R v AF

[2013] NZHC 822

PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE PRISONER

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-090-002978 [2013] NZHC 822

THE QUEEN

v

AF

Hearing:         19 April 2013

Counsel:         NC Wintour for Prisoner

IM Brookie and Y Clarisse for Crown

Judgment:      19 April 2013

SENTENCING NOTES OF TOOGOOD J

Solicitors:

I Brookie/Y Clarisse, Meredith Connell, Auckland:  [email protected] [email protected]

NC Wintour, Barrister, Auckland:  [email protected]

R V AF HC AK CRI-2012-090-002978 [19 April 2013]

[1]      AF, you appear for sentence having being convicted by juries on thirty counts of sexual and violent offending.  You were convicted on eleven charges (including two of rape) by a jury in a trial over which I presided in the High Court, as well as nineteen charges (including six rapes) on which you were convicted by a District Court jury in July 2012.   The District Court charges have been transferred to this Court so that all matters could be dealt with together.

[2]      There were two victims in the District Court case (whom I shall call “V” and “F”) and one in the High Court case (whom I shall call “K”).  You terrorised them with violence and sexual abuse which spanned a total period of 16 years.   I acknowledge the presence in Court of your three victims.  I have read with care the eloquent statements that they have made of the damage you have done to them and the lifelong detrimental effects of your offending upon them, and I have taken that into account.

[3]      I tell  you  now  that  I do  not  intend  to  impose  a  sentence  of  preventive detention.  I have determined that the predominant sentencing purpose of protecting the community from you can be met adequately by a finite sentence of 20 years' imprisonment, with a minimum period of imprisonment of ten years.  I now explain why.

Facts

High Court offending

[4]      K was born in June 1986 and you became her stepfather when you married her mother in July 1990.   During the period of abuse by you, K lived with her mother, other siblings and you.

[5]      Your offending against K began in early 1993 when she was around only seven years old and living in Hamilton.  You were convicted on two counts of raping her by putting your penis into her vagina.  On the first occasion, when K was around seven, you climbed into bed with her.  You removed her clothes before rubbing her vagina and inserting your fingers.  You then raped her and you refused to stop when she cried and asked you to stop as she was in pain.  You told her to shut up or you would kill her. The next morning there was blood on the sheets.

[6]      The  second  rape  occurred  in  similar  circumstances.    You  entered  K’s bedroom and climbed into bed with her. You lay on top of her and rubbed your body against hers before raping her.   K screamed out and you told her to shut up.  You only stopped because you heard K’s mother get up.

[7]      There was also other offending against K.  On one occasion K and you were sitting together on a couch in the lounge with a blanket covering you both.  You put your hands down K’s pants and rubbed her vagina despite the fact that K’s mother was also in the lounge at the time although unaware of your offending.

[8]      In April 1997, the family moved to Palmerston North.  On one occasion, you put your hands down K’s pants to find that she had her period.  This angered you so you punched her several times with a closed fist. Another time, you lost your temper at K and struck her with a jug cord.    You were convicted of four representative charges: two involving assault with intent to injure; one indecent assault; and one of assault with a weapon.   I accept that this type of offending occurred, in fact, on numerous occasions.

District Court offending

[9]      The  other  two  victims,  V  (who  born  in  June  1991)  and  F  (born  in January 1993), are sisters.  You became their de facto stepfather when you began a relationship with their mother in around late 1999 to early 2000.   Between early

2000 and around March 2009 the girls lived at home with their mother, a younger brother and you.

District Court: offending against V

[10]     The offending against V occurred from around August 2003 and was repeated from time to time until March 2009 (when V was 12 years old).

[11]     You were convicted of six counts of raping V by putting your penis into her vagina.  The first three rapes occurred between August and October 2003.  On the first occasion, you pulled V into a bedroom.  You then removed your clothes and raped her over a 15-minute period.  A week later, you entered V’s bedroom whilst she was asleep.   You kissed her neck and breasts before raping her for 15 to 20

minutes.  Two to three weeks later, on your birthday, you told V sex could be your birthday present; you then raped her again.

