The Queen v Edward Maurice Richard Hadland
[2001] NZCA 250
•26 September 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 204/01 |
THE QUEEN
V
EDWARD MAURICE RICHARD HADLAND
| Hearing: | 25 September 2001 |
| Coram: | Blanchard J Heron J Goddard J |
| Appearances: | A J S Snell and T V Clarke for the Appellant M J Thomas for the Crown |
| Judgment: | 26 September 2001 |
| JUDGMENT OF THE COURT DELIVERED BY GODDARD J |
The appellant was tried on an indictment containing ten counts alleging episodic sexual offending against his wife’s younger sister. He was convicted on two counts of rape, two counts of sexual violation by unlawful sexual connection (one digital, one oral) and one count of indecently assaulting the complainant whilst under 12 years of age. Those charges encompassed three separate episodes of offending. He was acquitted on two further counts of rape, another of indecently assaulting the complainant whilst under 12 years of age and one of indecently assaulting her when aged between 12 and 16. He was discharged on a further count of rape following failure by the jury to reach a verdict on that count.
From a starting point of eight years imprisonment for contested rape, as established in R v A [1994] 2 NZLR 129, the Judge determined a sentence of 10 years’ imprisonment as appropriate for the rape convictions, given the victim’s age, the effect on her and the repeat nature of the offending. He imposed concurrent sentences of seven years imprisonment on each count of sexual violation by unlawful sexual connection and a concurrent sentence of four years imprisonment on the indecent assault.
The challenge on appeal is as to sentence only, the sole ground being error of law. An appeal against conviction on the ground of inconsistent verdicts and the further ground of defence counsel’s conduct of the trial was abandoned.
The Evidence
The offending against the complainant began when the appellant was 23 and she was only 10 years old. At the time he was engaged to the complainant’s sister and staying at their family home in a semi-detached unit. On 25 October 1991 the complainant was at home as she was feeling unwell. That date was established by reference to her school rolls for 1991. She went to see the appellant, who was studying for his university exams in the semi-detached unit. She noticed a silver package in his pencil case. It was a condom. When she asked about it the appellant put the condom on. He then touched the complainant on her breasts and stomach and got her to lie on the bed. He then had sexual intercourse with her. Afterward the complainant went into the bathroom and then into another bedroom where she lay on the bed. The appellant came into that room and asked her how she was. He then put his hand down her pants and indecently assaulted her. The complainant’s evidence about these events formed the basis of counts 1-3 in the indictment. The appellant denied that any such offending had occurred but was found guilty.
Counts 4-6 alleged two further episodes of offending. In relation to count 4, the complainant’s evidence was that shortly after the first rape the defendant suggested they meet in the cow shed while she was milking the cows. He met her there and she lay on the concrete floor where they had sex. Counts 5 and 6 concerned two visits to the appellant’s home in Hastings after he and the complainant’s sister had married. The complainant said that she and her family visited the couple after their first child was born and the appellant followed her into the bathroom where he kissed her. She said that on a subsequent visit to Hastings with another sister, the appellant had sexual intercourse with her on a single bed at the back of the house whilst the sisters were out shopping. The appellant denied that any of these events had occurred and was acquitted on each count.
The offences charged in counts 7 and 8 were alleged to have occurred between 1 December 1992 and 31 January 1993 when the complainant was again staying with the appellant and her sister in Hastings. In relation to count 8, the complainant said that one morning, while playing with her baby nephew in the lounge, the appellant came in and had sexual intercourse with her on the floor of the lounge. Her sister was still in bed at the time. That evidence formed the basis of the rape charge in count 8. On the sequence of events, as recounted by the complainant, the offence charged in count 7 appears to have occurred after this, albeit within a relatively short period of time. In relation to count 7, the complainant said she and members of her family were again in Hastings staying with the appellant and her sister. Whilst preparing for a barbecue, the appellant asked her to go into a woodshed with him where he made her perform oral sex.
The appellant, in his evidence, admitted having sexual intercourse with the complainant on the floor of the lounge early one morning as she described in relation to count 8, and in fact said this occurred on two occasions rather than one occasion. He also admitted asking the complainant to have oral sex with him on another occasion, but denied that it had occurred in the woodshed. He also recounted a further incident of sexual intercourse which corroborated the complainant’s evidence of the indecent assault charged in count 9. The jury found him guilty on counts 7 and 8 but failed to agree on count 9. They also acquitted him on a further count of indecent assault on the complainant contained in count 9. The admissions made by the appellant in his evidence echoed earlier admissions he had made when first confronted with the complainant’s complaints and at a time before any charges were laid. In addition he wrote a letter of apology to the complainant, which was sent to her father.
