R v S HC Rotorua CRI 2003 077 2740
[2005] NZHC 1659
•18 February 2005
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR PARTICULARS IDENTIFYING ACCUSED AND COMPLAINANT.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2003 077 2740
BETWEEN QUEEN
Plaintiff
AND S
Defendant
Appearances: F Wood for Crown
W Lawson for Defendant Judgment: 18 February 2005
SENTENCE OF PRIESTLEY J
Solicitors:
F Wood, Crown Solicitor, Rotorua W Lawson ,Rotorua
R V S HC ROT CRI 2003 077 2740 [18 February 2005]
[1] Mr S, it is my job to sentence you today on eight charges of sexual violation by unlawful sexual connection and two charges of indecent assault.
[2] Those convictions followed a jury trial in the High Court at Rotorua in December 2004 at which you denied guilt and indeed gave evidence in your defence. You also called as supporting witnesses two of your three daughters and your former wife, the victim’s mother. Clearly so far as your evidence was concerned it was disbelieved and in my view rightly so.
[3] I need to point out that of the eight sexual violation charges of which you were convicted, seven of them involved oral sex, your penis being inserted into your victim’s mouth, and one of them was oral contact by you with her genitalia. Two of those eight charges were representative charges.
[4] As your counsel have told you the sexual violation charges carry a maximum of 20 years imprisonment, the two indecent assault charges carry a maximum of seven years imprisonment.
[5] I don’t need to say much about the circumstances of your offending. The victim was your eldest daughter. The offending took place over a period of some two years and one month, during which time your victim was aged approximately 13 at the youngest and 15 or just over at the time the offending ceased. This offending all took place during holiday periods because during that phase in your life you and your former wife were living apart although it is quite clear from the evidence that you and she resumed cohabitation both in Tokoroa and also in Whitby during holiday periods. Interestingly there was some evidence suggesting that you and she lived together after you had emigrated to New South Wales.
[6] Distressingly, particularly from your victim’s point of view, two of the charges for which you are being sentenced took place on her 14th birthday. The abuse included the victim being forced to masturbate you, forcing her to perform oral sex on you, touching her and the kissing of her breasts. On one occasion you knelt
over her and forced your penis into her mouth and on another occasion when you forced the victim to climb on top of you and perform oral sex whilst you, at some pain to her, inserted your tongue into her vagina.
[7] I have read the Victim Impact Report. In it, and unsurprisingly, your daughter describes the emotional and physical effects of this abuse both on her and on her wider family. It is very clear to me that your family was a close knit one. Some of your siblings were high achievers. Your daughters, particularly the victim, idolised you and distressingly for your entire family your trial has split that family and to some extent has alienated the victim from her mother and her two siblings. Also, as we saw dramatically during the Rotorua trial, it alienated some of your siblings from others.
[8] Your daughter has described the feelings of shame and disgust which your offending has caused her, stressing feelings of isolation and betrayal. She is continuing to have problems with trusting men in friendships, and relationships, and she further recounts, quite graphically, the physical effects on her caused by your abuse and also stress related symptoms, some of which manifested themselves during the morning of one day she was giving evidence against you at Rotorua.
[9] One of the remarkable things about the victim in the Impact Report Mr S is the sensitivity she has shown to the wider S family and her awareness of the exact consequences which your trial and indeed her complaints were likely to cause. She describes her reluctance to disclose the abuse because of that knowledge on her part and she describes also the ongoing pain she has because of the division that this tragic incident has caused in the wider S family. It is remarkable, and indeed hopeful, that she has made efforts, and to some extent has succeeded, in turning these very negative experiences into a positive factor. She recognises with the trauma of the trial and her disclosing what you did to her may in the long run make her a stronger person.
[10] I am bound to say, Mr S, that observing your daughter during the trial she impressed me with her resolve, her honesty and her determination to go through the process despite the fact there were instructions to your counsel that inevitably
resulted in her being cross-examined and facing questions based on the premise that maybe her evidence was wrong.
[11] I turn now to you. You are aged 45. You have as I stated got three daughters. Prior to you being remanded in custody you were living in Sydney and you were extradited to New Zealand some months before your trial.
[12] You have no assets or no money available to pay reparation and although I am obliged to consider reparation the Crown has not sought it.
[13] Quite frankly Mr S a man of your maturity, a man of your experience and a man from a family which has considerable mana should not be standing in the dock as you are today.
