R v P (CA176/04)

[2004] NZCA 387

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA176/04

THE QUEEN

v

P(CA176/04)

Hearing:         22 July 2004

Coram:McGrath J Goddard J Heath J

Appearances: G A Walsh for Appellant

B J Horsley for Crown Judgment:        7 October 2004

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

[1]    The appellant pleaded guilty, on the first opportunity that was available,  to 15 charges of sexual offending against the elder of two daughters who lived with him. He also pleaded guilty to a count of assault on his younger daughter. He was sentenced by Judge McGuire in the District Court to 15½ years imprisonment with a minimum period of imprisonment of ten years. He appeals against that sentence.

[2]    The offending against the elder daughter took place between 1994 and 2004. In 1994 the appellant was separated from his wife and living on his own. The

R V P(CA176/04) CA CA176/04 [7 October 2004]

complainant, who was then aged eight years and who had been living with her mother, came to live with the appellant together with her younger sister. An older brother also then became part of his household. At the time the two daughters had been involved in Court proceedings brought against a school teacher who had allegedly sexually abused them. The appellant’s offending against his elder daughter began one evening soon after she came to live with him when he told her to remain in the lounge with him, sending her brother and younger sister to bed. After showing her a pornographic video and asking about resemblances between the images and her teacher’s penis, he pulled down his pants and forced the complainant to touch his penis.

[3]    In 1996 when she was aged nine, the appellant told his daughter to get into bed with him, where he penetrated her vagina with his finger. He then made her  suck his penis until he ejaculated in her mouth. Over the next year the appellant forced his daughter to perform oral sex on him on more than 20 occasions, and on each he also digitally penetrated her.

[4]    In 1998 the appellant’s offending against his daughter progressed to rape. She was then 11 years old. He had come home from work intoxicated. He pulled his daughter out of bed and took her into the lounge where he offered her money for sex. When she refused it he proceeded to rape her, responding to her protests by punching her in the face. The complainant was left bleeding from the vagina and in very considerable pain.

[5]    Over the next five years, from 1998 through to October 2003, the appellant raped his daughter frequently, usually on the same weekday evening, after the appellant had come home from drinking. On some occasions her siblings would be with her in the lounge but would be told to go to bed. On others the victim herself had gone to bed but the defendant awoke her, took her back into the lounge and raped her. Often the complainant would try to resist the defendant and tell him no, but the defendant was invariably too strong and controlling of her. If she resisted too much he would hit her on the whole of her body until she submitted to his demands. This conduct formed the subject of seven rape charges against the appellant, five of which were representative charges. Her estimate was that she had been raped over

30 times each year during this period with the exception of one year in which she had been subjected to rape on five occasions.

[6]    Early in January 2004 the appellant, who had been drinking, drove his daughter to a remote place in the early hours of the morning. There he made his daughter consume a whole bottle of chardonnay. The appellant proceeded to rape  her on the front passenger seat of the car which he had placed right back. She was so intoxicated that she was not capable of resisting him.

[7]    About two weeks later the appellant became angry with his daughter and accused her of seeing boys behind his back. He made the complainant drive him to the same place that he had raped her earlier in the month, telling her that he was taking her there to kill her. The complainant was punched by the appellant in the leg and on the head as she drove. These assaults included hitting her on the nose with a bottle causing it to split and bleed badly. When they reached the destination the complainant told the appellant to “just finish me off now I am sick of life I just want to end it now.” She was made to drink liquor and became intoxicated. Nevertheless she resisted his requests for her to have sexual intercourse with him. He ignored her remonstrations, inserted his finger into her vagina, and committed various other sexual assaults before eventually raping her in the car.

[8]    Around this time the victim’s elder brother told the complainant that he knew that she was being sexually abused. Over the years he had known what was happening but had been too scared to do or say anything about it to anyone. The two of them decided that they had to take some steps in order to protect their younger sister, who the following year would be left in the house on her own with the defendant. The victim then saw a school counsellor and eventually made a complaint to the police.

[9]    The offending against the younger daughter took place in 1997 when she was aged eight years. The appellant had become angry with her because she had not changed her clothes. He had smacked her on the hand, punched her face and  legs and kicked her on the shins. She had fallen to the floor. He had picked her up by her

hair and then kicked her to the floor again. She suffered bruising all over her body  as a result of this attack.

[10]   The pre-sentence report indicated that the appellant was 40 years of age. He had enjoyed an unremarkable upbringing, but by the time he became separated from his wife, at the age of 26 years, his problems with alcohol and anger had emerged. He was imprisoned for assaulting his girlfriend in 1994, having been convicted the previous year of assault on a female and on a child. Upon his release he was given custody of his children following the completion of a family violence prevention programme, which was in essence an anger management course.

