T (CA131/2018) v R [2018] NZCA 481

T (CA131/2018) v R [2018] NZCA 481 [7 November 2018]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SS203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFAPPELLANT'S NAME REMAINS IN FORCEIN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA131/2018[2018] NZCA 481BETWEEN T (CA131/2018)AppellantAND THE QUEENRespondentHearing: 1 October 2018Court: Miller, Woolford and Collins JJCounsel: M R Walker for AppellantC E Martyn for RespondentJudgment: 7 November 2018 at 11.00 amJUDGMENT OF THE COURTA The appeal is allowed. The sentences imposed on the unlawful sexualconnection charges are quashed.B A sentence of six years' imprisonment is substituted on the lead charge ofunlawful sexual connection, concurrent on the sentences for the otherunlawful sexual connection charges and the indecent act charge.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] Following a jury trial, T was found guilty of three charges of sexual violationby unlawful sexual connection (digital penetration) and one charge of committing anindecent act on a young person. The victim in each case was his stepdaughter. Shewas around 10 to 14 years old at the time of the offending.[2] Judge Phillips sentenced T to seven years' imprisonment on the lead unlawfulsexual connection charge, and four years' imprisonment concurrently on the remainingcharges.1 The Judge adopted a starting point of seven years' imprisonment.2 Therewere no personal aggravating or mitigating factors and so the end sentence was alsoseven years' imprisonment.3 The Judge also granted T permanent name suppressionon the basis that publication of his name would cause extreme hardship to his ownchildren.4[3] T now appeals against sentence on the ground that it is manifestly excessive.Facts[4] T married the victim's mother in 2005. They lived together with the victimand T's children from then on.[5] The first unlawful sexual connection charge was a specific offence. At somestage between 1 January 2013 and 31 August 2014, T was looking after the victim attheir home. He told her she had to wear a nightie with nothing underneath, so as tohave "fresh air" on her genitalia. She was around 10 to 11 years old at the time.The offending involved T touching the victim's legs and thighs, spitting on his fingers,touching the victim's vagina and inserting his fingers into her vagina.[6] The second and third unlawful sexual connection charges were representative.In total, they covered approximately five separate incidents of digital penetration.1 R v [T] [2018] NZDC 4205.2 At [24].3 At [24].4 At [25].[7] As to the second charge, between 18 April 2014 and 20 April 2014, T and thevictim were staying at a camping ground. They were there to hunt possums. Again,she was in a nightie. T required her to lie down and spread her legs. He knelt in frontof her, put his fingers on her legs and thighs, spat on his fingers and inserted his fingersinto her vagina. That occurred each night they were away. She was 11 years old atthe time.[8] The offending which gave rise to the third charge also occurred on a trip away.Between 1 May 2016 and 1 July 2016, T and the victim spent some time at a differentcamping ground, again to hunt possums. T inserted his fingers into the victim'svagina. He asked her whether it was nice. She said no. He inserted his fingers intoher vagina on each of the nights they were away. On one occasion, he exposed himselfto her. She was 13 years old at the time.[9] The fourth charge was a specific offence. The offending occurred at somepoint in 2016 at their home. T required the victim to lie on a couch with her legs open.He then touched the outside of her vagina. She was 13 or 14 years old at the time.District Court[10] The Judge identified the aggravating factors as:(a) Moderate planning and premeditation: T made requests of the victimand imposed requirements on her.5(b) The victim's vulnerability: the Judge said the victim was vulnerablebecause of her age, T's age, the relationship between them and the factthey were alone when the offending occurred. Overall, he assessed hervulnerability as moderate.65 At [20].6 At [20].(c) Moderate psychological harm: the victim said the offending hadsubstantially impacted her ability to trust anyone. She had flashbacksand required counselling.7(d) Breach of trust to a high degree: T was the victim's stepfather.8[11] Considering these factors, the Judge determined that the case fell within themiddle of band two (four to 10 years) of the guideline decision,9 R v AM(CA27/2009).10 He fixed the starting point at seven years' imprisonment. Asmentioned, there were no personal aggravating or mitigating factors. The end sentencewas therefore also one of seven years' imprisonment.Appeal[12] T appeals on the ground the starting point was manifestly excessive. Heaccepts the offending fell within band two. Rather, the issue on appeal concerns theappropriate starting point within that band.