The Queen v v

[2001] NZCA 438

PROHIBITION ON PUBLICATION OF THE NAME OF THE COMPLAINANT OR OF ANY NAME OR PARTICULARS LIKELY TO LEAD TO HER IDENTIFICATION: SEE CRIMINAL JUSTICE ACT 1985, SECTION 139

IN THE COURT OF APPEAL OF NEW ZEALAND  CA 180/01

THE QUEEN

V

V (CA 180/01)

Hearing:  27 August 2001

Coram:  Richardson P

Heron J Chambers J

Appearances:  K M Daniels for appellant J M Jelas for Crown

Judgment:  30 August 2001

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

The facts

[1]                 The appellant and his wife have four children, aged 12 to 6 years.  In addition, over the years they have had a number of foster children living with them. One of those, the complainant now aged 17, lived with the appellant and his wife as their foster daughter from the time she was 9. Her younger natural sister has also

lived in the same household. In August 1995 the two sisters were formally placed under the guardianship of the appellant and his wife.

[2]                 In about 1999, when the complainant was aged 15, she and the appellant began to show inappropriate physical affection to each other. That physical affection progressed to the stage where the appellant would touch the complainant’s breasts and genital area. Initially this was on top of the complainant’s clothing, but later the appellant progressed to touching her breasts and genital area underneath her clothing. Over time the physical affection progressed further to the stage where each was performing oral sex on the other. These acts occurred on regular and numerous occasions.

[3]                 Once the complainant turned 16, the appellant began having sexual intercourse with her. Sexual intercourse continued on a regular basis until March  this year, when the complainant found that she was pregnant. At that time all was exposed. The appellant, who is 42 years old, immediately acknowledged his guilt. He resigned from his teaching position before being asked to do so. He moved out  of the family home.

[4]                 The appellant was charged with three counts. The first was having sexual intercourse with the complainant when she was aged 16 and 17 and was his foster daughter and living with him as a member of his family, an offence under s 131(1)(a) of the Crimes Act 1961. Secondly, he was charged with doing an indecent act upon her when she was aged 15, an offence under s 134(2)(b) of the Crimes Act. Thirdly, he was charged with permitting the complainant, a girl then aged 15 years, to do an indecent act upon him, an offence under s 134(2)(c) of the Crimes Act. Each of the charges was a representative charge. The maximum penalty on each charge was a term of imprisonment of seven years. The appellant pleaded guilty to the three charges at the earliest possible opportunity.

[5]                 The appellant came up for sentence in the District Court on 8 June this year. The judge sentenced the appellant to a period of four years’ imprisonment on each of the charges, the sentences to be concurrent. From that sentence the appellant  appeals. He contends that the sentence was manifestly excessive.

Grounds of appeal

[6]                 Mr Daniels, for the appellant, was particularly critical of two aspects of the sentencing judge’s remarks. The first was the judge’s view that “this case is as bad  as it gets”. The second matter Mr Daniels criticised was the judge’s starting point of six years’ imprisonment.  From that starting point he made an allowance of two  years “to cover the early pleas of guilty, to cover [the appellant’s] extreme remorse and to recognise the effect that the sentence of imprisonment will have on other close family members, who in a sense are victims in the same way as is the complainant”. Mr Daniels submitted that the inappropriate starting point led to a manifestly excessive sentence. He referred to a number of features which, he said, justified a lower starting point and a lower overall sentence:

(a)The relatively mature age of the complainant.

(b)The consensual nature of the acts.

(c)        The wishes of the complainant as recorded in her victim impact statement and in a letter she subsequently wrote to Mr Daniels. In the former she recorded that she still wanted to see the appellant and that she missed him always being around for her.  She said she  felt he had “abused his position” but at the same time did not feel that he had taken advantage of her. In the letter to Mr Daniels, the complainant expressed the view that the sentence that was imposed upon him in the District Court was “very unfair and too long”. She said in that letter that the relationship was not “a forced relationship” but rather “was done willingly”. She also said that, on the “odd time” she had told her foster father that she did not want him, he had understood and did not carry on and try to force himself upon her.

(d)        The wishes of the appellant’s wife. Naturally the appellant’s wife would like the appellant to be released from prison as soon as possible to help her care for her large family.

(e)The family responsibilities of the appellant.

(f)The exceptional history of the appellant as a foster father.

(g)The extreme remorse of the appellant.

(h)The lack of previous convictions.

(i)His presenting himself to the police.

(j)The very early plea of guilty.

(k)The otherwise excellent character of the appellant.

Was the sentence excessive?

[7]                 It is accepted that there is no tariff case in this area. That may reflect the fact that offences under s 131 are relatively rare. Eichelbaum CJ in X v Police (1993) 10 CRNZ 385 obtained some statistical information from the then Department of Justice as to the incidence of offending under s 131. That information showed that for the period 1986 to 1990 on average about 10 people per year were convicted under        s 131. In more than 90% of cases the outcome was a term of  imprisonment, generally of two years or more.

[8]                 We approach this appeal in two different ways. First we intend comparing  the facts of this case with the facts in five other cases to which we were referred. None of the five is on all fours with the current case. As will become immediately apparent from our review of the other s 131 cases, we do not share the sentencing judge’s view that “this case is as bad as it gets”.

[9]                 The first in time is R v Crime Appeal (CA 43/86), 13 June 1986. In that case the appellant had pleaded guilty to two charges of having sexual intercourse with  two young girls under his care. The two girls, who were sisters, were sexually interfered with, in one case when she was six to seven years old and in the other when she was aged between four and 10 years. The appellant was sentenced to five years’ imprisonment on each charge, concurrent. This court reduced the sentence to four years’ imprisonment. The offending in that case would have to be regarded more seriously than the appellant’s offending in the present case. There were two

complainants, not one. They were much younger than the present complainant. The offending took place over a much longer period. There could be, given their ages, no question of consent. In making that last observation, we do not overlook the fact that consent is no defence on any of the three charges the appellant faces. But a complainant’s willingness to take part in the sexual activities, even though of no moment on the topic of guilt, nonetheless must have some bearing on penalty.

