S v R

[2017] NZHC 205

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-141

CRI-2016-409-142 [2017] NZHC 205

BETWEEN

S

Appellant

AND

THE QUEEN Respondent

Hearing:	14 February 2017
Appearances:	M Starling for the Appellant N Pointer for the Respondent
Judgment:	20 February 2017

JUDGMENT OF MANDER J

[1]      The appellant, S, was sentenced to 10 years and six months imprisonment on charges of sexual offending against his 10 year old daughter and unrelated charges of violence relating to his former partner.1   He appeals against that sentence on the basis the sentencing Court erred by failing to afford sufficient credit to him for his self- reporting of the sexual offending.

Background

[2]      S pleaded guilty to a representative charge of rape, four charges of unlawful sexual connection with a female under 12 years, and a further charge of raping a female under 12 years.  This offending occurred over a period of some 11 months when the child was in  S’s care.   It  involved three specific rapes  when he had

unprotected  sex  with  his  daughter,  and  four  occasions  when  he  had  unlawful

1      R v S [2016] NZDC 22644.

connection which involved instances of simultaneous oral sex on each other.  This very serious offending involved a gross breach of trust against a very young and particularly vulnerable girl.   Unsurprisingly, the impact on the child has been profound.

[3]      The  domestic  violence  charges  relate  to  two  separate  events  where  S assaulted and  threatened his former partner.   The violence included  placing the victim in a stranglehold and damaging property.

District Court sentencing decision

[4]      Judge Garland considered the sexual offending fell within Band 3 of the guideline judgment of the Court of Appeal’s decision in R v AM.2   The Judge took an uncontested starting point of 15 years imprisonment.   It was accepted that S was entitled to a full discount for his early guilty plea in relation to the sexual offences.

[5]      During the course of the sentencing hearing S’s counsel advised that his client had disclosed this offending himself.   The Crown was unaware of that circumstance, however, after making inquiries it was confirmed to the Court that S had self-reported his sexual offending.   Judge Garland acknowledged that this demonstrated special regret and remorse which justified a further discount of five per cent.  An overall discount of 30 per cent or five years imprisonment was applied, resulting  in  an  effective  end  sentence  for  the  lead  rape  charge  of  10  years. Concurrent  sentences  of  eight  years  were  imposed  on  each  of  the  charges  of unlawful sexual connection.

[6]      In relation to charges of male assaults female, intentional damage, threatening behaviour, assault, and threatening to kill, a sentence of six months imprisonment was imposed cumulatively.   The Crown had initially sought the imposition of a minimum term of imprisonment, however, because S self-reported his offending it acknowledged  that  a  minimum  term  was  not  necessary.    Judge  Garland,  while initially minded to impose a minimum period of imprisonment, accepted that was not

necessary.

2      R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.

The appeal

[7]      S’s appeal is brought on the single ground that the credit afforded to him for his self-reporting of the sexual offending was insufficient.   He submitted that his disclosure of this very serious sexual offending against his 10 year old daughter indicated in the most direct manner his remorse, and that by so doing he has enabled his victim to receive help.  It was submitted the victim avoided the anguish of having to report the offending herself, the associated fear of not being believed, and having to give evidence at trial.  S submitted that he was entitled to a total credit of 50 per cent from the starting point of 15 years imprisonment.

Approach to sentence appeal

[8]      An  appeal  against  sentence  may only be  allowed  if  the  appeal  Court  is satisfied there has been an error in the imposition of the sentence, and that in such an event a different sentence should be imposed.3    Only if the sentence is manifestly excessive should there be interference with the exercise of the sentencing Judge’s discretion.  This Court will not intervene if the sentence ultimately imposed is within the range that can properly be justified on accepted sentencing principles.  The focus must be on the final sentence rather than the process by which that sentence is reached.4

Circumstances of disclosure

[9]      S’s self-reporting of the sexual offending was only brought to the attention of Judge Garland during the course of the sentencing hearing.  The summary of facts makes no reference to it, and the Crown was required to make immediate inquiries to clarify the position.  This issue was potentially of very significant importance.  The ad  hoc  way in  which  the  matter  was  raised  and  the  information  on  which  the sentencing Court was required to deal with the issue was unsatisfactory.  There is no dispute  that  a  defendant’s  self-reporting  of  criminal  behaviour  is  an  important

mitigating factor.   Whether considered under the wider rubric of remorse or as a

3      Criminal Procedure Act 2011, s 250.

4      Larkin v Ministry of Social Development [2015] NZHC 680; Ripia v R [2011] NZCA 101 at

[15]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

separate mitigating factor in its own right, it would likely justify a significant discount.

