The Queen v TT(CA257/02)
[2002] NZCA 246
•29 October 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA257/02 |
THE QUEEN
V
TT(CA257/02)
| Hearing: | 16 October 2002 |
| Coram: | McGrath J Baragwanath J Salmon J |
| Appearances: | P L Borich for the Appellant A E Kiernan for the Crown |
| Judgment: | 29 October 2002 |
| JUDGMENT OF THE COURT DELIVERED BY MCGRATH J |
Introduction
The appellant, who was aged 15 years at the time of the offending, pleaded guilty to one charge of sexual violation by rape and one charge of sexual violation by digital penetration. The victim, who at the time was seven years of age is his niece. The appellant was sentenced in the Auckland High Court on 19 July 2002 to four years imprisonment in respect of the sexual violation charge and three years imprisonment to run concurrently on the unlawful sexual connection charge. He appeals against his sentence on the grounds that it was manifestly excessive and wrong in principle.
The offending
The appellant, who has been brought up by his parents in the Cook Islands, came with them to New Zealand for a holiday in November 2001. They stayed with the family of the complainant whose father is the appellant’s father’s brother. On at least one occasion the appellant slept in a double bed with the complainant. Over a period of three weeks during November 2001 the appellant sexually violated the complainant at night when no other family members were present. The appellant digitally penetrated the complainant’s genitalia between six and ten times and on one occasion this was followed by rape. The offending came to light after the complainant was seen by a doctor concerning a vaginal discharge. The doctor ascertained that the complainant had a sexually transmitted disease, gonorrhoea, which had been contracted from the appellant.
When interviewed by the police the appellant admitted the offending and admitted he knew that what he was doing was wrong.
Impact on the victim
Reports to the High Court from a registered psychologist and a counsellor indicate that the victim has suffered bad effects from the offending. These include sleep disturbance, with on-going nightmares and flash-backs which make her feel afraid, particularly when awaking at night. She is not able to sleep on her own. There are also intrusive impacts on her daytime life, in the form of thoughts about the abuse. Associated with these intrusive thoughts are feelings of sadness and fear. She gets angry at her inability to stop herself thinking about what happened.
The victim’s loss of confidence and wariness in dealings with boys will continue. Indeed the general effects of the abuse will almost certainly be long term and intensify with her greater understanding as she gets older of the significance of what happened to her. She is presently undertaking therapy to ease the emotional effect and further counselling through adolescence and adulthood will probably be required.
Sentencing reports
The Probation Officer reported to the High Court that the appellant had told him his first sexual experience was at nine years of age and that when 13 years old he had sex with a girl of 16 years. The appellant now understood that what he did was wrong in view of the victim’s age. He had however showed no empathy for the victim and took the view that she had initiated what had happened by touching him, in a sexual way, at a time when he was half asleep. As a result he had become excited and the offending followed. The Probation Officer said that while the appellant believed his victim had contributed to his behaviour he also accepted responsibility for his sexual arousal and that this had contributed to the offending. The Probation Officer recommended a further remand for an assessment for the Auckland SAFE programme be undertaken while the appellant was living in a supervised residential situation. He was concerned at the prospect of the appellant learning more deviant behaviour if sentenced to a prison term in a youth prison.
The second report, which had been taken into account by the Probation Officer, was from a Wellington Stop Inc adolescent programme specialist. She said that in the course of her assessment the appellant appeared to be taking some responsibility for his actions, although he had no concept of the possible damage he had caused the victim. The therapist attributed the appellant’s lack of empathy to his evident immaturity but was also of the view he had shown some responsibility and sense of remorse. The therapist was concerned that there were features in the offending possibly leading to an increase in the future risk. These were the appellant’s rapid move to penetration and lack of concern that his victim was a child. The therapist recommended a community based sentence coupled with treatment through attendance of the SAFE programme or as a second preference another residential based programme for adolescent sex offenders. Options for his placement were discussed.
