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IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
AP221/96
0 0 OL'
BETWEEN ANDREW WILLIAM
ROSS
Appellant
AND
'FHE POLICE
Respondent
Hearing:
28 August 1996
Counsel: A.R. Davie for the Appellant
C.L. Mander for the Respondent
Judgment:
29
AUG
1996
JUDGMENT OF ELLIS J.
Solicitors:
A.R. Davie, Solicitor, Wellington for Appellant
Luke Cunningham & Clere, Wellington for Respondent
• •
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This is an appeal against a sentence of twelve months imprisonment
coupled with six months supervision, for indecent assault. The appellant is
aged 50. He was living with his son and the son's partner who had twin
girls. The charges relate to two separate indecent assaults on one of the
children then aged five. When alone with the child he pulled down her
clothes and underpants and touched her genitals with his hand. The
touching lasted about three minutes. He told the child not to tell anyone.
The incidents occurred between September 1995 and February 1996. The
child complained and the Police were told. When approached by the Police
he denied the touching, but later pleaded guilty and was sentenced on 30
July 1996.
The sentencing Judge emphasised, in my view correctly, that the
appellant was in the position of a grandfather living in the household, and
his conduct was a gross breach of trust. He was urged to impose a
suspended sentence by counsel, who referred to the Court of Appeal
decision in Petersen [1994] 2NZLR 533. His submission was supported by
the Probation Officer's report. He recommended a suspended sentence,
periodic detention and supervision with the special condition that he
undertake and complete the STOP programme. The Judge said that he did
not find there to be special circumstances which would justify a suspended
sentence. He considered a sentence of 18 months imprisonment for the
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offences, but made an allowance for the guilty plea and his personal
circumstances. In addition, he imposed a sentence of six months
supervision on condition that the appellant undertake the STOP programme.
Normally, personal circumstances have but little effect on a sentence
for serious sexual offending, and a prison sentence will be inevitable unless
there are exceptional circumstances. Here the appellant has had recent and
considerable emotional strain as a result of his wife being sentenced to nine
years imprisonment for manslaughter following two trials. That is why he
was living in his son's household. While the appellant has offended in the
past, it is a long time ago and I agree with the Judge that these offences
should be ignored in deciding on the sentence. I agree too that the
appellant has not established exceptional circumstances that would justify
suspending the sentence of imprisonment.
However, I do consider the starting point of 18 months'
imprisonment to be too high in this case. It has been often said that cases
of indecent assault vary widely, and there are no tariff decisions as a
consequence. These two assaults are not part of a continuing situation of
abuse. The touching is serious, but the duration was relatively short. I do
not minimise them however and the ongoing effect of them on the victim
cannot be assessed at this time. The victim impact report certainly shows
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the very understandable effect on the victim's mother, and that must be
borne in mind to a limited extent.
Notwithstanding the widely variable circumstances and intensity of
assaults that come before the Courts, I have received guidance from several
cases cited by counsel. I do not review them in any detail, but they are:
Frost (C.A.242/89, unreported, 27 October 1989) where the Court of
Appeal allowed an appeal by the Solicitor-General against a sentence of
eight months periodic detention and 18 months supervision and imposed a
sentence of nine months imprisonment. The appellant was 50, the victim
10. The assaults were four or five episodes of stroking the victim's vaginal
area through her underwear. The offender pleaded guilty during trial;
Moran (C.A.105/90, unreported, 19 July 1990) where the Court of Appeal
dismissed an appeal against a sentence of twelve months. The appellant
was 40 and a boarder in the victim's home. She was 8. He was convicted
after trial on one count of touching her private parts. The Court confirmed
what was said in Frost that twelve months was appropriate for such
offending; Meredith-Blyde (C.A.245/95, unreported, 19 July 1995), this
was an appeal against a sentence of 53 weeks for indecent assault on two
young girls. The accused was found guilty at trial. The charges were
representative of a pattern of indecent touchings, but without skin contact.
The appellant was 37, the victims 10 and 8. The Court referred to Frost,
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Moran and Petersen and dismissed the appeal. I was also referred to the
decision of Tompkins J in R v Police (1988) 4CRNZ 52.
It seems to me clear that the proper starting point in the present case
is twelve months imprisonment, from which a substantial allowance should
be made for a guilty plea. Some further allowance should be made if a
sentence of supervision is to be added. I say that not only because it is an
additional penalty, but also because for its value to be maximised a lengthy
prison sentence is probably counterproductive. There is also perhaps a
little room for mercy to be extended to the accused because of his personal
misfortune. I consider the appropriate reduction for these considerations
should be four months or one third. On the other hand, I think a year's
supervision to be appropriate.
For these reasons the appeal is allowed and the sentences quashed.
Instead the appellant is sentenced to eight months imprisonment to be
followed by twelve months supervision on the special condition that he
accept such counselling and attend such programmes (such as the STOP
programme) as shall be directed by the Probation Officer from time to
time.