[12]     The fourth and fifth rapes occurred when V was around 15 years old.  The fourth shortly before you went to Australia for church-related matters.   The night before you left V you told her, “I will miss you and I want to do this with you before I leave”.  You then raped her.  The fifth rape occurred when you sneaked into V’s bedroom one night.  As you were raping her, the second victim, F, entered the room causing you to stop.

[13]     The sixth rape occurred when V was around 17.  You forced V to have sex with you in a car.

[14]     You also offended against her in other ways.  On one occasion you rubbed her arms, thighs, back and hugged her.  You asked her for a massage and you used this as an opportunity to touch her breasts and vagina.  You forced V to suck your penis on two occasions.  There was also violent offending against her.  This involved you hitting her with your belt.  On another occasion you repeatedly punched V in the face with your fists.

District Court: offending against F

[15]     The offending against F began when she was approximately six or seven years old and occurred over a period of around five years.

[16]     You  would  lift  F’s  shirt,  tickle and  sniff her.    On another occasion  you climbed on top of her and rubbed your erect penis between her legs and on her vagina.  You induced her to give you a massage, during which you made her touch your penis before climbing on top of her and licking her breast. On another occasion, you became angry with F and hit her in the face with a mug, giving her a swollen face and cut lip.

Victim impact statements

[17]     All  three  of  your  victims  have  provided  the  Court  with  victim  impact statements, and F has read hers to me.  These illustrate the significant detrimental effect your offending has had on them and on their lives.

Victim impact statement: K

[18]     K refers to the period of your offending as her “dark time” and says that it has blocked out any childhood memories she has from before you offended against her. She describes you as a monster and says that she spent her childhood living in fear of you.  She says you caused her a lot of physical and emotional pain.  As a result of your offending, K’s relationship with her mother has deteriorated.   K spent her teenage years living with other family members and running away because she did not feel safe at home.  She was continually worried that any males in her mother’s life might be predators like you.   She describes you as the person who broke her. She found it difficult to do well at school because of you and this has continued to affect her into adulthood.  She finds it difficult to have relationships with men and this has caused her children to suffer too.

Victim impact statement: V

[19]     V is a changed person as a result of your offending.  She has trouble sleeping, it has made her cautious of people and she will only interact with others if she has to. The offending has stopped her from having relationships and she even said that because of you she does not want to have any family.  That is a profound effect to have had on a young woman.   Her relationship with her mother has also become difficult.  V explains that when her mother married you she thought you would be able to take care of the family and know right from wrong.  Instead you changed her life forever and turned it into a nightmare. Despite all of this, and this says far more about her than it does about you, she says that she has forgiven you and wants to move on with her life.

Victim impact statement: F

[20]     F says that you did not make her feel safe.  Home should have been a good place but it was not and instead she would stay at school as long as possible to avoid being around you.  F says she cannot trust men and that it will take her a long time to build trust and have a relationship.  She says that she missed out on a childhood. She was miserable and could not relax at home.   She says that you changed her life forever.

Personal circumstances

[21]     You are a 53-year old Samoan man.   You speak fluent Samoan and have strong connections with your culture and customs.  You claim not to drink alcohol or consume drugs.

[22]     From 2000 to 2009 you were a pastor in a local Church.  Your congregation had no knowledge of  your arrest.   Although  you were laid off when you were apprehended, you reported that you had previously enjoyed steady employment as a labourer.

Prior convictions

[23]     You have six prior convictions.  I ignore the offending in 1988 and 1991 for present purposes but four of your previous convictions relate to offending against K and her brother in 1995.   The assaults for which you were convicted reflect the violent way in which you exerted control over the household.

Pre-sentence report

[24]     I have received a copy of the pre-sentence report prepared by the Department of Corrections in September last year.  It relates only to the charges upon which you were convicted then in the District Court, but you have waived the right to a further report taking account of the more recent convictions.

