R v VH
[2013] NZHC 2463
•20 September 2013
NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2012-088-001623 [2013] NZHC 2463
THE QUEEN
v
VH
Charges:
Plea:
Rape x1; Sexual violation by unlawful sexual connection x6;
assault on a child x2
Guilty
Appearances:
M B Smith for Crown
S K Ellis for PrisonerSentenced:
20 September 2013
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Whangarei
Copy to: S K Ellis, Whangarei
R v VH [2013] NZHC 2463 [20 September 2013]
[1] VH, you have pleaded guilty to and are for sentence on six counts of sexual violation by unlawful sexual connection, one count of rape and two counts of assault on a child. There are two indictments before the Court. On the first indictment the Crown has offered no evidence in relation to counts 1, 3, 5, 8, 10 and 12. You are discharged in relation to those counts.
[2] The maximum sentence for the charges of sexual violation by unlawful sexual connection and rape is 20 years’ imprisonment. That is the sentence that applied at the time of your offending. After you entered the guilty pleas you were convicted and given the appropriate warning under the three strikes regime.
[3] Your sexual offending was against two victims. Both are related to you. The first victim is now 30 years old. In 1993 or 1994 when she was about 12 years old she went to live with you and your wife. During the short time she was living with you, you offended against her sexually.
[4] The first incident occurred while she was asleep in the lounge area with her cousins. She felt you touching her legs. You rubbed her breasts, kissed her and then inserted your fingers into her vagina. You shushed her when she objected.
[5] The second incident occurred a few days later when the victim was sleeping on a bottom bunk. Again, you went to her, took her underpants off and inserted your fingers inside her vagina.
[6] The count of rape occurred when the victim was again in her bedroom. You laid her down on the floor, removed her pants and underwear. You then inserted your fingers into her vagina, got on to your knees, rubbed your penis up and down her vagina and then put your penis in her vagina. While raping her you put your hand over her mouth telling her to shush. When you were finished you told her not to tell anyone.
[7] The next two incidents of unlawful sexual connection happened when the victim was in the washhouse. You came in, and closed the door. You made her lie
down on the floor and took her clothes off. You opened her legs and began rubbing her vagina. You put your head between her legs and began licking and sucking her vagina. You performed oral sex on her, before inserting your fingers into her vagina again. At this time, you would have been 26 or 27 years old, and at least 14 years older than her.
[8] The offending against the second victim occurred some 15 or 16 years later in
2010, when she was staying with you. At the time she was about 10 or 11 years old. By this time you were in your early forties. The first incident occurred when she was in bed. You came into her bedroom and began kissing her on her lips and face. You put your hands down her pants and began playing with her vagina before again penetrating her vagina with your fingers.
[9] The second count of unlawful sexual connection with the second victim is a representative count. Between 2009 and 2011 you regularly entered the bedroom that she was in at night. You would kiss her, touch her breasts and legs and then touch her vagina. You would then insert your fingers into her vagina. This happened at least once a week while the second victim was living with you.
[10] The last counts are of assaults on children.
[11] On 10 May 2012 you were located and spoken to by the police about the offending. When you were spoken to you initially declined to comment.
[12] VH, at the age of almost 46, you have a number of previous convictions but nothing for anything as serious as these charges to which you have pleaded. There is, however, a conviction from 2006 relating to a male assaults female and you are presently serving a sentence for a further wounding with intent conviction.
[13] The probation report records you are unable to explain your actions but that you expressed empathy and insight into the effects of your offending on the victims, having been abused yourself as young boy. You have also said you are willing to complete counselling in regards to your own abuse and sexual offending and have expressed regret for your actions towards the victims. You are, however, assessed as
a risk of harm to others until such time as you have satisfactorily completed counselling to address your offending.
[14] In sentencing you I am required to take account of the purposes and principles of the Sentencing Act. The sentence must hold you accountable for the harm done to the community by offending of this nature. It must also promote in you a sense of responsibility for and acknowledgement of that harm. The sentence must also provide for the interests of the victims of the offending. The principal victims were the two young girls at the time. Offending such as this inevitably affects them and their relationships in the future. The sentence must also denounce offending of this nature and to the extent possible, deter you and others from committing such offending. The sentence should also protect the community and, to the extent possible, assist in your rehabilitation and reintegration into the community at the end of your sentence.
[15] The Court is also required to take into account your culpability, and the seriousness of this type of offending, which is reflected in part by the maximum term fixed by Parliament of 20 years, and to impose a sentence consistent with other sentences imposed by this Court for similar types of offending.
[16] Both counsel agree the leading authority and the basis upon which the Court must approach your sentence is the Court of Appeal decision of R v AM (CA27/2009).1
[17] The Crown submits that having regard to that case,2 your offending falls into band 3, described in that case, which requires a sentence of between 12 and 18 years as a start. The Crown submits the starting point in your case should be in the region of 14 to 16 years.
