ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-473-72 [2013] NZHC 538

GLEN ROHAN LOVATT
Appellant

v

THE QUEEN
Respondent

Hearing:	19 March 2013

Counsel:	P F Wicks for the Appellant
A Gordon for the Respondent

Judgment:	19 March 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Counsel / Solicitors:
Mr P F Wicks, Barrister, Auckland
Ms A Gordon, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

LOVATT V R HC ROT CRI-2012-473-72 [19 March 2013]

[1]       This is an appeal against sentence of 2 years imprisonment for one offence of sexual violation and two offences of indecencies.1    The victim was a boy aged between 8 and 9 years.   This followed a sentence indication.2    This sentence of 2 years was cumulative on a sentence of 4 years 3 months for similar offences which were committed at around the same time against two other boys who were aged
between 7 and 9 years.3

[2]       Mr Wicks submits that the effective end sentence for all of the offending of 6 years 3 months is manifestly excessive.  It is not in issue, and was not in issue before the sentencing Judge, that the offending against all three victims needs to be assessed overall.

The facts

[3]       The facts of the offending I am now dealing with directly were outlined by the Judge in his sentence indication as follows:

[2]        The facts summary reads that between 1994 and 1999, the prisoner was employed as deputy principal of a local primary school.  The victim in this case was born in 1986 and was a pupil at the school between 1991 and
1996.

[3]        During the 1996 year when he was eight or nine years old, the prisoner offended against him.  The victim reported this to the police in March of this year at age 25:

“During the 1996 year, the victim was sent to the defendant’s office as a result of swearing at his teacher.   He was instructed to write down all the swear words known to him in his office.  Once the complainant had finished the list the defendant read it and then took the complainant to a small room that was on the school grounds. Once inside the room, the defendant told the complainant that he had to act out some of the words he had written down.  The first word was ‘Mother fucker’.  The defendant explained to the complainant that they would pretend that the defendant was the complainant’s mother and formed a circle with his fingers.  The complainant undid his pants and paced his penis in the hole formed by the defendant’s hand.   The next word was ‘Fuckin arsehole’.   The defendant explained to the complainant that was the action of a person putting their penis into a person’s bottom, but that he would put his finger

1 R v Lovatt DC Rotorua CRI-2012-063-002317, 22 November 2012.
2 R v Lovatt DC Rotorua CRI-2012-063-002317, 14 September 2012.
3 R v Lovatt DC Rotorua CRI-2010-063-006773, 22 December 2011.

into the complainant’s bottom.  The defendant then removed the complainant’s pants and instructed him to lie across his lap.  Once the complainant had done this, the defendant inserted a finger into the anus of the complainant.  Once he had removed the finger, the defendant warned the complainant that if he told anyone of what had happened, he, the defendant, would tell his, that is the complainant’s parents, of the trouble he was causing at the school.  The defendant then sent the complainant back to his class.

[4]        About a month after the incident, the complainant again was sent to the defendant’s office for misbehaving.  On this occasion the defendant took the complainant to the computer room situated in the hall at the school.  He told the complainant he had worked out a system of how many smacks the complainant was to receive for misbehaving.  The defendant removed the complainant’s  pants  so  he  had  a  bare  bottom.     He  then  placed  the complainant across his lap and smacked him on the bare bottom a number of times.   The force caused the complainant to cry.   Once he had finished crying, the defendant told the complainant to return to class.

[5]        The course of action, that is the spanking of the complainant’s bare bottom, would be repeated by the defendant on a number of occasions, either in the computer room or another room used by the defendant on the school grounds.

[6]        As  a  result  of  this,  the  complainant  found  that  he  would  make excuses not to attend school in fear of being assaulted by the defendant.

[4]       The other offences were against pupils at the same school.  For the purposes of this judgment the offences can be described as much the same. The particulars are contained in the sentencing notes for the earlier sentence.  I note that that earlier sentence followed a trial.

[5]       The impact on the victim in the most recent sentencing is relevant.   The

Judge described this as follows:

[12]      In this case however, the case we are dealing with today, the victim impact statement makes harrowing reading. The victim says:

“For nearly 20 years I have been haunted, living with your dirty secret, and it has weighed me down like a tonne of bricks.  You took what should have been an innocent and joyful school experience and turned it into one full of terror and distrust.  The thing you did to me left me feeling helpless and broken, sore and disgusting.   I do not think anyone could ever understand just how terrified and panicked I would become on those occasions I was sent to your office, and then when I refused to go to your office voluntarily, the embarrassment of teacher dragging me, kicking, screaming, crying, putting up all the fight  a  young  boy  could,  to  avoid  your  office  and  you.    Being dragged from the class kicking and screaming opened me up to ridicule from my peers, which, over time, led me to isolate myself

from them, and to this very day I have trouble making and maintaining friendships.   For years now I have battled with depression and anxiety and I also have recurring nightmares of the abuse you inflicted on me when I was young, and I have recently been diagnosed with post traumatic stress disorder.”

Discussion

[6]       The difficulty facing the Judge is apparent.  In the normal course all of the offending would have been dealt with in one sentencing.  It did not occur in this case because the third victim (that is to say, the victim in the offending I am now dealing with directly) came forward after the earlier sentencing.

[7]       An  approach  is  to  consider  what  the  starting  point  would  have  been  if sentencing for all of the offences had occurred at the same time.

[8]       Mr Wicks, for the appellant, submits that the effective starting point of the sentences actually imposed, calculated by reconstructing the two sentences, is 7 years if no allowance is made for the guilty pleas for the offences now being dealt with.  Mr Wicks further submitted that the starting point would have to be around 7
½ years at least if the guilty pleas are factored in.  A starting point at this level, Mr

Wicks submits, is manifestly excessive.