[14] I have read the presentence report. There is little in that to assist me. The report writer inevitably recommends imprisonment and currently assesses you as having a low motivation or readiness to change with what is opined as a high risk of re-offending. You are described as jovial, relaxed and apparently well-liked as far as the prison staff are concerned You continue to deny your culpability and in the report writer’s view have shifted responsibility on to the victim. That stance on your part Mr S will cause problems for you because you will remain ineligible for rehabilitative programmes and, as your counsel observed in his very competent submissions a few minutes ago, may cause you difficulties when you become eligible for release.
[15] My suggestion to you is that you use the time, if you have not already done so, in taking a long hard look at yourself and facing up to the reality of what your conduct has meant both to your daughter and to your wider family.
[16] You do have some previous convictions for assault. You have no previous convictions for sexual offending. In my view your previous record has no relevance to my task today.
[17] I am obliged to consider in terms of s 9 of the Sentencing Act both aggravating and mitigating factors. Aggravating factors which I am alerted to here are the fact that inevitably in this offending there is an inherent degree of violence or threatened violence. I don’t consider violence in terms of s 9 1(a) is a significant factor here other than the pain and distress which was inflicted on your daughter at the time the offending was concerned. Considerable harm has resulted to your daughter in terms of ss 1(d) and most importantly of all you were, as her father, abusing your position of trust or authority and indeed her vulnerability both as a member of your family and her age. These are highly relevant aggravating factors in terms of ss (f) and (g). Inevitably there must have been on your part a level of premeditation with your offending, a s 9 1(i) factor, I refer particularly there to the comments you made on the occasion of your daughter’s 14th birthday and also to the clear evidence that you manoeuvred things in such a way both then and elsewhere to have your daughter sleeping in the same room as you or to move into the room that she was occupying.
[18] It is also an aggravating factor in my view that this offending took place over a period of time, it was not one off offending. The victim was your daughter. I have referred to the gross breach of trust and her vulnerability and also the fact that this offending took place in her house.
[19] I have given careful thought to whether there are any mitigating factors under s 9(2). Your counsel has not laboured that point. In my judgment there are no mitigating factors for which you are entitled to credit. The standard mitigating factors of genuine remorse, pleading guilty, or acknowledgement of wrong doing are regrettably absent in your particular case.
[20] I have to outline some other legal matters Mr S before I get to the crunch of my sentencing you. In terms of s 7 Sentencing Act principles purposes I regard accountability, responsibility, the interests of the victim, denunciation, deterrence and to a limited extent protection of the community from you and of course assisting your rehabilitation as being relevant purposes in terms of s 7(1)(a), (b), (c), (e), (f),
(g) and (h).
[21] The principles involved which are outlined in s 8 which apply in your case under s 8(1) are the gravity of your offending, your culpability, the seriousness of the offending, the need for consistency with other offending of this type and other sentencing levels. The effect of your offending on your daughter, and my obligation to impose the least restrictive outcome and take some account of your personal and cultural background. Those are the principles set out in ss (a), (b), (e), (f) and (g).
[22] As counsel accept given the hierarchy of penalties under the Sentencing Act, imprisonment is inevitable with an offence of this type.
[23] Now in approaching my task I have been helped by the submissions of both counsel. Mr Wood for the Crown has submitted that the prolonged and repetitive offending justifies a start point of possibly somewhere in the vicinity of 10 years, or certainly 8-10 years. In his submission, without factoring in aggravating features, the start point for repetitive charge of sexual violation on the authorities should be somewhere in a band from 5-8 years. He also submits that this is an appropriate case for me to impose a minimum term of imprisonment under s 86.
[24] Mr Lawson in his competent submissions on your part has stressed that I must look at sexual violation in the context of that particular offence and has stressed that there were limited opportunities for you to offend and also that the offending was not as sustained or over as long a duration as it could have been. Certainly this is not the worst case he submits of this type.
[25] He has also asked me to weigh the positive influences you had on your family and your reputation before the offending took place. He stresses to me that I should ensure a term of imprisonment imposed on you should be as short as possible. He stresses to me that your sexual violation and indecent assaults on your daughter were brief in duration. Significantly, and in my view realistically, Mr Lawson does not oppose the Crown’s application for imposition of a minimum term of imprisonment .
[26] Now Mr S there are three factors which I need to feed into your sentence. The first is that, although the prescribed maximum for sexual violation by unlawful
sexual connection is the same as rape, 20 years, the authorities clearly treat this offence as less serious than rape. There is no prescribed start point, such as R v A, [1994] 2 NZLR 129, eight year start point, for unlawful sexual connection other than for the analogous crime of anal rape and my authority for that is R v M. [2000] 2 NZLR 60.
[27] The second factor to feed into your sentence is the duration of your offending. In your case this spanned two years and was repeated when your daughter was with you on holiday visits. Persistent and continual offending of this type must be treated more seriously than isolated, infrequent, or one off unlawful sexual connection.