[18] Ms Ellis properly acknowledges R v AM is the leading authority and accepts for present purposes your offending fits within the upper end of band 3 in that case
1 R v AM (CA27/2009) [2010] 2 NZLR 750.
2 In R v Jeffries [2012] NZCA 608 the Court of Appeal confirmed that it is appropriate to apply
R v AM in cases of historical offending.
so that a range of 14 to 16 years is an appropriate starting point. She argues for the lower point of 14 years.
[19] I agree that band 3 of R v AM is appropriate in your case.
[20] As an example of cases where band 3 has been applied and is appropriate the Court of Appeal referred to incidents of particularly young victims or extensive periods of offending. The cases cited as examples of offending in band 3 detail offending against young children, often relatives or children in the care of the offender.
[21] I consider the following factors are relevant to your culpability in the present case. First, the vulnerability of the victims. Both victims were vulnerable because of their young age at the time of your offending against them and the disparity between their young age and your age. The first victim was about 12. You were 26 or 27. The second was about 10 or 11 and you were in your early forties. There was a large age gap.
[22] The scale of your offending is also relevant. You committed a number of offences against the victims, particularly in relation to the second victim. You offended against her regularly for up to two years between 2009 and 2011. It is also relevant that there were the two victims.
[23] Next, your offending involved a breach of trust in each case. The offending was against young girls, related to you, who were placed with your family for care. It was your responsibility to care for and to look after those girls. Instead of that you abused them to satisfy your own needs.
[24] I also take into account the harm to the victims. Both victims have provided victim impact statements to the Court. One says that before she lived with you and your partner she was a loud, happy, confident, little girl but ever since living with you she has changed. She has become a very angry girl and takes her anger out on others. She feels because of the abuse you inflicted she has changed. She is wary of
people and strangers. She does not feel safe in social situations and has lost her confidence.
[25] The first victim confirms that the effect of your offending on her during her life has been considerable. She was emotionally damaged, contemplated and attempted suicide. She has been unable to trust anyone and has been unable to have long-term relationships. A number of past relationships were ruined because of a lack of trust and anger she felt towards males. It was not until about the age of 25 that she was able to take control of her life. She also feels guilty for not being able to protect the second victim.
[26] Having regard to the above features of your offending, and the purposes and principles of the Sentencing Act, I take as a start point for sentencing you 14 years’ imprisonment.
[27] There are no personal aggravating features that require a further uplift. I turn to mitigating features. The probation reports suggests an element of remorse as displayed by your empathy for the victims. I give you a credit of six months for that remorse.
[28] The major mitigating factor is your guilty pleas. The Crown submits the guilty pleas were not entered early so that no more than 10 per cent should be allowed as a reduction. However, I accept there is some force in Ms Ellis’ submissions that offending of this nature is difficult to accept and concede for the reasons she has set out. There are obvious advantages to the victims in not being revictimised or retraumatised by having to give evidence at trial. Despite that, I am not prepared to allow the 20 per cent that she argues for. I allow a discount of between 10 and 15 per cent for your guilty plea.
[29] That leaves a sentence of 11 years, six months, which I am satisfied is required to reflect the totality of the offending in this case.
[30] That then leaves the issue of a minimum non-parole period. The Crown argue for a minimum non-parole period greater than a third. While I note Ms Ellis’
submissions the sooner the potential parole date the sooner you will get treatment for your offending and disorder, in reliance on R v Parker, there are other relevant considerations.3
[31] As the Court in R v AM noted, in cases of this nature imposition of a minimum period of imprisonment of at least half the nominal sentence is often routine.4 In the present case I particularly take account of the need to hold you accountable for the harm done to the victims and community by offending of this nature, and to denounce such conduct. Relevant to that is the fact your offending has spanned a considerable period. Some of the offending is recent while some is
historical.
[32] While I accept the protection of the community is likely to follow from successful counselling and your addressing your issues, which will only be applied towards the end of the sentence, against that a minimum period will ensure the protection of the community for the time that you remain in custody. On balance I consider a minimum term of imprisonment is required in this case to meet the considerations of s 86 of the Act. I fix a minimum term of 50 per cent, namely five years, nine months’ imprisonment.
[33] VH please stand. On the charge of rape you are sentenced to 11 years, six months’ imprisonment, to be cumulative on the existing sentence you are currently serving.
[34] On the unlawful sexual connections you are sentenced to nine years to be served concurrently with the sentence for rape. On the charges of assault you are sentenced to three months’ imprisonment, again to be served concurrently.
[35] You are to serve a minimum term of five years, nine months. Stand down.
Venning J
3 R v Parker [2013] NZHC 2075.
4 R v AM, at [156].
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