[25]     When you spoke to the probation officer who wrote the report in September, you accepted a degree of responsibility for the offending against V and F, although I think your remarks were more directed to V than to F.  According to the report, you “repeatedly stated that you were doing wrong and you offered a full apology to the judge and the court, mainly your step-daughter”.  The report writer appears not to have appreciated, in fact, that there were two victims involved in the District Court charges.

[26]     You claim that the offending began with consensual sex with V. You said that you had sex with her on a number of occasions.  You claimed she would “give you a feeling” she wanted to have sex, and that she would dress provocatively.

[27]     You appeared to acknowledge the factors that led to your assaulting your step-daughters but the report assessed you, nevertheless, as presenting a high risk of reoffending, given the nature and frequency of the offending and  your previous convictions. While it appeared to the report writer that you were willing and motivated to address all of the key areas identified, your risk of harm to others was considered high because of your admission that you travelled to Brisbane knowing your victim had moved there, soon after she revealed the offending to family members.

[28]   Further, despite your stated acceptance of responsibility, throughout the interview you minimised your actions and implied that V, merely a girl, instigated the offending against her.  You were unable to say how you could make amends to her apart from apologising to her.   You gave no insight into your offending and thought a verbal apology would suffice.  You admitted to never thinking about the consequences  of  your  actions  and  accepted  that  you  would  always  remind  the victims not to tell anyone about what you were doing.

[29]     You have offered no explanation for the earlier offending against K.   You denied the offending against her when  you were interviewed by the two health assessors and you claimed there was a conspiracy between her and your former wife to make up a false story. You have not demonstrated any concern for the effect of your offending upon K or indeed on either of the other two victims.

Section 88 reports

[30]     The trial judge in the District Court transferred your sentencing to this Court because she rightly believed preventive detention might be appropriate having regard to the likelihood of your committing a further qualifying sexual or violent offence.

[31]     In this case, therefore, I have had the benefit of receiving reports from two health assessors:1 Dr Joseph Sakdalan, a clinical psychologist, and Dr Jeremy Skipworth, a psychiatrist.

[32]     The psychologist is satisfied that at the moment you present a very high risk of offending again  in  this  manner.    He says  you  have  a specific propensity to

1      As required by the Sentencing Act 2002, s 88.

sexually offend against pre-pubescent and pubescent girls who are in your care or to whom you have access. You have deviant sexual arousal and possible issues with your sexual drive and sexual preoccupation, lack of concern for others, and poor problem-solving skills.  Your offending is likely to have caused, undoubtedly it has caused, significant psychological and emotional harm to the victims.  But, although you are at a very high risk of sexual recidivism, Dr Sakdalan anticipates that your level of risk may decrease once you have undergone psychological treatment for your sexual offending and says that the risk can be reassessed some time in the future.    You  have  expressed  some  willingness  to  undergo  treatment  although Dr Sakdalan thinks this may not be entirely your idea.   Dr Sakdalan recommends that you be reassessed by the Department of Corrections as to your suitability for attending the Te Piriti child sex offender treatment programme.

[33]     Dr Skipworth, the psychiatrist, placed your risk for sexual offending with young family members in the moderate-high category.  He considers that, if you are released after the age of 60, your risk may reduce.  Dr Skipworth says that, whatever sentence is imposed by the Court, every effort should be made by the Department of Corrections to engage you in a child sex offender rehabilitation programme so your risk is reduced prior to your release into the community.

[34]     Given the psychologist’s specialised expertise on these matters, I accept his assessment that you currently present a very high risk of re-offending.  That accords with my own view of the relevant material, which includes the evidence given at your trial.

Purposes and principles of sentencing

[35]     Against this factual background, I now consider what sentences should be imposed  to  best  meet  the  sentencing  purposes  and  principles  set  out  in  the Sentencing Act 2002.  The relevant purposes I have taken into account are:

(a)       holding you accountable for the harm done to your victims and the community by the offending;

(b)promoting    in    you    a    sense    of    responsibility     for,    and    an acknowledgment of, that harm;

(c)       denouncing your conduct;

(d)      deterring you and other persons from such offending; (e)       protecting the community from you; and

(f)       assisting in your rehabilitation and reintegration.

