Schwartfeger v The Queen

[2005] NZCA 268

IN THE COURT OF APPEAL OF NEW ZEALAND

CA211/05

THE QUEEN

v

GORDON ARTHUR SCHWARTFEGER

Hearing:27 October 2005

Court:Hammond, Baragwanath and Potter JJ

Counsel:C W J Stevenson for Appellant

K B F Hastie for Crown

Judgment:10 November 2005 

JUDGMENT OF THE COURT

A.LEAVE TO APPEAL OUT OF TIME IS GRANTED.

B.       The appeal is dismissed.

REASONS
(Given by Potter J)

Introduction

[1]       Gordon Arthur Schwartfeger appeals against a sentence of seven and a half years imprisonment with a minimum non-parole period of three years nine months imposed by Judge N R Dawson in the District Court at Palmerston North on 25 May 2005.

[2]       The appellant entered guilty pleas before depositions to the following charges:

a)sexual violation by unlawful sexual connection (digital penetration);

b)sexual violation by unlawful sexual connection (her genitalia and his mouth);

c)doing an indecent act with a girl aged 12-16 (connection between his penis and her mouth).

[3]       The appeal is on the ground that the sentence was manifestly excessive because both the starting point of nine years taken by the sentencing Judge was too high and insufficient discount was given for the guilty pleas and other mitigating factors.

[4]       The Crown contends that the starting point of nine years was within the available range for this offending, that sufficient discount was given for the guilty pleas and that all mitigating factors were given relevant weight.

[5]       The appellant seeks leave to appeal out of time, his appeal having been filed two days late.  Mr Stevenson provided a fair explanation and the Crown does not oppose.  Leave is granted.

Factual background

[6]       The Judge summarised the factual background in his sentencing notes as follows:

In about 1997 you and your family moved to an address in Levin.  Your then seven year old daughter became friends with the victim in these matters.  As a result of that friendship the victim used to go and play at your address and would go on family outings with you and your family.  When the victim was aged between nine and 11 years of age she accompanied you on a family outing to a river situated near Levin.  You took the victim into some bushes and began touching her on the breasts and on the outside of her genitalia.  The victim was standing up and wearing her togs.  You moved her togs aside, exposing her vagina.  You then began rubbing your penis against the outside of her genitalia before ejaculating on to the grass.

On two occasions you have had the victim suck your penis while at your residential address.  These offences occurred when the victim was between the ages of 13 and 14 years.  On one occasion in late 2003 the victim had stayed the night at your address and the next day went into your bedroom.  You had the victim kneel down and then you pushed her head towards your penis.  You told her to move her head forward and back and to hold your penis at the same time.  The victim followed your instructions.

On another occasion in early 2004 you admit to taking the victim out to the shed on your property where you licked her vagina and had her suck your penis.

Sentence appealed from

[7]       After reciting the factual background as set out above, the Judge noted that the appellant had no previous convictions and had admitted the offending during the course of an interview with the Police following arrest.  But the Judge observed that the appellant had committed a number of offences before the disclosure of the offending.  He noted the early guilty pleas but commented that because the pleas were entered after the death of the victim (who committed suicide on 30 December 2004 at the age of 14 years suffering from mental health issues as the result of the offending by the appellant), that it could therefore not be said that the entering of the guilty pleas had saved the victim the ordeal of a trial.

[8]       The Judge noted that the appellant had attended a Church based course but that the course was not designed to address the offender’s particular type of offending.  He further observed from the probation report, that the Pastor of the appellant’s Church had stated that the appellant had poor boundaries with young girls, which had been noted at Church activities, and that both the appellant and some young women had been spoken to on occasions. 

[9]       In relation to the remorse expressed by the appellant, the Judge commented that in his view it was largely pre-sentence induced and that the appellant’s willingness to blame his marital relationship and the victim indicated that any remorse may be superficial.  He also noted from the probation report, that while the remorse of the appellant was evident it appeared focused on the impact on himself and his family and the fact that he may lose his wife and children, rather than a stated desire not to impact on the lives of girls in future.

[10]     The Judge referred to comments made by the appellant to the probation officer that the intimacy in his marriage at the time was not as good as it should be and that he was unfulfilled emotionally and sexually, and in relation to the victim, that as she matured she exhibited sexual behaviour which excited him and would flash at him when she was in the swimming pool.  The Judge noted that while the probation report recorded the appellant’s statement that he “in no way blamed the victim”, he nevertheless did assign blame to her, claiming that she was “willing” and had kept seeking his company.

[11]     He also dealt in some detail with the victim impact statement, stating that for obvious reasons the victim was not able to speak for herself.  He referred to the victim’s statements that the offending went on for five years and that she was scared of the appellant, and too scared to talk to her family; that she did not know it was wrong when she was young and that she blamed herself for what happened because she kept going back to the appellant’s home to see her friend, who was his daughter.  She stated:

I don’t want to keep on living.  I want to get rid of everything, the way I feel and what happened.