Sentencing in the High Court
The appellant pleaded guilty in the Youth Court but the District Court Judge declined jurisdiction and remanded him to the High Court for sentence. In that Court the sentencing judge noted that there had been some discussion as to whether the complainant was subjected to penile rape more than once and stated that, having heard from counsel, he would sentence the appellant on the basis that the complainant was raped only once. As factors aggravating the offending the Judge identified:
repeated digital penetration;
that the offending occurred while the complainant was sleeping in the same room as the appellant;
an element of breach of trust in that the appellant was staying in the house as a member of the victim’s family when the offending took place;
the difference in ages between the appellant who was aged 15 years and the complainant aged seven years;
the continuing traumatic effect on, and the transmission of sexual disease to, the complainant.
The Judge correctly observed that there is no special sentencing tariff for rape by young offenders and that each case had to be determined by its particular facts. He noted the wide range of sentences that had been imposed in other cases cited to him. While he did not expressly identify factors which he regarded as mitigating the gravity of the offending, the Judge did refer to the appellant’s guilty plea, age and good record. He also referred to recommendations against imprisonment in sentencing reports before him one of which was from two groups who deal with sexual offenders.
It was acknowledged by the Judge that he found the task of sentencing the appellant difficult. On the one hand the appellant was a very naïve 15 year old youth who might lack psychological insight, empathy for others and an understanding of the impact of his behaviour on them. On the other hand he had apparently told the Probation Officer he had been egged on by the victim, although that was disputed. He recognised that there would be benefit to the appellant, and hopefully the community, if he were involved in one of the programmes offered by the agencies submitting sentencing reports. He also said an offender’s youth is a factor in “determining whether an exceptional case for a non-custodial sentence has been made out”. But in this case the offending had taken place seven times and it was entirely motivated by the appellant’s desire for gratification. He referred to the appellant’s “great interest” in pornographic films and his interest in sexual activities since the age of nine. Furthermore the effects on the victim had already been and would continue to be devastating and her family desired that a term of imprisonment be imposed.
The Judge imposed a sentence of four years imprisonment for the rape count and a concurrent sentence of three years imprisonment for the repeated incidents of digital penetration. He said that the sentences would have been six and four years respectively in the absence of the appellant’s guilty plea.
Appellant’s submissions
In his written submissions Mr Borich, counsel for the appellant, argued that the Judge had given insufficient weight to mitigating factors. He referred to a decision of a Full Court of this Court in R v N [1998] 2 NZLR 272 where a youth offender was imprisoned for three and a half years, on a Solicitor-General appeal, for what Mr Borich said were significantly more serious offences. He also submitted that the High Court Judge placed too much weight in this case on a reference in the pre-sentence report to the appellant having an interest in sexual activity since the age of nine. It was not accepted that this was said by the appellant to the probation officer. Nor was there anything before the Court to support the Judge’s finding that the appellant had a long-term interest in sexual activity. Mr Borich also took issue with the Judge’s suggestion that the appellant had maintained he was egged on by the complainant.
In his oral submissions Mr Borich emphasised the immaturity and naivety of the appellant by comparison with youths of the same age who had been brought up in New Zealand. Although he accepted that the appellant had some knowledge of the physical aspects of sexual activity Mr Borich said he had little or no understanding of the likely consequences, nor of the moral aspects of his conduct. He emphasised the offending had not arisen from an inherent sexual deviancy. He referred to the good prospects for rehabilitation of the appellant through treatment under the SAFE programme as outlined in the report. It was common ground that no such programmes were available to those under 18 years of age while in prison.
Crown submissions
Ms Kiernan for the Crown said that the sentencing decisions of the Courts for similar youth offending fell into two categories. First there are the cases where the offender’s mental or psychological difficulties have justified an exceptional sentence and secondly cases, without that special factor, in which sentences similar to that in the present case were imposed. The Crown submitted that the sentence of four years imprisonment was not outside the range of sentences for offending of this kind by a youth.
Ms Kiernan also argued that the aggravating factors in this case made the offending grave. They included the fact that the complainant was seven years old at the time of the offending and much younger than the appellant. The representative nature of the charges of digital penetration and that the offending took place over a three week period were serious aggravating factors. So was the fact that the complainant contracted a sexually transmitted disease from the appellant. Ms Kiernan also said the appellant has shown no empathy for the victim and apparently believed the complainant initiated the rape because, he says, of the way she first touched him. She pointed out that reports indicate there is a medium to high risk of re-offending.
