R v R
[2015] NZHC 2999
•27 November 2015
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-092-10635 [2015] NZHC 2999
THE QUEEN
v
R
Hearing: 27 November 2015 Appearances:
Z R Hamill for Crown
A J Holland for DefendantDate:
27 November 2015
SENTENCING REMARKS OF M PETERS J
Solicitors: Kayes Fletcher Walker, Manukau
Counsel: R S Reed, Auckland
A J Holland, Auckland
R v R [2015] NZHC 2999 [27 November 2015]
[1] Mr R, you appear for sentence today having been convicted at trial on one charge of indecent assault.1 The maximum penalty for the offending is seven years’ imprisonment.2
[2] I presided over your trial and I am familiar with the facts.
[3] The offending occurred in 1977 or 1978 when you were 24 years old. The complainant, “A”, was your younger half sister and was 16 years old at the time.
[4] A was staying with you and your wife. The incident to which the charge relates began with a “play fight” while you and A were alone. During the course of this play fight you pulled down A’s jeans and underwear and digitally penetrated her vagina. This continued until A said “no” and left the room. You denied the offending at trial and continue to do so today.
[5] In advance of sentencing you today I have received:
(a) the Provision of Advice to Courts report from the Department of
Corrections;
(b) counsel’s submissions; and
(c) many character references provided on your behalf. It is apparent from these that you have made a lengthy and significant contribution to the aviation community in particular as a flight instructor and that your students and colleagues have greatly appreciated and benefitted from your efforts.
[6] Although the references are recent, they do not, however, refer to your conviction and some read as if they are references for employment. Accordingly, I assume that you did not tell the referees why you were asking for a reference. They
would carry even more weight had you done so.
1 Crimes Act 1961, s 135 (historic text as between 1 January 1962 and 1 July 1999).
2 Crimes Act 1961, s 135(1)(a).
Victim impact statement
[7] I have read A’s victim impact statement. She is correct in saying that you breached her trust. A’s reluctance to trust anyone since – particularly around her children when they were young, and now her grandchildren – is a regrettable but all too common consequence of offending of this nature.
Approach to sentencing for historic offending
[8] Although sentences for offending of this nature have increased significantly since the 1970s, you have the benefit of the lesser penalty in force at the time.3
[9] The Court of Appeal explained the approach to sentencing for historic offending in R v Accused (CA463/97):4
A Judge passing sentence in the 1990s cannot do so through the eyes of a Judge who might have sat on the case in the 1960s or 1970s, had it come to trial then. 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. However, that does not involve attempting to reconstruct the sentencing mores of an earlier time. For example, if a particular type of offending was formerly regarded less seriously than now, present day attitudes must govern the sentencing approach.
[10] Similarly, in R v R the Court of Appeal said:5
[22] … We think that a sentencer confronted with a case of historical sexual abuse should fix a starting point sentence based upon the sentencing levels of the relevant time and which recognises the aggravating features of the case. Then, if appropriate, allowance is to be made for mitigating features including of course the plea of guilty if there has been one. …
[11] I proceed, therefore, on the basis that your sentence must reflect the sentencing levels that prevailed in the late 1970s.
[12] In sentencing you today I am required to undertake a two step process.
3 Sentencing Act 2002, s 6; s 25(g) New Zealand Bill of Rights Act 1990.
4 R v Accused (CA463/97) (1998) 15 CRNZ 602 (CA) at 609.
5 R v R (CA244/04) CA244/04, 2 November 2004; affirmed in R v KJB (CA41/07) [2007] NZCA
292 at [84]; see also R v Ashcroft [2014] NZCA 551 at [16].
[13] The first step is to fix a “starting point” that reflects the purposes and principles of sentencing and, in particular, the culpability inherent in your offending.
[14] The second step is to adjust the starting point to take account of any matters –
aggravating or mitigating – which relate to you personally.
Starting point
[15] In setting the starting point I must have regard to the need to hold you accountable, to promote in you a sense of responsibility and to denounce and deter this type of offending.6
[16] I must also take into account the gravity and seriousness of the offending and seek consistency with other cases involving offending of a similar nature.7 The law also requires me to impose the least restrictive outcome appropriate in the circumstances.8
[17] Aggravating factors relating to this offending are the nature and seriousness of the offending – it involved penetration and in today’s terms that would constitute sexual violation.
[18] Your actions also involved a breach of trust. A was a younger sibling, staying in your home with your family, so that she could help you and your wife. She should have been able to rely on you but, as it turned out, she could not.
[19] There was and is no tariff case for indecent assault. However, counsel have referred me to R v W(T000672).9 In that case the Court, having reviewed sentencing levels during the 1960s, concluded that “a single serious indecent assault” could be
expected to attract a starting point of about two and a half years.10
6 Section 7(a),(b),(e) and (f).
7 Section 8(a)-(e).
8 Section 8(g).
9 R v W(T000672) HC Auckland T000672, 11 May 2001 (Per Chambers J).
10 At [12].
[20] As Mr Holland says, however, your offending lacked some of the aggravating characteristics often associated with interfamilial sexual abuse. This was an isolated and brief incident which did not involve violence or threats additional to that inherent in offending of this nature. And other cases – sexual assault by a parent or carer against a much younger person – have involved a greater breach of trust.
[21] Counsel have referred me to a number of comparable cases.11 I shall include the details of these in my written note. They suggest a range of starting point of at least 12 months to, say, three years’ imprisonment:12
(a) In R v K the defendant was in the role of a father figure to the victim who was between 13 and 14 years old.13 The defendant fondled the victim’s breasts on three occasions and penetrated her digitally on another occasion. The Court of Appeal reduced the sentence from three to two years’ imprisonment.
