R v T CA319/01

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR PARTICULARS IDENTIFYING THE APPELLANT

IN THE COURT OF APPEAL OF NEW ZEALAND

CA319/01

THE QUEEN

T (CA319/01)

Hearing:	5 December 2001
Coram:	McGrath J Doogue J Gendall J
Appearances:	V C Nisbet for Appellant J M Jelas for Crown
Judgment:	5 December 2001

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

The appellant was found guilty by a jury of seven crimes involving historical sexual offending occurring between 1981 and 1986. They were for indecent assault (3), sexual violation by unlawful sexual connection (digital penetration of the vagina) (1), rape (2), and sexual violation by unlawful sexual connection (being oral sex) (1). The victim was aged between 5 and 12 years during the period of offending and was the daughter of the appellant’s then de facto partner. The appellant appeals against the sentence of 7 years imprisonment imposed in the District Court at Wellington.
The offending involved repetitive indecent assaults of the child when she was between the ages of 5 and 10, and thereafter forced oral sex, digital penetration of her vagina, and rape on two occasions, all occurring over one night in 1986.
The general grounds for appeal are that since the offending ceased in 1986, the appellant has reformed and adopted a responsible lifestyle as evidenced by his stable relationships with his present partner and family, and his work and social history. Extensive references and other submissions were received by the sentencing Judge as to the appellant’s character. He is now 48 and is described as an excellent father, and his children made poignant submissions. There were previous convictions although generally of a nuisance nature, disclosing a significant problem with alcohol. More recently, whilst not having an unblemished record, his convictions related to blood alcohol and driving matters and relatively minor other offences in 1999. Despite the impressive references as to the personal characteristics of the appellant the Judge concluded that society’s abhorrence at this type of offending, with terrorisation of the victim over a lengthy period, and the need to deter others, required a significant sentence of imprisonment.
These crimes were pre-1993 offending where the “starting point” for contested rape was five years; R v Clarke [1987] 1 NZLR 380. On sentencing in the District Court counsel for the Crown submitted that had the offending been disclosed at the time of its occurrence, ending in 1986, a term of seven years imprisonment at least would have been warranted. The Judge regarded the aggravating features being multiple offending by a 33 year old man in a position of trust in respect of a vulnerable young child, as requiring a higher starting point than the five years “tariff” and agreed with the Crown that a term of seven years imprisonment was appropriate.
The matters that were impressed upon the Judge on sentencing were again urged on us on this appeal. But the primary submission made to us, however, was that the Judge ought to have made greater allowance for the passage of time since 1986, given the Crown’s position that a term of seven years would have been warranted in 1986.
In his written submissions counsel for the appellant emphasised the suffering the appellant’s present family and children are experiencing. The thrust of counsel’s submissions was that, the appellant having overcome earlier proclivities and settled into a normal, responsible family life, a sentence less than seven years imprisonment should be imposed.
In determining the extent to which an offender should be afforded leniency for the rehabilitation, after sentencing for historical complaints is dealt with by this Court in R v Tutty [1998] 3 NZLR 165. There this Court said (at pages 168-169):
“While, therefore, a delay between the offending and sentencing is not in itself significant, matters which have transpired during that time may be pertinent. Thus, if the offender has not offended since the offending he will have a longer unblemished record to put before the Court. Similarly, his conduct over the years may count in his favour. He may have faced up to and acknowledged his problem, demonstrated a genuine remorse, obtained counselling or treatment where necessary, or in some other way sought to reform himself and atone for his earlier misdeeds. He may have obtained assistance for his victim. He may have made amends in many ways and be able to show that he has led an exemplary life since his early offending. In all such cases it is these factors rather than the lapse of time in itself which will be taken into consideration on sentencing. While in such circumstances the need for deterrence in the case of the offender him or herself may have diminished or disappeared altogether, the need for a sentence which will serve as a general deterrent to such offending remains. So, too, the need for a sentence to mark society’s denunciation and abhorrence of such offending is unaffected.”
In that case the appellant had denied the offending, showed no understanding or remorse and managed to cover it up for a lengthy period of years. The Court was of the view that lapse of time could not therefore of itself attract a more lenient sentence.
In the present case, factors relating to the appellant’s rehabilitation and absence of convictions of a similar nature over the past 15 years were taken into account by the Judge. But he regarded those matters as being counterbalanced by the aggravating factors of particularly serious multiple indecencies over a five year period upon a young girl, with the offending including two rapes, involving a breach of trust and grave harm to the child. The Judge observed that the appellant could not be given credit for remorse or contrition given his continued denial of the offending and acknowledged that the appellant’s family became extended victims as a consequence of long past events.
The real issue is whether some additional allowance or credit should have been given to the appellant from the starting point of seven years imprisonment, said by the Crown to be appropriate in 1986, for the passage of time alone, and the appellant’s rehabilitation in the interim.
Given the stance of the Crown at sentencing we think the term of seven years imprisonment required some adjustment to reflect the general behaviour and good conduct of the appellant in his work and family lifestyle over a significant period of time. If, as it was acknowledged, seven years would have been appropriate in 1986, some further allowance for intervening events was warranted. Because of a refusal to acknowledge the offending, such allowance could not be great, but some was warranted. In our view a term of six years imprisonment was appropriate. It does not fall into the category of being a more lenient sentence simply by reason of the passage of time, but would more properly reflect the applicable range at the time, the overall gravity of the offending, and the efforts at personal rehabilitation in the meantime.
Accordingly the appeal is allowed and the sentence of seven years imprisonment on each of the seven charges is quashed and a term of six (6) years’ imprisonment on each charge is substituted.
The order of the District Court Judge that publication of the appellant’s name be suppressed is confirmed.

Solicitors

Crown Law Office, Wellington

[2001] NZCA 430

5 December 2001