As to the appellant’s criticism of references in the pre-sentence reports to sexual activity from the age of nine, the Crown submits that there is no requirement that mitigating or aggravating features be proved in court. Such reports are presented to assist in sentencing and are generally accepted as truthful. The references to ongoing sexual knowledge and interest in pornography were properly made from the fact that the appellant had his first sexual encounter at nine, first exposure to sex at 13 and had watched pornographic movies since the age of 13. Clearly the offender was not a stranger to sexual activity. Overall the Crown submitted that the sentence was lenient and was certainly not excessive in the circumstances.
Decision
A number of decisions of this Court and the High Court were referred to us concerning the sentencing of youth offenders for offending involving sexual violation. In R v C (CA332/95, 28 September 1995) the Solicitor-General appealed against a sentence of 18 months supervision imposed for offending at a time when the offender was aged 14 years 3 months. On two occasions he had touched the genital area of his four year old cousin and then proceeded to have full sexual intercourse with her.
A Family Court Conference attended by the mother of the victim had with her agreement recommended supervision. The Youth Court had declined jurisdiction and the offender was sentenced by a High Court Judge, following a plea of guilty to two charges of sexual violation by rape. This Court dismissed the Solicitor-General’s appeal and upheld the sentence of supervision having regard to four factors. They were first the youth of the offender, secondly his motivation in offending, which was a juvenile attempt to get back at the child’s mother, who had ceased to be his care-giver, for not giving him enough attention. The third factor was the offender’s circumstances as a youth who had experienced emotional difficulties arising from a lack of family security and of emotional bonding in his upbringing and who had shown remorse and commitment to the SAFE rehabilitation programme in which he had been engaged. Fourthly a restorative approach had also been favoured by the victim’s family and the police. The Court observed that the circumstances of the case were very special and unusual.
In R v N, the Solicitor-General appealed against a suspended sentence of two years imprisonment imposed on an offender who was 14 years 7 months when offending commenced. The offending, which continued over a 12 month period, had included repeated rape of a three year old child and the three victims were all under 10 years old. It took place while the offender was living in a foster home. The offender had suffered sexual abuse from his brother during his childhood. He had become conditioned to a pattern of deviant sexuality. He was, however, genuinely remorseful and had made substantial rehabilitative progress through an adolescent sex offenders programme since the offending came to light. This Court took the view that there were no special circumstances of the offending or the offender warranting departure from the statutory presumption that violent offending is to be punished by imprisonment (s5(1) Criminal Justice Act 1985). But for the progress towards rehabilitation a sentence of four to five years imprisonment would have been imposed. A Full Court of this Court allowed the Crown appeal and imposed a sentence of three and a half years imprisonment. In considering this decision it is to be borne in mind that s5 of the Criminal Justice Act has been repealed by the Sentencing Act 2002.
In R v S (CA538/99, 28 March 2000) the appellant was sentenced, at the age of 24 years, for sexual abuse of his two younger half-sisters over a period of nearly three years when he was between 14 and 16 years old. At that age his offending stopped. The victims had been six and seven years old when it first began. It was accepted that the appellant had a bad home environment, and had lacked parental care and support at the time he offended. He pleaded guilty to seven counts, all but one of which was representative of conduct over the period. The offending was gross but it did not extend to genital penetration. At sentencing the assessment in the probation report was that the appellant was in urgent need of psychiatric or psychological assistance, but he was considered to be at low risk of re-offending. The victims emphasised that they had put matters behind them and forgiven the appellant. They sought family reunification. A sentence of 18 months imprisonment was substituted by this Court for the two and a half year term imposed by the District Court.
These cases confirm the correctness of the Judge’s view that there is no sentencing tariff in cases of rape by youth offenders and that the requirements of each case must turn on the particular facts. A basic sentencing principle, now reflected in s8 of the Sentencing Act, is that the gravity of the particular offending and the degree to which the offender is culpable must be taken into account (s8(a)). The seriousness with which the Court’s view the crime of rape as reflected in the starting point for sentencing of adult offenders of a term of 8 years imprisonment set in R v A [1994] 2 NZLR 129.