[10]     I have had the benefit of being provided with further details regarding how S came to disclose the sexual offending.   At the time of his disclosure S was on custodial remand on the unrelated domestic violence charges.  On 29 May 2016 he wrote a letter to prison authorities which made reference to him having committed “child sex crimes with my own family... she was under 10 years old”.  The letter, a copy of which was provided to me, is focussed on S’s request that appropriate arrangements be made in prison for his protection.  He refers to having previously disclosed to a corrections officer the sexual offending, about which he provides no further detail in this letter.

[11]     It is unclear whether any steps had been taken as a result of S having earlier spoken to this prison officer.   The Crown advised that S’s letter of 29 May was forwarded to the police on 8 June.  On 15 June S wrote to his mother appraising her of having confessed to  “having sex  with” her grandchild.   He refers to having admitted to this some two weeks prior and that he was waiting for detectives to come to the prison to charge him.  He speaks of his remorse and his need to get help.  I understand this letter was forwarded by the grandmother to S’s ex-partner, and the mother of his victim, who in turn made it available to the police on 23 June.

[12]     In the meantime, as a result of prison authorities having contacted the police, steps had been taken to commence an inquiry into S’s disclosed sexual offending. This resulted in arrangements being made for his daughter to be interviewed on 30

June.  The victim made comprehensive disclosures to the specialist child interviewer. On 8 July S was interviewed by police.  He substantially admitted the incidents that had been disclosed by his daughter during the evidential interview, although there were some incidents which he denied.  In any event, after the assignment of counsel he pleaded  guilty on his second  appearance before the District Court, which is accepted was at the first reasonable opportunity.

[13]     It is likely that because the issue was raised for the first time in Court, Judge

Garland did not have the benefit of the authorities that have been referred to me

relating to the approach to be taken to the adjustment of sentence as a result of an offender self-reporting their offending.

The approach to self-reporting as a mitigating circumstance

[14]     On  the  appeal  both  S  and  the  Crown  referred  to  the  Court  of Appeal’s judgment in  R v Sanday.5     The circumstances  of that  case were unusual.   The appellant who was an employee of a trust which ran a day service centre for the intellectually handicapped was convicted of raping a severely intellectually disabled woman who required 24 hour care.  Her only means of communication was a high pitched scream.   The offending occurred between July and November 1998.   The

appellant self-reported the offence in February the following year.

[15]     The Court of Appeal considered that a starting point of 11 years would have been justified after trial.  It then addressed what was considered to be the nub of the appeal, namely what allowance should be given in respect of an offence which is totally self-referred and which, as it was described in the judgment, every allowance for remorse, cooperation, and factors associated with a plea of guilty must be available.  The Court of Appeal was satisfied that in the unique circumstance of that case a very substantial deduction would be justified.  The Court considered at least a third should be allowed for what it considered to be powerful factors supporting a discount.

[16]     The appeal was allowed.   A sentence of imprisonment of seven years was substituted.  This represented a 36.5 per cent discount from the starting point of 11 years.   In adopting this course the Court of Appeal discussed their rationale for recognising self-reporting as a significant mitigating circumstance.  Roberston J, in delivering the Court’s judgment, observed:

[13]      Mr McNaughton in a commendably succinct submission argued that there is a strong public interest in encouraging offenders to approach the police  and  confess  to  crimes  and  submitted  that  offenders  considering whether to approach the police could be dissuaded from doing so because of the perception that they will be dealt with just as harshly as those offenders located as a result of police inquiries who are forced to acknowledge their guilt when confronted with the evidence. He noted that in this case that apart

5      R v Sanday CA146/99, 29 July 1999.

from the appellant's confession there was no evidence against him. There had not been a complaint. There was no medical evidence which indicated that the offending had occurred and that if the appellant  had chosen to remain silent the offence would never have been detected.

[17]     Counsel also referred to a decision of this Court, D v Police, which followed the Court of Appeal’s approach in R v Sanday.6     Nicholson J allowed an appeal against sentence, partially because insufficient credit had been afforded to the appellant for mitigating factors which included the self-reporting of the rape of his daughters who were aged between 14 and 16 years at the time of the offending.  The sentencing Court had started with a sentence of nine years imprisonment which it

reduced by three years (33 per cent) for the guilty pleas, and a further two years (an additional 33 per cent) to reflect the mitigating factors, including the self-reporting, the views of the victims who had forgiven their father, and his participation in a constructive restorative justice group conference.

[18]     The end sentence of four years imprisonment was, however, further reduced by Nicholson J on appeal to one of three years. That reduction, however, was largely based on the perceived need to give greater credit for the very positive outcome of a restorative justice group conference and the assistance that it had given to the victims to heal the hurt from the offending, and the benefit to the family as a whole.  Neither daughter wished their father, who they had forgiven, to be imprisoned or to be charged at all.