I also take into account the principles of sentencing set out in s 8 of the Act – deterrence and the protection of the community are prominent considerations in this case.

Submissions

Crown submissions

[36]     An order for preventive detention would see you imprisoned indefinitely, the date and terms of your release, if any, being determined by the Parole Board after assessing the extent of risk you pose to the community.   Counsel for the Crown submitted that a sentence of preventive detention should be imposed. This is because your offending demonstrates an entrenched pattern of serious sexual and violent offending against young girls over a period of some 16 years; the seriousness of the harm caused to the victims and the devastating impact it has had on them; the fact that you have been assessed as having a high risk of reoffending in the future; the likelihood that you will respond positively to treatment being diminished by factors such as your continued denial of the offending; and your offending after what you were doing had come to light to other adults.   The Crown also submits that an extended supervision order might not adequately protect the community.  The Crown submitted also that a minimum period of imprisonment of eight to ten years would be appropriate if preventive detention is imposed.

[37]     If a finite sentence is to be preferred, the Crown argued I should adopt a combined  starting  point  of  25  –  28  years’ imprisonment,  achieved  by  taking  a starting point of 16 – 18 years for the offending against V and F, and adding a cumulative sentence of nine to ten years’ imprisonment for the offending against K. The Crown said an end  finite sentence of 20  – 23  years’ imprisonment with a minimum period of imprisonment of at least eight years was appropriate.

Offender’s submissions

[38]     On your behalf, Mr Wintour acknowledged that a sentence of preventive detention is open to the Court but he emphasised the point that a lengthy determinate sentence can provide adequate protection for society.   That is because any finite sentence imposed is likely to be a lengthy one, and because the Court also has the option of imposing a minimum period of imprisonment.

[39]     Mr Wintour emphasised that  on  your release  from  a finite  sentence  you would likely be approaching 70 years of age. He argued that the protection of the community might well be served in these circumstances once your rehabilitative needs are assessed and you have potentially completed rehabilitative programmes.

[40]     Mr Wintour accepted that the sexual violation against V is the lead offending, that a finite sentence should be imposed and that a starting point in the vicinity of 16

– 18 years was appropriate for this offending. However, he submitted that the totality of your offending requires a series of concurrent rather than cumulative sentences, but he conceded realistically that a minimum period of imprisonment of 8 – 10 years could be warranted.

Sentencing approach

[41]     The  approach  I  have  followed  in  arriving  at  the  appropriate  sentence2 involved  considering  the  circumstances  and  the  seriousness  of  your  offending, setting what is known as the starting point with the aid of any guideline decisions or comparable cases.   I then considered whether there were any aggravating or mitigating features relevant to you personally which might increase or reduce that starting point. This process gave rise to a final finite sentence.

[42]     However, because there is more than one offence, I also considered which offence  or  offences  to  focus  on  first,  and  then  looked  at  what  effect  the  other offences should have to reach an effective end sentence which reflected the totality of your offending. On a number of occasions the Courts have found it appropriate to

adopt cumulative rather than concurrent sentences where there are multiple victims.3

2      R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).

3      See for example R v Mwai [1995] 3 NZLR 149 (CA); R v Thompson CA370/04, 27 April 2005;

In this case, due to the number of victims and the significant time gap between the two main groups of offending, I approached this matter initially on the basis that cumulative sentences may be appropriate.

[43]     Finally, I considered whether preventive detention should be imposed instead of a finite sentence.

Tariff decision

[44]     The charges of rape are the most serious of the offences for which you were convicted in both the District Court and the High Court. In the tariff case which provides guidance on the starting point of this type of offending,4  the Court of Appeal identified a number of factors relevant to assessing the seriousness of sexual offending such as rape.  These factors are relevant to placing the offending within one of the four bands identified by the Court for sexual violation by rape.   The highest, reserved for the most serious type of rape offending, is Band 4 for which a term of between 16 and 20 years’ imprisonment is appropriate.

