The Queen v Ronald Van Der Plaat

[2001] NZCA 280

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND CA.463/00

THE QUEEN

V

RONALD VAN DER PLAAT

Hearing:	1 August 2001 (at Auckland)
Coram:	Elias CJ Thomas J Anderson J
Appearances:	K Ryan QC for Appellant P K Hamlin for Crown
Judgment:	1 August 2001

JUDGMENT OF THE COURT DELIVERED BY ELIAS CJ

1. The appellant was found guilty by a jury of two representative charges of rape, one representative count of indecent assault and three representative counts of unlawful sexual connection.  All offences were committed against the appellant’s daughter.  They span a 10 year period.  The appellant was sentenced by Randerson J, the trial Judge, to a total of 14 years imprisonment.  The sentences imposed in respect of each of the charges of rape were 9 years to be served concurrently.  On each of the three charges of unlawful sexual connection the appellant was sentenced to 5 years imprisonment, to be served concurrently with each other but cumulatively upon the sentences for rape.  On the count of indecent assault the appellant was sentenced to 3 years imprisonment, to be served concurrently with the other sentences.

2. The appellant appeals his sentence.  An appeal against conviction is not pursued.  Notice of abandonment signed by the appellant was tendered by Mr Ryan at the hearing today.  The appellant’s acceptance of the jury verdict comes late in the day but is nevertheless an important step in the vindication of the complainant and the rehabilitation of the appellant.  The abandonment of the appeal against conviction was proper.  The evidence against the appellant was overwhelming.

3. The appellant is now aged 66 years.  The offending took place between August 1983 and October 1992.  It began when the appellant and his daughter returned from Vanuatu where they had been living to New Zealand.  Similar abuse had however been perpetrated against the complainant by the appellant from the time the complainant was aged 9.  The complainant was aged 22 years at the time the offending for which he was sentenced began. 

4. The Judge in his sentencing remarks carefully reviewed the circumstances of the offending and the relevant principles.  He regarded the case as “at the very upper level of seriousness in terms of cases of sustained abuse to come before the Court”.  Indeed, on the appeal Mr Ryan very properly acknowledged that the Judge’s assessment was correct.  We can only agree.

5. The appellant is the father of the complainant.  He had the sole care of her from the time she was 9 years old.  From that time, in 1969, he treated her, as the Judge found, as a sexual slave.  The charges start from the time the complainant and the appellant came to New Zealand in 1983, by which time the complainant was aged 22.  The pattern of domination of the complainant by the appellant and the complainant’s chronic stress disorder (which had resulted from her treatment by the appellant and which prevented her from escaping from him) had by then been set.  The complainant had been sexually abused and beaten from an early age.  Evidence given at the trial, which the Judge by his sentencing remarks and the jury by its verdict accepted, was that the complainant because of the appellant’s treatment of her was so traumatised that she was effectively prevented from leaving the abusive relationship in which she was trapped, until assisted to do so in 1992 by the man she later married.  Even then, the complainant was forced to leave the country to escape.  It was only in 1996 that she felt able to approach the police.

6. The sexual abuse which was the subject of the representative charges was found by the Judge to have been “continuous and frequently repeated throughout the period of nearly 10 years” when father and daughter lived together in New Zealand.  The Judge described the sexual activity as “depraved”.  It entailed, in addition to intercourse, oral sex, anal sex, the insertion of all manner of objects into the complainant’s vagina, bondage and acts of what the Judge called “indescribable cruelty” in which the appellant frequently inflicted pain upon the complainant for his own gratification.  The complainant was required to take alcohol and mandrax to stupefy her.  The appellant took many photographs of the complainant during sexual sessions which the Judge said in his sentencing notes could only be described as “disgusting”.  The photographs and pornographic drawings the appellant made his daughter carry out were found by the police on the appellant’s arrest. 

