1114 THE COURT OF APPEAL OF NEW ZEALAND CA 408/91
TEES LEE EINT
MARTIN ADO
Comm:
Eichelbaum CJ
Casey J
Jeffries J
Hearing:
26 June 1992
Counsel:
M A Edgar for Appellant
P K Hamlin for Crown
Judgment: 26 June 1992
JUDGMENT OF THE COURT DELIVERED BY JEFFRIES J.
Before the Court is an appeal against a total sentence of 10 years for sexual
abuse against 2 separate children who at 2 different times lived in the household
of appellant and were the children of a woman with whom he had a relationship.
We set out the facts of the allegations of sexual abuse. In early January 1977
the victims' mother began a relationship with appellant. About a year later in
1978, the 2 began living together at an Auckland address. The woman's 2
daughters were also living there with them. In early 1978 the older girl would
have been under 5 years and her sister about 18 months old. The sexual abuse
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of the older child probably began sooner than a year after he commenced living
with the woman but the dates cannot be fixed with certainty. The first count in
the indictment relates to a period between 1 January 1979 and 31 December
1979 about an indecent assault on the older girl. At his trial he faced another
charge of indecent assault at the Auckland address but said to have been
committed between 1 January 1980 and 31 December 1980. It appears that
appellant separated from his partner and her 2 children in July 1980 but returned
to live with the family some 4 years later in 1984 at a new address. He
remained within that family until the end of 1986 when the relationship was
ended permanently. There was evidence at the trial that the cause of this
permanent separation was appellant's violent nature and his continual physical
abuse of his partner. She obtained non-molestation and non-violence orders
against him.
Appellant faced 3 charges of rape against the older child, 3 of indecent assault
upon her and 1 of inducing her to do an indecent act upon him. We mention in
regard to this latter offence it was framed as an indecent act because it was said
to have been committed some time in the year of 1984, before amending
legislation in 1986. Also he faced 3 charges of rape against the younger girl
said to have been committed in the years 1984, 1985 and 1986. It is clear from
the trial Judge's remarks at sentencing that these were regarded as representative
or sample charges for he said the evidence established that the abuse continued
on a repeated and frequent basis for a number of years.
The appellant was first spoken to by the police about these offences on 27 June
1991 and denied all knowledge of them. He has steadfastly maintained his
denial of any sexual misconduct with the 2 complainants and he went to trial on
the 7 charges of sexual abuse in respect of the older girl and 3 charges of sexual
abuse in respect of her younger sister, details of which have already been given.
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With his denials of criminal conduct, the 2 complainants were required to give
evidence and this will be referred to again hereafter. He was convicted by the
jury on all 10 counts that he faced.
Before the sentencing Court there was a Probation Officer's Report that outlined
the personal circumstances of appellant. He is now married and has 2 sons aged
10 and 2 years. Apparently he had been in regular employment up until the
beginning of 1991 after which his employment became irregular having to
engage in casual work but he had not been able to obtain the unemployment
benefit applied for in February 1991 because at that stage he could not replace
his Fijian passport. The family through that year to the trial survived on savings
and earnings from casual work. Appellant has a history of previous offending
which includes crimes of violence, dishonesty and alcohol related driving. The
report affirms that appellant still continues to maintain his innocence. He retains
the support of his wife and extended family.
Before the sentencing Court were 2 extensively written reports relating to each
of the victims regarding the effect of the sexual abuse. The older child was 18
years at the time the report was prepared and the younger child was aged 15.
The reports came from the Leslie Centre of Auckland and were prepared by a
well qualified person who was described as a family therapist. The report on
the older girl covers nearly 31/2 pages and records evidence of sexual abuse by
appellant which she said began when she was 31/2 to 4 years old after he had
moved into the home in 1978. From there on her behaviour patterns changed
significantly and from being a generally compliant and affectionate child she
began to exhibit erratic and destructive behaviour indicating belligerent distress.
She also seemed to lose the natural ability to give and receive affection from her
own mother. It is stated that she was threatened by appellant that he would kill
her if she told anyone about his sexual activities with her. The report explains
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why it was 21/2 years after appellant left the home and after the abuse which
occurred over 8 years prior to that that she could disclose what had happened.
Even then it was still a further 3 years before she had the courage to report it to
the police and then only through her concern that he be prevented from possibly
abusing other children. It is difficult to summarise adequately the distress and
devastating effect the sexual abuse has had on the life of this young woman. It
is not an exaggeration to say that the sexual abuse has placed a paralysis on her
whole life but especially in her emotional and intellectual development. It also
consequentially causes her, and those with her enormous inconvenience, in that
she has to be the recipient of special care and treatment still. That the giving of
evidence at his trial had a devastating effect upon her is contained in the
therapist's report and was confirmed by the sentencing Judge himself from his
own observations of her in the course of her evidence. Her overall confidence
in social relationships has been severely affected and as the therapist said "She
has a long way to go for her full recovery" and that it is impossible to determine
at this stage the permanent effects of the trauma she has experienced. The
therapist thinks that she has shown fortitude and has now taken the first steps
towards facing her fears and changing her life. Apparently the fact that she was
able to report the conduct to authorities so many years after has been an
important ingredient in her long term rehabilitation.