[11]   The probation officer reported in relation to the present offending that although he had pleaded guilty to all charges the appellant disputed a significant amount of material in the summary of facts. He had however told the probation officer that he did not wish to go to a disputed facts hearing as he “didn’t want to put the kids through court”. He also acknowledged that he felt unable to face seeing his children give evidence against him at such a hearing. The appellant had also diminished the extent of his offending by taking issue with parts of the statement of facts which referred to coercion and violence on his part. He maintained that after offending he would feel wracked by guilt, and would promise himself not to repeat it, “until the next time”. He maintained that he had pleaded guilty to show his  sorrow to the complainant. He had also acknowledged that alcohol abuse  was pivotal to his offending. The probation officer observed that despite the appellant’s guilty plea, and expression of some remorse, he essentially denied central elements of the charges against him, and that this reflected an overall low motivation and readiness to change which put him at a high risk of re-offending.

[12]   The victim impact report also reflects the degrading way in which the appellant used the principal complainant for his sexual gratification. She said that  she had spent the last ten years feeling insecure and unsafe in her own home. The appellant had completely dominated and controlled her life, making her feel like a prisoner for most of the time. She dreaded going home, and continued to have constant nightmares about what her father had done to her, and what he might do to her again when he got out of prison. The complainant had also suffered disruption in

other aspects of her life through having to move from her school and town of residence, leaving friends behind. The disruption to her schooling proved too difficult for her to deal with and she left school, putting in jeopardy her hopes of attending university.

[13]   The younger sister who was the victim of the assault also said she felt scared and insecure at home especially on Tuesdays when the appellant habitually became aggressive and violent towards his children.

[14]   In sentencing the appellant Judge McGuire referred to the appellant’s previous convictions for violent offending and discussed the probation officer’s report. He referred to the statutory purposes and principles of sentencing, and to submissions from Crown counsel as to the aggravating features of the appellant’s conduct.   He also discussed sentencing decisions including those in this Court of     R v T (CA251/02) (2002) 20 CRNZ 51 and R v Kolio CA219/01, 1 November 2001. He concluded that he was dealing with the worst kind of rape offending. The guidance the Judge drew from Kolio was that it was legitimate to decide whether a case fell within a broad band or bracket comprising the worst class of cases encountered in practice, although there might be variations of gravity within the class. Any case that fell fairly within the class qualified for the maximum sentence. The Judge drew from R v T guidance that the frequency of appalling sexual abuse to children in a family situation did not justify its categorisation as being within the ordinary range of offending when the question of a minimum term of imprisonment was considered by the Court.

[15]   He decided that the present case was in the most serious category but that, although he himself thought that course would be appropriate, he should not impose the maximum penalty available for a single instance of rape offending, 20 years imprisonment, as he was unable to find a case where that had been done. The Judge took a starting point of 19 years imprisonment, allowing four years for the guilty pleas, making other terms of imprisonment concurrent except for that in relation to offending against the younger sister. In that instance he imposed a six months term of imprisonment, making the sentence cumulative as a separate complainant had been the victim. The total effective sentence imposed was therefore 15½ years

imprisonment. He added that the case was serious enough to justify a minimum term of imprisonment under s86 of the Act, and he set a minimum non-parole period of ten years. He concluded by saying that the ten year term reflected the period of the appellant’s enslavement of his daughter.

[16]   The conduct for which the appellant was primarily to be sentenced amounted to particularly gross and humiliating sexual abuse of his daughter, who was in his care. It involved continuous offending over a decade which had progressed from sexual violation involving oral sex and digital penetration, through to frequent instances of rape over a five year period. The offending, moreover, was  accompanied by constant physical violence as a tool to overcome resistance from the victim and to achieve domination over her for the purpose of the appellant’s sexual gratification. Other notable aggravating factors included the initial perpetration of  the offending at a time when it appeared likely that this daughter had been abused by a third party. The final two incidents of rape were also particularly gross, and involved extreme levels of violence and intimidation through threats that he would murder the victim.

[17]   Overall the offending amounted to the appellant’s exercise of his perceived right to use his child as his sexual object. There were indications throughout in what he said to her that he did not accept or recognise that his behaviour was wrong and that she should take a like view and cooperate with his demands.

