R v T (CA139/05)
[2005] NZCA 354
•26 July 2005
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA139/05
THE QUEEN
v
T (CA139/05)
Hearing: 18 July 2005
Court: Glazebrook, Randerson and Goddard JJ Counsel: C L Harder for Appellant
A Markham for Crown
Judgment: 26 July 2005
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
(Given by Goddard J)
R V T (CA139/05) CA CA139/05 26 July 2005
[1] On 14 February 2005 the appellant pleaded guilty to a single count of sexual violation by unlawful sexual connection and was sentenced to three years imprisonment. He now appeals against that sentence on the grounds that it is manifestly excessive.
The facts
[2] The victim, who was aged three years at the time of the offending, is the appellant’s daughter. He and the child’s mother had joint custody of the child with a shared regular access arrangement. During Easter 2004 the child stayed with the appellant. When she returned home she disclosed to her mother that “Daddy put his doodle in my mouth”. This was reported to both the Police and CYFS and a search warrant was executed at the appellant’s address. During the search a bag was located containing several pairs of the victim’s underpants (some stained) and three used condoms. A number of pornographic photographs of children were also found, which included photographs of young girls in the 8-13 year age group engaged in a variety of sexual acts with adult men. Some of those photographs were stained.
[3] The appellant, who was aged 20 years at the time, was interviewed by a police officer and admitted that he had placed his penis in his daughter’s mouth on one occasion and that the pornographic photographs and used condoms were his.
[4] He initially pleaded guilty to the charge but was then permitted to change his plea to one of not guilty. Following his arrest and release on remand, he sought counselling assistance and attended on a counsellor on 23 occasions. The focus of these counselling sessions was to work through “a complex set of psychological problems (depressive disorder, social phobia, avoidant personality and historical sexual abuse) that form(ed) the matrix of inadequacy, isolation and depression in which [the appellant’s] sexual offending occurr(ed)”. In February and March 2005 the counsellor furnished two reports advising that the appellant had always been and continued to be very ashamed of his offending and that he accepted his need for
support and treatment to ensure that the offending did not occur again. He was reported as having developed some understanding of what was needed to eliminate the risk of his reoffending and to understand that he needed further treatment to achieve this. The counsellor said that it would be important for him to live in an environment that provided him with structure, social support and safety while he was undertaking treatment, and that his depressive illness should be actively managed with medication.
[5] The appellant pleaded guilty shortly after the dismissal of a pre-trial application seeking to have his confessional statement to the police ruled inadmissible.
[6] At counsel’s request, Winkelmann J, ordered a psychiatric assessment pursuant to s 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, for the purpose of ascertaining whether the appellant posed an ongoing risk to child victims or whether he could safely receive a non-custodial sentence so as to better facilitate his treatment and rehabilitation in the community. The psychiatric evaluation found that, whilst the appellant fulfilled some of the criteria for paedophilia, a definitive diagnosis could not be made as to whether his sexual interest was exclusively focussed on prepubescent children. His difficulties in reading, writing and his lack of educational achievement compounded the difficulty in reaching a definitive conclusion on that. However, his chronological age was not markedly disparate with his intellectual age and he is not suffering from any major mental disorder, process illness or intellectual handicap. The psychiatrist recommended that the risk of reoffending could be reduced in a number of ways, including the appellant engaging in a sexual offenders’ programme and improving his educational abilities. Additionally, he said the appellant needed to address his past use of methamphetamines and other illicit substances and to also address the underlying reasons for this substance abuse (the appellant claimed to have been under the influence of ‘P’ at the time he offended).
[7] The focus on appeal was the starting point from which the sentence was calculated and the amount of discount allowed for the mitigating factors. Mr Harder submitted that the Judge had erred in failing to find that the circumstances of the appellant and of his offending were “rare” enough to warrant the adoption of a starting point of two years imprisonment (referring to the remarks of this Court in R v Tranter CA486/03 14 June 2004, at [95]). Further, that the Judge had erred in allowing her “natural revulsion” to overcome more objective considerations and had failed to place sufficient weight on the momentary nature of the offence and on achieving the least restrictive outcome. Also, that she gave insufficient emphasis to the community’s interest in ensuring the appellant’s rehabilitation at the earliest opportunity, thus failing to strike the appropriate balance between retribution and rehabilitation.
