Download Gavon Lloyd Liddell Sentencing Notes (application/pdf)

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF
COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
CRI-2005-070-5963
THE QUEEN
v
GAVON LLOYD LIDDELL
(Heard at AUCKLAND)
Counsel:
R G Ronayne for Crown
M E Goodwin for Prisoner
Date:
15 May 2007
SENTENCING NOTES OF BARAGWANATH J
Solicitors:
Crown Solicitor, Rotorua
Counsel:
M E Goodwin, Rotorua
R V LIDDELL HC ROT CRI-2005-070-5963 [15 May 2007]
[1]
Mr Liddell, at the age of 75 you appear for sentence for rape of a 12 year old
girl committed between 1 December 1970 and 31 January 1971 when the maximum
penalty for that crime was 14 years imprisonment.
[2]
The task of sentencing you for that offence is complicated by the fact that in
October 1997 following conviction after jury trial on four counts of rape and three of
indecent assault spanning a period of more than 25 years including the period
covered by the present count you were sentenced to an effective term of eight and a
half years imprisonment which you have now served. It is convenient to reproduce
the schedule prepared by the Crown showing the inter-relation between the present
offence and the other offending:
Victim
Date
Offence
1
01/01/69 to 31/12/69
Rape
Indecent assault
2 (this present victim)
01/12/70 to 31/01/71
Rape
3
01/01/71 to 31/01/71
Rape
Indecent assault
4
01/01/72 to 31/12/72
Rape
5
22/05/80
Rape
6
07/05/93 to 24/05/93
Indecent assault
[3]
At the time of your original offending the Judge recorded that your offending
involved the most serious breaches of trust, they were committed against young
women, in most cases around the age of 13 years, and in situations when they were
in a position of friendship and trust with you and your family. The sentencing Judge
described as your pattern of behaviour:
A carefully prepared situation in which the confidence and trust of these
young women was gained over a period of time, only to be destroyed by you
by the most serious abuse. You were careful in every case to swear them to
secrecy. You had good reason to believe that because of the situation in
which you knew them to be it was unlikely they would breach the promises
you extracted from them.
[4]
The Judge then recounted a further episode of particularly gross offending
which gave rise to the investigation which uncovered your history of abuse and
five women giving evidence in court of your offending against them. The Judge
described the victim impact reports as making sobering reading.
The Judge’s
comment was that the damage you had done to the lives of the women was
immeasurable and in many cases irreparable.
She described it as planned and
deliberate abuse of your victims over many years. She considered that you seemed
to show little remorse and even less understanding of the tragedy that you had caused
to your victims. The Judge recorded that society will not tolerate crimes such as
these. You were however entitled under the rule of law to be dealt with under the
law as it stood at the time you committed these offences.
[5]
That principle is discussed by the presiding Law Lord, Lord Bingham, in an
essay “The Rule of Law” Vol 66 [2007] CLJ 67. It applies in New Zealand as it
does in England, in Europe and throughout the common law world. It had the effect
in 1997 that what would in today’s conditions have been a much longer term of
imprisonment was limited by the Judge after careful analysis of the sentencing
standards of the time of your offending to eight and a half years imprisonment.
That same principle constrains me in the imposition of sentence today.
[6]
The present offending escaped the investigation that resulted in your prior
sentence. The complainant, whose victim impact report is moving and troubling,
will only today be able to feel that there has been finality and closure in respect of
the conduct that has damaged her life into a fourth decade.
[7]
In R v W the Court of Appeal stated:
[34]
We do not accept the submission, which we are satisfied confuses
the actual position, that the offending against A and B ante-dated the 1994
sentencing, with what would have happened if the offending against A and B
had post-dated the 1994 sentencing. Of course in the latter event there would
have been no credit for the prior sentence; on the contrary the prior
offending would have been a serious aggravating factor. But that is not this
case. The fact that the appellant failed at the time of the 1994 sentencing to
acknowledge his offending against A and B deprived him of the deduction a
plea of guilty to it would have attracted. But to have put A and B to the
distress and the Crown to the cost of the 2002 trial does not result in an
increased sentence; standard sentencing practice does not penalise an
accused for putting the Crown to proof.
[8]
It follows that the fact that you did not acknowledge the complainant’s abuse
at the time of the original sentencing may not be used against you today. Only
limited weight may be placed on the fact of the delay in securing the closure I have
mentioned. That is because of a facet of the rule of law principle expressed in s 85
of the Sentencing Act 2002 that the Court must consider the totality of the offending
and impose sentence proportionate both to the offending and to any previous penalty
imposed in relation to related conduct. Had the facts of this case been known to the
sentencing Judge in 1997 there would certainly have been an increase in the
eight and a half year term. But Mr Goodwin submits and Mr Ronayne properly
agrees that that increase could not according to the sentencing patterns of the time of
your offending have resulted in a greater sentence than a term of 11 years.
