The Queen v Christopher Donnelly Hankins

[2003] NZCA 145

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA451/02

THE QUEEN

v

CHRISTOPHER DONNELLY HANKINS

Coram:Keith J
Blanchard J
Tipping J

Appearances:  H Leabourn for Appellant

G de Graaff for Crown

Judgment (On the papers):     10 July 2003 

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

1. This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment. 

Offences and sentence

1. The appellant was convicted after a jury trial on three counts of sexual violation by unlawful sexual connection.  The appellant was sentenced on 10 December 2002 in the District Court at Auckland to concurrent terms of four and a half years imprisonment on each count.  He now appeals against sentence only, having abandoned his appeal against conviction.

Relevant facts

1. The appellant was aged 36 at the time of the offending.  The victim was aged 11.  The offending occurred during a short period of time in September 1996 when the victim was visiting the appellant at his home in Auckland.  The first incident occurred one night when the victim was sleeping in her brother’s bedroom.  She awoke to find the appellant inserting his fingers into her vagina.  The appellant then left the bedroom after some minutes.  The second and third incidents occurred later in that week, both on the same night.  The appellant was alone with the victim and asked her to perform oral sex on him.  The victim refused, whereupon the appellant asked if he could put his fingers inside her vagina in exchange for giving her money.  The appellant then took off the victim’s clothes and proceeded to digitally penetrate her.  After this happened, the appellant went into the bathroom but after a short time he returned to the bedroom and penetrated the victim again.

The Sentence

1. The sentencing Judge was of the view that the offending was serious and imprisonment was the only appropriate sentence.  The Judge accepted the Crown’s list of aggravating features of the case: the harm to the victim as evidenced by her anger and inability to form relationships; the abuse of trust involved; the vulnerability of the victim due to her young age; and the fact that the appellant has previous convictions for sexual and violent offences, albeit these occurred some years earlier.   No mitigating features could be identified.  The Judge also accepted the Crown’s submissions as to the appropriate levels of sentencing, such that a starting point of between four and six years imprisonment was appropriate and the category range was between two and five years imprisonment. 

2. Having considered various relevant cases, the Judge thought that the offending was in the moderate category range rather than at the higher or lower end of such offending.  However, the presence of the aggravating factors and the lack of any mitigating factors meant that a sentence at the upper end of that range was appropriate.  Accordingly, the appellant was sentenced to four and a half years imprisonment on each count.

Grounds of appeal

1. The appellant accepts that a term of imprisonment was the only appropriate sentence but submits that the four and a half year term imposed is manifestly excessive.  First, it is submitted that the Judge adopted a starting point that was too high in the circumstances of this case, resulting in a sentence that is out of proportion to sentences imposed in similar cases.  The appellant cites several cases involving digital penetration where sentences in the range of two and a half years imprisonment to four years imprisonment were imposed.  It is suggested that a starting point of three years imprisonment was appropriate in this case in the light of the authorities cited.

2. Secondly, the appellant submits that the Judge gave insufficient weight to some important features of the case.  The appellant refers to the fact that the incidents were not representative charges but isolated incidents of a somewhat historic nature.  Further, none of the offences was accompanied by physical violence or threats of such, other than that which is inherent in a sexual violation charge.  Also, this offending is said to be far from the most serious type of sexual violation by digital penetration.  Turning to the circumstances of the appellant, the appellant concedes that his previous convictions are an aggravating factor, but points out that they occurred 17 years earlier, the appellant has had a good record since, and the convictions did not involve a breach of trust.  Finally, the appellant submits that insufficient weight was given to injuries suffered by him some years ago and the corresponding need for ongoing medical treatment, and to the fact that the probation officer did not consider him to be at a significant risk of re-offending.

Reasons

1. We have not been persuaded that the Judge erred in principle or that the sentence is manifestly excessive.  Accordingly, there is no basis upon which this Court can interfere with the sentence imposed.  It is not entirely easy to discern the actual starting point taken by the Judge and the process by which the ultimate sentence was reached.  What is clear, however, is that the Judge considered an appropriate range of sentence for sexual violation by digital penetration. And the focus in cases such as the present must be on the range taken by the Judge given that there is no tariff for such offending.  A range of two to five years imprisonment is quite normal and entirely appropriate in this case.  The serious aggravating factors, outlined above, mean that a sentence near to the top of that range was appropriate.  Indeed, in all of the cases cited by the appellant, the sentence imposed was within the two to five year range.  It cannot therefore be said that comparison with these cases shows that the sentence imposed in this case is manifestly excessive. 

2. The appellant’s argument that insufficient weight was given to certain factors in his favour cannot succeed.  The sentencing Judge, who was the trial Judge, was well aware of all the circumstances of the case and of the appellant and imposed a sentence that appropriately reflected those matters. 

3. The appellant’s specific complaints can be responded to as follows.  The existence of three incidents of sexual violation against an 11 year old girl is a serious matter and calls for condemnation.  This is clearly shown by the fact that sexual violation carries a maximum penalty of 20 years imprisonment.  It is of course possible to conceive of more serious ways in which the offending could have occurred but this does not diminish the seriousness of the appellant’s actions and the breach of trust involved.  The fact that the charges were not representative cannot justify the imposition of a lower sentence but merely means that a potentially aggravating factor was absent.  The lack of physical violence and lack of significant risk of re-offending are in this same category. The likelihood or otherwise of the appellant re-offending is a matter that will now be considered by the Parole Board when considering the appellant’s eligibility for parole.  The fact that the offending occurred in 1996 is also of little moment.  This is not in the nature of truly historical offending and, even if it were, a discount in sentence would not necessarily be appropriate. 

4. We turn finally to the circumstances of the appellant.  It is true that the appellant’s previous convictions for serious sexual and violent offences occurred some time ago, but this does not mean that they should be ignored.  There is no evidence before us to suggest that the appellant requires special treatment for his injury that cannot be provided by the prison authorities.

Decision

1. For the above reasons, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington