R v Weavers CA482/05

[2006] NZCA 384

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA482/05

THE QUEEN

v

NOEL RICHARD WEAVERS

Hearing:         27 February 2006

Court:            Glazebrook, O’Regan and Robertson JJ Counsel:        S C Holt for Crown

I F West for Respondent

Judgment:      1 March 2006

JUDGMENT OF THE COURT

Leave to appeal by the Solicitor-General is granted.  The sentence of 12 months’

imprisonment  is  quashed  and  is  substituted  with  a  sentence  of  two  years’

imprisonment.

REASONS

(Given by Robertson J)

R V NOEL RICHARD WEAVERS CA CA482/05  1 March 2006

Introduction

[1]      The  Crown  seeks  leave  to  appeal  against  a  sentence  of  12  months’

imprisonment  imposed  on  the  respondent  in  the  District  Court  at  Manukau  on

15 November 2005 by District Court Judge Singh after Mr Weavers had been found guilty by a jury on one representative charge of indecent assault on a girl under the age of 12.

[2]      The appeal was advanced on the basis that the sentence was manifestly inadequate   and   did   not   properly   reflect   the   seriousness   of   the   offending. Mr Weavers was granted leave to apply for home detention and that issue was not challenged on appeal.

Factual framework

[3]      Prior  to  the  offending  coming  to  light,  the  respondent  had  been  in  a relationship with the complainant’s mother.  They lived together as a domestic unit.

[4]      The  case  against  the  respondent  was  that  between  12  August  2000  and

11 August 2001 he sexually abused the complainant who was 11.  On one occasion he was said to have gone into her bedroom, bent down over her bed, put his hands under the blanket and began feeling on top of the victim’s clothing around her groin and genitalia.  When she tried to move away he said to her: “You better come over here … open your legs or I’ll hit you.”  He stopped when he heard someone coming.

[5]      About a week later he tried to put his hands down the victim’s pants and on that occasion said to the victim something like: “You had better let me feel you tomorrow”.  On another occasion, the respondent went into the victim’s bedroom, placed his hands up her boxer shorts through the leg opening, touched her over her genitalia with his hand for about a minute during which he said something like: “Stay there or else I’ll strangle you”.

[6]      The case was that this offending had occurred for about a year, as much as two or three times a week and mainly at night when everyone else was sleeping.

Eventually the victim resorted to sleeping in a sleeping bag in an attempt to stop the respondent from touching her.

[7]      Mr Weavers was 44 at the time of trial with no previous relevant criminal history.

District Court sentencing

[8]      The Judge identified the purposes and principles of sentencing which he had regard to and noted in particular:

[6]       When I deal with the aggravating features it will become obvious that offending of this kind is serious, particularly when a vulnerable young person in the position of […] is put to a traumatic experience from a person who is in a position of trust.  You were in the position of a stepfather to her.

[7]       I  now  look  at  the  aggravating  features  of  the  offending.    The aggravating features include the following: Inherent in every indecent assault is an element of violence.  In this case the complainant […] felt scared and embarrassed.   She felt she had no one to go to and complaint about your conduct because of your relationship with her mother.  The harm that you caused to […] is well documented in the victim impact statement.  The harm that she has suffered is likely to be life-long.   Harm such as caused to a young vulnerable person in the position of […], would no doubt adversely impact on her personal growth, social and educational life.  In particular, she has had to go through a Court proceeding during a time close to her examination. That would have adversely impacted on her results.  I note that the jury did not find you guilty in respect of Counts 1, 3 and 4.  At the same time, however, you have acknowledged that on at least two occasions such offending took place.   The stress of having to re-live the account of what happened to her must have been traumatic.  It is obvious from the nature of the  representative  charge  that  it  happened  on  more  than  one  occasion. Clearly in this case there is abuse of a position of trust in that you were a partner to her mother.   This is particularly so given that she was only 11 years of age at the time.  There was an element of premeditation involved, particularly when one has regard to the revised summary of facts.

[9]      The Judge, in discussing the mitigating factors, said that there had been no actual violence used other than that inherent in a charge of this nature and that he had no previous convictions which were relevant.  The Judge noted that there had been an acknowledgement of some wrongdoing to a probation officer.  He also considered matters   relating  to   the   respondent’s   own   background   and   evidence   of   the respondent’s good character.

[10]     The Judge specifically referred to a decision of Hammond J in Berryman v R [1998] HC Hamilton A91-98, 28 August 1998 and also to a decision of this Court in R v Moffat [2000] CA 305/00 2 November 2000.

[11]     He concluded that a term of imprisonment was inevitable and that 12 months was appropriate.

The Crown appeal

[12]     Mr  Holt  argued  that  there  were  two  clear  factors  which  contributed substantially to the sentence being one which was manifestly inadequate:

(a)That the Judge did not refer to the serious and frightening threats made to the victim which were significant aggravating factors substantially raising the criminality of the offending; and,

(b)The Judge erred in identifying the absence of violence (beyond that inherent in the offence) as being a mitigating factor rather than being the absence of an aggravating factor.

[13]     The Crown accepted that there were no guideline judgments with regard to offending of this sort and submitted that cases will turn on their own facts and that minute analysis will seldom be of assistance.   Counsel submitted that a sentence should be tested against an objective assessment of the criminality of the offender measured  against  the  maximum  penalty  and  the  principles  and  purposes  of sentencing enunciated in the Sentencing Act 2002.

[14]     Mr Holt referred to the High Court decision of Berryman and the decisions of this Court in Moffat, R v H CA305/00 2 November 2000, R v B CA436/02 23 June

2003 and R v B CA281/98 12 November 1998.  He argued that, while these decisions were all fact specific, they did assist in determining the appropriate sentencing range for this case.

Respondent’s case

[15]     Mrs West argued that the cases relied on by the Crown were factually more serious than what occurred here and that, although the term of 12 months’ imprisonment was merciful, it was not outside the available sentencing range.

Discussion

[16]     This case is about a mature man, without relevant previous convictions, who was found by the jury to have regularly used an 11 year old girl, who was virtually his stepdaughter, for his sexual gratification over a substantial period of time.   To achieve his ends he made threats.  This was a gross breach of trust.  The complainant was under 12 and this offending happened in her own home and in her own bed, a place which should have been a total sanctuary.

[17]     However the previous decisions are read, and whatever emphases are put on individual facts, it is impossible to conclude anything other than that a sentence of

12 months   was   inadequate.      There   was   no   plea.      There   was   a   grudging acknowledgement of responsibility and still, even in a pre-sentence report, an endeavour to suggest some culpability on the young complainant.   Previous good character becomes a somewhat hollow concept when offending occurs several times a week over the best part of a year.

Conclusion

[18]     This is the Solicitor-General’s appeal and therefore any increase in sentence should be the minimum which is consistent with the total offending and the actual culpability.

[19]     In our view that means a sentence of not less than two years’ imprisonment.

[20]   Leave to appeal is accordingly granted.   The sentence of 12 months’ imprisonment is quashed and is substituted with a sentence of two years’ imprisonment.  The application for leave to apply for home detention was not under challenge and will remain.

Solicitors:

Crown Law Office, Wellington