The Queen v Stephen Charles Sinclair
[2003] NZCA 235
•22 October 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA258/03
THE QUEEN
v
STEPHEN CHARLES SINCLAIR
Hearing:20 October 2003
Coram:Glazebrook J
Baragwanath J
Goddard JAppearances: M W Newell for Appellant
L M B Lamprati SC for the Crown
Judgment:22 October 2003
JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J
[1] The appellant, a man of 47 years of age, appeals against a total sentence of six years imprisonment imposed by the District Court at Dunedin on 23 June 2003. Of the seven charges to which he had pleaded guilty five were under the Crimes Act 1961. Four were representative counts of indecent assault of a boy aged 12-16 over the period 25 March 2001 to 8 August 2002 when the victim was aged between 12 and 14 years. The indecencies entailed masturbation of the boy’s penis and performing oral sex on him on numerous occasions. The fifth was a representative count of anal intercourse with the boy between 1 March and 8 August 2002 when he was aged 13 or 14 years; the appellant was sentenced on the basis that the offending occurred on a number of occasions. The final two counts were under the Films, Videos and Publications Classification Act 1993, one for the display of an objectionable publication in the form of pornographic videos and child pornography displayed on the appellant’s computer to the victim between 1 August 2001 and 8 August 2002; and the other of making an objectionable publication, namely a video of the appellant masturbating the complainant, a boy under the age of 16 years, between 1 February and 8 August 2002.
[2] Following the separation of his parents the complainant was living with his mother in the family home in Dunedin. She met the appellant through an internet dating service. The offending occurred in her home in Dunedin and at the appellant’s addresses first in Roxburgh, then in Millers Flat and finally in Herriot to where the boy, his mother and the appellant had moved. The offending came to light in August 2002 after the victim had been taken to a doctor in Dunedin because of bleeding from his anus. A search of the appellant’s home revealed the pornographic material.
[3] The evidence supports the sentencing Judge’s conclusion that the appellant acted in a predatory fashion. He told the probation officer that he was not sexually interested in boys, despite his conviction on 24 January 2000 on four charges of indecent assault and other offending against boys resulting in a 12 month sentence. More realistically, he acknowledged that he had been initially “concerned” when he discovered the victim’s mother had a teenage son.
[4] The learned sentencing Judge stated that
In terms of harm to a victim it does not get much worse than this. It is sad reading. The young boy has attempted suicide and there are ongoing concerns for him. While no one knows what the ultimate outcome will be, he is in a situation even now where he will require prolonged and intensive inpatient care, regular psychological counselling and quite high doses of medication to control what the doctor describes as severe post-traumatic stress disorder, major depressive disorder and obsessive compulsive disorder.
[5] We endorse that assessment. There have been at least three suicide attempts. Prior to the offending the victim was described as having a great sense of humour, always laughing and joking even though being a somewhat reserved and inhibited youth. The consulting psychiatrist considered that the latter characteristics contributed to the victim’s being selected by the appellant and groomed into readiness for the abuse which has adversely affected the victim’s mental health, schooling and socialisation. His normal adolescent development has been seriously compromised and he will need continuing help for some time.
[6] There is evidence that the appellant had been physically abused by his father and sexually abused by an “uncle”. Those considerations provide background to the offending but afford no mitigation for it.
[7] The offences under the Films, Videos and Publications Classification Act are not simply ancillary aspects of the Crimes Act charges. The first was a fundamental part of the seduction of the boy; the second both formed part of and was maintained by the appellant as a graphic record of the abuse.
[8] The sentencing Judge adopted a 6½ year starting point for the Crimes Act offending from which he allowed a deduction for the appellant’s guilty pleas, resulting in a net five year term. To that he added nine months cumulative for the offences under the Films, Videos and Publications Classification Act making five years and nine months in all. He added a further cumulative three months for a bad breach of bail in the course of which the appellant attempted to flee the country. There is no appeal against that last sentence.
[9] The Judge also imposed a minimum non-parole period of three years and ordered destruction of the items seized except those that the police determined were not objectionable. An application for a Databank compulsion order was granted.
[10] In his submissions on appeal, Mr Newell submitted that the five year term imposed on the Crimes Act offences was manifestly excessive and/or inappropriate in the circumstances. We do not accept that submission.
