R v T HC Auckland CRI 2004-92-4201

[2005] NZHC 1202

This case has been anonymized

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF VICTIM PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI 2004-92-4201

THE QUEEN

T

Appearances: B R Northwood for Crown
H E Juran for Prisoner

Judgment: 25 May 2005

SENTENCE OF KEANE J

Crown Solicitor, Auckland

R V T HC AK CRI 2004-92-4201 [25 May 2005]

1. Your pre-sentence report recommends, as it inevitably must, that you be sentenced to imprisonment. You have no previous convictions. Until this offending came to light, you were always thought of as a good and responsible man. You have always been in work. Over many years you have supported your partner and cared for her children. You have acted as their father. Your relations with the children have always been affectionate, even your relations with your victim. But your offending has been so sustained and so serious that no other sentence than imprisonment is possible. The fact that you continue to deny your part means also that you must be regarded, as the report describes, as being at high risk of re-offending.

2. The Crown submits that for your lead offences, the sexual violations by rape, the starting point for sentence ought to lie between 14 and 16 years imprisonment. The Crown submits also that you ought to serve a minimum term of imprisonment of two-thirds of the sentence imposed.

3. The Crown points to the factors aggravating your offending. These begin with the age of your victim (between 8 and 12 years), and your relationship with her; then your abuse of her trust. As the partner of her grandmother, in whose home and yours she was living, she was entitled to look to you for protection. She was vulnerable and defenceless. Your abuse of her trust was, the Crown says, extreme.

4. What stands out perhaps even more, the Crown says, is the period of years over which your offending took place. Over five years, between 1996 and 2001, your victim's evidence was, you violated her as many as five to six times a week. Your conduct was so regular, the Crown submits, it had to be premeditated.

5. Your counsel accepts, on your behalf, as he responsibly must, that all those factors the Crown points to as aggravating cannot be denied. He contends, however, that, while your offending was persistent, there is an absence of extreme aggravating features, and that justifies a lesser starting point, 10 to 14 years, and a minimum sentence no greater than one half.

6. You are not, he submits, to be equated, for instance, with your victim's stepfather. His offending was over a shorter span but it was aggravated by rape to the

1. I consider that the starting point for sentence proposed by the Crown, 14 to 16 years, is proper. Your counsel's starting point, 10 to 14 years, does not seem to me to mark sufficiently the seriousness of your offending. I will take a starting point of 15 years. There is only one mitigating feature. This offending apart, you have led what appears to have been an exemplary life. Taking into account that factor, I propose to give you a credit of one year. You will be sentenced for the six violations by rape to 14 years imprisonment.

2. You must also be sentenced for the indecent assaults, which were the indispensable precursor to the rapes. All but the last carry a maximum team of imprisonment of 10 years, the last a maximum term of 7 years. I do not propose to distinguish between them.

3. Usually, for isolated offences, the sentence for indecent assaults of the kind
   you committed lies in the range 6 months to 2.5 years. But, because the assaults you committed were an indispensable part of each violation, and there were so many of them, I will take a starting point of 4 years imprisonment. Allowing you the credit given earlier, the sentence 1 impose on you for those offences is 3 years imprisonment. Those sentences will be concurrent with those for the sexual violations. Your effective sentence remains 14 years imprisonment.

4. The issue remaining is whether a minimum teen of imprisonment should be imposed on you for your lead offences. I do consider that a minimum term is called for. As the Court of Appeal said, in R v T, sustained sexual offending can well call for a minimum sentence, and though your offences were committed before the 2002 Act came into force, they constituted under the Criminal Justice Act 1985 serious violent offending, and a minimum term, it is accepted, can be imposed. Having regard to that sustained in R v T, the minimum term I impose will be 8 years.

   P.J. Keane J