Setting the starting point

District Court offending

[45]     The offending in the District Court case involved a greater number of charges and they were more serious; your offending was against two victims, and it involved continuing to offend against new victims in the way you had offended against K.  I treated the six charges of raping V as the lead offences. You are liable to a maximum term of 20 years’ imprisonment on each of those charges.

[46]     I  was  satisfied  that  this  offending  falls  within  Band 4  of  the  guideline, although I recognised that your offending took place before that decision so I used it only as a reference point rather than as any binding authority. The factors increasing the seriousness of your offending which I note as particularly relevant to your case are the grooming of your victims and premeditation; and the extent to which your

violent behaviour intimidated V and rendered her compliant.  By threatening her, you

R v Te Amo CA435/00, 29 March 2001; R v Liu CA196/02, 18 November 2002; Hemi v Police

HC Wellington CRI-2008-435-7, 21 July 2008.

4      R v AM [2010] 2 NZLR 750 (CA).

also reduced the risk she would complain to her mother and that enabled you to offend repeatedly.   I take into account the vulnerability of K having regard to her age, and because you lived with her and that she could not escape from you; the physical and serious emotional harm you inflicted upon her; the fact that your offending involved prolonged offending against a victim who was a member of your family; and the gross breach of trust involved.

[47]    Looking at those factors and in comparison with other similar cases,5 I considered your case to fall in the lower half of Band 4 and concluded that a starting point of not less than 17 years’ imprisonment should be adopted for the rapes of V for which you were convicted in the District Court.  For the other offending against V and the offending against F, I would add another two years to reflect the totality of that offending, leading to a total of at least 19 years.

High Court offending

[48]     I then considered the earlier offending which occurred between 1993 and

1998.   Again, the lead offending in that group is the rape charges, which were committed sometime in 1993, when the maximum penalty for rape was 14 years’ imprisonment.

[49]     Looking at the High Court offending alone, the initial starting point would be five years’ imprisonment for the rapes committed on K.6   But there are a number of aggravating factors including:

(a)         the age of the victim; (b)          the breach of trust; and

(c)         the associated actual violence by which you intimidated K, and the threats to kill her.

[50]     There were two counts of rape and a large number of other charges, many of

5      R v Gordon [2009] NZCA 145; R v E CA433/04, 6 April 2005; R v P CA176/04, 7 October

2004; R v T CA445/03, 13 May 2004; R v S HC Auckland CRI-2009-092-15555, 15 February
2011; W v R [2010] NZCA 561; R v AJS [2012] NZHC 1531; R v HK HC Auckland CRI-2009-
009-6055, 1 June 2010; R v PD HC Whangarei CRI-2011-088-04739, 26 July 2012; R v N

CA88/05, 23 November 2005; T v R [2011] NZCA 203.

6      R v Clark [1987] 1 NZLR 380; R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985 (CA).

a sexual nature.  The offences were also spread over a number of years.  I note that three of the charges were representative charges.  I am satisfied from the evidence that you acted violently towards K and assaulted her sexually on many occasions.

[51]     On a totality basis, a starting point in the vicinity of 9 years’ imprisonment

would be appropriate if the offending against K was looked at on its own.7

[52]     Imposing cumulative sentences, by adding that sentence to the sentence for your later offending would give a combined starting point of not less than 28 years’ imprisonment.

Adjusting the starting point

[53]     The combined starting point then needs to be adjusted to take account of any aggravating and mitigating personal factors.

Aggravating features

[54]     The only aggravating factors here are your earlier convictions. However, although they occurred during the period of this offending, I do not consider that any uplift is necessary. The offences are of a violent nature and they form part of the background to the leading sexual offences; and I have allowed for them in setting the starting points.