7. The appellant has continued to deny any offending and that any sexual activity occurred.  He has expressed embarrassment and regret about the photographs only.  The Judge considered the denials in the face of the photographs and the evidence, including from independent witnesses as well as the complainant, “breathtaking arrogance”.  The appellant’s abandonment of the appeal is a first step towards acceptance of what he has done.  As Mr Ryan acknowledged, he seems to be in general denial about its enormity.

8. The Judge considered the psychiatric assessment about the complainant and the impact upon the complainant of the offending.  The outlook for her is “guarded”.  The complainant suffers from post traumatic stress disorder and gynaecological complaints.  In addition, the Judge considered it

   Evident that she has suffered a heart condition as a result of the drugs which you gave her and as a consequence, she should not risk a pregnancy.

He described the physical, emotional and psychological effects upon the complainant as “devastating”.

1. The Judge described the appellant’s circumstances.  He is 66 years old and has not previously offended.  He is in a stable relationship with a woman with whom he has one child and at the time of sentence was expecting another.  The appellant is in reasonable health although requires medication for cardiac fibrillation.  He is not suffering from any mental illness.  He steadfastly denies wrongdoing in relation to his daughter, a denial which may take some intervention to overcome

2. The Judge specifically referred to the fact that the sentencing penalty and tariff to be applied was that which applied before 1993.  The circumstances of the present offending were, however, far removed from the circumstances where, pre-1993 a starting point of 5 years for a single act of rape was appropriate.  He considered it necessary to impose a cumulative sentence.

   The Crown has submitted that a cumulative sentence would be appropriate to reflect the gravity of the offending in this case.  A cumulative sentence may be necessary where the leading sentence in a variety of offending would not adequately reflect the gravity of the total criminal conduct.  Care must be taken to ensure that the total term of imprisonment is not excessive or crushing, and that there is no “double counting” of aggravating factors.  Here, I am satisfied that a sentence for the rape counts, even at the upper end of severity for that offending, would not be sufficient to reflect the seriousness of the offending overall.  The acts of sexual violation by rape can clearly be differentiated from the acts of sexual violation by digital penetration, oral sex, and sexual violation with the use of objects,  The same applies to the indecent assaults,  I accept the Crown’s submission that punishment and deterrence must predominate over personal considerations and that a sentence must be imposed which will reflect the community’s emphatic denunciation of this type of behaviour.  I accept that the need for protection of the public is not as great in your case as it is in some others.  Nevertheless it is a factor to be considered.

3. The Judge identified the aggravating factors of the case as being

   [a]The gross breach of trust.  You were the one person from whom your daughter was entitled to expect protection but you betrayed the trust she had in you.

   [b]The fact that the offending occurred over such a sustained period of time and on such a frequent basis throughout.

   [c]The utterly depraved and abhorrent nature of the sexual activity involved.

   [d]Your total control and domination of your daughter, including the use of physical violence.  I am satisfied that this was a case of serious violence in terms of s5 of the Criminal Justice Act 1985 which requires a prison sentence unless there are special circumstances.  None are suggested here.

   [e]The pain which you inflicted on her in a most sadistic manner.

   [f]The physical, emotional, and psychological effects on your daughter which have been traumatic and will undoubtedly continue for most if not all of her life.

   [g]Your continued denials of responsibility and your lack of remorse.

   [h]The attempts which you made to dissuade a key Crown witness from giving evidence.

4. Mitigating circumstances identified were few.  The Judge took into account the appellant’s lack of previous convictions and apparently good character apart from the offending.  He also took into account the appellant’s age, recognising that “at your age a sentence of imprisonment is likely to have a more severe effect than if you were younger”.  But for these factors, the Judge said he would have imposed a higher sentence.

5. Mr Ryan submits that, despite the seriousness of the offending, the sentence is excessive because

• the Judge wrongly took into account as a seriously aggravating circumstance offending which was not the subject of charges and which had taken place in Vanuatu at a time when the complainant was aged between 9 and 22.

• an effective sentence of 14 years was “excessive and crushing” having regard to the age of the appellant.

