V V R Coa

• Jurisdiction: New Zealand
• Judge: Stevens J)
• Judgment Date: 12 October 2012
• Neutral Citation: [2012] NZCA 465
• Docket Number: CA400/2012
• Court: Court of Appeal
• Date: 12 October 2012

BETWEEN

V (CA400/2012)

Appellant

and

The Queen

Respondent

[2012] NZCA 465

Court:

Stevens, Chisholm and Venning JJ

CA400/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against sentence imposed on charges of sexual offending against younger sister — appellant argued starting point was too high and insufficient weight given to age at time of offending, subsequent good character, rehabilitation and remorse — rather judge had used rehabilitation and subsequent character to assess if minimum period of imprisonment should be imposed — starting point of 12 and half years adopted and uplift of one year added for totality of the offence — end sentence of eight years imprisonment — whether judge erred in the construction of the sentence including double counting — whether the starting point was too high and if so, what was the appropriate starting point.

Counsel:

B J Hesketh for Appellant

F E Cleary for Respondent

• A The appeal is allowed.

• B The sentence of eight years imprisonment is quashed and a sentence of four years and nine months imprisonment substituted.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Stevens J)

Stevens J)

Introduction

1 The appellant pleaded guilty to 10 charges of sexual offending against his younger sister. He was sentenced by Judge Spiller in the Hamilton District Court to eight years' imprisonment. 1 He now appeals against the severity of that sentence.

2 The appellant submitted that the starting point adopted by the sentencing Judge was too high and that insufficient allowance was made for youth, subsequent good character, rehabilitation and remorse. For these reasons, the appellant submitted that the overall sentence was manifestly excessive.

3 For the reasons that follow, we consider that the appeal should be allowed and the appellant's sentence reduced. There were errors of principle in the construction of the sentence resulting in the starting point being too high. Insufficient discounts were applied for mitigating factors. Moreover, a mitigating factor that ought to have been applied to reduce the starting point was only applied in relation to whether or not a minimum term of imprisonment should be imposed. As a result the sentence was manifestly excessive.

Background

4 The offending in question occurred over a period of between three to five years from 1996 to around 2001. 2 At the time the offending commenced the complainant was approximately five years old and the appellant was approximately fourteen years old. During this period the appellant and the victim lived together with their parents and two brothers. As the eldest child, the appellant was frequently left to babysit his three younger siblings.

5 The appellant's sexual offending against his sister took place on a regular basis. The sentencing Judge recorded that at one point the offending occurred at least once every fortnight. The appellant told his sister that “this is what big brothers and little sisters do” and instructed her not to tell anyone about the offending.

6 The appellant's actions came to light when the complainant disclosed the offending in 2005. This eventually led to prosecution as a result of which the appellant pleading guilty to the following charges:

• (a) Sexual violation (inducing the victim to perform oral sex on his penis in a woodshed).

• (b) Doing an indecent act on a girl under 12 (inducing the victim to masturbate his penis in the woolshed).

• (c) Sexual violation (oral connection with the victim's vagina in the appellant's bedroom).

• (d) Sexual violation (oral connection with the victim's vagina in the lounge).

• (e) Sexual violation (inducing the victim to perform oral sex on his penis in the lounge).

• (f) Sexual violation (inducing the victim to perform oral sex on his penis in the garage).

• (g) Doing an indecent act on a girl (inducing the victim to masturbate his penis in the garage).

• (h) Sexual violation (oral connection with the victim's vagina on a number of occasions) (representative charge).

• (i) Sexual violation (inducing the victim to perform oral sex on his penis) (representative charge).

• (j) Doing an indecent act on a girl under 12 (inducing the victim to masturbate his penis on a number of occasions) (representative charge).

Sentencing

7 The parties were agreed that the lead charge was that of sexual violation occasioned by the appellant inducing the complainant to perform oral sex on his penis.

