R v Powdrill Ca31/00

Publication of name or identifying particulars of complainant prohibited by s 139, Criminal Justice Act 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA31/00

THE QUEEN

OWEN POWDRILL

Hearing:	19 April 2000 (at Auckland)
Coram:	Elias CJ Anderson J Robertson J
Appearances:	C Muston for Appellant M R Heron for Crown
Judgment:	23 May 2000

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

This is an appeal against a sentence of two and a half years imprisonment imposed by the District Court on 28 January this year. The appellant had pleaded guilty following depositions to a single but representative count that between 17 July 1963 and 16 July 1967 he indecently assaulted the complainant, a girl then under the age of 12 years, by touching her on her genitalia.
The offending occurred when the victim was between 9 and 12 years old and living in the appellant’s house as his stepdaughter. On a regular basis, sometimes as often as weekly, the appellant would take the victim into his bedroom, tell her that he loved her and was not going to hurt her, and then place her on the end of the bed. He would then remove her clothes and fondle her body including touching her genitalia. The Summary of Facts, which the appellant signed, states that on following days the appellant would hit the victim to ensure that she would not tell anyone. The appellant apparently disputed that aspect of the Summary at the time of sentencing but, as the Judge observed, he had nevertheless signed it. It may be inferred that the Judge accepted the Summary in this respect, although he did not expressly state that he did.
The effects on the victim have been predictably severe. The offending stopped only when she left the household at the age of 12 to live with her grandmother. Because of the grandmother’s financial position the victim was unable to pursue her ambition of a nursing career and she left school at the age of 15 to work in a factory. She believes the trauma from which she suffered as a child has affected her ability to learn and to function and has thereby prevented her from reaching her full potential. To the probation officer who prepared the Emotional Harm Report she expressed a general fear of people, particularly men. She experiences sexual difficulties and attributes to the emotional problems stemming from the childhood abuse the break-up of her first marriage and her general inability to enjoy intimacy with people. The Judge noted that the victim is receiving counselling which is expected to be long term and that she is described by her counsellor as emotionally immature and suffering extreme mood swings.
The appellant is 66 years old and lives with his present wife and an adult stepchild. The Judge noted that the appellant is supported by his wife and that there have been no indications of any sexual impropriety other than the offending in question. The appellant is unable to work because of a heart condition and has recently undergone a triple bypass heart operation. He is a diabetic and reliant on medication for both that condition and his heart weakness. The Judge was aware from a letter by the appellant’s medical practitioner that any stress, such as a custodial sentence, could be very detrimental to the appellant’s health.
Counsel’s submissions at sentencing and the Judge’s notes examined the implications of the historic nature of the offending. Reference was made to R v T CA282/97, 3 November 1997, and R v T CA463/97, 15 June 1998 to show that the length of time since offending is not itself strong ground for a lesser sentence. He accepted R v T CA463/97 as authority for the principle that whilst the events of an intervening lapse of time may have shown that the deterrence of the specific offender as one of the objectives of sentencing was unnecessary, yet aspects of general deterrence and denunciation were still relevant to the sentencing process. He considered R v Gallagher (1993) 9 CRNZ 421 where a sentence of 12 months, imposed on a 70 year old offender after conviction on his trial for one count of indecent assault on a seven year old girl, had been quashed and the appellant released immediately by this Court in view of his health prognosis.
The Judge noted as mitigating factors the plea of guilty, albeit after depositions; the fact that the appellant was a first offender of this nature and that there had been no other offences or matters coming to attention for the past 33 years. He noted the appellant’s expressions of remorse and his co-operation with the police. Aggravating features were identified as a gross breach of trust by someone in the position of a father; the young age of the victim; the extended period of offending; the frequency of the offending; the significant effect on the victim; and the occurrence of skin to skin contact. He took into account the appellant’s health situation and decided that the starting point for sentencing was in the vicinity of three and a half years imprisonment. He was of the view that giving the appellant as much credit as he could for the matters he had mentioned by way of mitigation, the appropriate sentence was two and a half years imprisonment.
On this appeal counsel for the appellant emphasised the effect of imprisonment on the appellant’s health. He referred to the decision of this Court in R v Sturmfels, CA140/89, 20 July 1989 where a sentence of nine months imprisonment was reduced to two months imprisonment in view of the offender’s poor health which included suffering from a hernia and the incidence of cardiac neurosis and hypertension. The offending was of a less severe nature than in the present case but the offender could claim no discount for a guilty plea. This Court reduced the sentence in recognition of the heavy impact that imprisonment would have on a person of Sturmfels’ age, frailty and poor health, and to give recognition to his unblemished background and record of long service to the community. The decision exemplifies the principle that the subjectively more punitive effect of imprisonment by reason of significantly poor health may be a mitigating factor in sentencing. This Court took a similar approach in R v Gallagher.