[28] Thirdly, and highly relevant in your case, is the fact that your victim was your daughter, - a vulnerable early-teenager entitled to look to you for protection and also to look to you as a role model for acceptable adult male behaviour. You let her down in that regard and your disgraceful conduct in that family context brings into play the purposes of denunciation and deterrence and must also be regarded as a serious aggravating factor.
[29] As to an acceptable start point, especially in a family context, there are of course other cases, none of them exactly comparable, which are a guide. I note the decision of Chambers J, R v T, (HC Auckland, T025657, 25 September 2003) helpfully cited to me by your counsel, where the victims were two grandchildren and where Chambers J saw five and a half years as an appropriate start point for multiple offending but where the total of six years imprisonment was imposed after credit for guilty pleas. The vulnerability of the victim, the prisoner’s position of trust, and aggravating factors justified an “uplift” in Chambers J’s view to six and a half years before mitigating factors.
[30]Chambers J also observed, and here I am citing para 26:
… I have stood back and asked myself: what would be the worst offending
– a single act of rape with no aggravating features, or repeated sexual violations of a grandson by his grandfather over a number of years? At the very least, the latter offending is as bad as the former act. Most people, I suspect, would say that the repeated abuse was worse. Whether the repeated
abuse is as bad as or worse than the single act of rape, I think a starting point of 6½ years compares very favourably with the standard 8 years for a single act of rape. I have felt constrained in fixing a starting point by some of the cases which have been cited to me.
[31] I echo those remarks. The culpability of a number of unlawful sexual connections over a period of years, and in particular the damage caused to the victim will in many cases, and as the victim impact report here demonstrates, be much greater than say a single or two temporally close incidents of rape.
[32] In the recent Court of Appeal decision of R v M (supra) a term of 11 years imprisonment with a minimum non parole six year term was imposed in a case involving two rape charges and representative charges involving oral sex. The victim was the prisoner’s daughter aged eight. The offending spanned a three year period. The prisoner had pleaded guilty and was remorseful, factors both absent in your case Mr S. The Court of Appeal considered a 15 year start point was not excessive. An 11 year term (which had running concurrently with it a five year term for each of the sexual violation charges) was left undisturbed
[33] Now the Crown rightly observed, as has your own counsel, that in any review of comparable cases the sentences imposed for sexual violation must be seen in the context of a combined lead sentence imposed for rape and rape is not a factor in your case.
[34] I have also considered and weighed the sentences and helpful comments contained in R v M (supra), in R v Armistead (CA 202/98, 14 October 1998), and R v E, (CA94/04, 21 September 2004) and also, although it has limited relevance my own sentence in R v Afamasaga, (HC Auckland, T014244, 19 July 2002).
[35] In your case, Mr S, I cannot pluck the start point in isolation without factoring in the highly relevant circumstances of your criminality which flows from the fact that your victim was your daughter. As Anderson P said in R v Edwards (CA94/04, 21 September 2004) echoing R v M (supra),
In R v M this Court said that the appropriate sentencing level depends upon the circumstances of the offending. [para 35]
That may, with respect, sound a trite observation, but it is not in my judgment and it is highly significant. In R v E (supra) the Court was dealing with a single act of sexual violation on a co-employee not in a family context.
[36] Because your victim was your daughter, I consider a substantial uplift must follow, particularly against the background of your repeat offending.
[37] The courts have rightly seen sexual violation of family members as a serious and significant aggravating feature. In R v Accused [1991] 2 NZLR the Court of Appeal cited with approval an earlier dictum relating to a sentencing for offences against young children given in R v Accused (CA48/88, 20 June 1988). The dictum was:
It is a well-settled principle that crimes of this kind call for a sentence which expresses society’s emphatic denunciation of conduct which is a denial of elementary values. Such crimes are committed against a particularly vulnerable and helpless section of society who are in fact its most precious assets (or to use the Maori term “taonga”).
Children who are the victims of prolonged sexual abuse are robbed of much of the joy and innocence of childhood and may be badly affected for the rest of their lives in their own personalities and in their relationships with others.
Those factors are apparent precisely in the victim impact report.
[38] In a sentence I imposed again in the Rotorua High Court in October 2001, R v J (HC Rotorua, T012293, 31 October 2001) which both counsel have referred me to, I put it this way:
[26]…
Children are dependent. They need a safe and nurturing environment. Their personalities and potential are hugely influenced by what happens to them during their formative years. A child is entitled to look to any caregiver, but particuarly to a parent, for nurture, guidance and above all a safe physical and emotional environment. Sexual offending against children is the antithesis of all of that. It displays a flagrant disregard for boundaries, betrayal of parental responsibility and above all inflicts enormous damage on the victims whose development is warped, sometimes destroyed by the sexual abuse, - abuse occurring in the very environment, the home, which should be a child’s safe haven.