8 The Judge first considered the correct placement of this case within the bands set out by this Court in R v AM. 3 The culpability factors were identified as: the degree of planning and premeditation; the vulnerability of the victim; the harm to the victim; the scale of the offending; and the breach of trust. Applying these factors,

the Judge placed the offending at the top of rape band 2 or bottom of rape band three. A starting point of 12 and a half years imprisonment was adopted. An uplift of one year was added to the initial starting point to reflect the totality of the offending.

9 Because it is relevant to the discussion which follows, we set out in full the reasoning of the Judge in setting the starting point for the offending:

• [12] What I have to do in terms of what the Court of Appeal has said, is to isolate what are called culpability factors or responsibility factors and I isolate the following culpability factors. First of all, the degree of planning and premeditation that took place over this extended period of time; the vulnerability of the victim, that she was a child roughly five, six, seven years of age at the time; the harm to the victim which has been outlined in the victim impact statement; the scale of the offending, that this took place over a lengthy period of time; and the breach of trust. These are all factors isolated by the Court of Appeal which I consider to apply to your case. However, I do take account of your lawyer, Mr Hesketh's argument that to place your offending at band 4, that is the most serious level, is to place it too high. Instead, I place your level of offending at the top of band 2, bottom of band 3, so therefore I fix my starting point in relation to the lead offences as 12 and a half years.

• [13] It is commonly accepted by your lawyer and also the Crown that there has to be an uplift to reflect all of the offending together and therefore there is an uplift of one year. So the starting point, and I do emphasise [Mr V], the starting point is not the end point, the starting point for your offending is one of 13 and a half years' imprisonment.

10 The Judge then considered the appropriate discount for the appellant's age. He concluded that any such discount should be “of a limited degree”. 4 A discount of one and a half years imprisonment from the starting point was applied.

11 As a final step the Judge applied a discount of four years for the appellant's guilty plea and remorse leaving an end sentence of eight years imprisonment. The Judge stated:

Then I take account of the fact that you have pleaded guilty and in terms of the law you are entitled to a discount for that. Also the fact that you have expressed remorse. Here I pay a tribute to your courage, [Mr V], in reading out your letter of apology here today which expressed real remorse for what you have done to your sister and your family as a whole and I do acknowledge that. So taking the guilty plea and your remorse together, I deduct a further four years from your prison sentence. So, [Mr V], that brings your prison sentence back to eight years.

12 Finally, the Judge decided that no minimum period of imprisonment (MPI) should be imposed. He considered that the mitigating factor of good character between the offending and the time of sentencing was such that no MPI was needed. He concluded: 5

… here I take account of what your lawyer has said, that you have in a large sense since this offending lived an offence-free life, that you are a good person essentially in the sense that you are a loving husband and father to your child. I do take account of your good character as I am entitled to do in terms of the Sentencing Act. In the light of these factors I do not impose a minimum period of imprisonment.

Submissions for the appellant

Starting point

13 For the appellant Mr Hesketh submitted that the Judge placed too much emphasis on the isolated culpability factors, and ignored the reality that either overlap existed between some of the features or that the features were only present to a limited extent. In particular, counsel submitted that the Judge was wrong to find that the offending involved planning and premeditation, whereas the psychiatrist's report from Dr Peter Dean indicated that the offending was motivated by the appellant's hypersexuality during his teenage years.

14 Similarly, counsel submitted that the Judge was wrong to find that the offending constituted a breach of trust. The appellant was not a paid adult babysitter, and he did not orchestrate opportunities to offend. Instead, his offending was opportunistic. Counsel therefore submitted these errors led the Judge to adopt the starting point that was too high. Counsel submitted that the offending properly fell

within band 2 of R v AM and that a starting point for the totality of the offending should have been around nine years

Discounts for mitigating factors

15 Counsel submitted that the Judge erred in finding that only a limited discount was available for the appellant's age at the time of the offending, contending that a greater discount was required. In support of this submission, counsel referred to the psychiatric report of Dr Dean that records that the offending occurred in the context of the appellant's “emerging sexuality” and stopped as the appellant developed increasing...