R v O'Leary CA 258/05

[2006] NZCA 388

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 258/05

THE QUEEN

v

MICHAEL JOSEPH O’LEARY

Hearing:         22 February 2006

Court:            Robertson, Randerson and Panckhurst JJ Appearances: R Mansfield for Appellant

K B F Hastie for Crown

Judgment:      3 March 2006

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe sentences for  rape are  each  reduced  to  five  years,  to  be served cumulatively from 15 July 2005.

CThe effective sentence of ten years is made concurrent with the previous sentence of six years imprisonment.

REASONS

(Given by Panckhurst J)

R V MICHAEL JOSEPH O’LEARY CA CA 258/05  3 March 2006

Introduction

[1]      On 15 July 2005 in the High Court at Auckland the appellant was sentenced to eleven and a half years imprisonment in relation to offences of rape, and related lesser offences, committed against two complainant girls.  Such sentence was made cumulative upon a previous sentence of six years imprisonment imposed on 18 June

2004 for unrelated sexual offending.   This appeal against sentence is essentially based on the contention that the cumulative term of seventeen and a half years imprisonment is in breach of the totality principle and clearly excessive.

The offending

[2]      We cannot improve on the description of the offending contained in the sentencing remarks of the trial Judge, Courtney J:

[2]       The first of the complainants was a young relative.  The offending took place some time between 1979 and 1981.  You stayed with her family for about two months when she was aged about eight and you about 20.  She gave evidence to the effect that you were a much loved and popular member of her extended family and a particular favourite with her mother.  You were invited into the family’s home to stay while you became established in the area, having obtained a job.  You were allowed to spend time alone with her and were even permitted to sleep in the same room as her and her brother.

[3]       You began offending against the first complainant with indecent touching and inducing her to touch you.  This behaviour took place in and around her home and you portrayed it initially as a game.   That conduct culminated in the rape of the first complainant.

[4]       In relation to the second complainant, you became friendly with her family, particularly her mother through a shared sporting interest.  In 1982 you  offered  her  a  job  in  the  school  holidays  and  almost  immediately embarked on a pattern of indecent assault. The second complainant was then aged about 12 and had no knowledge or experience of sexual matters.  You were about 23 years old at the time and recently married.

[5]       The second complainant and her family trusted you sufficiently for her to stay the night with you and your wife.  Before your wife came home that evening you attempted to rape the second complainant.   Later, when your wife was asleep in the next room, you did rape her.

[3]      In relation to complainant 1, there were convictions upon four counts of indecent  assault,  two  of  inducing  indecent  acts  and  one  of  rape.    The  second

complainant’s  evidence  gave  rise  to  convictions  upon  three  counts  of  indecent assault, one of attempted rape and one of actual rape.

[4]      Neither complainant disclosed the offending at the time.  However, in 2004 they made separate complaints following the broadcast of a television programme in which the appellant was identified as a sex offender who had abused a girl and three boys after coming into contact with them in his capacity as a golf professional.  In June 2004 he was sentenced in the District Court at Auckland to six years imprisonment in relation to eight offences of indecent assault on these boys and one offence of doing an indecent act on the girl.  This offending occurred in the period

1984 to 2000, while the appellant was employed as a golf professional in another provincial town and, subsequent to that, in Auckland.

The trial and sentencing in the High Court

[5]      Although he had pleaded guilty to the District Court charges in 2004, in respect of the present matters the appellant elected trial by jury.  At the trial he gave evidence in his own defence denying that the indecencies and rapes had occurred.

[6]      The appellant was convicted and sentence was imposed on 15 July 2005. Sentencing in this case was difficult because the subject crimes were earlier in time than those which resulted in the six year sentence imposed in the District Court in

2004.   In the circumstances confronting the Judge the application of the totality principle posed a number of complexities.

[7]      After referring to the circumstances of the offending, the Judge discussed the victim impact statements which confirmed that both complainants had suffered profound impacts.   These included relationship problems, depression and physical symptoms and over-protectiveness in relation to their own children.  The prospect of giving evidence at the trial had proved particularly difficult for one complainant, who made an attempt on her own life in the lead-up to the trial.

[8]      The  Judge  considered  there  were  three  particular  aggravating  features common to the offending against both complainants.  First, was the obvious breach

of trust.  Next she noted the “age and innocence” of the complainants, both of whom were  trusting  of  the  appellant  and  completely  naïve  as  regards  sexual  matters. Thirdly, on the basis of the evidence given at trial the Judge was satisfied that there was a clear element of premeditation involved in at least some of the offending.  This was especially so with reference to the second complainant who was both given a job by the appellant and (on the night she was raped) inveigled back to the appellant’s home at a time when his wife was absent.