[19]     In the course of delivering his judgment, Nicholson J observed that victims of unreported sexual abuse would likely carry the trauma of their abuse for the rest of their lives without the opportunity to receive assistance to address that trauma.   It was considered to be in the interests of victims of sexual abuse that the offending surface and be dealt with.   The Judge considered that if in sentencing offenders insufficient allowance was made to encourage and foster the self-reporting of sexual

offending, the Courts would be “turning their back on the plight of those victims”.7

[20]     Nicholson J considered that a similar range of credit should be given in appropriate cases to sexual offenders who report their own offending as is provided

6      D v Police (2000) 17 CRNZ 454.

7 At [18].

to those offenders who assist law enforcement by giving information to the police and assistance to the authorities in detecting, prosecuting and convicting other offenders.  To provide similar credit to sexual offenders would assist the police and the Courts in achieving the goals of dealing with past offending, helping victims of that  offending,  and  also  preventing  further  offending,  thereby  sparing  further

victims.8

[21]     Finally,  in  R  v  Lynch,  Rodney  Hansen  J  considered  that  a  voluntary confession of blackmail which came to light as a result of the offender contacting the police, and which would otherwise have gone undetected, was considered a significant mitigating factor for which it was acknowledged a “very substantial allowance may be appropriate”.9    The sentencing Court in that case dealt with this feature as part of the defendant’s “exceptional remorse”.  The voluntary confession and associated genuine expressions of remorse, coupled with the defendant’s mental health  issues  and  the  express  wishes  of  the  victim  for  clemency,  resulted  in  a

deduction from a starting point of five years imprisonment to one of two years.  A further full discount of 33 per cent was then applied following the Court of Appeal’s decision in R v Hessell which had application at that time.10

Decision

[22]     The cases of R v Sanday and D v Police, on which S relies, have some truly unique features. In R v Sanday, because of the victim’s inability to communicate, it is very unlikely the offending would ever have come to light.  Similarly, in D v Police, the victims did not think that their father should have “turned himself in”.   They spoke of missing their father and said they had forgiven him.  There are limitations to the extent to which a victim’s views will influence sentencing, but additionally in that case there had been a restorative justice group conference which had resulted in very positive outcomes, not just for the victims but the family as a whole, which

could be traced to the appellant’s self-reporting.

8 At [20].

9      R v Lynch HC Hamilton CRI-2010-019-3449, 9 September 2010 at [41].

10     R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [28].

[23]     The Crown submitted that an issue arose as to whether S’s actions could be truly classified as self-reporting because he had not gone to the police himself, and that in comparison to the cases cited in argument, it cannot be said the offending would not ultimately have gone undetected.

[24]     Each case must be assessed on its own facts and on the basis of the particular circumstances in which the offender reported his own criminal conduct.   In the present case S was a remand prisoner.  He confided in a prison officer.  At the time he wrote the two letters in which he referred to the sexual offending against his daughter no other information had been received by the police.  It was as a result of making those disclosures that the police approached the victim’s mother and arrangements were made for the child to be interviewed.  It is apparent at the time S made his disclosures he fully expected to be charged with the crimes that he had revealed he had committed.

[25]     There was, of course, no guarantee that S’s daughter would not, as she grew older, find herself in a position whereby she could disclose what had happened to her at the hands of her father.   Sadly, however, as was noted by Nicholson J in D v Police, the very great majority of childhood sexual abuse goes unreported.  It is often the case that victims must deal with the trauma of that abuse for the rest of their lives alone, without support and assistance.   I accept the premium to be placed on the benefit arising from offenders self-reporting cannot be underestimated.  As a result, the Courts have recognised the need to provide an incentive to encourage offenders to approach police and confess to such offending by extending significant credit as part of the sentencing exercise.

[26]     Two of the cases to which I have referred concern sentences that were passed prior to the mandated approach to sentencing which requires the Court, after taking into account aggravating and mitigating factors relating to the circumstances of the offending and those personal to the offender, to apply as a final discrete step the

discount for a guilty plea.11    The mitigating factor of self-reporting, whether as a

discrete mitigating feature by itself or as part of the assessment of a defendant’s

11     R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [14], Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73]; R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.

remorse, is to be assessed prior to any discount for a guilty plea.   In the cases to which I have referred in this judgment the deduction for mitigating features have either been approached on a global basis or on the basis of the fuller discount of 33 per cent for an early guilty plea which at that time was required to include remorse.  I note, however, that Rodney Hansen J, in R v Lynch, considered the voluntary confession  to  be  of  such  significance  that  he  treated  it  as  a  serious  matter  of mitigation distinct from the discount for the guilty plea.

