Ngaheu v The King

[2024] NZHC 1124

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2024-463-000028

[2024] NZHC 1124

BETWEEN

BARRY PANAPA NGAHEU

Appellant

AND

THE KING

Respondent

Hearing:

7 May 2024

Appearances:

G Walsh for Appellant

H Speight for Respondent

Judgment:

8 May 2024

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 8 May 2024 at 12.30 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Pollett Legal Ltd, Office of the Crown Solicitor, Tauranga G Walsh, Hamilton

NGAHEU v R [2024] NZHC 1124 [8 May 2024]

[1]    Mr Ngaheu pleaded guilty in the District Court to four charges of engaging in unlawful sexual activity with young females during the 1970s. The charges comprised two charges of indecent assault on a girl under 12 years of age, one charge of indecent assault on a girl aged between 12 and 16 years and one charge of sexual violation by rape. The only charge not laid as a representative charge was one of the charges of indecently assaulting a girl under 12 years of age.

[2]    On 7 March 2024, Judge J P Geoghegan sentenced Mr Ngaheu to four years three months imprisonment.1 Mr Ngaheu appeals against sentence. On  his behalf  Mr Walsh contends the Judge adopted a starting point for the sentence that was too high and then gave him insufficient discount to reflect the fact that he has led a blameless life for the last 48 years. He says these errors resulted in the Judge imposing an end sentence that was manifestly excessive.

The facts

[3]    The Judge sentenced Mr Ngaheu on the basis of an agreed summary of facts. This recorded that Mr Ngaheu offended against two female victims, to whom I shall refer as Victim A and Victim B. The two victims were sisters. At the time of the offending Mr Ngaheu was in a relationship with their older sister.

[4]    The offending against Victim A occurred between 1970 and 1976. The offending against Victim B occurred during the mid-1970s.

The offending against Victim A

[5]    Mr Ngaheu first offended against Victim A between 1970 and 1971 when she was nine years of age. On this occasion he was present with both victims at his home address. Whilst he was reading a book to the two victims he took the opportunity to rub Victim A’s vagina. Thereafter the offending against Victim A escalated in both seriousness and regularity.

[6]    Between 1970 and 1973, Mr Ngaheu indecently assaulted Victim A on numerous occasions by rubbing her vagina, inserting his fingers inside her vagina, putting his penis inside her mouth and making her stroke his penis to the point where

1      R v Ngaheu [2024] NZDC 5203.

he ejaculated.  The offending took place at numerous places in the districts where  Mr Ngaheu was living at the time.

[7]    The offending against Victim A subsequently escalated to the point where he penetrated Victim A’s vagina with his penis. This first occurred at some stage between 1973 and 1976 whilst Victim A was staying with Mr Ngaheu and her older sister. Victim A believes she would have been around 12 years of age at this time. She would visit Mr Ngaheu regularly and would assist in caring for her older sister’s child.

[8]    On this first occasion Mr Ngaheu told Victim A to lie down with him on a mat on the lounge floor. He then told Victim A to touch his penis, first on the outside of his  clothing  and then through skin  on skin  contact.  This  activity progressed to  Mr Ngaheu having full sexual intercourse with Victim A. This caused her considerable discomfort and bleeding.

[9]    Between 1973 and 1976, Mr Ngaheu had sexual intercourse with Victim A on numerous other occasions and in different places. He did so despite her telling him that she did not wish to have sexual intercourse with him.

The offending against Victim B

[10]   The only occasion on which Mr Ngaheu offended against Victim B occurred between 1975 and 1976 when she was aged approximately eight years. On this occasion Victim B was staying at Mr Ngaheu’s address. He sexually assaulted her by lying on top of her and rubbing his torso against her chest, stomach and genitals. Both Mr Ngaheu and Victim B remained fully clothed as this occurred. Mr Ngaheu told Victim B to keep what had occurred a secret.

Effect of offending on the victims

[11]   Both victims provided victim impact statements. These revealed the psychological and emotional trauma that Mr Ngaheu’s offending has caused for them.

The sentence

[12]   Given the fact that the offending had occurred in the 1970s, the Judge was obliged to set an appropriate starting point for Mr Ngaheu’s offending using the

approach to sentencing that applied at that time. The aggravating features of the offending were that it constituted a gross abuse of the trust placed by the victims in Mr Ngaheu. He was effectively their caregiver whilst they were staying in his house. He was also in a position of authority over the victims and could secure their silence by instructing them not to tell others about his actions.