Mitigating features

[55]     There are no mitigating personal factors that I can take into account. You did not plead guilty, and you have not acknowledged your guilt in relation to K or F. Such remorse as you have expressed in relation to the offences against V is not sufficient  to  justify  any  reduction  in  what  would  otherwise  be  an  appropriate sentence.

Totality

[56]     Although combining the High Court and District Court offending gives an effective end sentence of around 28 years’ imprisonment, I am required to bear in

7      R v T CA56/95, 26 September 1995; R v Crime Appeal 236/88 CA236/88, 24 February 1989; R v

Crime Appeal 428/91 CA428/91, 20 May 1992; R v Vunimasi CA370/91, 17 February 1992.

mind  that,  while  the  individual  sentences  must  reflect  the  seriousness  of  each offence, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.8   I am bound to take into account also that a sentence should not have a crushing effect on you and that some prospect of your rehabilitation and release needs to be held out to you.

[57]     I came to the view that imposing cumulative sentences and going over the 20- year maximum penalty available for the most recent rapes would offend against the totality principle. Instead, I preferred to impose concurrent sentences using the six rape charges involving V as the lead offending and uplift that sentence of 17 years on those charges to reflect the scale and totality of your offending.  I concluded that, if a finite sentence is to be imposed, an end sentence of 20 years’ imprisonment, bearing

in mind other similar cases,9 would be adequate.

[58]     That  is  a  very long  term  but  it  is  necessary,  in  my view,  to  reflect  the vulnerability of your young victims, the breach of trust and the severe and enduring effects on them; to deter you and others from this type of offending; and to protect the community from you given the high risk of re-offending which you pose at present.

[59]     I am satisfied that, on its own, a finite sentence of 20 years’ imprisonment which would see you eligible for parole after you had served only one-third, or six and a half years, would not be adequate.  It is necessary to give a degree of reality to the sentence and the outcome.   Your degree of culpability or blameworthiness is increased in this case by the age and vulnerability of your multiple victims; the lengthy period over which your offending occurred, and the actual and threatened violence which formed the background to your sexual offending. A minimum period of imprisonment would have to be imposed to address those matters, as Mr Wintour realistically agrees.

Preventive detention

[60]     Before coming to a final view about the appropriate sentence, I considered

the Crown’s submission that preventive detention should be imposed instead of a

8      Sentencing Act 2002, s 85.

9      See the cases referred to above at n 5.

finite sentence.  The Sentencing Act states that the purpose of preventive detention is to “protect the community from those who pose significant and ongoing risk to the safety of its members”.10

[61]     Although some of the offending in this case pre-dates the commencement of the  Sentencing  Act,  you  have  nevertheless  committed  a  number  of  qualifying offences under that Act. You were over 18 at the time you committed these offences, and you are therefore eligible for preventive detention.11

[62]     Of the factors I am required by law to take into account,12 I was satisfied that there is a pattern of serious offending; that your offending has caused serious harm to the community by undermining the confidence and trust children should have in their caregivers; and that you have a strong tendency to commit serious offences in future.    I  also  bear  in  mind,  however,  that  a  lengthy  determinate  sentence  is preferable to preventive detention if  that would provide adequate protection for society.

[63]     I was required, therefore, to consider whether a lengthy finite sentence would be a sufficient response to the principles and purposes of sentencing I have mentioned.

Preventive detention: approach

[64]     I considered carefully the submissions on behalf of the Crown supporting the suggestion that you should be sentenced to preventive detention, principally because of the high risk of re-offending found to exist by the probation officer and the medical experts.   In all the circumstances, however, I concluded that adequate protection can be provided by imposing a lengthy finite term of imprisonment incorporating a minimum period.

[65]     There are two principal reasons for this view:  first, there is a suggestion in the experts’ reports that you would be susceptible to counselling and treatment, and both the psychologist and the psychiatrist who examined you and reported to me

have  emphasised  the  advisability  of  treatment  which  you  have  not  previously

10     Sentencing Act 2002, s 87(1).

11     Ibid, s 87(2).

12     Ibid, s 87(4).

received.   I am aware, for example, that the Te Piriti programme referred to by Dr Sakdalan  appears  to  achieve  a  high  success  rate  in  preventing  re-offending compared to cases in which no such treatment is undertaken.