[8] Mr Harder referred to and relied on the decision of this Court in R v Carmichael CA521/94 23 March 1995, in which a two year suspended sentence with supervision and counselling was upheld for sexual violation by rape committed by a 15 year old appellant with borderline mental retardation. The victim, who was the same age, had been violated by the appellant whilst both were living in Social Welfare care. The Court was satisfied that the exceptional circumstances of youth and intellectual shortcoming justified an exceptional response, and that a rehabilitative rather than a retributive approach was in the community’s best interest.
[9] Mr Harder referred also to the decision in this Court of R v M [2000] 2 NZLR
60 and to the starting point of two years imprisonment in the range there suggested of 2-5 years imprisonment. He submitted that the subsequent observations of this Court in R v Tranter, that an upwards adjustment needed to be made for the increase in maximum penalties in 1993 (following R v Edwards CA259/96 3 September
1996), did not affect the lower starting point of two years imprisonment; and that the combination of personal circumstances and circumstances relating to the offending in the appellant’s case should have led the Judge to identify 2-2½ years imprisonment as the appropriate starting point in his case. He suggested that the circumstances warranted the adoption of the lower starting point of two years
imprisonment, notwithstanding that an appropriate upper end of the range for such offending might now extend to seven or eight years imprisonment.
[10] Mr Harder went even further, however, submitting that his suggested starting point of two years imprisonment should be viewed against the possibility of an exception to the presumption in favour of imprisonment in s 128B(2) of the Crimes Act 1961 for offences of sexual violation.
The sentencing notes
[11] In careful and thorough sentencing notes, Winkelmann J first traversed the facts of the offending, then weighed the aggravating and mitigating features and finally discussed the applicable legal principles. In conducting this exercise, she noted the contents of the victim impact statements and also the counselling, psychiatric and pre-sentence reports relating to the appellant. The aggravating features she listed as the “considerable harm to the victim and her family, the gross breach of trust involved and the vulnerability of the victim”. She referred to the mitigating features of the late guilty plea but early confession, to there being only one incident of offending, to the appellant’s remorse and to the fact that he had sought treatment for the issues underlying his offending. She accepted that a significant reduction in sentence was called for, to reflect the fact that the appellant had saved all concerned the stress of a trial notwithstanding the Crown’s submission to the contrary. She took into account the appellant’s age as a mitigating feature but found his personal situation distinguishable from that of the 15 year old offender in R v Carmichael.
[12] In response to Mr Harder’s submission that the offending had been a “fleeting instance … fuelled by consumption of P” Winkelmann J found that, whilst the instance was a “one-off” event, this did not detract from the abuse of trust and harm resulting from the offending. She accepted the Crown’s submission that the offending appeared to be the “manifestation of an underlying and dysfunctional tendency to be aroused by young children” and that it was unrealistic to view it in isolation from the evidence of the bag containing the victim’s underwear and used condoms. As she correctly stated, “to ignore this would equate to sentencing in a
vacuum devoid from reality”. The Judge did not however attach significance to the pornographic photographs found in the appellant’s possession, because of uncertainty as to the significance of those. However, as she astutely observed, “common sense would indicate that those matters are linked”.
[13] The Judge also took into account the need to accord emphasis to the possibility of rehabilitation in the appellant’s case and to strive for the least restrictive outcome appropriate.
[14] In considering what the appropriate sentencing range might be, she referred to and discussed the decisions in R v M; R v Tranter; R v Armistead CA202/98
14 October 1998; and R v Carey CA376/89 23 April 1990. On the basis of the facts she determined that a starting point of five years imprisonment was called for, once the aggravating features were taken into account. She then reduced that sentence by taking into account “in substantial mitigation” the appellant’s lack of previous convictions, his youthfulness, his remorse and the fact that he had sought treatment for his problems. The Judge found these matters entitled him to a reduction in sentence of nine months and that a further discount of approximately 25% was merited to reflect his early confession and late guilty plea. She therefore sentenced him to an effective sentence of three years imprisonment, recommending that he undertake the Te Piriti programme for sex offenders in Auckland prison and a drug addiction programme, and have made available to him ongoing treatment for his depressive disorder and other psychological issues.