[13] Counsel for T made extensive reference to comparable cases to support thesubmission that the starting point was manifestly excessive. He referred to caseswhere higher starting points were adopted and submitted that these involvedsignificantly more serious offending than the present case, primarily because the casestended to feature more incidents of abuse and some involved prolonged violence ormultiple victims.11 Counsel also referred to cases where lower starting points wereadopted than in the present case and submitted that those aligned more closely withT's offending.127 At [21].8 At [22].9 At [24].10 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [113].11 MS v R [2012] NZCA 86; Ali v R [2012] NZCA 241; Aleki v R [2014] NZCA 473; and Botha vR [2015] NZCA 196.12 R v BSW HC Auckland CRI-2009-044-7874, 9 March 2011; Bond v R [2010] NZCA 381; andRua v R [2014] NZCA 599.[14] The Crown submits the starting point was within the available range. As withthe appellant, comparable cases are relied on to support this submission.13AnalysisFeatures of the offending[15] When determining where a case falls within a certain AM band, a mechanisticapproach is not appropriate.14 Rather, an evaluative judgment is required which takesinto account all the circumstances. Comparable cases will assist but it must be kept inmind that facts are rarely identical. The analysis will ultimately turn on the featuresof the present offending.[16] We start by analysing the features of the offending. The aggravating featuresare as follows. First, the victim was vulnerable due to her age. She was 10 to 14 yearsold at the time of the offending. Second, T breached the victim's, and others', trust.He was her stepfather. She was entitled to be safe with him. And others should havebeen able to rely on that. Third, T offended against the victim on a number ofoccasions over some years. Fourth, there was some planning and premeditation. Thisis evident in the requests made by T of the victim and the fact he repeatedly offended.But we are not prepared to conclude the trips away were organised for the purpose ofsexually assaulting the victim. There were other trips where no assaults occurred.There is also a two-year gap between the second and third charges.[17] We hesitate to characterise harm to the victim as a predominant aggravatingfeature. While the victim has undoubtedly suffered significant psychological harm,such is inherent in sexual offending.15 This is not to downplay psychological harm.As the Judge noted, it can often be more serious and lasting than physical harm,especially when dealing with young victims.16 In the present case, however, there isno evidence to show the effect on the victim makes this case more serious than othersinvolving sexual offending.13 R v K (CA588/2008) [2009] NZCA 107; Pavlovich v R [2014] NZCA 88; Aleki v R, above n 11;and Botha v R, above n 11.14 R v AM (CA27/2009), above n 10, at [36].15 At [44].16 R v [T], above n 1, at [21].[18] The offending also lacks certain aggravating factors. The degree of violationwas largely limited to digital penetration. Further, while there is violence inherent inany act of sexual violation, there was no additional violence. To be clear, these mattersare not mitigating factors. The point is had these matters been present, the offendingwould have been more serious.[19] We consider these features put the offending around the middle of band two,so as to call for a starting point of six to six and a half years' imprisonment.Comparable cases[20] We have also considered all the cases cited to us. And more. Sadly, there aremany cases of sexual offending against children. Those cited to us are just a sample.It is unnecessary to traverse each in detail — some are clearly distinguishable.17 Wemake four observations as to how the relevant cases inform the appropriate startingpoint in the present case.[21] First, common features of the relevant cases include that the victim wasvulnerable due to age and there was a breach of trust because of the relationshipbetween the defendant and victim. Premeditation varies, but tends to be present at amoderate level. Therefore, the focus is primarily on the number of incidents and theextent of violation and associated violence.