[9]
The Sentencing Act requires this Court to take carefully into account
sentencing patterns in other cases and in R v W the Court of Appeal’s approach in a
like case was to determine what would have been the total penalty imposed on the
earlier date and then subtract the actual penalty previously imposed, determining the
penalty for the second sentencing as the net result of that calculation.
Using
Mr Ronayne’s 11 year term and subtracting the eight and a half years for your
previous sentence one is left with a term of two and a half years.
[10]
While you are not entitled to any discount for a plea of guilty which would be
evidence of remorse you are entitled to have taken into account both your relatively
advanced age and the fact of the ill health from which you suffer.
[11]
As to the former, the standard text Hall’s Sentencing states at 1.6.2(e) citing
New Zealand and Australian authority states:
With elderly offenders the Court should not overlook the fact that each year
of a custodial sentence represents a substantial proportion of the period of
life left to the offender.
[12]
And in R v Fahey CA184/00 2 November 2000 the Court of Appeal took into
account as factors that impacted upon the harshness of a life prison sentence that
appellant’s age and fragile health.
[13]
The probation report records that you were diagnosed with prostate cancer
while in prison and underwent 12 operations. You reported suffering bleeding and
being “padded up in the front and the back”. You suffer as well from a throat
condition and are shortly to undergo exploratory surgery that may entail removal of
part of a bowel.
[14]
I have considered with care a letter from your wife who has stood by you
throughout the tribulations of the past decade, for most of which you have been in
prison while suffering from the medical condition I have outlined.
From her
standpoint, any prison sentence will entail great distress as her healing from the
consequences of your other offending and consequential prison sentence is to a
significant extent undone by this further episode.
[15]
A reader of these sentencing remarks may well be shocked at the notion of a
sentence in the range now being discussed for offending of the kind that you have
committed with the consequences upon the complainant of such gravity. I hope that
reader may reflect on the principles that require this result which are an expression of
the operation of the rule of law in this country.
[16]
I am unable to meet the concerns expressed by your wife in her letter.
The injury to her is another consequence of your offending.
[17]
I have concluded that the proportionate sentence of imprisonment to impose
is that of the two year term suggested by your counsel which is closely similar to the
two and a half year term proposed by the Crown but allows a six month abatement to
recognise the consequences partly of your age but more importantly of your medical
condition.
[18]
The fact of the two year term requires me to consider whether I should give
you leave to apply for home detention. Looking at the matter from the standpoint of
your wife it is understandable why that submission should be advanced. But this
Court’s role is to take into account all relevant considerations. In the present case
prime among them is the position of the complainant and, beyond that, the sense of
proportion that is required in any sentencing exercise. It is purely fortuitous and in
no way to your credit that your gross offending cannot receive a longer prison term
than two years. Were I to grant the application for home detention which Parliament
allows for offending considered to be relatively lower level than the rape in this case
there would be risk of a sense that the Court had failed to perform justice.
[19]
I accept Mr Ronayne’s argument that such offending as yours in this case is
of a quality that makes you ineligible for home detention and leave to apply for
home detention is declined.
[20]
I have further reflected on whether the existing interim order for name
suppression should continue or be terminated. The principles which in my opinion
apply to this exercise were discussed in X v Police HC AK CRI-2006-404-259
10 August 2006.
The exceptional course of granting suppression following
conviction has been considered carefully by our appellate courts.
It is rarely
permitted and only in the most exceptional circumstances.
[21]
It is another facet of your offending that members of your family may feel
that by their very association with you others may feel that they are somehow
tainted. It is vital to dispel that perception. Our law does not recognise some kind of
vicarious responsibility of those related to you who are wholly innocent.
I understand their apprehension which is something touched on in para [26] in the
judgment in X v Police.
But at bottom the operation of the rule of law in
New Zealand depends upon New Zealanders generally responding in fairness to the
procedures of the courts. Nothing could be more unfair than for anyone to think an
atom the less of any member of your family because of your misconduct. It is
unhappily not possible for the Court to remove from the punishment which you must
receive the element of publicity of your name which is a fundamental aspect of it.
[22]
For that reason the interim order for name suppression is discharged.
[23]
You are sentenced accordingly to two years imprisonment.
___________________________
W D Baragwanath J