[11] Each of the appellant’s indecency convictions was under s 140A(1)(a) entailing liability to imprisonment for a term not exceeding seven years for indecently assault on a boy of or over the age of 12 and under the age of 16 years. The count of anal intercourse was under s 142(1)(a) which, in the case of a boy over 12 but under 16, entails liability for a prison term not exceeding seven years. In the case of a boy under 12, the term is 14 years. Each is a qualifying offence for the purposes of s 87(5) of the preventive detention regime of the Sentencing Act 2002 and of a similar kind to the offences referred to in para [3] above. The first charge under the Films, Videos and Publications Classification Act is under s 127(4), which entails liability to a term of imprisonment not exceeding one year. There is a similar penalty for the second, brought under s 124(1).
[12] The Sentencing Act 2002 provides
84 Guidance on use of cumulative and concurrent sentences of imprisonment
(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a) the time at which they occurred; or
(b) the overall nature of the offending; or
(c)any other relationship between the offences that the court considers relevant.
85 Court to consider totality of offending
(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
…
[13] Given the interconnected nature of the offences the starting point is the presumption that concurrent sentences are appropriate: s 84(2). But it is the Court’s duty in terms of s 85(1) to ensure that the individual sentences reflect the seriousness of each offence and in considering totality the Court must avoid not only over sentencing but under sentencing.
[14] The appellant having been convicted of indecencies and of anal intercourse, there has not been established against him the additional element of absence of consent required for sexual violation under s 128 with its penalty under s 128B of a term of imprisonment not exceeding twenty years. But to the extent that the Crown may have considered itself unable to establish lack of consent, the reason for that will have been the process of corruption which the appellant has deliberately brought about, including the conduct charged in the first count under the 1993 Act. While the Court will not lightly move above the ceiling of the most serious count which s 84(2) treats as generally appropriate it may do so if that is required to reflect the totality of the offending. We are satisfied that a seven term would not adequately recognise the enormity of the sustained offending and the extent of the consequences upon the complainant. Not only are we satisfied that the Judge’s starting point of seven years and three months for the totality of the offending is justified; we would not have interfered with a longer term. We record our view that consideration should be given to attempting the appellant’s rehabilitation while in custody on the basis that similar offending in future will raise starkly the prospect of preventive detention.
[15] No criticism was made of the deduction of 18 months for the plea of guilty which followed the complainant’s undergoing medical treatment on 9 August 2002 for bleeding from his anus, his disclosure to his father two days later of the sexual abuse followed by an immediate complaint to the Dunedin and Balclutha police, and the execution of a search warrant at the complainant’s address in Herriot when a number of pornographic videos as well as video cameras, cassettes, compact discs and computer equipment were seized. The pleas came some four months after the preliminary hearing. We agree with the Judge both that the pleas could have come much sooner and thus reduced stress and anxiety to the complainant and that the fact he was saved from giving evidence was of very real importance.
[16] It was open to the Judge to structure his sentencing in various ways; no exception can be taken to his treating the indecent assaults and the anal intercourse sentences as running concurrently and adding cumulatively nine months for those under the Films, Videos and Publications Classification Act to reach seven years and three months and then deducting 18 months to reach a net term of five years and nine months.
[17] As to the minimum non-parole period, two judgments of this Court state the principles to be applied. In R v Brown [2002] 3 NZLR 670 it was stated at 678-9 para [35]
…when a minimum non-parole period is in issue the sentencing Judge is involved in a two-stage process. First, the nominal or maximum length of the sentence is fixed… Secondly, as a separate exercise, the Judge must consider whether the offending itself is sufficiently serious so that for the offender to serve only the ordinary minimum period of one–third of the length of the sentence would not be enough to punish, deter and denounce the offending. If that is so the Judge may fix a minimum non-parole period at a level (not more than two–thirds of the nominal length of the sentence…) which does sufficiently punish, deter and denounce the offending...
[18] In R v H and D (CA 296/02, CA 299/02, 10 July 2003) it was held (para [4]) that a minimum parole period may be set only when the circumstances take it out of the ordinary range of offending of the particular kind which must be assessed on an individual and comparative basis.
[19] There can be no doubt that the present offending satisfies the criteria for the imposition of a minimum parole term. The need to punish, deter and denounce the offending would not be met if the appellant were eligible for parole after only one‑third of his sentencing.
[20] As to its length we respectfully endorse the assessment of the learned Judge. His three year term will enhance the prospects of the complainant’s healing, free of the apprehension of premature release of the offender as well as suitably punishing, deterring and denouncing the offending.
[21] The appeal is accordingly dismissed.
Solicitors:
Farry and Co, Dunedin
Crown Law Office, Wellington
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