[22] Second, the cases with starting points around the seven to eight year markgenerally concerned significantly more incidents than the present case:(a) In R v K (CA558/2008), the defendant pleaded guilty to two charges ofsexual violation by unlawful sexual connection and two of indecentassault on a child under the age of 12 years.18 The charges wererepresentative over a two-year period. The defendant admitted toassaulting the victim, his stepdaughter, on approximately 50 occasions.17 MS v R, above n 11; and Aleki v R, above n 11, concerned significantly more serious offending.Pavlovich v R, above n 13, concerned a violent and isolated assault in public against a childthe defendant had encountered by chance. Rua v R, above n 12, concerned offending in theschool context.18 R v K (CA/558/2008), above n 13.It was a Solicitor-General's appeal. This Court allowed the appeal andsubstituted a starting point of seven and a half years' imprisonment.19(b) In Botha v R, the defendant pleaded guilty to one representative countof sexual violation by unlawful sexual connection (digital penetration)and a second representative count of doing an indecent act on a childunder the age of 12.20 This Court upheld a starting point of seven yearsand nine months' imprisonment.21 The offending occurred over anine-month period against the seven-year-old daughter of a closefamily friend of the defendant. It happened "dozens" of times.22(c) In A (CA41/2017) v R, the defendant was found guilty of onerepresentative charge of unlawful sexual connection (digitalpenetration) with a female under 12.23 The victim was the defendant'sstepdaughter, and the offending happened when she was between fourand 10 years old. In her evidence, the victim said the defendant had"most probably" offended against her more than 20 times.24 This Courtupheld a starting point of seven and a half years' imprisonment.25[23] Third, the extent of violation in the cases that adopted starting points aroundthe seven to eight year mark tended to be more serious than in the present case too:(a) In R v K (CA558/2008), discussed above, the offending includedthe defendant inserting a finger into the victim's vagina, lickingthe victim's vagina and rubbing his penis on and around the victim'sanus.26 The defendant would often masturbate afterwards too.19 At [19].20 Botha v R, above n 11.21 At [18].22 At [4].23 A (CA41/2017) v R [2018] NZCA 136.24 At [6].25 At [46].26 R v K (CA558/2008), above n 13.(b) In Ali v R, the defendant offended sexually against his stepchildren.27This included digitally penetrating his stepdaughter's vagina, lickingher vagina and getting her to massage his penis. The defendant alsosexually assaulted his stepson by applying cream to his penis.Non-sexual "hidings" were common too, in respect of both children.28This Court upheld an overall starting point of eight years'imprisonment.29(c) In A (CA41/2017) v R, discussed above, in addition to digitalpenetration, the offending also involved the defendant touchingthe victim's breasts, trying to kiss her and trying to put his penis "inside[her] bottom".30[24] Fourth, in our view, the features of the present case more closely align to caseswhere a starting point around the six year mark has been adopted:(a) In Hart v R, the defendant was convicted of two representative charges,one of sexual violation by unlawful sexual connection (digitalpenetration) and one of indecently assaulting a girl under 12.31The offending occurred over a three-year period. The defendant was inan "on again, off again" relationship with the victim's mother.32The digital penetration probably occurred twice, when the victim wasaged between eight and 11. But the indecent assaults occurred on fiveto 10 occasions. This Court upheld a starting point of six years'imprisonment.33(b) In R v BSW, a starting point of six years' imprisonment was adopted inrespect of the offending against the defendant's granddaughter.34The defendant digitally penetrated the victim's vagina several times.27 Ali v R, above n 11.28 At [7].29 At [14].30 A (CA41/2017) v R, above n 23, at [5].31 Hart v R [2009] NZCA 276.32 At [6].33 At [78].34 R v BSW, above n 12.He also made her touch his penis. A cumulative sentence was imposedin respect of another victim.(c) In Bond v R, the defendant was found guilty of one charge of sexualviolation by unlawful sexual connection (digital penetration) and onerepresentative charge of sexual violation by unlawful sexual connection(digital penetration).35 The victim, aged between five and eight years'old at the time of the offending, was a relative of the defendant'spartner. She was in the defendant and his partner's care at the time ofthe offending, staying at their house. The defendant digitally penetratedthe victim's vagina on several occasions, up to six times in total.This Court upheld a starting point of five and a half years'imprisonment.36Conclusion[25] In light of the features of the offending and comparable cases discussed above,we consider a starting point of six years was appropriate for the present offending.Result[26] The appeal is allowed. The sentences imposed on the unlawful sexualconnection charges are quashed.[27] A sentence of six years' imprisonment is substituted on the lead charge ofunlawful sexual connection, concurrent on the sentences for the other unlawful sexualconnection charges and the indecent act charge.Solicitors:Todd Walker Law, Queenstown for AppellantCrown Solicitor, Christchurch for Respondent35 Bond v R, above n 12.36 At [42].