[12]     The Judge recorded that the victim tried to hang herself when aged 12 years old but did not at that time disclose the abuse which was continuing.  Following her disclosure to the appellant’s daughter and the appellant’s arrest, the victim became extremely distressed, was diagnosed with post-traumatic stress disorder and was admitted to various psychiatric facilities.  She repeatedly attempted to take her own life and eventually hung herself on 30 December 2004.

[13]     The Judge identified the aggravating features of the offending as the several types of abuse over a prolonged period of five years following the victim’s ninth birthday; the abuse of trust in that the victim was a friend of the appellant’s daughter and he was a father figure to her; her vulnerability, being a young girl between nine and fourteen years of age; pre-meditation; and the effect upon the victim and her family.

[14]     The Judge stated:

Quite frankly Mr Schwartfeger your prolonged offending against a child to whom you were in some ways a father figure, is contemptible. 

[15]     He took a starting point of nine years and allowing for the mitigating factors, imposed a sentence of seven and a half years imprisonment on the charge of sexual violation (digital penetration).  On each of the remaining two charges, he imposed a sentence of three years imprisonment to be served concurrently.  Pursuant to s 86 of the Sentencing Act he ordered a minimum period of imprisonment of one-half the sentence. 

Submissions for the appellant

[16]     In responsible and helpful submissions, Mr Stevenson for the appellant submitted that the Judge was “overwhelmed” by the tragic consequences of the offending so the least restrictive outcome was not achieved in the sentence imposed.  He accepted “without reservation” that the offending was causative of the victim’s death which he accepted deserved significant weight, but submitted that this factor was given too much weight.

[17]     Counsel further accepted that representative charges would have been laid had pleas not been entered at the pre-depositions stage.

[18]     As to the starting point, counsel referred to the authority of R v Tranter CA486/03 14 June 2004 where this Court referred to the increase in maximum penalty to 20 years for sexual violation involving digital penetration, and stated at [95] that a starting point in excess of five years for digital penetration may be appropriate in more serious cases.  Further, that the two to five years starting point referred to in R v M [2000] 2 NZLR 60 should not be seen as limiting the options available to the sentencing Judge and that both the low point and the high point were conservative.

[19]     Counsel also referred to Page v Police HC PN 9 December 2004 Ronald Young J, where offending against two girls aged 12-14 years, gave rise to representative charges of sexual violation, both digital and oral, in respect of one of them.  The offending occurred regularly over a period of two years which the Court categorised as “very serious” and “at the very serious end of offending”.  The sentence for this offending, and including a conviction for indecent assault against a further victim, was reduced on appeal to four years’ imprisonment from a recognised starting point of six years for the sexual violation.  Counsel submitted that this case was much more analogous to the present offending than the circumstances in R v Singh CA160/02 26 November 2002 cited by the Crown, where the starting point of eight and a half years was described by this Court as “the upper limit of the available range”.  That case involved the sexual violation by digital penetration in the course of a violent attack on a woman in public toilets, which resulted in significant physical injuries to the victim.

[20]     Mr Stevenson further submitted that there was insufficient discount for the guilty pleas.  Counsel recounted the history of the laying of charges and noted that the delay in entering guilty pleas to the two sexual violation charges, entered on 21 April 2005, was as a result of the lateness in the laying of those charges and that guilty pleas were entered as soon as the confusion regarding charges had been resolved.  Thus, the appellant immediately admitted the offending that formed the basis of the three charges for which sentence was imposed and pleaded guilty to “replacement” sexual violation charges as soon as these were laid.

[21]     It was further submitted that the Judge unfairly dismissed submissions of shame and remorse by the appellant and that the Judge was wrong to categorise his remorse as “sentence-induced”, given the steps the appellant had taken to make changes in his life.  Further, that the Judge tempered the credit that would otherwise have been given for the absence of any previous convictions, because of the commission of offences before charges were laid.  Counsel submitted that if that were the case, no person for sentence on representative charges would ever be given credit for a previous clear record.  It was submitted, in conclusion, that the 17% discount was well out of line with the usual 25-40% reduction in sentence for remorse, guilty pleas and absence of prior convictions.

[22]     Counsel accepted that imposition of a minimum term of imprisonment of 50% of the sentence was appropriate, but submitted that it should be 50% of a lesser sentence.

Submissions for the Crown

[23]     The Crown referred to R v Tranter and to R v Singh, noting particularly the comments of this Court in Singh at [21] and [24]:

Parliament has determined that the maximum penalty for any form of sexual violation is 20 years and an argument predicated on the basis that anything that does not involve penile penetration will necessarily be treated less seriously cannot be tenable.  In each case it is necessary to assess the total circumstances and the culpability which attaches to it …

There will be situations where lesser penalties for non-penile penetration are appropriate, but any rigid categorisation is unhelpful.  As the circumstances of this case clearly demonstrate, it is the total circumstances which need to be assessed and it is the combination of them which will indicate the appropriate sentencing level.

[24]     The Crown emphasised the aggravating features of this offending as including:

·     The gross breach of trust - the appellant was a father figure to the victim;

·     The offending over a prolonged period of five years commencing when the victim was nine years old and continuing until she was 14;

·     Several types of abuse;

·     Clear premeditation;

·     Tragic consequences for the victim and her family.