(b)The offending in R v Mokalei occurred in 1983 and 1984.14 The defendant was between 22 and 24 years old at the time and committed six indecent assaults against three victims aged between 13 and 15 years. Two of the assaults included digital penetration. The Court of Appeal upheld a final sentence of three years’ imprisonment.
(c) In R v TDO the offender was sentenced for historic offending against his stepdaughter and for more recent offending against his whangai daughter.15 The historic offending occurred between 1983 and 1989 when the victim was aged between 11 and 17 years old. The offending comprised three assaults, the most serious of which involved digital penetration. The Court adopted a starting point for
the historic offending of two years’ imprisonment.
11 R v Mokalei CA 322/00, 30 November 2000; R v W(T000672) HC Auckland T000672, 11 May
2001; R v K CA166/92, 6 August 1992; R v TDO [2012] NZHC 2704; R v Li [2014] NZHC
1125; Chugh v Police [2015] NZHC 2356; R v Hohaia CA 221/05, 17 October 2005; Gerber v
Police [2013] NZHC 773; R v Hunt [2012] NZCA 469.
12 [21](a) to (g) and [22] not read at sentencing.
13 R v K CA166/92, 6 August 1992.
14 R v Mokalei CA 322/00, 30 November 2000.
15 R v TDO [2012] NZHC 2704.
(d)In R v Li the offending occurred in 1977 and 1978, and was committed against the defendant’s four or five year old stepdaughter.16
It comprised three counts of doing an indecent act with a girl under 12 and two counts of indecent assault. The Court adopted a starting point of two years, six months’ imprisonment.
(e) In Chugh v Police the defendant was charged with one count of indecent assault by a 32 year old against a 20 year old woman.17 The offender kissed the complainant and put his hand down her jeans and grabbed her buttocks. The sentence imposed was 150 hours community work.
(f) In R v Hohaia the 29 year old offender took his 16 year old cousin into a bedroom at his family home and attempted to touch her, kiss her and remove her pants.18 When she resisted he pushed her down on the bed and got on top of her. The assault stopped when she continued to resist. The offender was convicted on one count of indecent assault. The Court of Appeal reduced the sentence from two and a half years’ imprisonment to 12 months.
(g)In Gerber v Police the offender was for sentence on one count of indecent assault.19 The offender pulled the victim on to the grass, reached under her dress and fondled her genitals. The starting point was 18 months’ imprisonment.
[22] I consider your offending less serious than the offending in R v Li and
R v TDO but more serious than the offending in Chugh and Hohaia.
[23] The Crown proposes a starting point of two and a half years. Mr Holland says 12 months. I consider a starting point of 18 months’ imprisonment to be
appropriate.
16 R v Li [2014] NZHC 1125.
17 Chugh v Police [2015] NZHC 2356.
18 R v Hohaia CA 221/05, 17 October 2005.
19 Gerber v Police
Personal factors
[24] I turn now to consider those factors which relate to you personally. [25] There are no aggravating factors.
[26] Mr R, you are 62 years old, have no other convictions and are employed. Mr Holland submits that you are entitled to a discount to reflect your good character, the lapse of time that has occurred and your age at the time of the offending.
[27] I accept that, but for this, you appear to have been of good character. A lapse of time may indicate that an offender has overcome a youthful proclivity and then led a law abiding life and I accept that appears to have been the case as regards you.20 So for those matters I propose to reduce the starting point by six months.
[28] I do not propose to reduce the sentence to reflect your age at the time of the offending. At 24, being married and a father, you knew better.
[29] This results in your final sentence being one of 12 months’ imprisonment.
Home detention and community based sentences
[30] Given that I have reached a sentence of less than two years’ imprisonment, I turn now to consider the least restrictive outcome appropriate in the circumstances which, as I have said, I am required by law to impose.
[31] Mr Holland submits that a sentence of community detention or community work would be appropriate and would have the obvious advantage of allowing you to continue your employment.
[32] As I said to him, however, I do not consider that such a sentence would be appropriate because I do not consider it would be sufficient to meet the purposes and
principles of sentencing to which I have referred.
20 R v TKBR HC Hamilton CRI-2005-018-4691, 31 March 2006.
[33] However, the Crown does not oppose a sentence of home detention and I am satisfied that such a sentence is sufficient. In reaching this conclusion I put particular weight on the isolated nature of the offence, the lapse of time and your subsequent good character.
[34] I accept, and consider it regrettable, that this sentence of home detention, although required in the circumstances, may well affect your present employment. Although an offender may leave a home detention address to engage in employment with the approval of a Probation Officer, the report received yesterday from the Department of Corrections indicates that may pose some difficulties in your case because of difficulty in monitoring your whereabouts given the nature of your work.
[35] I would, however, encourage Community Probation to do everything they possibly can to accommodate your continued employment. I understand the personal circumstances that make that a pressing matter and, as I say, hope they will do everything they can to facilitate your continuing to work.
[36] The proposed home detention address is your residence which the Department of Corrections has assessed as appropriate for service of a sentence of home detention.
Please stand Mr R. On the charge of indecent assault I sentence you to six months’ home detention to be served at your residential address. The conditions that I attach to your sentence are as follows:
(a) you are to travel directly to the home detention address and await the arrival of the monitoring company and the supervising Probation Officer;
(b)you are to reside at the home detention address for the duration of the home detention sentence;
(c) you are to attend and complete such counselling programmes and treatment to address identified offending behaviour as may be directed
by your Probation Officer to the satisfaction of your Probation Officer and programme provider; and
(d)any proposed employment or ongoing study is to be approved by the supervising Probation Officer to ensure that all monitoring requirements are met.
[37] You will also be subject to the standard conditions for a home detention sentence set out in s 80C(2) of the Act.
[38] Stand down.
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M Peters J
4