Savage v The Queen
[2016] NZHC 1330
•20 June 2016
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-409-000020 [2016] NZHC 1330
BETWEEN BRETT ALAN SAVAGE
Appellant
AND
THE QUEEN Respondent
Hearing: 14 June 2016 Appearances:
A G James for Appellant
AMS Williams for RespondentJudgment:
20 June 2016
JUDGMENT OF GENDALL J
Introduction
[1] On 2 March 2016, Judge Farish in the District Court sentenced the appellant to nine years’ imprisonment on 10 charges of sexual offending. These charges can be categorised as follows:
(a) Two representative charges of sexual violation by rape, each carrying a maximum penalty of 20 years imprisonment.1
(b)Five charges of sexual violation by unlawful sexual connection (most of which are representative charges), each carrying a maximum
penalty of 20 years imprisonment.2
1 Crimes Act 1961, s 128(1)(a).
2 Section 128(1)(b) and 128B.
(c) Two charges of sexual conduct with a young person between the ages of 12 and 16, each carrying a maximum penalty of 10 years imprisonment.3
(d)One charge of sexual conduct with a child under 12 year, carrying a maximum penalty of seven years.4
[2] The appellant now appeals on the basis that the sentence imposed is manifestly excessive and unjust. Counsel for the appellant submits that the starting point of 14 years was too high and that the discounts for personal mitigating factors were insufficient.
Background
[3] The offending was against three victims. The first is […] who was […] years old at the time of the 2011/2012 offending against her, she being […]. As to the first charge of sexual violation by rape of this complainant, whilst the appellant was in a seated position […], […] sat on top of him. The appellant then proceeded to place his erect penis between her legs and onto her vagina. The appellant moved the victim’s body up and down on top of himself so his penis was moving between her labia against the entrance of her vagina. The appellant stopped near the point of ejaculation and went to masturbate into the toilet. Whilst this was happening, another victim, […], was in the room on the couch next to them witnessing the entire episode.
[4] On another occasion, the appellant had put his hand down […]’s pants and began rubbing her vagina and clitoris for five to 10 minutes. He attempted to insert a finger into […]’s vagina, but she said “oww” so he stopped. However, he continued to rub her vagina and clitoris.
[5] The second victim was […] who was aged […] at the time of the 2014/2015 incidents in question involving her. The appellant was […] up to the time of the
offending. […] suffered the most severe abuse of all three victims. Between
3 Section 132(3).
4 Section 134(3).
February 2014 and May 2015, there were numerous instances when the appellant would have […]. On at least 10 occasions, the appellant would undress […] and digitally penetrate her vagina. The appellant would also on a number of occasions put his erect penis into […]’s mouth and made her perform oral sex on him. On one occasion, the defendant inserted his finger into her anus. On another occasion, the appellant made […] spread her legs, exposing her genitals, while he put his head between her legs and proceeded to lick her vagina.
[6] The appellant would also make […] sit on top of him while he had no pants on and while the complainant was naked. Like his offending with […], the appellant would move […]’s body up and down on top of himself so his penis was moving between her labia against the entrance of her vagina. He would stop near the point of ejaculation and then masturbate into the toilet.
[7] In consequence of this abuse, […] contracted herpes simplex type 2, a sexually transmitted disease. […] was very ill with this condition and she had three initial medical visits to doctors as her condition worsened over the week in question. It was during one of these visits that she disclosed the offending. Until recently, […] has not been able to eat or go to the toilet as she has been in too much pain with large blisters and sores to her vagina, mouth and throat from the virus.
[8] Subsequently, the appellant tested positive for both herpes simplex type 1 and 2. However, according to the appellant, at the time of offending he says he was not aware that he was a carrier of the sexually transmitted disease. Both the appellant […], he maintains did not display any symptoms of the herpes virus.
[9] The third victim was […]. She was […] years old at the time of the offending. Between February and May 2015 […] visited the appellant’s address on numerous occasions. On one of these, the appellant approached […], grabbed her from behind and touched her breasts and vagina on top of her clothing.
Jurisdiction
[10] The appellant is able to appeal the sentence imposed here as of right.5 As first appeal Court, I will only disturb the sentence appealed from if he can establish that there was an error in the sentence imposed and that a different sentence should be imposed.6 In a recent judgment, the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act
1962, s 385(3) and the Summary Proceedings Act 1957, s 121(3).7
District Court Approach
[11] Interestingly in this case, the appellant sought and obtained a sentencing indication from Judge Farish in the District Court on 20 November 2015. This indication was for a term of nine years’ imprisonment, which the appellant ultimately received. On 27 November 2015 the appellant accepted the sentencing indication and pleaded guilty to the charges.
[12] Section 245 of the Criminal Procedure Act 2011 addresses the position when an appellant has received a sentencing indication and states:
The fact that a defendant has received a sentence indication does not affect the right of the appellant or the prosecutor to appeal against sentence.
[13] As to this, in Nepia v R8 Heath J considered the extent of an appellant’s right to appeal against a sentence imposed following acceptance of a sentencing indication. His Honour stated at [25] and [26]:
[25] …Although it might seem incongruous that a defendant who has accepted a sentence indication should have a right to appeal the sentence imposed in consequence of it, there are a variety of circumstances that could justify that course, including:
(a) Cases where the Judge giving the sentence indication has specified a range within which the sentence might fall, depending upon information before the Court on sentence. There is no reason in principle why a defendant who
5 Criminal Procedure Act 2011, s 244.
6 Sections 247 and 250.
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
8 Nepia v R [2015] NZHC 1226 [4 June 2015].
argues for a sentence at the lower end of the range should not be able to challenge, on appeal, a sentence at the highest end.
(b)Cases in which the Court leaves open the possibility of further information being put before it on sentence, particularly in relation to mitigating factors relevant to the offender. This circumstance may occur more frequently than others because no pre-sentence report is available at a sentence indication. There is no reason why a defendant should not be entitled to appeal against a sentence which is said to have given inadequate weight to a personal mitigating factor, thereby resulting in the sentence being manifestly excessive or inappropriate.
(c) Cases in which it is contended that the defendant was inadequately advised before accepting the indication. A defendant should not be prevented from challenging a sentence if a genuine claim of counsel error can be made out.
[26] In addition, the existence of an appeal right maintains the ability of a prosecutor to appeal against a sentence that he or she regards as manifestly inadequate or inappropriate.
[27] The protection against abuse of the appeal right is the ability of an appellate Court to impose a more severe sentence (if considered appropriate) without an obligation to allow a defendant to withdraw his or her guilty plea. If a defendant appeals against a sentence, he or she takes the risk that a more severe sentence might be imposed.
(Citations omitted)
[14] In her sentencing decisions, having set out the facts (agreed between the parties in a summary of facts), Judge Farish referred to the sentencing bands set out in the guideline judgment of R v AM.9 Her Honour noted the Crown’s submission that the offending fell within band three and the defence submission that the offending fell generally within band two.
[15] In setting the starting point, Her Honour took into account the following features as aggravating factors:
(a) The vulnerability of the victims, and particularly the two youngest complainants […] and […];
9 R v AM [2010] NZCA 114.
(b) The gross breach of trust;
(c) The effect on the victims and their wider families, and in particular the lifelong medical and other effects of the offending upon […];
(d) The presence of multiple complainants; and
(e) Premeditation and grooming in relation to […].
[16] Her Honour held that the offending fell firmly within band three and adopted a starting point of 14 years imprisonment.
[17] Judge Farish then proceeded to give the appellant a 5 percent credit for his previous good character, a further five percent for remorse and the full 25 percent for his guilty plea. This resulted in the end sentence of nine years’ imprisonment.
Analysis
[18] As the sole ground advanced for his appeal, the appellant contends that the nine year sentence imposed is “manifestly unjust”. It is clear he is maintaining that there is an error in the sentence in that he contends it is manifestly excessive and that a different sentence should be imposed. The appellant submits that his offending here comes between the upper end of band 2 and the lower end of band 3 as identified in R v AM and that a starting point of 12 years (as opposed to the 14 years adopted by Judge Farish) is appropriate.
[19] I have found it troubling in this case to arrive at an appropriate starting point for the appellant’s offending. Although the facts, background and therefore the considerations to be taken into account in each case are always different, as a starting point to assist I have considered four decisions which involve somewhat similar situations to the present.
[20] The first of these is a decision in this Court R v AN10 a case in which, as I see it, there are some particular similarities to the situation before me. In AN the defendant pleaded guilty to seven charges, four of these representative, including sexual violation by rape, and unlawful sexual connection. These related to three victims aged between three years and 13 years. The defendant was between 17 and
19 years of age for some of the offending and up to about 24 years for the final offending. It is accepted that he suffered a significant intellectual disability caused, it seems, at least in part from early abuse he had endured as a child and his later substance abuse. Here, a starting point of 13 to 14 years was adopted (following an earlier sentencing indication adopting what would have been an effective starting point of 14 years). Discounts of 12 to 15 percent for the defendant’s co-operation, his intellectual disability and other matters including his relatively young age, were allowed and a further 20 percent discount for his guilty plea. This left an end sentence of 9 years, 6 months’ imprisonment which was imposed.
[21] The second case I have considered is Prasad v R. In this case there were three victims to the defendant’s offending. All three were relatives of the defendant’s wife and knew and trusted the offender. The most serious offending involved the youngest complainant who was aged between four and seven years old at the time of the offending. The defendant indecently assaulted and raped the victims in their own home. In the High Court Dobson J categorised the offending as at the higher end of band two and adopted a starting point of ten years and six months. His Honour took into account the gross breach of trust, the vulnerability of the victim and moderate
premeditation. This was upheld by the Court of Appeal.11
[22] The third decision is Davies v R.12 In this case the victim was regularly allowed to bath with the defendant, where the abuse began. Over the ten year period, the defendant indecently assaulted the victim by touching her breasts and her genitalia and by inducing her to touch his penis. The earlier offending consisted largely of the defendant masturbating himself in the victim’s presence while fondling
her indecently. Between 1988 and 1992, the defendant sexually violated the victim.
10 R v AN [2015] NZHC 1201.
11 Prasad v R [2016] NZCA 163.
12 Davies v R [2011] NZCA 546.
There were three representative charges of sexual violation by unlawful sexual connection (one digital and two oral). The Court of Appeal adopted a starting point of eight years, taking into account the regularity of the offending, premeditation and significant breach of trust.
[23] The last case is R v Seiuli13. The facts in this case might be seen as somewhat more severe than the present appeal. The defendant was convicted on 65 counts of sexual offending against three complainants, all daughters of the defendant’s partner. They were aged between 10 to 15 years old at the time. The offending involved the defendant rubbing the victims’ vagina, performing oral sex on them, attempting to have sexual intercourse and inducing them to masturbate him. The oldest victim suffered the most serious abuse. She was raped two to three times a week and the defendant would ejaculate into her mouth or onto her body. In this case, the sentencing judge adopted a starting point of 13 years and six months’ imprisonment,
which the Court of Appeal suggested was marginally high compared to other cases.14
[24] In the guideline decision of the Court of Appeal R v AM, where a case falls within band 3 a starting point of between 12 and 18 years’ imprisonment is said to be appropriate. At para [105] of that decision the Court of Appeal described band 3 offending in the following way:
This band will encompass offending accompanied by aggravating features at a, relatively speaking, serious level. Rape band 3 is appropriate for offending which involves two or more of the factors increasing culpability to a high degree, such as a particularly vulnerable victim and serious additional violence, or more than three of those factors to a moderate degree…
[25] In the present appeal I am satisfied that the following culpability assessment factors were present:
(a) Vulnerability of the complainants
[…] and […] were both very young […] and without question significantly vulnerable. […] was a little older at […] years but still, to an extent, a
vulnerable person. In my judgment this factor is present here to a high
13 R v Seiuli [2009] NZCA 315.
14 At [27].
degree.
(b) Breach of Trust
Here, the appellant as […]. In addition he was […] the mothers of […] and […] who both trusted him to […]. Again I am satisfied that this factor was present here to a high degree.
(c) Effect on the victims
From the victim impact statements prepared by the parents of the victims and also for […] and […] prepared by a clinical psychologist (all before Judge Farish), the significant effect that the appellant’s offending has had on all the complainants and their families was starkly outlined. And disturbingly, in relation to […] who has contracted Herpes Simplex Type 2, a sexually transmitted disease, from the appellant which will have lifetime effects for her, the harm inflicted was particularly serious. Again I am satisfied this factor was present in this case to a high degree.
(d) Scale of the offending/presence of multiple complainants
Here the appellant offended against two complainants in a particularly serious way and was sentenced on the basis of offending against a total of three complainants. Again I am satisfied this factor was present in this case to a significant degree.
(e) Premeditation/grooming
With respect to the appellant’s offending against […], this occurred over a period of time during which he clearly would take any opportunity he had to offend against her. It must be accepted that this involved an element of premeditation and grooming which might also be seen with his offending against […]. I find this factor present here to a moderate degree.
[26] I conclude that in light of the presence of at least four culpability assessment factors to a high or significant degree and the presence of an additional factor to a moderate degree, a starting point in the middle of band three at 14 years was clearly available to Judge Farish when she gave the appellant a sentencing indication and subsequently imposed sentence. I have reached this conclusion only by a reasonably fine margin in light of guidance provided by the decisions I have outlined above, Prasad, Davies and Seiuli. The decision in AN also noted above however in my view provides support for the conclusion I have reached here. And, in any event, the particular circumstances of this case which of themselves differ from those prevailing in previous cases, in my judgment, are such that the culpability assessment factors from AN that I have noted mean that the band 3 starting point of
14 years’ imprisonment here could not be seen as an error and to require that a different starting point and sentence should be imposed.
[27] The appellant further submits that insufficient discount was given for the defendant’s previous good character, genuine remorse and co-operation with the police, and this, he says, should have been 15 percent. However, as I see it, Judge Farish was completely within range, if not generous, in allowing the appellant the full 25% for his guilty plea and a further 10% for his remorse, co-operation and previous good character.
Outcome
[28] The appeal is therefore dismissed.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to:
Alister James, Christchurch
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