[25]     It was submitted that a high starting point was warranted given these aggravating features and that nine years was within range for the totality of the offending, which the Crown submitted was appropriately characterised by the sentencing Judge as “contemptible”.

[26]     As to mitigation, the Crown acknowledged that the appellant had no previous convictions.  It was submitted, however, that the professed remorse of the appellant was appropriately weighed by the sentencing Judge against the comments in the probation report.

[27]     It was submitted that the discount of one and a half years was sufficient and gave due recognition to the guilty pleas.  Counsel noted that the guilty pleas to the two sexual violation charges were made after the victim’s death and that there was no immediate acceptance of guilt on these charges.  The appellant made application to stay the proceedings and the pleas were entered only after that application was dismissed in March 2005. 

[28]     It was submitted that given the totality of the offending the sentence of seven and a half years in all the circumstances was not manifestly excessive.

Discussion

[29]     This case involved serious sexual offending by the appellant against a young and vulnerable victim over a prolonged period of five years.  Undoubtedly had the appellant not entered guilty pleas prior to depositions, representative charges would have been laid.

[30]     The offending had the most tragic consequences.  Section 8(f) of the Sentencing Act requires the Court to take into account information concerning the effect of the offending on the victim.  Prior to enactment of the Sentencing Act, this Court recognised in a number of cases that the effect of the offending on the victim is a relevant factor in sentencing.  In R v Accused [1991] 3 NZLR 288 at 289 this Court stated that:

… the courts must take into account the grave impact on the lives of complainants …

[31]     In R v Morris [1991] 3 NZLR 641 (CA) the appellant was found guilty on two counts of rape and two counts of unlawful sexual connection occurring over a period of one and half and two hours. The complainant did not know the appellant and became pregnant as the result of the rapes. She had an abortion and found that her life was irrevocably altered through her inability to erase the memories or to be free of the impact of the offending. The Court stated at 641:

… the accused must accept responsibility for the consequences outlined in the victim report.  They were all foreseeable and he cannot wipe his hands of them and plead that he is to be punished only for the criminality of the acts themselves, without regard to their results.  This is brought home by s 8 of the Victims of Offences Act 1987, providing for the sentencing Judge to be informed about any physical or emotional harm suffered by the victim; its purpose must surely be to acquaint him or her with the consequences to be expected of the offending in order to make a proper assessment of its gravity.

However, the Court must also be concerned to ensure the maintenance of a due proportion between sentences.  Any marked departure from accepted levels for offences of similar gravity without adequate reason can result in injustice to an accused person and may raise doubts about the even-handed administration of justice. 

[32]     In R v Higgins CA91/03 9 September 2003, rejecting a submission that the psychological effects of the rape were not as strong for this complainant as the many others, this Court stated:

Any psychological or traumatic effects of rape on a complainant can be considered as aggravating factors by a sentencing Judge when fixing the appropriate sentence.  The converse, however, is not necessarily true.  The fact that the complainant in this case may not have experienced strong psychological trauma after the rape cannot count in favour of the appellant as a mitigating factor so as to warrant a reduction in sentence.

[33]     The consequences in this case were utterly tragic.  The possibility, indeed the probability, that mental health issues and even suicide could be the result of the continuing offending by the appellant against the victim, must have been known to the appellant from the attempt made by the victim to take her own life when she was 12 years old.  Yet he continued to offend against her.  As was observed in R v Morris, he cannot wipe his hands of the results of his offending.   We do not accept that the sentencing Judge was “overwhelmed” by the tragic outcome of the appellant’s offending.  It had to be regarded as a major aggravating factor, and was a factor he took into account appropriately.

[34]     We do not overlook that the authorities above referred to were concerned with rape on the complainant.  Parliament has seen fit to provide the same maximum penalty of 20 years imprisonment for offences of sexual violation by rape and sexual violation by other means.  The consequences of repeated sexual violation over a period of five years on a young girl by a man she regarded as a father figure, as was the case here, cannot be treated as being less serious because the violations were effected digitally rather than involving penile penetration.

[35]     Comparison with other cases is informative but because factual situations in this type of offending vary so markedly, is often of limited assistance.  The cases of Page v Police and R v Singh both turn on their own particular facts.  In particular we note that in Page v Police the offending was against two girls of 14-16 years.  While this was undoubtedly serious offending on a regular basis over two years in respect of one of the victims, the circumstances of the offending, the age and vulnerability of the victim and the consequences of the offending, all distinguish that case from this.

[36]     When this Court in R v Tranter referred to starting points in excess of five years as being appropriate in more serious cases, it did so in the context of a range previously suggested in R v M of 2-5 years the Court specifically stated that the high point (five years) as well as the low point were conservative.

[37]     In all the circumstances of this case and given the seriously aggravating factors, we consider the starting point of nine years adopted by the sentencing Judge, while stern, was available to him.  The discount for the early guilty pleas and other mitigating factors was not generous but was not inappropriate.  It recognised the guilty pleas but reflected matters of weight in relation to other mitigating factors, which the sentencing Judge was entitled to take into account.

Result

[38]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington