The Queen v Deon Ngahere
[2002] NZCA 256
•25 September 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA99/02 |
THE QUEEN
V
DEON NGAHERE
| Hearing: | 17 September 2002 |
| Coram: | McGrath J Chisholm J Chambers J |
| Appearances: | P J Morgan for the Appellant J M Jelaś for the Crown |
| Judgment: | 25 September 2002 |
| JUDGMENT OF THE COURT DELIVERED BY MCGRATH J |
Introduction
The appellant, who is 27 years old, was convicted by a jury following trial in the District Court on two charges of indecent assault of a 41 year old woman. He was sentenced to four years imprisonment. He appeals against his sentence on the ground that it was manifestly excessive.
Background facts
At approximately 5am on 19 May 2000 the appellant arrived at his father’s home. He had been working at a local bar as a doorman, and after work had been drinking with friends. The complainant, who was spending the night at the house, is a sister of the partner of the appellant’s father. The appellant has known her for 25 years. The offending, which on the jury’s verdicts was proved, was as follows. When the appellant arrived at the house the complainant was asleep on a mattress on the lounge floor, where other members of the extended family were also asleep. She was lying beside her young child and holding the child in her arms. The appellant lay down beside the complainant, who had her back to him. He stroked her leg, then took her hand, placed it on his penis, and rubbed it up and down. He then masturbated himself and ejaculated onto her lower back and T-shirt. The appellant then got up and left and went to sleep in another room. At the trial the complainant gave evidence that she was aware of what was happening to her but was too frightened to protest or resist, in part because of her concern for her young child who was sleeping with her. A victim impact statement demonstrates that the complainant was deeply affected by the incident.
A complaint was made to the police and an investigation was undertaken to establish which of the people present in the house was the offender. A blood sample was taken from the appellant by order of the High Court and this gave a DNA match with the semen found on the complainant’s T-shirt. Three charges were then laid against the appellant. The first was of indecent assault and related to the appellant touching the complainant’s upper legs. The second charge was of sexual violation by unlawful sexual connection by the appellant’s digital penetration of the complainant’s genitalia. The third charge, which was of indecent assault, related to the appellant making the complainant masturbate him and his ejaculation on her. At his trial, the appellant maintained that he had lain down beside the complainant intending to sleep and that she initiated the incident. He later said “he just went with the flow”. He was convicted by the jury of the two indecent assault charges and acquitted of the charge of sexual violation by digital penetration.
Sentencing Judge’s remarks
The appellant appeals against his sentence on the ground that it was manifestly excessive. The sentencing Judge considered that this was a predatory offence. He pointed out there had been no romantic association between the appellant and his victim and the appellant had come home and taken advantage of her. The Judge said this was a callous, depraved attack on a clearly defenceless family member. It was aggravated by the complainant’s state of concern about the possible effect on her child should she awake. Other aggravating factors were the division which the incident had created in the wider family, and the significantly adverse effects of the offending on the victim. The Judge accepted the Crown submission that there can only be a slight difference between an indecent assault at the higher end of the scale of seriousness, and a sexual violation at the lower end of the range of that offending. The Probation Officer considered that the appellant lacked the required level of motivation to benefit from any assistance and that he showed no remorse for his offending. The appellant had told the Probation Officer that it was not his intention to act as he did, that it was just one of those things that happened.
Submissions in this Court
Mr Morgan, counsel for the appellant, submits that there is little authority for this type of offending in instances involving adults. Most cases of this type of offending occur against girls under the age of 16 years. It was submitted that a four year sentence for sexual violation by digital penetration would generally be regarded as stern. Mr Morgan argued that the offending covered by the first charge by itself would not have warranted imprisonment. The real issue for this Court, he submitted, was whether four years imprisonment on the third count was manifestly excessive. Mr Morgan argued that here not enough weight had been given to the following factors:
[a] the incident was of short duration;
[b] by the verdict of the jury no non-consensual digital penetration was involved;
[c] the incident was committed on an adult woman; and
[d] the sentence equated to what would have been imposed had the appellant been convicted of sexual violation by unlawful sexual connection.
Mr Morgan also argued that the Judge had overstated the gravity of the offending in describing it as “predatory” and a “callous, depraved attack”. He drew our attention to a number of decisions of this Court and the High Court involving sentences for sexual offending with and without digital penetration.
In response Ms Jelaś for the Crown submitted that the fact that the sentence was comparable with a sentence for unlawful sexual connection involving penetration did not of itself indicate that the sentence was manifestly excessive. Whilst offences involving penetration are generally considered to be more serious that other indecent assaults each case must be assessed according to its particular circumstances. In this case, Ms Jelaś submitted the offending was opportunistic and with total disregard to the dignity of the complainant. The appellant had not been deterred by the presence of other family members in close proximity or by his family connection with the complainant. These factors have contributed significantly to the complainant’s sense of helplessness over her inability to prevent the offending and the traumatic effects the offending has had on the complainant. The Crown noted that while the offending was not prolonged, in addition to the direct physical contact on her skin it involved the indignity of the appellant ejaculating on the complainant.
