been set for cases involving sexual violation by digital penetration, but observed that decided cases showed sentence starting points ranging from 2-5 years on conviction after trial and before allowing for mitigating factors. In making that observation, the Court  was careful not to dictate any range but merely referred to the sentences recorded in various cases. And, as the Court noted later in the judgment, an appropriate range of sentences for this type of offending depends on the particular circumstances of a case. Whether sentences that have been imposed in other cases will provide useful

guidance in any particular case, will necessitate a careful consideration of all  relevant circumstances.

[15]             Mr Davies suggested that the appropriate range for this case could be found by reference to Horton and Phelps.  Horton concerned a charge of attempted rape.  In that case, a 51 year old accused took a 13 year old complainant, who was a sexually abused runaway staying with him at the time, to a bach at the end of his property, where the offending then occurred. The accused removed her clothing against her will, sucked her breasts, digitally penetrated her vagina and attempted to have intercourse with her over her protestations. The sentencing Judge viewed the offending as extremely close to rape and imposed a sentence of 4 years and 5 months’ imprisonment, allowing for the guilty plea and time already served. On appeal, the sentence was upheld, this Court observing that the Judge had clearly drawn a distinction between rape and attempted rape, and that a particularly aggravating feature was the exploitation of a vulnerable child by a mature man. That aggravating feature also features in the present case.

[16]             The case of Phelps involved a plea of guilty to charges of kidnapping and indecent assault of a girl under 12. The appellant in that case tricked an eight year old victim into a conversation about his car, put her into it, and then drove to a secluded location where he partially removed her clothing and rubbed his genitals against hers to the point of ejaculation. The offending ended when a suspicious bystander called the police. Expert reports referred to P’s disordered personality and compulsive sexual drive, which had led him to indulge in similar conduct previously, although this was the first occasion on which he had been brought to official notice for such offending. A psychiatric report recommended treatment and a rehabilitation programme. The sentencing Judge took this recommendation into account in imposing a sentence of 12 months’ imprisonment. On appeal by the Solicitor- General, the sentence was increased to 3 years’ imprisonment, this Court observing that substantial prison sentences are called for in cases involving sexual offences against young children and emphasising the deterrent aspect of sentencing in such cases and the need to protect young children and to mark society’s condemnation of such conduct.

[17]             Whilst there are different features in Horton and Phelps - some more serious than in the present case - the principles remain relevant. Horton in particular affords some guidance as to the appropriate sentencing approach for this case. It is also of significance to note that both cases were decided before Parliament increased the maximum penalty for sexual violation by unlawful sexual connection in 1993. It is not apparent from the sentencing remarks of the Judge in this case, or the Judge in Sefo, that either Judge considered the effect of the 1993 increase in maximum sentence and accordingly tailored the sentences they imposed in those cases.

[18]             We accept the Crown’s submission that the offending in this case is dominated by too many serious aggravating factors for a sentence of 3 years’ imprisonment to be regarded as sustainable. The position of trust the respondent placed himself in - the particular vulnerability of the victim due to her disability and immaturity - the prolonged nature of the detention - the use of force to facilitate the sexual offending - and the effect on the victim - are factors which collectively render the offending extremely grave. There was no guilty plea to balance against those factors nor any subsequent expression of contrition or remorse. On the contrary, the respondent mounted a direct challenge to the veracity and reliability of the victim by his initial stance at trial. This stance may have been prompted by the victim’s intellectual impairment and the hope that her evidence could be discredited as a result. Faced with the evidence of her clothing, the respondent was however forced to change tack, albeit unsuccessfully. The only mitigating factor is his otherwise blameless history. Viewed in totality, the offending could well have justified a sentence of up to 6 years’ imprisonment, the charge of kidnapping itself attracting a sentence of around the 2-3 year mark. The kidnapping was not a mere incident of  the sexual offending but constituted a prolonged and enforced detention which must have been disturbing for the victim. The Victim Impact Statement reveals the severe effect of the offending on the victim and we reject any contrary submission as untenable. The result has been nightmares, embarrassment and shame; also curtailment of the victim’s freedom, as her family are now afraid to let her go out on her own.

[19]             Assessing the case overall, we must conclude that the sentencing Judge did not sufficiently consider the totality principle when imposing concurrent sentences of

3 years’ imprisonment, particularly when regard is had to the age and disability of the victim and the duration of the detention involved. As we have indicated, a sentence of up to 6 years’ imprisonment would have been justified in this case. In line however with the principle that a sentence on a successful Solicitor-General’s appeal should be increased only to the minimum necessary, we are satisfied that    4½ years’ imprisonment is the appropriate minimum sentence we should impose.

Judgment

[20]             The appeal is allowed. The sentence of 3 years’ imprisonment concurrent on each charge is quashed and a sentence of 4½ years’ imprisonment on each charge imposed in lieu.

Solicitors:

Crown Law Office, Wellington for the Crown Michael Lloyd, Auckland for the Respondent