[9]      The Judge did not consider there were any mitigating factors.  While in the pre-sentence  report the  appellant accepted the verdicts of  guilty,  he  nonetheless maintained that he had no recollection of the offending.  This fell short of “actual remorse” in the Judge’s view.   Likewise, the appellant’s age (about 20 when the offending began) did not impress the Judge as any form of mitigation, while abuse which the appellant had himself suffered during his childhood was viewed as a contributing factor warranting a measure of sympathy, but not as mitigation.

[10]     After reference to R v Clark [1987] 1 NZLR 380 (CA) which indicated a then starting-point for adult rape of five years imprisonment, the Judge also referred to Elwin v R  CA290/93  10  August  1994  where  a  range  of  four  to  seven  years imprisonment for the rape of a child was viewed as appropriate.  With denunciation and deterrence in mind the Judge fixed a sentence of seven years imprisonment for the rape upon complainant 1, coupled with concurrent terms of two years for the indecent  assaults  and  one  year  for  inducing  an  indecent  act.     In  relation  to complainant 2 concurrent sentences of six years six months for the rape, five years for  the  attempted  rape  and  18  months  for  the  indecent  assaults  were  imposed. Because the offending was unrelated the respective sentences were imposed cumulatively.

[11]     The Judge continued:

[38]     However, that would bring the total term to 13 years six months.  I need to consider whether that is excessive, either in itself or in conjunction with the term you are currently serving.

[39]      I am concerned that a total of 13 years six months could be excessive having regard to the overall offending.  I recognise that you wish to address the reasons for your offending and that an excessively long sentence is likely

to be counter-productive.  I am also conscious that, when coupled with the sentence you are presently serving, the length of time in prison will be substantial.  I do not, however, accord that factor a great deal of weight;  it is a matter of coincidence that you are now in prison for crimes that post-date this offending.   However, looking at all the factors, I consider that some reduction is warranted.   The final sentence will therefore be 11 years six months.

[12]     How the two year reduction was to be effected was not articulated in the sentencing remarks.  However, Ms Hastie confirmed that the warrant of commitment showed a reduction of one year in each of the sentences imposed for rape.  Hence these sentences became six years and five years six months, respectively, together equating to the effective sentence of eleven and a half years which was made cumulative upon the previous six year term.

Basis of the appeal

[13]     In essence Mr Mansfield advanced one ground of appeal, namely that proper account had not been taken of the totality principle with the result that the end effective sentence of seventeen and a half years imprisonment was manifestly excessive.  Counsel also advanced a subsidiary submission that the two individual sentences  for  rape were  excessive  in  themselves.    However,  after  the  one  year reduction made to each for totality reasons, we do not consider that this aspect of the appeal is seriously arguable.  Undoubtedly, the real question in this case is whether the totality of the sentence renders it clearly excessive.

[14]     Both counsel confronted as the central issue whether a sentence of this order would have been imposed if the appellant had been sentenced in relation to all six complainants at the same time.   Perhaps unsurprisingly counsel had difficulty in finding previous sentencing decisions involving several complainants in which a finite  sentence  had  been  imposed  at  or  near  the  level  imposed  in  this  case. Frequently where an offender is twice sentenced for the sexual abuse of multiple child complainants extending over a period of many years, as in this instance, a sentence of preventive detention as opposed to a finite sentence, will result.

[15]     The appellant, however, was not eligible for preventive detention either when he appeared in the District Court in 2004 or in the High Court in 2005.  The sexual

offences dealt with in the District Court were committed between 1984 and 2000, when the Criminal Justice Act 1985 applied.  In the absence of a conviction upon a rape charge, the appellant was only eligible for the indefinite sentence if he had a previous conviction for a specified sexual offence: s 75(1)(b) Criminal Justice Act

1985.   He did not.   Likewise, at the time he committed the offences against complainants 1 and 2 in the early 1980s, he did not have a previous qualifying conviction.  The rape convictions in relation to these complainants did not expose him to the possibility of preventive detention because they were committed at a time when a single conviction for rape was not a qualifying factor.   Offenders are of course entitled to be sentenced in terms of the sentencing provision applicable at the time of commission of the offence: R v Pora [2001] 2 NZLR 37 (CA).

Proper application of the totality principle?

[16]     Although  there  are  comparatively  few  comparable  cases,  one  to  which Mr Mansfield referred was R v Nepia HC AK CRI-2003-092-37151 23 July 2004, a sentencing decision of Cooper J.  This case was similar to the extent that there were six child complainants, both male and female, and offences of rape coupled with other indecencies.  The offending spanned 11 years (1979 to 1990) and the prisoner was aged about 40 years at the date of sentencing.  After noting the seriousness of the case and the destructive impact upon the complainants, Cooper J arrived at a starting-point of 11 years imprisonment.   To recognise the entry of prompt guilty pleas he made a deduction of two years, and a further deduction of six months for other lesser mitigating features, to arrive at an effective sentence of eight and a half years imprisonment.  This sentence was imposed on each of the rape and unlawful sexual connection charges, which were referable to at least two of the complainants. Hence, the Judge did not aggregate separate sentences, but rather adopted a purely totality approach.