[10]             The second case was R v Crime Appeal (CA 20/88), 28 June 1988. In that case the appellant had been sentenced to seven years’ imprisonment for sexual intercourse with his 15 year old step-daughter. He had previously been sentenced to nine months’ imprisonment for the same offence with the same girl some two years earlier. The girl had been made a State ward and had returned to the house only about a week before the new offending occurred. This court reduced the sentence to four years’ imprisonment. While the case is significantly different on the facts, overall we would conclude that the offending was more serious in CA 20/88 given that the offending was repeat offending following earlier punishment.

[11]             The third case to which we were referred was R v Accused (CA 263/90) [1991] 3 NZLR 288. In that case this court upheld a term of imprisonment of six and a half years. The offending was much worse than in the present case. The appellant had subjected his step-daughter to what the court described as a “decade of abuse” which caused the complainant “in large measure, the loss of her childhood”: ibid at 289. The effect on the girl had been tragic. The court noted, as effects of the appellant’s conduct on the complainant, that she was “asthmatic, anaemic, and [had] fallen into solvent abuse and alcohol abuse”. Between 1987 and 1989 she had attempted suicide five times by taking pills. The court concluded that, while every possible allowance should be made for the appellant’s otherwise good record and his standing in the community, nonetheless “the utter abhorrence of the community for such conduct must plainly be marked”: ibid at 289.

[12]             The fourth case was R v Crime Appeal (CA 178/92), 19 October 1992. In that case the appellant was found guilty of four counts of indecently assaulting a girl under 12 and one of having sexual intercourse with a girl under 20 living with him as a member of his family under his care and protection. The appellant was sentenced

to an overall sentence of four years’ imprisonment, which sentence was upheld in this court. On balance we consider the offending to be marginally worse in that case compared with the present case. There were two complainants, not one. The girls were younger than the complainant in the present case. There was no question of consent. The offending had a long-term impact on the girls. In addition, there was  no guilty plea.

[13]             Finally we note X v Police (1993) 10 CRNZ 385, to which we earlier referred.   In  that  case  the  appellant  pleaded  guilty  to  a  charge  that  between    1 September 1990 and 31 May 1991 he had sexual intercourse with a girl aged 17 years living with him as a member of his family and under his care and protection,  an offence under s 131(1)(b) of the Crimes Act. Eichelbaum CJ allowed the appellant’s appeal against sentence and reduced the sentence to 12 months’ imprisonment. We regard the offending in that case as less serious than the  offending in the present case. The girl was older when the offending began. The offending took place over a shorter period of time. As well the complainant was not  a foster daughter of the appellant.   We do see a distinction between cases under       s 131(1)(a), as the present case is, and cases under s 131(1)(b). The effect of the appellant’s offending in the present case is that the complainant has lost her entire family network, including day to day contact with her natural sister. We would also comment that the sentence imposed in X does seem lenient compared with the other cases to which we have been referred. The decision may be justified, however, on  the basis of the quite exceptional mitigating circumstances to which Eichelbaum CJ referred.

[14]             Having taken into account all those cases and all the facts in the present case, we consider that four years’ imprisonment in this case was excessive and that three years’ imprisonment would have been more appropriate. In particular we consider that four years’ imprisonment was quite out of line with X, which in some ways may be regarded as the closest case on the facts. At the same time we recognise that the penalty in X appears to have been lenient.

[15]             We have also considered this case from another viewpoint. There is no accepted starting point for offences under s 131. The starting point in a contested

rape case is now accepted as being eight years’ imprisonment: see R v A [1994] 2 NZLR 129. The starting point was increased to that figure after Parliament increased the maximum penalty for rape from 14 years’ imprisonment to 20 years’ imprisonment. Given the maximum seven year penalty under s 131, it might be relevant to consider, on a proportionate basis, two and a half years’ imprisonment as the starting point in a contested case of sexual intercourse with a girl under care or protection. If one did adopt that starting point in this case, one would then have to acknowledge significant aggravating features. These features would include:

(a)        The considerable period of the offending and the fact that sexual intercourse occurred regularly within that period.

(b)        The fact that the appellant made the complainant pregnant, having apparently taken no precautions to prevent pregnancy during the offending.

(c)        The fact that the offending has resulted in the complainant losing her only real family and in now having to bring up a child at a young age without really any extended family assistance.

(d)        The other sexual offending, namely the indecent acts which occurred before the complainant’s sixteenth birthday. (In adding this as an aggravating feature, we are assuming concurrent sentences, so that the s 131 offence becomes the lead offence.)

[16]             Those aggravating features could easily lead to a doubling on the starting point.

[17]             The mitigating features in this case would then justify a reduction. The sentencing judge allowed two years, and we think that not unreasonable. That would then bring the sentence back from five years (including aggravating features) to three years. While sentencing is never scientific, this alternative approach does provide some corroboration for the result to which we came as a result of the comparative analysis.

Result

[18]             We allow the appeal. We substitute a sentence of three years’ imprisonment on each charge, the sentences to be concurrent.

Non-publication

[19]             By virtue of s 139 of the Criminal Justice Act 1985, no-one may publish in any report or account relating to this proceeding the name of the complainant or any name or particulars likely to lead to her identification. Because of the relationship between the complainant and the appellant, this means that his name may not be published.

Solicitors

Ken Daniels, Masterton, for the appellant Crown Law Office, Wellington, for the Crown