R v S (CA156/07)

[2007] NZCA 153

PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 156/07 [2007] NZCA 153

THE QUEEN

v

S (CA156/07)

Hearing:         18 April 2007

Court:            Glazebrook, Randerson and Ronald Young JJ Counsel:          T M Saseve for Appellant

K Raftery for Crown

Judgment:      24 April 2007         at 3pm

JUDGMENT OF THE COURT

Appeal against sentence dismissed.

REASONS OF THE COURT

(Given by Ronald Young J)

R V S (CA156/07) CA CA 156/07  24 April 2007

[1]      The appellant was found guilty by a jury on nine counts of sexual assault on his daughter between June and October 2003.   He was sentenced to 12 years imprisonment with a minimum sentence of  six years.  His appeal against conviction was abandoned.  He has now filed an appeal against sentence.  An application for extension of time to appeal is required given his appeal was filed significantly late. The Crown do not oppose the application.  The appellant submits that his sentence was manifestly excessive because it was out of line with similar cases and the Judge over emphasised the punitive aspects of sentencing.

Background and sentencing

[2]      The appellant was charged and convicted on five counts of indecent assault, three counts of unlawful sexual violation (which included penetration of the complainant’s anus with his penis) and rape, all representative counts.

[3]      The appellant, in his statement to the police and at trial, accepted he had indecently assaulted the complainant on one occasion by touching and sucking her breasts but denied all other offending.  The complainant was 11 years of age when the offending occurred.

[4]      Judge Gittos in sentencing the appellant identified the aggravating features as being:

[T]he gross abuse of trust, the vulnerability of the victim, the use of force, the sustained and persistent nature of the offending, the variety of the offending and to some extent the cruelty involved, not only in an emotional sense but the physical pain of which the complainant spoke.

[5]      The Judge acknowledged that the appellant had no previous convictions and who had “supported himself  adequately in the community”.    He  noted  that  the appellant continued to deny the offending.  He considered the aggravating features justified a substantial increase on the starting point of a defended rape of eight years. He imposed a sentence of 12 years on all sexual violation charges and two years concurrent on the other counts.  He recorded counsel for the appellant’s acceptance that this was an appropriate occasion for a minimum sentence of imprisonment and set such a period at six years.

Submissions and discussion

[6]      Counsel for the appellant submits that the sentence imposed was manifestly excessive because the sentencing Judge placed too much emphasis on the punitive aspects of sentencing and the sentence was out of line with similar cases.   The appellant submitted that because the Judge did not indicate a starting point, it is impossible to know what credit was given for the appellant’s crime-free past and good character.   The appellant submitted that the facts in R v Kolio CA219/01

1 November 2001 were significantly worse than this case however a sentence of

13 years imprisonment was imposed.   The appellant submitted that Kolio faced a wider  variety  of  charges  than  in  the  current  case.    Kolio’s  offending  spanned

11 months as opposed to four months in this case, and that the only violence in the present case was that implicit in the sexual offending.  The appellant submitted that the offending in this case was less serious than Kolio and an appropriate sentence would have been 10 years imprisonment with a five year minimum sentence of imprisonment.

[7]      This  was  extremely serious  offending  on  a  young  girl,  a  relative  of  the appellant.   It involved an increasing level of sexual assaults from initial touching through to vaginal and then anal intercourse.  A single count of rape or anal sexual violation in the circumstances of this case could have justified a sentence beyond eight years given the serious aggravating features of the age of the child and the breach of trust.  Here, there were multiple events of indecent assault, rape and sexual violation by anal penetration on this young girl.  A starting sentence, therefore, well beyond eight years was justified.

[8]      As  to  the  comparison  with  Kolio,  Kolio  pleaded  guilty  at  the  earliest opportunity.  The starting point was 17 years.  The sentencing Judge’s deduction of two years for his guilty plea was seen as inadequate and the sentence reduced to

13 years by this Court.

[9]      The Judge did not expressly identify any starting point in the present case. He may have considered that there were no mitigating factors justifying a reduction in sentence.  Previous good character does not carry great weight in the face of such

serious offending but even if a generous allowance of one year for this factor were given, the end result was still within the range.  Whether the starting point was 12 or

13 years, however, there was an appropriate distinction from the 17 year starting point in Kolio.

[10]     In our view a sentence of 12 years imprisonment with a minimum period of imprisonment of six years was well within the range available to the Judge for this serious  sexual  offending.     We  are  satisfied  the  sentence  was  not  manifestly excessive.   While the extension of time to appeal is granted the appeal against sentence will be dismissed.

Solicitors:

Crown Solicitor, Auckland