Counsel for the respondent submitted that the sentencing Judge had correctly balanced the mitigating and aggravating factors in the case. The Judge’s appreciation of the appellant’s poor health was brought into account with regard to this Court’s approach in Gallagher and there was no relevant factor to which the Judge had failed to have regard. Counsel emphasised the serious and chronic consequences for the victim and submitted that the sentence imposed was well within the range available to the Court. Counsel identified the less serious nature of the offending in Gallagher and also in Sturmfels, notwithstanding some similarities between that latter case and the present. He pointed out that in R v Smyth CA49/95, 13 June 1995 this Court dismissed an appeal against a sentence of two and a half years imprisonment for indecent assault on a girl under 12 and inducing an indecent act where, as in the present case, there had been a guilty plea, historic offending and representative charges. Counsel’s submissions may be summarised as an argument that because the sentence was within the available range, all relevant matters had been considered and no inappropriate principle applied, this Court should not allow the appeal.
A case with some similarities to the present is R v C, CA401/94, 10 April 1995 where this Court allowed an appeal against a sentence of two years imprisonment imposed on a man who indecently assaulted the eight and ten year old daughters of a woman friend some 13 years previously. The indecencies consisted of the offender occasionally touching the girls in the genital area and outside their clothing while piggy backing them, simulating sexual intercourse with the younger girl to the point of ejaculation, and inducing both girls to masturbate him. In the following years the offender had brought his life under control, achieved some measure of material security, and proved an excellent father to his own young children. The sentencing Judge had taken a starting point of three years before allowing a discount of one year for the offender’s guilty plea. This Court found that the sentencing Judge had tended to give too much weight to deterrence and denunciation and insufficient weight to the other more positive aspects of the case which included the offender’s remorse. This Court noted that the man to be sentenced then was not the same man who had committed the offences.
Like considerations apply in this case. Having regard to the similarities of offending in this case and in R v C where a starting point of three years was considered appropriate, we think that the starting point of three and a half years in the present case is at the outer limit of the available range. Whilst that in itself would not warrant intervention by this Court, it is a relevant consideration when examined in connection with the credit of one year allowed by the sentencing Judge for mitigating factors. That credit was inadequate. It gave insufficient weight to the health factors and to the more than three decades since the offending during which the appellant had been law abiding.
Where a sentencing Court has had regard to relevant principles and factual matters this Court would not readily intervene, but in this case we are satisfied that the very high starting point coupled with the inadequate weighting of the mitigating factors of the appellant’s health and lengthy law abiding conduct have resulted in a manifestly excessive sentence. We are of the opinion that the sentence should not have exceeded two years imprisonment.
That conclusion raises two consequential issues. First, whether the sentence of imprisonment should be suspended. Second, whether the appellant should be granted leave to apply under s 103 of the Criminal Justice Act to a District Prisons Board for release to home detention. We do not consider it appropriate to make an order suspending the sentence of imprisonment in this case. Notwithstanding that the passage of time between offending and conviction, together with the law abiding conduct during that period, diminishes the indications for personal deterrence, there are nevertheless considerations of general deterrence and denunciation where, in breach of trust, there has been continuing sexual abuse of a young and vulnerable victim.
Concerning the issue of leave to apply for release to home detention, the Court is required by s 21D(3) of the Criminal Justice Act 1985 to consider:-
[a] The nature and seriousness of the offence; and
[b] Any relevant matters in the Victim Impact Statement in the case.
It is to be remembered that an order granting leave pursuant to s 21D of the Criminal Justice Act does not determine whether leave will be granted. It merely authorises a prisoner to make an application which a District Prisons Board would then deal with on its merits. Even if leave were granted to an inmate there would still be appreciable restraints upon the grantee’s personal liberty. In this case we do not consider the nature and seriousness of the offence to be such as to preclude the possibility of home detention. Given also the historical nature of the offending, the absence of contact between the appellant and the victim for such a long period, and the absence of any present risk to the victim by the appellant, we do not consider there is any matter in the Victim Impact Statement which should preclude the granting of leave.
In the result the appeal against sentence is allowed; the sentence of two and a half years imprisonment is quashed and a sentence of two years imprisonment substituted. Pursuant to s 21D of the Criminal Justice Act 1985 the appellant is granted leave to apply under s 103 to a District Prisons Board for release to home detention.

Solicitors:

Thorne Dallas & Partners, Whangarei, for Appellant

Meredith Connell, Auckland, for Crown

[2000] NZCA 428

23 May 2000