And I do not resile from those comments which strike me as being highly relevant to any sentencing Court in cases such as these. Certainly those policy matters which I articulated in October 2001 are totally consistent with comments made by other courts.
[39]In R vT (2002) 20 CRNZ 51 Gault P said:
What was involved was abuse of a child in a gross and degrading way by an adult in a position of trust. The victim was, in essence, conditioned from a young age when she could not have appreciated the significance of the conduct, to serve as the object of sexual gratification for an adult in a position requiring the exercise of parental responsibilities. The conduct was progressive and reflected the assumption of entitlement to use a family member too vulnerable to resist. The acknowledgement of a recognition that it was wrong, yet persistence and only belated remorse after initial claims that he had done nothing wrong, are consistent only with that attitude.
And at paragraph 18 in a dictum which is relevant to the minimum term aspect in your case Gault P said this:
It is all to easy, because of the frequency with which appalling sexual abuse of children is exposed, to come to perceive it as, in a sense, not unusual. That is not to categorise it as in the ordinary range of offending. The repugnance of the community to the treatment of children in this way must not be dulled by its commonness.
[40] Now Mr S weighing all those authorities and bearing in mind that this was continual offending against your daughter over a period of two years, with a requirement imposed on me by the statute to denounce and deter, and with the aggravating factors I have mentioned, I consider that a sentence of eight years is appropriate. There are no mitigating factors which entitle you to a reduction of that as a start point. Relevant to that comment I note your denial, your forcing your daughter to give evidence against you at trial, with the effect that had on her, and the fact that extradition proceedings had to be commenced against you in Australia.
[41] In reaching that start point of eight years I feel some of the unease or constraints which were articulated by Chambers J in R v T (supra ) but given that this is not a case involving a conviction for rape I don’t consider it appropriate for me to put the start point higher.
[42] On that basis then Mr S on each of the eight charges of sexual violation I sentence you to a term of eight years imprisonment. On the three charges of indecent assault I sentence you to a term of four years of imprisonment. All those terms of imprisonment are to be served concurrently.
[43] I now turn briefly to the minimum term. Despite the fact that your offending took place before the Sentencing Act 2002 came into force, s 152 applies. That provision states:
152 Section 86 not to apply to offender convicted of offence committed before commencement date except for serious violent offender
(1) Except as provided in subsection (2), nothing in section 86 applies to an offender who is sentenced on or after the commencement date for an offence committed before that date.
(2) If an offender is sentenced on or after the commencement date for an offence committed before that date that is a serious violent offence as defined in section 2 of the Criminal Justice Act 1985, section 86 applies.
[44] Sexual violation by unlawful sexual connection is a serious violent offence in terms of s 2 of the Criminal Justice Act 1985. The indecent assault convictions, of course, are not.
[45] Section 86 was amended last year, but the Court of Appeal and R v Chadderton (CA345/04, 6 December 2004) confirmed that where an offender is being sentenced after 7 July for a qualifying offence preceding the 2004 amendment, the former version of s 86 should be used.
[46] In terms of s 86(2) of the former provision I may impose a minimum term if I am satisfied that the circumstances of the offence are sufficiently serious to justify a minimum term of imprisonment longer than the period otherwise applicable under s 84(1) of the Parole Act.
[47] There is ample authority some of which I have already read out, for imposing a minimum term in a case such as this where in particular the victim was your
daughter. I refer to R v M, (supra ) and R v T (supra ). In that latter case of R v T
Gault P said (para [19]):
Offending of the order involved here that generates such consequences (that being a reference to the victim impact report) must never be accepted as ordinary. No more need to be said at this stage because, on any view, this was out of the ordinary range of sexual offending and plainly sufficiently serious to meet the test for a minimum sentence.
There is also the other R v T (supra) where the minimum term was imposed by Chambers J.
[48] Your counsel doesn’t resile from that principle. I am satisfied that the relevant policies and principles of the Act, as they apply to the circumstances of your offending, are sufficiently serious to justify a minimum term which is longer than the one third Parole Act term. I thus impose on you a minimum term of imprisonment of four years.
[49] I also want to make it clear that although I have relied in part on my previous dicta in R v J (supra ) I do not regard the sentence in that case as having the least relevance to your case and I have not used it to reach the figures and start points that I have.
[50] So Mr S in conclusion you are sentenced to terms of imprisonment which will be eight years and you will not be eligible for parole until you have served half of that, - at the end of four years.
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Priestley J
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