Ms Jelaś submitted there were no mitigating features. While the appellant had sought to make a public apology at sentencing that indication of remorse was contrary to the impression he had given to the Probation Officer. The Judge was also entitled when assessing the genuineness of remorse to have regard to its lateness. No credit could be given for a guilty plea, and while the appellant has no previous convictions for sexual offending there was no evidence of good character. Counsel submitted the appellant had no insight into his offending, nor was he motivated to address the factors that had contributed to it.
Decision
Three factors combined to make this sentencing a difficult task for the District Court Judge. First the nature of the offending against an older woman who was part of the offender’s extended family is very unusual. Counsel, unsurprisingly, were not able to point to any sentencing decisions directly in point. Secondly, the offending had particularly traumatic and lasting effects on the victim, who was terrified by what was happening. Thirdly, however, the appellant was not convicted of the most serious offence charged, sexual violation by digital penetration.
The offence of indecent assault of a woman over 16 years, under s135(1)(a) of the Crimes Act 1961, can cover a wide variety of circumstances. Its place in the range of sexual crimes, however, is at a less serious level than the offence of unlawful sexual connection by digital penetration under s128(1)(b). The two types of offending often exhibit similar features and of the cases cited to us by Mr Morgan two decisions of this Court involving sexual violation by digital penetration have provided assistance in determining this sentence appeal. In R v Jackson (1997) 14 CRNZ 573 a male psychiatric nurse had assaulted a patient in a mental institution, the abuse being by making the complainant masturbate him to the point of ejaculation and in that respect very similar to that in the present appeal. It also included, however, digital penetration of the complainant’s vagina. Another feature was the traumatic impact on the complainant. The circumstances of that case also of course involved a very serious breach of trust and included an incident of indecent assault the previous evening. On a Solicitor-General appeal this Court took the view that a term of 4 years imprisonment would not have been out of line although a lesser term was imposed for the suspended sentence originally imposed in view of community service already undertaken and that it was a Crown appeal.
In R v M [2000] 2 NZLR 60 the appellant had been convicted of sexual violation and indecent assault of a 15 year old friend of his daughter. While she was asleep he had touched her genitalia, and then digitally penetrated her and asked her to have sexual intercourse with him. She refused. There had been an earlier less serious incident the previous evening of which he was convicted of indecent assault. Again, on an appeal by the Solicitor-General, this Court considered a sentence of 2 years imprisonment inadequate and the element of suspension in any event inappropriate. A sentence of three years imprisonment was substituted, the indication being that a higher sentence would have been imposed had it not been a Crown appeal. The Court reiterated that no tariff had been set for cases involving sexual violation by digital penetration but said the cases showed sentences had been determined against starting points, following conviction after trial and before allowing for mitigation elements, ranging from 2 to 5 years. The appropriate level depended of course on the circumstances of the offending.
We accept, as Ms Jelaś submitted at the hearing, that the more serious cases of indecent assault will overlap, in terms of overall gravity, a number of cases of sexual violation by digital penetration. Nevertheless in the two cases we have considered it was the element of sexual violation that this Court saw as squarely putting the case in a category where a sentence of 4 years imprisonment was seen as not out of line. Other aggravating features were the breaches of trust involved and that the offending was not confined to a single incident. But for these elements, it is our impression that the leniency extended by the sentencing Court may have been seen in the circumstances as an acceptable sentencing approach.
In the present case we consider the Judge was right to characterise the element of the offence of indecent assault which involved making the complainant masturbate him and masturbating to the point of ejaculating on her as a serious one of its kind and as being gross abuse. The appellant’s actions showed contempt for the dignity and integrity of a member of his family. The location of the abuse, in a family member’s home, and the presence of the victim’s child (albeit unknown to the appellant) made it extremely frightening for her. The assault was however a single incident of short duration and in our view should have been characterised as opportunistic rather than, as the Judge treated it, predatory behaviour. It was also the appellant’s first conviction for sexual offending. Ultimately he acknowledged responsibility for his behaviour but did so too late for any significant credit to be allowed for doing so.
Had the appellant been convicted on the sexual violation count the gravity of the offending might have come close to equating to that in the two cases considered, on the basis that the breaches of trust in those cases is matched by the aggravating feature of a sexual attack on a sleeping woman. But, without the element of digital penetration and in light of our view that the attack was opportunistic rather than planned, a sentence of 4 years imprisonment was manifestly excessive. Clearly a term of imprisonment was required to reflect the need for community denunciation of a gross indecent assault but having regard to all the circumstances we have discussed we consider the term imposed should have been one of 2½ years.
Outcome of appeal
The appeal is allowed and the sentence of 4 years imprisonment on count 3 is set aside and replaced by a sentence of 2½ years imprisonment. That term will be served concurrently with the term of 12 months imprisonment imposed on count 1.
Solicitors
Crown Law Office, Wellington
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