R v White HC Auckland CRI 2007-044-3842

[2007] NZHC 2047

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-044-003842

THE QUEEN

v

MURRAY DONALD WHITE

Hearing:         24 August 2007

Appearances: A Pollett for the Crown

W J Spring for the Prisoner

Judgment:      24 August 2007

SENTENCE OF POTTER J

Solicitors:           Crown Solicitor, P.O. Box 2213, Downtown, Auckland

W J Spring, 55 Hurstmere Road, Takapuna, Auckland

R V MURRAY DONALD WHITE HC AK CRI 2007-044-003842  24 August 2007

[1]      Mr  White  you  are  before  the  Court  for  sentence  in  relation  to  sexual offending against two young victims during the period 1987 to 1994.  In relation to the first victim you entered guilty pleas to charges of sexual violation by unlawful sexual connection and indecent assault.  Those offences carried at the time maximum penalties of 14 years and ten years imprisonment respectively.  The offending took place between January 1987 and May 1988.   Your victim was aged three to four years.   In respect of the second victim you entered guilty pleas to two charges of indecent assault for offending between January 1993 and June 1994.   That victim was aged ten to eleven years at the time.   The maximum penalty for those two offences at the time was ten years imprisonment.

Background facts

[2]      You approached the Police and admitted committing indecencies on these two young girls.  That approach was made comparatively recently.

[3]      The  offending  against  the  first  victim  occurred  while  you  were  in  a relationship with her mother.  When you were alone in the house with the victim you took her into the master bedroom and removed her clothes on two or three occasions. You parted her vagina with your fingers and then licked the inside of it.  That is the basis of the sexual violation charge.  On one occasion you removed your penis from your clothing and rubbed it on the outside of your victim’s naked vagina.  That is the subject of the indecent assault charge.

[4]        Your second victim was a daughter of a family friend with whom you lived for a period.  While this girl was ten to eleven she was sleeping in the lounge of the house.   You fondled her breasts with your hand over her clothing.   On a second occasion you fondled her breasts, lifted her underwear and began to kiss her pubic hair.  When you feared she might have woken up, you left the lounge.

[5]        You are aged 37 years.  You are currently serving a sentence of preventive detention for sexual offending which was imposed in 1994.   You have served 13 years of that sentence.   You are in the sex offenders’ unit at Te Piriti.   You are assessed as having a high motivation to change.   You are said to express genuine remorse for your victims and insight into the effects on your victims of your offending.  You are assessed as being of high risk of further offending because of your history of sexual offending.

[6]      You have 43 previous convictions for a range of offending, including nine convictions for sexual offending during 1986 and 1987, and during 1993.  In 1998 you were convicted of rape and attempted sexual intercourse with a girl under 12 in relation to the sister of the first victim.  You were sentenced in June 1988 to five years  imprisonment  for  each  of  those  offences.    At  that  time  you  denied  any offending against the first victim but have subsequently admitted that you offended against her also, in 1987 and 1988.

[7]      The sentence of preventive detention imposed in June 1994 for offending in August 1993 was in respect of yet a further victim.   The sentence of preventive detention was imposed for unlawful sexual connection with a female under 12. Sentences were also imposed of five years imprisonment for indecent assault of a female under 12, five years imprisonment for doing an indecent act with a girl under

12 and seven years imprisonment for attempted sexual intercourse.  Those sentences were concurrent, of course, with the sentence of preventive detention.

Victim impact statements

[8]      I have been provided with victim impact statements from both victims.  The effect on them of your recently admitted offending has been absolutely devastating. Both report that it has led to the breakdown of their relationships with their partners and to shock, trauma and depression.

[9]      You abused a position of trust in relation to each of these two victims.  You took advantage of a situation which enabled you to be alone with the victims in their family homes.  They were particularly vulnerable because of their young ages.  The offending was premeditated.  You have admitted to deliberately becoming involved in relationships with single mothers in order to gain access to young children.  The number, seriousness and nature of your previous convictions are a further seriously aggravating factor.

Mitigating factors

[10]     You entered guilty pleas at the earliest opportunity after these charges were laid.  You confessed to your offending and you show remorse.  This is expressed in a letter dated 21 June 2007 which you have written from the Te Piriti Sex Offenders Unit at Paeremoremo Prison.  You say you accept responsibility for your actions and understand the damage you have done to the lives of your victims.

Purposes and principles of sentencing

[11]     In terms of the Sentencing Act the sentence to be imposed must hold you accountable for the harm you have done both to your victims and to the community by your offending, provide for the interests of the victims of the offences so far as that is possible, denounce your conduct, deter you and others who might be minded to offend in a like manner and seek to protect the community from your offending.

[12]     The Court must also take into account the gravity of your offending, the seriousness of this type of offence and must seek to achieve consistency in sentencing.  The Court must impose the least restrictive outcome that is appropriate in the circumstances.  In that respect I refer to the presumption of imprisonment in s 128B(2) of the Crimes Act in relation to the most serious of the offences, sexual violation.