[18]   The circumstances of this case are such that it falls within the group which includes those considered in this Court’s judgments in Kolio and R v T, that  comprise the worst instances of sexual offending against children that are encountered by the Courts. The repeated rape of the victim over a five year period, following an earlier like period of other sexual abuse, all accompanied by violence, has had an appalling effect on this victim. As this Court said in R v T the totality of such offending makes any comparison with maximum sentences for rape on a single occasion a meaningless one.

[19]   Kolio was a case which involved the rape of an 11 year old girl on at least ten occasions by her mother’s partner over a period of 12 months. As a result she

became pregnant. The appellant was also convicted of multiple offending involving oral sex and digital penetration and indecent assault of the girl. The sentencing  Judge had decided that the starting range was between 17 and 18 years, very close to the maximum term of imprisonment which could then be imposed on conviction for one count of rape. The aggravating factors were breach of trust, the age of the  victim, the involvement of the victim’s mother in the offending, and the victim’s resulting pregnancy, as well as the overall extent of the offending. The mitigating factors were the plea of guilty at the first available opportunity and possible remorse, although this had been questioned by the probation officer.

[20]   On appeal this Court held that the sentencing Judge’s starting point could not be criticised. The Judge had not, however, given a sufficient credit for the early guilty plea. Taking a starting point of 17 years imprisonment the Court reduced the sentence on that account to one of 13 years imprisonment.

[21]   In R v T this Court was not persuaded that a sentence which set a starting point of 15 years imprisonment for similar offending over a seven year period was excessive. The offending was against the daughter of the appellant’s partner and commenced when she was seven years old. Rape began when she was aged nine years and continued until she was aged thirteen. In that case the appellant pleaded guilty only to lesser charges and had gone to trial on the more serious charges of sexual offending. The fifteen year term of imprisonment imposed by the High Court was upheld. That sentence was regarded as being consistent with that in the earlier decision of this Court in Kolio.

[22]   This Court did not, however,  decide  in  R  v  T  that  the  starting  point  of 15 years represented the maximum sentence that might have been imposed in the circumstances. The Court clearly confined itself to the conclusion that it was not excessive for the offending in the case.

[23]   Since the appellant was  sentenced  this  Court  has  upheld  a  sentence  of  18 years imprisonment imposed in the High Court for charges of sexual offending by an appellant against two of his daughters, in the case of the first covering a twelve year period and the second one of three years, with a gap of five years between:

R v TR CA445/03 13 May 2004. In the case of each victim that offending had involved indecent assaults, sexual violation by unlawful sexual connection (in one case involving digital penetration and the other oral sex) and rape. The periods of offending overlapped with changes increasing the maximum sentence for rape in 1993. The sentencing judge decided that the lead sentence should be imposed on the later rape charges which attracted the longer maximum term. He observed that both the victims of this repetitive abuse were subjected to increased violence whenever they tried to resist the appellant’s advances. The appellant had also been sentenced  to a suspended term of imprisonment on charges of assaulting a female. Taking into account the duration of the offending, that there were two victims and the planning and enterprise associated with his predatory intent in securing custody of the second victim, the Judge decided that the appropriate starting point for the lead sentence was 18 years imprisonment. Mitigating factors did not justify any reduction and  the Judge sentenced him to that term. The sentence included a non-parole period of ten years imprisonment. Both aspects were upheld by this Court on appeal.

[24]   The decisions of this Court in R v T, R v Kolio and in R v TR indicate that starting points approaching 20 years imprisonment will be upheld on appeal for cases within what was identified in Kolio as the band of offending of this kind that comprised the worst cases of representative sexual offending against young persons that are encountered in practice. Such cases will be very serious and typically comprise instances of repetitive sexual offending over a long period, involving multiple rape in circumstances where the offender has obligations to the young victim of trust and protection. Common features of such offending include threats of or actual violence to intimidate victims and make them powerless in relation to the offending. Cases which fall within this group require lengthy sentences  of  that order. Within that group offending involving more than one victim will usually result in the highest sentences.

[25]   Features of the present case which clearly put it into the group that attracts lengthy sentences, include the very long period of offending, the progression of offending through to multiple incidents of rape of the victim, and the violence associated with it. There was however only one victim and because of that the case cannot easily be categorised as one of the most serious in the group, bad as the

appellant’s offending was. Because of that factor the starting point of a 19 year term of imprisonment was a high one putting the circumstances alongside those in R v TR. That decision was not before the Judge who appears to have based his selection of a 19 year starting point on the extra violence present in this case over and above that in R v Kolio.