In this respect the Judge was right to treat the appellant’s offending as very serious. First it was repetitive and intensive involving six to ten instances of digital penetration, one of which led on to sexual intercourse, over a period of three weeks immediately following the appellant’s arrival in New Zealand. Secondly there was a substantial difference in age between the appellant and his victim which points to the irrelevance of whatever she may have done prior to the offending in assessing the appellant’s culpability. There was no basis at all for the appellant’s to shift some of the responsibility for what happened away from himself. Thirdly the impact on his victim, already outlined is severe and will be lasting. To that must be added the impact on her parents who have no doubt felt the anguish of offending against their child taking place in their home and the tensions it has no doubt caused within their wider family.
Offending of such a gravity is not excused by the offender’s youth and naivety even if accentuated as in this case by the appellant’s different upbringing and cultural background. The reports available at sentencing make it plain he knew at the time what he was doing was wrong. It is not suggested that he suffers from developmental, underlying personality or psychological difficulties. Where youth is associated with such particular circumstances the Court must take into account that a sentence, otherwise appropriate, may be disproportionately severe (s8(h) Sentencing Act, R v C, and R v Carmichael (CA521/94, 23 March 1995)). In the circumstances of the offending and this offender it would have been highly inappropriate for the Judge to have imposed other than a stern sentence. Imprisonment for a considerable period was in this instance clearly necessary to make the appellant accountable for the harm he had caused and to bring home to the appellant the shocking nature of what he has done to a defenceless young relative. These are purposes of sentencing provided for in s7(1)(a) and (b) of the Sentencing Act.
The real issue raised by this appeal is whether the term of imprisonment must be as long as the four year sentence imposed. Reported progress in rehabilitation was recognised in R v N as a factor justifying reduction in the length of a term of imprisonment imposed on a young sexual offender. While a number of aspects of that judgment appear, implicitly, to have influenced the sentencing Judge he does not appear to have had regard to that particular one.
The reports indicate there is a medium to high risk the appellant will reoffend on his release without further treatment additional to that he received on remand. Treatment of the appellant is accordingly an important requirement in the public interest, as well as his own interests. It was with real concern that we learnt from the reports before us, confirmed by counsel for both the appellant and the Crown, that the prison based special treatment programmes for sexual offenders will not be available to the appellant in prison because he is too young. Existing programmes in prison do not accept people under the age of 18 years. In this regard the position has not advanced from that available in 1998 as discussed in this Court’s judgment in R v N (at p287).
While, for the reasons we have given, we agree a substantial prison term is necessary, the Judge’s departure from R v N requires us to reconsider his exercise of the sentencing discretion. We have decided that there are particular factors in this case which enable us to avoid putting the appellant at risk of further development of attitudes that might reinforce a pattern for future offending. As it happens, because of the time spent in custody on remand and since he was sentenced, the effect of our decision is that the appellant will soon be eligible for parole on terms considered appropriate by the Parole Board. Mr Borich has indicated that when he is released it will be possible for him to reside in the care of relatives willing and able to care for and supervise him full-time while he attends a treatment programme. There are other options for his placement and treatment canvassed in the reports. As to whether and when one of these may commence, and if so which and under what conditions, is of course a matter for the Parole Board and government authorities. With respect to the latter we express the hope the treatment programme for him will be undertaken in New Zealand in light of the limited possibilities for treatment in Rarotonga.
Having regard to all these matters we take the view that in the particular circumstances a sentence of less than four years imprisonment is sufficient to mark society’s strong disapproval of the appellant’s offending while offering the authorities flexibility to plan for treatment essential to the appellant’s rehabilitation. We have decided a term of imprisonment of three years is appropriate. For the sake of completeness we note that it has not at any stage been suggested by the Crown that a minimum period of imprisonment was appropriate in this case.
Conclusion
For these reasons the appeal against sentence is allowed. The sentence of four years imprisonment is quashed and a sentence of three years imprisonment substituted.
Solicitors
Rice Craig, Auckland, for Appellant
Crown Solicitor, Auckland
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