[9]       Mr  Wicks  further  submitted  that  the  Judge  put  undue  emphasis  on  the sentence dealt with in the Court of Appeal in Baldwin v R.4   Mr Wicks submitted that this led to error because the offending in Baldwin was worse.

[10]     It does appear that the Judge has followed the result in Baldwin.  The Court of Appeal, on allowing an appeal, reduced the sentence to 6 years 3 months imprisonment.  This is the effective end sentence in this case when the earlier sentences are combined with the present sentence.  In seemingly approaching the matter in this way the Judge, however, did not reconstruct sentencing in relation to all of the offending.

[11]     I agree with Mr Wicks’ submission that there are matters in Baldwin which make the offending in that case worse than the offending in this case.  And referring to the offending in this case I am referring to all of the offending against the three victims.   But there are other factors in this case – and again emphasising I am dealing with all victims – which make the case worse.   There are limits to comparisons of this sort, as was acknowledged both by Mr Wicks and by Ms Gordon for the Crown.   I would note, however, (and I do so in particular because of the weight placed on Baldwin by the Judge) that the fact that there are three victims in this  case  is  of  significance.     It  certainly  is  a  material  factor  bringing  the circumstances of all of this offending closer to the broad circumstances in Baldwin. There are other considerations.  For example, all of the victims that I am concerned with were materially younger than the victim in Baldwin, having regard to relative ages.   The present offending involved forced digital penetration of the anus.   The long term harm in this case may be significant and it is not apparent as to what the situation was in Baldwin.  This applies in particular to the victim in the sentencing immediately under appeal.  There was gross abuse by the appellant of his position as deputy principal of a school, with this compounded by the fact that he was in charge of discipline of primary school children and it was the latter role which he abused when he committed all of these offences.  There are further facts recorded in the Judge’s sentencing notes and in his sentence indication.

[12]     Reference might also be made to another Court of Appeal decision:  R v Shone.5   This was a case of a music teacher.  The most serious offences were digital penetration of five female victims.   There were also indecent assaults.  As in this case, the offending in the Schone case was one-off in relation to each victim and over a short period.  The sentencing Judge imposed cumulative sentences for the sexual violation of one group and for the indecent assaults in the other group.  The starting
point for the former was 5 years with an allowance for guilty pleas and for the indecent assaults the starting point was 4 years with an allowance for guilty pleas. The end sentence was 8 years 6 months.  The Court of Appeal took no issue with the approach to the individual sentences for the two types of offending but applying the totality principle reduced the effective end sentence to 7 ½ years imprisonment.

[13]     I have set these matters out in reasonable detail having regard to the way in which the sentencing Judge approached this matter and the difficulties that he faced, as I have earlier indicated.

[14]     Mr Wicks submitted that there were material errors by the Judge in the way he approached this.  For example, there was no clearly identified starting point. And it is not apparent as to what allowance, if any, the Judge made for the guilty pleas that were entered in respect of these further charges.  The process is not the critical consideration.  The end result is.  If an attempt is made – as best as it can be made – to assess the starting point that would properly be imposed for all of the offending I am satisfied that what appears to be a starting point of around 7 ½ years would be manifestly excessive.

[15]     It  probably  is  important  to  assess  all  of  the  offending  in  terms  of  the guidelines in R v AM.6   If that were done a starting point for the sexual violation of the victim subject to the present appeal might be around 4 years.  But with respect to the result in the District Court it is difficult to see how the starting point uplifted for all of the offending, had it all been dealt with at the same time, would have been more than 6 to 6 ½ years.

[16]     I have approached this  in  the way I have outlined to this point without reference to the submissions that were made for the Crown at the sentence indication hearing.  For the Crown, Ms Gordon had submitted to the Judge that a reconstructed starting point for all of the offending, approaching that in the responsible way that Ms Gordon would have approached it, would have been 6 to 6 ½ years. There would then be allowances as made by the Judge for the first sentencing of around 9 months (the Judge allowed 9 months in fact) for personal factors as described in the first sentencing notes.  There would also have to be some allowance, as best as it could be calculated, for the guilty pleas for the further offending that came to light and now directly subject to this appeal.

[17]     Taking those factors into account I agree with the submission that had been made by the Crown at the sentence indication that this pointed to a cumulative sentence for the further offending of 12 to 18 months.

[18]     In referring to all of these matters it is also important not to lose sight of the fact that the starting point that the Judge did adopt for the first sentencing was 5 years imprisonment. An uplift of 2 ½ years, or thereabouts, for the further offending, on the face of it, is excessive if the matter is looked at simply from that point of view.

[19]     For all of these reasons I have in the end been persuaded, albeit with some hesitation, that the overall sentence of 6 years 3 months is manifestly excessive.  The remaining question then is the appropriate sentence to substitute.  The submission that the Crown had made at the sentence indication hearing of a cumulative sentence of between 12 to 18 months would result in an overall sentence for all of the offending of between 5 years 3 months and 5 months 9 months.  Again, with some hesitation, I consider that the cumulative sentence should be 12 months, resulting in the overall sentence of 5 years 3 months, rather than the effective sentence presently subject to the appeal of 6 years 3 months.

Result

[20]     Consequently the appeal is allowed.

[21]     The sentenced imposed is quashed and a sentence of imprisonment for 1 year is substituted in place of the sentence of 2 years imprisonment.  Given the length of the particular sentence that is the sentence for all three offences.  The sentences for those  three  offences  are  concurrent.    Those  concurrent  sentences  of  1  year  are
cumulative on the sentences imposed on 22 December 2011.

Woodhouse J