[13]   The Judge considered the offending to be premeditated and, in the case of Victim A, it was also repetitive and involved different forms of unlawful sexual activity. The victims were vulnerable by virtue of both their young age and the age disparity between them and Mr Ngaheu. Mr Ngaheu was aged between 20 and 30 years at the time the offending occurred.

[14]Finally, the offending caused significant and life-long harm to both victims.

[15]   After considering several authorities referred to him by counsel, the Judge selected a starting point of eight years imprisonment to reflect the offending against Victim A. He then applied a six month uplift to reflect the offending against Victim B.

[16]   Mr Ngaheu had no previous convictions so there was no uplift to reflect aggravating factors personal to Mr Ngaheu. Turning to the discount to be given for guilty pleas, the Judge noted that Mr Ngaheu had entered his pleas on the day the trial was due to commence. This meant the victims would have experienced distress and anguish during the period leading up to the trial. They were, however, spared the ordeal of being required to give evidence. Taking these factors into account, the Judge applied a discount of 10 per cent to reflect guilty pleas.

[17]   The Judge then noted that Mr Ngaheu had led a blameless life since the offending occurred. He had also carried out duties in the defence force in an honourable manner. In all respects he has been a law-abiding citizen for nearly 50 years. The Judge applied a discount of 10 per cent to reflect these factors.

[18]   Mr Ngaheu is now 77 years of age and in very poor health. It is not necessary for present purposes to set out the afflictions from which he now suffers but the Judge listed these in his decision. Mr Ngaheu’s physical infirmity is such that the Judge acknowledged he would find it much more difficult to serve a sentence of

imprisonment  than  would  a  more  youthful  person.     He allowed a discount  of 30 per cent to reflect this factor.

[19]   This process reduced the starting point by 50 per cent. It resulted in the starting point of eight years six months imprisonment being reduced to an end sentence of four years three months imprisonment.

The appeal

[20]   As I have already noted, Mr Walsh advances two submissions in support of the appeal. First, he contends the Judge selected a starting point that was too high. He submits that a starting point of no more than five years imprisonment was appropriate for the offending against Victim A. He takes no issue with the uplift of six months applied to reflect the offending against Victim B.

[21]   Mr Walsh also takes no issue with the discounts provided to reflect guilty pleas and Mr Ngaheu’s present physical infirmity. However, he contends the Judge ought to have applied a discount significantly greater than 10 per cent to reflect Mr Ngaheu’s good character since the offending occurred. He submits that a discount of approximately 30 per cent was required to reflect this factor.

[22]   Mr Walsh contends that rectification of these errors is likely to reduce the sentence to a point where the Court can convert the existing sentence of imprisonment to the electronically monitored sentence of home detention.

Analysis

The starting point

[23]   Mr Walsh relies on the same arguments in support of the challenge to the starting point as he advanced to the Judge at sentencing. Rather than attempt to summarise the Judge’s reasoning regarding these issues, I consider it appropriate to set out in full the passage from his sentencing remarks in which he selected a starting point of eight years imprisonment:

[19]      Mr Walsh has referred me to a case called R v IWM a sentencing decision of Nicholson J in circumstances involving repeated offending against

three Victims over a period between 1966 and 1974.2 The offending involved two charges of rape. In that case the learned judge adopted a starting point of six years in respect of 10 charges of indecently assaulting a girl under 12 and a girl between 12 and 16. He imposed a cumulative sentence of two years meaning an end sentence of seven years. This case could be regarded as more serious than that case that I have just referred to as it involves the rape of Victim 1 on multiple occasions. You were also older at that time than the offender in R v IWM. In R v [Elwin] the Court of Appeal took no issue with an end sentence of six years for a range of charges including indecent assault of a girl under 12, indecent assault of a girl aged between 12 and 16 and two counts of rape involving two different complainants.3 The Court made reference to the fact that in the 1970s and early 1980s there was a well- established sentencing tariff for rape and in the case of a single rape of a child or girl a range of four to seven years was regarded as acceptable. R v Stewart involved three counts of indecent assault, two counts of inducing indecent acts on the complainant who was under 12 and one count each of sodomy and rape committed against the same complainant when she was in her early teens.4 The offending occurred between 1968 and 1974. In that case, Pankhurst J adopted a starting point of five years for the sodomy and rape charges. The indecency charges attracted a sentence of two years which was directed to be served concurrently.