[27]     Judge Garland applied an overall discount of 30 per cent which comprised a five per cent credit for self-reporting and 25 per cent for an early guilty plea.   In reducing the sentence from one of 15 years to 10 years imprisonment a 33 per cent discount was actually applied.  Furthermore, because the sentencing Judge dealt with the two mitigating discounts together as opposed to first deducting the five per cent discount for the self-reporting from the starting point of 15 years and then applying the 25 per cent discount, an additional discount resulted.  An effective credit of 11 per cent for the self-reporting was extended to S.

[28]     There  is  a  clear  benefit  both  to  the  victims  of  sexual  abuse  and  the community in promoting self-reporting by sex offenders of their offending.   The Court of Appeal has recognised that it is appropriate in sentencing offenders to afford a  meaningful  discount  which  will  provide  some  incentive  to  an  offender  to voluntarily disclose such offending.

[29]     In the present case I do not consider the discount provided by the sentencing Court gave adequate recognition to that mitigating factor.  What on its face appeared to be a deduction of five per cent amounts to no more than recognition of the presence  of  exceptional  remorse  justifying  the  application  of  additional  credit beyond the remorse implicitly demonstrated by the entry of a guilty plea.

[30]     In my view, self-reporting by an offender of sexual offending, particularly on children, in respect of offending which would otherwise remain unknown, at least into the foreseeable future, should be marked by a significant and discrete credit in its own right.  The circumstances of the self-reporting need to be assessed with care. There may be situations where it is inevitable the offending will come to light.  The

offender may become aware of suspicions having been raised or the risk of detection for various reasons may have increased.   As I have already noted, each case will depend on its individual circumstances.

[31]     In  the  present  case  there  is  nothing  in  the  information  which  has  been provided to me which would indicate that S’s 10 year old daughter would likely disclose her father’s offending.  The offending had taken place over the course of a

10 month period, with the last incident having occurred, at the latest, some four months prior to his disclosure.  It appears that S’s self-reporting of his sexual abuse of his  daughter arose from  within  rather than  as a result  of  any outside factor influencing his decision to admit the offending.

[32]     As with the assessment of the appropriate credit to be extended for a guilty plea, the allowance which can and should be given requires an evaluation of all the circumstances in which the self reporting occurred and the resulting benefit to the victim and the community from that initiative.12    Sentencing is an evaluative task which is subject to the overarching objective of ensuring that the outcome of the process results in an appropriate sentence.13   The deduction to be made as part of the sentencing exercise to recognise an offender’s disclosure will also be influenced by that consideration.

[33]     I consider S should have been afforded a 20 per cent deduction from the starting point of 15 years imprisonment to recognise that his sexual offending was only detected as a result of his self-reporting.  Applying this discrete discount from the starting point before the 25 percent credit for his guilty pleas results in a sentence of nine years imprisonment. Adding the six month cumulative term of imprisonment for the unrelated domestic violence charges to which there is no challenge results in an end sentence of nine years and six months.

[34]     In sentencing S, Judge Garland resiled from his initial intention to impose a minimum term of imprisonment.  The reason for him adopting that modified course

was as a result of the belated information received by the Court relating to S’s self-

12     Hessell v R, above n 11, at [70] and [74].

13     Hessell v R, above n 11, at [43] and [77]; R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at

[53] and [54].

reporting.  I have given close attention as to whether, as a result of my modification of  S’s  effective  sentence,  I  should  revisit  the  approach  to  the  imposition  of  a minimum term.  On balance, I am satisfied that course is not necessary.

[35]     Accordingly, the appeal is allowed. The total term of imprisonment of 10 and a half years imposed on S is set aside and substituted with one of nine years and six months.    On each  charge of sexual  violation by rape the sentence of  10  years imprisonment is set aside and replaced with a sentence of nine years imprisonment. On each charge of sexual violation by unlawful sexual connection the sentence of eight years imprisonment stands.

[36]     The individual sentences imposed in respect of the charges relating to the domestic violence remain unchanged, as does the protection order imposed pursuant to s 123B of the Sentencing Act 2002 in favour of S’s ex-partner.  I formally record that because publication of S’s name or details would likely lead to the identification of his daughter, an order was made in the District Court for final name suppression of  him,  and  for  the  suppression  of  his  address  and  any  identifying  particulars pursuant to s 200 of the Criminal Procedure Act 2011.

Solicitors:

M Starling Barrister, Christchurch

Raymond Donnelly & Co, Christchurch