[17]     One other case which was mentioned in argument was R v Prockter CA18/97

21 October 1997, where this Court considered an appeal against a sentence of nine years three months.  The appellant medical practitioner was found guilty at trial of multiple  sexual  charges  covering a  period  of  18  years  and  involving five  male

complainants.  In dismissing the sentence appeal Henry J speaking for the Court at 7 said:

Little would be gained by a review of other cases – each is very much dependent upon its own facts.   …   Although in these cases there may be legitimate different approaches to the mechanics of imposing a sentence for multiple offences involving more than one victim, the totality principle must always be recognised, as it was here.   The resulting sentence, although severe for this appellant, is not outside the range which was available, nor was it out of line with determinations of this Court.

We think these two cases provide about as much guidance as is to be had from previous decisions.

[18]     The totality principle has now been accorded statutory recognition in s 85 of the Sentencing Act 2002:

Court to consider totality of offending

(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must

not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)     If, because of the need to ensure that the total term of cumulative

sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)     If only concurrent sentences are to be imposed, -

(a)   the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate

for the totality of the offending;  and

(b)  each of the lesser offences must receive the penalty appropriate to that offence. (emphasis added)

[19]     The policy behind this section is clear.  Where an offender is to be sentenced for multiple offences, individual sentences must be fashioned which reflect the seriousness of each offence.  This is an overarching requirement.  But, the sentence must also be structured in such a way as to ensure that the total period of imprisonment  is  not  wholly  out  of  proportion  to  the  gravity  of  the  offending. Various options as to how the sentence might be structured are described.  Longer

concurrent sentences, or a combination of concurrent and cumulative sentences, may have to be preferred.

[20]     Section 85 is to be read alongside s 84:

Guidance on use of cumulative and concurrent sentences of imprisonment

84 (1)  Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2)   Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

[21]   Correctly, the Judge in this case concluded that the offences against complainants 1 and 2 were not a connected series, albeit they occurred in the same place and only a year or so apart.  We therefore agree with the Judge’s conclusion that it was appropriate to impose effective sentences in relation to each complainant which were made cumulative.  Likewise, her decision to impose a sentence for each rape, coupled with concurrent lesser sentences for the other offending, was an appropriate application of s 85(4).  Then, the Judge properly stood back and looked at the total effective sentence, thirteen and a half years imprisonment, which she reduced by two years on a totality basis.

[22]     But, was eleven and a half years imprisonment clearly excessive for the subject offending?  We note that Cooper J adopted a starting-point of eleven years in Nepia, before he made a reduction of two and a half years mainly on account of the pleas of guilty.  Here there was of course no deduction made for mitigating features. Standing alone this sentence might have been characterised as condign, but sustainable.

[23]     But the full bite of the sentence imposed arose from making the eleven and a half year term cumulative upon the existing six year term.  Was it appropriate, in this case, to also make the new sentence cumulative on the old?   This question brings into relief the relationship between s 85 and s 84.   We see them as companion

sections.  That said, we also regard the twin requirements of s 85 (that meaningful individual sentences are to be imposed but subject to the totality principle) as overriding the dictates of s 84 as to when cumulative and concurrent sentences are to be imposed.  This much is indicated by the reference to “guidance” in the heading to s 84 and by the use of the phrase “generally appropriate” in both ss (1) and (2). Hence, there will be occasions when offending is disconnected, yet concurrent sentences are nonetheless the only appropriate course.

[24]     This case provides such an example.  As we have already noted, the Judge was confronted with the difficulty of sentencing the appellant in relation to his offending against complainants 1 and 2 against the backdrop of the existing sentence for later offending.  Because the two sets of offending were unconnected in terms of time  and  place,  there  was  a  basis  to  impose  a  cumulative  sentence.    But  that approach is only “generally appropriate” and may need to be avoided on account of the totality principle.  Here, we are in no doubt that it was inappropriate to aggregate the old and the new sentences, so as to arrive at an effective sentence of seventeen and a half years imprisonment.  Such a sentence is out of proportion to the gravity of the total offending, as reference to previous cases demonstrates.

[25]     Even if the new sentence is not made cumulative upon the old, the appellant would still face eleven and a half years imprisonment on top of the thirteen months he had already served between the two sentencings (18 June 2004 to 15 July 2005). This produces a total effective sentence of twelve years seven months.   This calls into question whether the condign sentence for the subject offending was clearly excessive once the time the appellant had already served is brought to account.  We conclude that it was and that a reduction to ten years for this offending is required.

Result

[26]     The appeal is allowed.  The sentences for rape are each reduced to five years, to be served cumulatively.   The effective sentence of ten  years is to be served concurrently with the previous sentence of six years imprisonment.  By virtue of s 79 of the Parole Act 2002, the substituted ten year sentence will start on 15 July 2005.

Solicitors:

Crown Law Office, Wellington