The report on the younger girl also reveals severe effects but fortunately not of
the degree experienced by her older sister. There may be reasons for this in the
facts of the conduct towards her. The abuse did not begin for ha until she was
about Th to 8 years but the physical effects manifested themselves almost
immediately in that she apparently developed loss of hair leaving bald patches
on her head. The hair began to grow back but was of a different texture and
colour. For the younger girl problems developed at school in behaviour and
lack of concentration when studying. She began to wet her bed which continued
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until she was almost 12 years of age and only ceased after appellant left the
home. She exhibited disturbing psychological symptoms of pathological
concern about cleanliness and pre-occupation with dirt. Her self esteem
plummeted to the extent that she was unable, within the school situation, to form
relationships with girls she perceived to be "really nice girls". As with her
sister she has suffered greatly in what might be termed the normal emotional and
intellectual development. She has other physical problems such as acne which
the therapist thinks was stress related. Until she made her statement to the
police she had never disclosed the details of her abuse. Like her older sister she
feared reprisals from appellant because of the threats made by appellant to her
that she would be removed from her mother's care and would not see her again.
The therapist said in regard to both girls that they had exhibited symptoms and
results of sexual abuse frequently found in the literature on the subject. It is
impossible to believe that these 2 girls were not the victims of prolonged and
constant sexual abuse. Appellant denies his involvement and now seems to be
suggesting there might have been another abuser but not himself.
The sentencing Judge had the aforementioned material before him. In a lengthy
survey of that material, coupled with the fact that he had been the trial Judge at
a fully defended hearing, he was placed in a sound position in regard to the
proper sentence to be imposed. He convicted and discharged the accused on
2 counts of indecent assault in regard to the older girl. On another count of an
indecent act he sentenced him to 4 years. On all other counts excepting rape he
sentenced appellant to 6 years and on each count of rape to 10 years, which
yielded an effective sentence of 10 years' imprisonment.
Mr Edgar, who was not counsel at the trial, appeared for appellant in this Court
and formally advised that the appeal against conviction is not to proceed and
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therefore that is dismissed. Mr Edgar stated to the Court that he had surveyed
all the relevant material in regard to the appeal against sentence. He referred to
recent similar cases in this Court, one of which we mention hereafter. In the
circumstances he felt unable to advance an argument that the sentence was
manifestly excessive. However, he also advised the Court that notwithstanding
the foregoing matters which he had discussed with his client, he had not been
instructed to withdraw the appeal.
We acknowledge that a sentence of 10 years is a long one. We also have an
understanding of appellant's position whereby after a lapse of 5 years when he
left the mother and the children he was faced with the accusations which he
denied and the matter went to a trial. It was clearly his right to adopt that
course but with the jury's verdicts of guilty on all counts that he faced he must
accept the proper sentence cannot be subject to any reduction there.
On the offences themselves there is no mitigation that can be spelled out of the
events appreciating as we do that appellant continues his denials and therefore
does not venture into that area. Independently we have examined the facts and
ourselves see nothing of substance that would mitigate the conduct. The abuse
for the older sister started when she was 41/2 - 5 years old and continued in 2
blocks of time in which she lived in the household of appellant. When it ended
she had suffered in every sense of that word for several years in the most
formative period of her life. For that of her sister it did not begin until the
second period she was in appellant's household and therefore was shorter than
that for her sister. Consistently with those facts of abuse starting materially
earlier for the older sister and therefore lasting over a longer period she has, on
an objective professional assessment, ban the worse affected. That also is
telling corroboration of their evidence it was appellant.
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The *use was conducted in an environment of violence, it being recorded that
the older girl witnessed on one occasion appellant beating her mother to a state
of unconsciousness. That would have been a stunning reminder to her not to
disclose her secrets of his sexual abuse of her. The relationship with their
mother ended with her obtaining orders previously mentioned.
The Judge in his sentencing remarks covered all these matters and came to the
conclusion that such conduct required a sentence that would reflect the degree of
culpability, the effects on the victims and the abhorrence of society at his
behaviour. We see no reason to interfere with the sentence.
We regard the sentence imposed as being in accord with the recent case of R v
Aratema ,CA 126/92, judgment 17 June 1992 and authorities cited therein. In
that case the abuse was of a lesser degree and most importantly appellant in that
case pleaded guilty and a trial was avoided. He also demonstrated material
insight into his condition and took steps towards treatment.
In our view the sentence is within the limits of properly exercised discretion and
therefore the appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland, for Crown