[66]     Second, a minimum period of imprisonment under the Sentencing Act must be longer than one-third of the length of the finite sentence imposed but not greater than two-thirds of the full term or ten years, whichever is the lesser.13    I consider a minimum period of ten years is necessary to respond adequately to your crimes. Realistically, Mr Wintour has acknowledged that something of that order is required. A finite term of the period that I have indicated would not expire until you were in

your 70s and a minimum period of imprisonment of ten years would not see you released until you were in your 60s at the earliest.   It is likely that, even without treatment, the risk of your re-offending would be reduced by that stage.

[67]     There is no  guarantee that  you would be released immediately upon the expiry of a minimum period of imprisonment and I have been persuaded, after anxious consideration, that the question of your release after serving ten years should be left in the hands of the Parole Board.  The Board will be able to assess you at the relevant time and in light of your response to such counselling or treatment as you have received by then.

[68]     I  have  also  taken  into  account  the  possibility  that  the  Department  of Corrections would ask the Court to make an extended supervision order to apply upon your release.   Such an order would have the effect of extending the period beyond the completion of your sentence up to a maximum of a further ten years under which your behaviour can be closely controlled and monitored.  This would include taking any steps to prevent you from getting back into a situation where you put the wellbeing of young children at risk.

Result

[69]     Please stand.

[70]     All of the sentences I am about to impose will be served concurrently, that is at the same time.  Dealing first with the charges upon which you were remanded to

13     Ibid, s 86(4).

this Court for sentence following the trial in the District Court you are sentenced as follows:

(a)      on each of the six charges of rape, to 20 years’ imprisonment.   On those charges, you are also sentenced to serve minimum periods of imprisonment for ten years;

(b)      on the two charges of sexual violation by unlawful sexual connection,

to ten years’ imprisonment;

(c)       on the two charges of indecent assault on a female under 12 years, to

seven years’ imprisonment;

(d)      on the three charges of indecent assault on a female between 12 and

16 years, to four years’ imprisonment;

(e)       on the charge of sexual conduct with a young person under 16 years,

to five years’ imprisonment;

(f)       on the charge of indecent assault, to three years’ imprisonment;

(g)      on  the  charge  of  injuring  with  intent  to  injure,  to  two  years’

imprisonment;

(h)      on  the  two  charges  of  assault  with  a  weapon,  to  two  years’

imprisonment; and

(i)       on the charge of male assaulting a female, to one year imprisonment. [71]     On the charges upon which you were found guilty by the jury in this Court I

impose the following sentences:

(a)       on each of the two rape charges, to nine years’ imprisonment;

(b)      on the charge of unlawful sexual connection with a female under 12,

to six years’ imprisonment;

(c)       on the four charges of indecent assault on a female under 12 years, to

five years’ imprisonment;

(d)      on the charge of assault with a weapon, to three years’ imprisonment;

(e)       on the three charges of assault with intent to injure you are sentenced

to two years’ imprisonment.

[72]     I repeat that all of these terms are to be served concurrently.   The total effective sentence, therefore, is one of 20 years’ imprisonment for which you must serve a minimum of ten years.

[73]     To ensure that you in fact receive the proper treatment which the medical specialists and I consider necessary to best serve your interests and the interests of the community, I direct the Registrar to provide to the Department of Corrections:

(a)       a copy of these remarks on sentencing; (b)      copies of the five medical reports; and

(c)       a copy of the pre-sentence report provided by the Probation Service.

[74]     I  also  direct  the  Registry to  arrange  for  these  sentencing  remarks  to  be translated into Samoan and for you to be provided with a written copy of the Samoan version as soon as possible.  Stand down.

......................................

Toogood J