[20]      The Crown has referred to R v Reeve which involved offending against Mr Reeves’ sister-in-law between 1981 and 1983 when she was aged between 16 and 18.5 The offending involved two charges of indecent assault and one of rape. Frater J referred to the Court of Appeal decision in R v Puru in which the Court considered sentencing trends in the preceding 10 years noting that:

in the 10 years ending 1983 of the 438 sentences for rape, 138 almost one- third were for terms of at least five years, including 51 involving periods of seven years and upwards.6

[21]      That indicates that in almost a third of cases the starting point was in excess of five years. In Reeve Frater J adopted a starting point of six years. Your offending is more serious than that in Reeve involving multiple indecent assaults against two separate Victims and repeated rapes of Victim 1 over a lengthy period.

[22]      Ultimately each case presents its own unique facts, but the scale of your offending was significantly greater than in any of the cases I have just referred to. Looking at the offending against Victim 1 alone I regard an appropriate starting point as one of eight years' imprisonment. I agree with the submissions of counsel that the offending against Victim 2 may be adequately reflected by a six-month uplift resulting in a starting point of eight and a half years. That starting point appropriately reflects, in my assessment, the gravity of your offending and the principle of totality.

2      R v IWM HC Hamilton CRI 2004-075-3043, 26 April 2006.

3      R v Elwin CA290/93, 10 August 1994.

4      R v Stewart HC Christchurch CRI-2006-009-1151, 12 February 2008, Panckhurst J.

5      R v Reeve HC Auckland CRI-2005-019-6163, 30 June 2006.

6      R v Puru [1984] 1 NZLR 248 (CA).

[24]   As the Judge noted, each case presents its own unique set of facts. For that reason, any comparison between the sentences imposed in other cases with that imposed in the present case is necessarily of limited assistance. A simpler and more principled approach is to have regard to such tariffs or guidelines as may have existed at the time the offending occurred. This provides a more reliable means by which to ascertain whether the starting point is consistent with the sentencing approach that applied at the time of the offending.

[25]   I find the most helpful guide in this context to be the decision of the Court of Appeal in R v Elwin, a case referred to in the passage from the Judge’s sentencing remarks set out above.7 As Judge Geoghegan noted, that case involved charges of indecent assault of a girl under 12 years of age, indecent assault of a girl aged between 12 and 16 years and two counts of rape involving two different complainants. In that case the Court of Appeal observed:8

We have not been referred to any cases indicative of sentencing levels for serial sexual abuse of this kind in the 1970’s and early 1980’s. At that time, of course, cases of that kind did not come before the courts with anything like the frequency of today. However, there was a well established sentencing tariff for rape, standing alone, see R v Pawa [1978] 2 NZLR 190, R v Pui [1978] 2 NZLR 193, and R v Puru [1984] 1 NZLR 249. In the case of a single rape of a child or girl a range of four to seven years was regarded as acceptable.

(Emphasis added)

[26]   In R v IWM, the first of the cases cited by the Judge in the passage from the sentencing remarks set out above,9 Nicholson J said that he considered the sentencing approach for rape noted in Elwin to be of particular assistance.10 Nicholson J therefore took a starting point of six years imprisonment on each of two discrete charges of rape.11 However, he then treated the starting point as being one of six years imprisonment on both charges. He reduced this by one year to reflect the offender’s young age at the time of the offending before imposing a cumulative sentence of two years to reflect the charges of indecent assault.

7      R v Elwin, above n 3.

8      At 8-9.

9 At [23].

10     R v IWM, above n 2 at [32].

11 At [35].

[27]   In the present case Mr Ngaheu pleaded guilty not only to indecently assaulting Victim A but also to raping her on numerous occasions between 1973 and 1976. Applying the sentencing approach noted in Elwin, I do not consider a starting point of eight years imprisonment for all the offending against Victim A can be said to be outside the available range.

Discount for good character for the period following the offending

[28]   The Crown accepted at sentencing that Mr Ngaheu had led a blameless life during the 48-year period since the offending ceased in 1976. During that period, he served in the territorial force of the New Zealand Army. This resulted in him receiving several medals for long service and good conduct.

[29]   During oral submissions at sentencing, the Crown accepted that this factor justified a discount of around 20 per cent. Mr Walsh sought a discount of 30 per cent in accordance with the approach taken by Panckhurst J in R v Stewart.12 The Judge did not say why he adopted the lesser discount of 10 per cent.

[30]   I consider the length of time during which Mr Ngaheu led a blameless life, including his lengthy service to the military, justified a discount considerably greater than that afforded by the Judge. I consider that this factor warranted a discount of one year eight months, or approximately 20 per cent.

Result

[31]   The appeal against sentence is allowed. The concurrent sentences of four years three months imprisonment imposed on the rape charges are set aside. In their place, I impose concurrent sentences of three years five months imprisonment. The concurrent sentences imposed on the remaining charges remain intact.

Lang J

12     R v Stewart, above n 4, at [22].