Grounds of Appeal
The primary ground of appeal is error of law in the sentencing approach, rendering the sentences imposed on the charges of rape and unlawful sexual connection manifestly excessive. The error occurred when, in reliance upon counsel’s submissions, the Judge adopted a starting point of eight years imprisonment. Eight years was the revised starting point established in R v A, following the increase in maximum penalty for rape from 14 years to 20 years imprisonment. However, that increase in penalty applied only to offences committed after 1 September 1993, at which date the legislation came into force. However, all of the offending of which the appellant was convicted pre-dated that increase in penalty. The only possible exception concerned the rape charged in count 8, which specified time parameters of between 1 January 1993 and 31 December 1993. However, the complainant’s evidence in relation to count 8 was of a visit she had made to Hastings in early 1993. As noted, her evidence placed this incident earlier in sequence to the incident of unlawful oral sexual connection in the woodshed, which she said occurred during the Christmas holidays sometime between December 1992 and January 1993. This timeframe was accepted by the Judge, as reflected in his sentencing notes, although he reversed the sequence of events recounted by the complainant. He said:
Then between 1 December 1992 and 31 January 1993 at Hastings there was the oral sexual violation which occurred when the Complainant visited you and your wife and during the course of that visit you encouraged her to go to a shed and committed the offence on her.
She visited again a month later and on that occasion you committed the second rape.
On all versions it is most probable that the rape charged in count 8 occurred in the early part of 1993 and thus prior to the 1 September 1993 increase in maximum penalties. Indeed, the Crown did not argue otherwise.
As the new legislation is not retrospective, the offences for which the appellant required to be sentenced all fall to be considered according to the situation prior to 1 September 1993. The appropriate starting point was, therefore, five years imprisonment for a contested rape before taking into account aggravating or mitigating features as established in R v Clark [1987] 1 NZLR 380.
Given the error in the Judge’s starting point of eight years, the end sentence of 10 years imprisonment is clearly manifestly excessive. As stated, the correct starting point is 5 years imprisonment for the rape charges. It is then necessary to consider what additional computation should be made for the aggravating factors and whether there are any mitigating features that can taken into account. We have no difficulty in accepting as correct those aggravating factors identified by the Judge. These were the young age of the complainant and the effect on her and the fact that three separate episodes of offending were involved. In relation to possible mitigating factors, counsel for the appellant urged us to take into account the appellant’s otherwise exemplary record, his genuine remorse, his early admissions of wrongdoing and the letter of apology he wrote to the victim, as well as the positive support now being offered by the complainant’s family and the extreme hardship faced by his wife and five children due to his incarceration. These factors were also recognised by the sentencing Judge. Of themselves, family support and hardship to other family members are not mitigatory features although they may be taken into account in determining an overall appropriate sentence. Early expressions of remorse and admission of wrongdoing are mitigatory factors. In relation to those, the Judge noted that although there could be no credit for guilty pleas, the appellant’s approach in contesting the charges was based on his inability to agree with the nature of the charges laid, and this was to some degree had been vindicated by acquittals on some counts.
A further factor emerged on appeal which we are able to consider. A letter written by the complainant was placed before us. In that letter she has pleaded for a reduction in the length of sentence imposed on the appellant, citing amongst her reasons the delay which a lengthy sentence will cause in “final closure” for her and her family – “by delaying normal family relationship building”. Although a victim’s views are not necessarily persuasive and may not even be taken into account, the views expressed by the complainant in this case deserve respect. This Court has, in the past, taken into account a victim’s wishes and also the interests of an offender’s family in reducing an otherwise appropriate sentence. This for the purpose of avoiding further victimisation of the victim and other innocent members of an offender’s family: R v Accused [1994] 3 NZLR 157 (CA).
Counsel for the appellant suggested that a sentence in the region of 5-6 years imprisonment would meet the requirements of justice. Certainly, using the sentencing Judge’s otherwise correct approach, a sentence in the range of seven years could not be been as excessive. Considering all matters in the round however we are satisfied that a total sentence of 6½ years imprisonment will appropriately meet the interests of justice in this case.
Judgment
The appeal is allowed. The sentences of 10 years imprisonment imposed on each count of rape are quashed and in lieu sentences of 6½ years imprisonment imposed. The sentences of seven years imprisonment imposed on the two counts of sexual violation by unlawful sexual connection are quashed and in lieu sentences of four years imprisonment imposed. In relation to the count of indecent assault, the sentence of four years imprisonment is quashed and a sentence of three years imprisonment imposed. All sentences are concurrent.
Solicitors:
Crown Law Office, Wellington, for the Crown
Bannister & von Dadelszen, Hastings, for the Appellant
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