The Queen v Richard Gary Barnes

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 404/99

THE QUEEN

RICHARD GARY BARNES

Hearing:	14 February 2000
Coram:	Richardson P Heron J Panckhurst J
Appearances:	C Stanley for Appellant K G Stone for Crown
Judgment:	14 February 2000

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

This is an appeal against a sentence of 3 years imprisonment imposed on the appellant, Richard Gary Barnes, following his trial and conviction on a charge of indecently assaulting a girl under the age of 12 years. The ground of the appeal is that the sentence was manifestly excessive.
The crucial evidence at trial was the complainant's video statement and her oral evidence and Mr Barnes' account in an extensive videotaped interview with a police officer. The essential facts of the offending were succinctly and accurately summarised by the trial Judge at sentencing as follows:
At the time of the offence, you [Mr Barnes] were a boarder in the house of the complainant's parents. On the evening in question the complainant, then aged ten years, was in your room with you watching television. She was there apparently with the consent of her mother, who regarded your relationship as positive and natural. The rest of the family went to bed and the complainant remained with you. At some stage you invited her to rub your stomach, which she did innocently enough, then she became tired and she began to sleep in your bed. How that came to be was disputed on the evidence. She says you invited her to say. You say she asked to stay. The fact is that she stayed, and she did sleep. She woke to find herself lying on top of you. The reason why she woke was because she felt a sensation of pain in her vagina. She felt that it was penetrated, either by your hand or your penis. She found her clothing disarranged, and as she left she saw you partly undressed.
The Judge characterised the gravity of the offending in this way:
The assault was serious, even though it was on a single occasion, and relatively momentary. The jury clearly accepted the complainant's evidence, that she felt her vagina penetrated, and that she felt a sensation of pain. That in itself places the offence in a category closer to sexual violation by unlawful sexual connection. The offence was aggravated by the age of the complainant, 10 years, by the relationship of trust, which you took advantage of, but principally by the premeditated way in which you went about it. Everything that preceded the offence, as I have described it, seemed to be directed to its accomplishment, beginning with the rubbing of your stomach, and the fact that you permitted the child to remain in your bed and go to sleep When she woke, she found herself completely compromised.
Again, to use the Judge's words, the effect on the complainant was that she felt that whatever happened was her fault and she spent time away from the house. Afterwards, she found herself distrustful of men. She found the investigation of the offence afterwards, to some degree, distressing. She found the ordeal of trial considerable.
Mr Barnes was 38 years old. He immigrated to New Zealand from England in 1994. He had a number of convictions in England, the last in 1988, and none for offending of this kind. He had a good employment record in New Zealand and at the time of sentencing he was in a stable relationship with a supportive partner. He had an 18 months old child from an earlier relationship, and with whom he was in regular contact. The pre‑sentence report recorded that he maintained his innocence and the probation officer suspected that Mr Barnes might be in denial.
In the pre‑sentence interview, the probation officer said, Mr Barnes displayed remorse and said he treated the victim as though she was his own daughter. Recognising that the offence warranted a custodial sentence, the probation officer recommended a suspended sentence of imprisonment, accompanied by a sentence of periodic detention.
Given the gravity of the offending as he had described it, the Judge considered that the sentence following a trial rather than a plea of guilty had to be higher than a sentence capable of suspension, i.e. a 2 year maximum, and imposed a sentence of 3 years imprisonment.
Counsel for the appellant has not argued on the appeal for a suspended sentence. Her argument is that the length of the sentence was manifestly excessive in all the circumstances and outside the length available to the sentencing Judge. She emphasised that Mr Barnes had been charged not with sexual violation by unlawful sexual connection, carrying a maximum of 20 years imprisonment, but with the lesser offence of indecent assault on a girl under 12, which carries a maximum sentence of 10 years imprisonment. In that regard Ms Stanley relied particularly on R v Smith (CA 117/92, judgment 10 August 1992), where the court in upholding concurrent sentences of 3 years imprisonment on two charges of sexual violation and one of indecent assault on a girl over 12 said:
The term of 3 years imprisonment although at the upper end of the scale for offending of this description is not outside the appropriate range following a defended trial. As has frequently been said in this Court there is a need for condemnation of this conduct, and it must be met by a significant term of imprisonment. The appellant was in a position of trust, there were two separate incidents of digital penetration of a young girl, and there are no extenuating or mitigating circumstances. We are unable to say that a total sentence of 3 years is excessive.
Counsel's submission was that a sentence of 3 years imprisonment in this case on a single charge of the lesser offence of indecent assault, where the incident was of relatively short duration and there was no skin to skin contact, had to be regarded as manifestly excessive. In support, she also referred to R v Meredith-Blyde (CA 245/95, judgment 19 July 1995); R v Moran (CA 105/90, judgment 19 July 1990); R v Frost (CA 242/89, judgment 27 October 1989); R v A (CA 389/88, judgment 9 March 1989); and R v Engu (CA 478/93, judgment 15 March 1994), all involving multiple offending and with sentences in line with Smith.
Mr Stone for the Crown submitted that in particular factual circumstances in terms of culpability there may be a degree of overlapping between the prescribed offences of sexual violation and indecent assault. And, he noted, except for Meredith‑Blyde the offending in the cases cited all pre-dated the 1993 amendments which increased the maximum sentence for sexual violation from 14 years to 20 years. In this case, he said, the complainant in her evidence at trial said she felt penetration of her vagina although she also stated that she was still wearing underwear, and, in Mr Stone's submission, the evidence might well have justified a charge under s128, sexual violation, or at least a charge under s129 of attempted sexual violation or assault with intent to commit sexual violation.
But as Mr Stone properly accepted, Mr Barnes was to be sentenced for the offending as charged. Indecent assault is a difficult sentencing area where there may be such factual variations that there is no inflexible sentencing regime and sentences may range from community based sentences to substantial terms of imprisonment. Of its kind, this is serious offending given the nature of the offending itself, with the premeditation involved, the youth of the victim, and the clear breach of trust. However, while recognising the advantages the trial Judge had when it came to sentencing over this court, we are satisfied that the sentence of 3 years imprisonment was more than necessary to show the community's denunciation of Mr Barnes' conduct and to punish him appropriately for his conduct.
The appeal is allowed, the sentence of 3 years imprisonment is quashed and in lieu a sentence of 2 years imprisonment is imposed.

Solicitors
Thomas Dewar Sziranyi Druce, Lower Hutt, for appellant
Crown Solicitor, Wellington

[2000] NZCA 10

14 February 2000