[26]   The appellant pleaded guilty at his first opportunity, having done so to spare both the victims and himself the ordeal of a contested sentencing hearing. The Judge allowed a four year discount from the starting point on account of this factor and the appellant’s remorse over his offending. That allowance was less than would usually be given in these circumstances, where sentencing judges commonly fix discounts of between 25% and 33%. On that basis a five or even six year reduction from the starting point could have been allowed by the sentencing judge.

[27]   The Judge then fixed a minimum period of imprisonment of ten years under s86(4) of the Sentencing Act, which was the maximum permitted. Other than to say, correctly, that the appellant’s offending put the case out of the ordinary range for offending of the particular kind, which made the offence sufficiently serious to justify a minimum term under s86(3), he gave no reasons for his decision on this aspect of the sentence.

[28]In R v Brown [2002] 3 NZLR 670, 678 a Full Court of this Court said at [34]:

If it is found that the sufficiently serious threshold is crossed, the sentencer must then, again as a matter of sentencing discretion, determine whether to impose a minimum sentence and, if so, the period between one-third of the nominal sentence and the maximum prescribed by s86(4). It is at this stage that all the sentencing principles in ss7, 8 and 9 require consideration. It will be wrong simply to go to the point of two-thirds of the sentence without carefully reviewing the circumstances of the offence and of the offender.

While we have no doubt that the Judge is aware of the decision in Brown, there is nothing in his sentencing notes indicating that he gave particular consideration to what the circumstances of the offence and offender called for in relation to a minimum period of imprisonment in this case. The aggravating features and the impact on the victim of his sexual offending are clearly of a degree of seriousness that make the statutory minimum parole period of one third of the nominal sentence

insufficient for the purposes of punishment, deterrence and denunciation of the offending. The question of whether the appellant presents a future risk, at least beyond members of his family, is, however, much less clear.

[29]   A further matter that was of direct relevance concerns the impact of the minimum parole period on the allowance that was made for mitigating factors in fixing the term of imprisonment. In Brown the Court said at [39]:

Just what minimum period should be imposed is more difficult. In fixing the nominal sentence the Judge made allowance for certain mitigating features. The benefit of such reduction translates directly into the time at which the offender becomes eligible for parole. In postponing that, the sentencer should not give the impression of erasing those credits. This could occur if there were to be a concentration on the seriousness of the offence to the exclusion of the circumstances of the offender.

Here, the effect of a minimum term of imprisonment, which was fixed at the maximum possible period under s86(4) of 10 years, largely negated the benefit of the reduction of 4 years from the starting point which brought the nominal term imposed for the sexual offending down to 15 years. That is inconsistent with what this Court said in the above passage in Brown. It also reflects the failure by the Judge to consider the prospect of rehabilitation of the appellant, following treatment in prison.

[30]   In summary, we have concluded, first, that the starting point of 19 years imprisonment decided on by the Judge was a high one. Secondly, the discount allowed for the early guilty plea was less than is commonly allowed. Thirdly, and most importantly, the approach taken by the Judge to fixing the minimum term of imprisonment at 10 years was not in accordance with the guidance previously given by this court, which indicated that a lesser minimum term should have been imposed in this case. The conclusion that a majority of the Court reaches, considering these three factors in combination, is that the sentence imposed by the Judge was a manifestly excessive one. Accordingly, by majority decision, the sentence of the District Court is quashed and in substitution this Court imposes the sentence it regards as appropriate for this offending, having regard to the factors identified.

[31]   The circumstances make the case a very serious one involving the very grave sexual offending against a young person. The Court, on the basis indicated,

concludes that the starting point for the sentence should be 18 years imprisonment and the reduction allowed for the early guilty plea four and a half years imprisonment. This makes the sentence for offending against the elder daughter thirteen and a half years imprisonment. The cumulative sentence of six months imprisonment for the separate offending will stand making the total effective term one of 14 years imprisonment. As indicated, the circumstances of the offending call for a substantial minimum term of imprisonment to punish and deter the appellant and to denounce his offending. Having regard, however, to the need in the public interest to avoid the impression of erasing the credit given for the early guilty plea, we have decided to impose an eight year minimum term of imprisonment.

[32]   One member of the Court is of the view that, while the sentence is stern, this Court ought not to interfere with the effective end sentence imposed on the grounds of manifest excess. Unanimously the Court concludes that the minimum non-parole period ought to be quashed and substituted by a minimum non-parole period of eight years imprisonment.

[33]   The appeal against sentence is accordingly allowed and the appellant’s sentence is reduced as indicated.

Solicitors:

Matenga & Associates, Hamilton for Appellant Crown Law Office, Wellington