Discussion
[15] Although the starting point of five years adopted by Winkelmann J may have been stern in the circumstances, we are unable to accept that the appellant’s case falls into the category of a “rare” case meriting a starting point of only 2-2½ years or that a non-custodial sentence should have been entertained. Nor do we accept that Winkelmann J erred in any of the respects contended for by Mr Harder. The aggravating features of the offending were, as Ms Markham submitted, obvious. The effects on the victim are serious and likely to be long-term. The offending must also be seen in the context of the evidence of the bag containing the victim’s
underwear and used condoms. On that basis, we agree with Winkelmann J that the appellant’s behaviour as not able to be accurately characterised as “a momentary abberation”, notwithstanding it was a one-off incident. Nor is his claim that the offending was fuelled by P consumption in any sense exculpatory.
[16] The effect of the offending on the victim’s mother must also be taken into account and the breach of trust involved was serious. The violation itself, committed as it was on a three year old child, was gross. To denounce it as such is not to allow natural revulsion of such a crime to overcome objective consideration of the appropriate sentencing response.
[17] We are satisfied that Winkelmann J struck the appropriate balance between the need to punish and denounce the appellant’s offending and the need to impose the least restrictive outcome appropriate and to assist in his rehabilitation. She was clearly cognisant of the appellant’s psychological needs and his limitations, and alive to the desirability of his rehabilitation. All of those factors were taken into account by her to the extent possible.
[18] An assessment of the overall correctness of the sentencing decision must necessarily focus on the end sentence imposed. Whilst the starting point of five years might be regarded as stern, the generous overall discount of 40% resulted in an effective sentence that can only be described as unexceptional. In a case such as this, where the sentencer has taken into account all of the relevant considerations and has arrived at an appropriate end result, the route by which the result was arrived at is of less importance, so long as it involves no error of principle. In the present case all of the relevant considerations were taken into account, there was no error of principle and the high starting point was remedied by a very generous reduction.
[19] The identification of appropriate start and end points in the area of sexual violation by unlawful sexual connection, either digitally or of the type involved in this case, is notoriously difficult. Few cases present that are directly comparable in their facts and the sentencing exercise involves a fine balancing of competing considerations. There is no tariff to provide sentencing guidance for these categories
of sexual violation and the best guidance is that iterated by this Court in R v Tranter
at [95]:
Given the variety of mitigating and aggravating factors, we believe it is more helpful to refer to starting points for sentence, assuming conviction after trial, allowing for appropriate adjustments to be made by the sentencing Judge for mitigating and aggravating factors. The range of two – five years referred to in R v M should not be seen as limiting the options available to the sentencing Judge, and both the low point and the high point are conservative. In the light of the increase in the maximum penalty to 20 years for sexual violation involving digital penetration, it would be only in rare cases that a two year starting point would be appropriate, and a starting point in excess of five years may well be appropriate in more serious cases.
[20] That is the guidance that Winkelmann J followed and the effective end sentence that she ultimately arrived at was sound and not manifestly excessive.
[21] Since hearing the appeal, it has been drawn to our attention that the appellant has not yet started any treatment programme in prison, as recommended by the probation officer and the Judge, and it appears that the Department of Corrections may be unable to accommodate his need for treatment prior to May 2006. It is regrettable that the appellant may be unable to receive the benefit of a treatment programme in prison prior to his release unless he is detained for a longer period than he perhaps otherwise would have been. Clearly treatment is in the appellant’s (and society’s) interest but there is little more this Court can do than endorse Winkelmann J’s recommendation already made for the appellant to be enrolled in a treatment programme.
Conclusion
[22] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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