• The Judge failed to have proper regard to the totality of the offending.

• The Judge was under the impression from the victim impact statement that the complainant’s heart condition resulted from the Mandrax used by the appellant to sedate her, whereas the complainant has told Bridget Ann Huckle (whose affidavit about the conversation is before the Court) that the condition is a hereditary one.

• The Judge was influenced by current sentencing levels rather than those applicable at the time of the offending, in breach of principle.

• The appellant’s personal circumstances, including his age, domestic situation and health were not adequately reflected in the sentence and the 14 years imprisonment was longer than was necessary to reflect the emphatic denunciation of the offending

• The case was appropriate for mercy.  Deterrence in the case of this appellant is Mr Ryan said “really a death sentence in prison”

• The emphasis on deterrence in sentencing passes over the real causes of aberrant behaviour and is based upon a questionable assumption that longer sentences reduce crime.

1. In his responsible and caring oral submissions Mr Ryan emphasised the age of the appellant and the additional hardship that a long term of imprisonment would mean for a man of his age and health.  He urged the Court to leave the appellant with some hope and not to confirm what he said would be a death sentence.  He referred to the abandonment of the appeal as indicating the more realistic view the appellant has now come to.  It is, he submits, the start of an insight into his behaviour.  The Court appreciates the submissions made by Mr Ryan but in the end the points made can be shortly disposed of.  The Judge is not shown to have erred in his approach or in the result. 

2. The Vanuatu background was important because it established the conditions which meant that the appellant dominated the complainant to the extent that she lacked the ability to escape from him for the ten years of the offending.  The Judge made this clear when he said at the outset of the sentencing

   You will be sentenced solely on the basis of the offending which occurred between 1983 and 1992.  However, the prior offending is relevant in explaining the nature of the relationship between the two of you and the reason why your daughter was unable to leave you, even after she had become an adult.

3. The sentence is fully justified in terms of the culpability in the offending between 1983 and 1992.  No inference that it is attributable to the events the Judge specifically said he had excluded is warranted.

4. The age of the appellant was expressly taken into account by the Judge, as was his slight physical infirmity.  The sentence imposed could well have been higher had the Judge not taken the particular difficulties the appellant is likely to encounter in prison into account.  Although the Judge does not separately refer to the new family of the appellant, he was right in the circumstances of this case to take the view that the principal consideration was denunciation of the appellant’s depraved conduct and the devastating effect it had had on the complainant.  The appellant’s heart condition is not severe.  He comes from a family with relatively long life expectancy.  He can hope to return to the community.  The complainant has a life sentence.

5. In our view applying pre-1993 levels of sentencing, the aggravating circumstances identified by the Judge required a sentence of the severity here imposed.  The offending occurred over a lengthy period of time and was a way of life for the complainant.  It was sadistic and cruel as well as depraved.  The Judge properly took into account the totality of the offending.  The use of a stupefying and dangerous drug (which persisted throughout the period of the offending) was a seriously aggravating circumstance even if it did not directly impact upon the complainant’s heart condition (a point upon which there is no reliable evidence).  It was a mechanism of control and was used by the appellant to accomplish sadistic and erotic gratification in which the complainant was an object to be abused.  It was right to make the penalty for the indecency offences cumulative on those of sexual violation.  Some of them were the offending which entailed most humiliation and pain for the complainant.  Although the appellant can be assessed as a low risk in terms of repeat offending against others, his daughter continues to be very fearful of him.  She has some cause.  The appellant has not acknowledged wrongdoing.  He has persisted in seeking her out, despite her efforts to hide from him in the years since 1992.  She is entitled to the protection of a lengthy prison sentence.  Given the appellant’s refusal to acknowledge wrongdoing, a sentence of 14 years cannot be viewed as excessive.  It was entirely proper and was carefully arrived at by the Judge for reasons we fully accept.

6. For these reasons the appeal against sentence is dismissed.

Solicitors
Crown Solicitor, Auckland for Crown