[13]     The Crown seeks a final sentence of seven to eight years imprisonment on the lead  offence  of sexual  violation  by unlawful  sexual  connection  with  concurrent sentences on the remaining offences.   While initially making submissions for a minimum period of imprisonment, the Crown in oral submissions today did not pursue that sentence.

[14]     Mr Spring for Mr White accepted that a sentence in the range of seven years imprisonment on the lead offence was appropriate.

[15]     Neither the Crown nor the defence referred the Court to any authorities to provide guidance in sentencing.   Both counsel referred to the previous sentences imposed on the prisoner as providing a guide in sentencing.

Authorities

[16]     The sentence to be imposed is not without difficulty because the offending occurred a long time ago.  The prisoner is entitled to be sentenced in accordance with the sentencing regime that applied at the time, not that which is in force today.  The authority is R v Carruthers CA401/94, 10 April 1995.

[17]     My researches  have  provided  some  authorities  which  provides  guidance, albeit limited because of the historic nature of this offending and also because the facts of every case are different.  Previous sentences can only be a guide.

[18]     In R v Burr HC Hamilton CRI 2006-019-3803 13 February 2007 Lang J had to impose sentences for four counts of indecent assault of a girl under the age of 12, and one of indecently assaulting a girl aged between 12-16 years.  The offending was against three complainants between 1978 and 1980.  The offending involved digital penetration and rubbing of the vaginal area.  Against the youngest victim who was aged 9-11, the offender rubbed his penis on her vaginal area and forced her to masturbate him.  Like Mr White he gained access to these young girls through his friendship and a short term relationship with their mother, and in that case, the girl’s

friendship with his own daughter.  Lang J viewed the offending as falling towards the top end of indecent assault cases.  He took into account aggravating factors being the devastating effect on the victims, the breach of trust, the fact that there were three complainants,  that  the  offending  was  repetitive  and  there  was  an  element  of grooming and threats.   There were  also previous convictions on four counts of indecent assault in 1969.  The Judge took a starting point of five and a half years, increased to six years to take account of the previous convictions.   Allowing for mitigating factors he imposed a sentence of four years ten months on the three counts against the youngest victim and concurrent sentences of four years six months on other charges.

[19]     R  v  I  HC  Whangarei  CRI 2003-027-000822,  22  October  2004,  Potter  J concerned offending in 1992 against the prisoner’s step-daughter then aged 8-9. There were two charges of sexual violation by rape, two charges of sexual violation by unlawful sexual connection and a representative charge of indecent assault on a girl under 12 years.  The prisoner had five previous convictions for sexual offending and was assessed as having a high risk of re-offending.   There were aggravating features taken into account, threatened violence, the lasting impact for the victim, abuse of trust and premeditation.  There were some mitigating factors.  The sentence imposed was six and a half years on the rape charges, five years on the sexual violation charge and four years on the indecent assault charge, the lesser penalties to be served concurrently.  The sentencing took place against the background that the starting point for rape prior to 1993 was five years: R v Clark [1987] 1 NZLR 380.

[20]     Another case where the offending was more serious than in the present case, is R v Gardiner HC AK CRI 2004-087-272, 8 December 2004, Frater J.  There were guilty verdicts to single charges of sexual violation by rape, sexual violation by unlawful sexual connection, indecent assault on a girl under the age of 12 and indecent  assault  on  a  girl  aged  between  12-16  years.    The  offending  occurred between 1980 and 1990.   The victim was five years old when the offending commenced.  There were no previous convictions for sexual offending.  There were a number of aggravating features but no mitigating features.  Sentences of ten years were imposed on the sexual violation charges with concurrent terms of two years for each of the indecent assaults.

[21]     With the limited guidance provided by those cases and taking into account the previous sentences imposed on the prisoner for previous sexual offending I turn to consider the appropriate sentences to impose.

Sentencing

[22]     I take as the lead charge the charge of sexual violation by unlawful sexual connection.  The sentence imposed for this charge must take into account the totality of the offending and the fact there were two victims.  It must reflect the aggravating features of the offending to which I have referred above.

[23]     I take as a starting point eight years.  To that I add six months to take account of Mr White’s multiple previous convictions for sexual offending.   That gives a revised starting point of eight and a half years.

[24]     There are mitigating factors to which I have already referred.  They include the guilty plea, the confessions to the Police in respect of offending which had not been  detected  and  co-operation.    The  confession,  however,  is  tempered  by  Mr White’s failure to reveal this offending when the offending in relation to the first victim’s sister was being investigated around 1987.   That  has  had  very serious consequences for the victims of this offending who have had to face the reality of this recently admitted offending much later in their lives.  I allow a discount for these mitigating factors of approximately 25%.  I impose a sentence for the lead offence of six years four months.

[25]     On  the  two  indecent  assault  charges  in  relation  to  the  first  victim,  the sentences are five years to be served concurrently.

[26]     On the first more serious charge of indecent assault against the second victim, the sentence imposed is five years and on the second indecent assault charge, four years.  Both those sentences to be served concurrently with the lead sentence.

Result

[27]     The   effective   sentence   imposed   on    you   is   six    years   four   months imprisonment.

[28]     Please stand down.