R v Cash

[2020] NZHC 2629

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-019-6911

[2020] NZHC 2629

THE QUEEN

v

TAUKIRI MAKAIRA CASH

Hearing:	6 October 2020
Appearances:	J N Hamilton and S D Taylor for the Crown J S Gurnick for the Defendant
Judgment:	6 October 2020

SENTENCING NOTES OF JAGOSE J

Counsel/Solicitors:

J S Gurnick, Barrister, Hamilton

Hamilton Legal, Crown Solicitor, Hamilton

R v CASH [2020] NZHC 2629 [6 October 2020]

[1]    Mr Cash, as you know, I am now to sentence you on your convictions for: kidnapping;1 attempting to do an indecent act on a child under the age of 12;2 intentionally exposing a young person under the age of 16 to indecent material in communicating with her;3 and three counts of doing an indecent act with intent to insult or offend.4

[2]    You have already been given a first ‘strike’ warning, meaning you will have to serve the full term of imprisonment for any future serious offence you might commit. If that applied to you now, which it does not, you would be facing fourteen years’ imprisonment now. And I say that just to illustrate that your sentence now has to be substantially less than that.

[3]    I have considered what counsel have had to say, both for you and for the Crown. They recommend a starting point for your imprisonment ranging from five and a half years to seven and a half years, with a variety of uplifts, discounts, and credits to reflect factors personal to you.

[4]    I am not bound by their recommendations. I must satisfy myself of the appropriate sentence for the gravity – the seriousness – of your offending, including your culpability – your responsibility – for it.

[5]    The victims of your offending are twelve girls, who were aged between four and 11 years of age at the time. Because of their ages, their names and other identifying particulars automatically are suppressed.5

Background

[6]    I need to cover off the background to your offending, to let people know the conduct for which I am sentencing you. It all occurred from your car.

1      Crimes Act 1961, s 209. Maximum penalty 14 years’ imprisonment.

2      Sections 132(3) and 72. Maximum penalty 10 years’ imprisonment. However, per s 311(1), the maximum penalty for an attempt under this head is 5 years’ imprisonment.

3      Section 124A. Maximum penalty three years’ imprisonment.

4      Section 126. Maximum penalty two years’ imprisonment.

5      Criminal Procedure Act 2011, s 204.

[7]    On 26 August 2018, you attracted the attention of a group of three girls aged 10 or 11 walking on the footpath, and showed them a picture of a naked woman on your mobile phone. They became upset and ran home. This was your indecent communication offence.

[8]    On 31 August 2018, you drove up to a group of five girls, aged between five and eleven, selling lemons on the side of the road. You got them to approach you by offering them money. Once close to you, you exposed your penis to them. This was the first of your three indecent act offences.

[9]    On 5 October 2018, children were playing on the footpath outside their home. One, aged four, was riding her scooter along the footpath a short distance from her siblings. You approached her in your car and offered her money. When she was close to you, you pulled her inside your car and drove away. The alarm was raised by her siblings’ screams, alerting their mother. You knew you had been seen by the mother, and with your escape impeded by heavy traffic, you stopped a short way up the road and pushed the girl out of the vehicle before fleeing. This is your kidnapping offence.

[10]   On 15 October 2018, in your car, you followed a nine-year-old girl walking home from school. You drove past her, turned around, and then parked a short distance ahead of her. As she walked past you, you pointed the camera of your cell phone at her. She saw you masturbating. You continued to follow her. She became frightened and ran home. This is the second of your three indecent act offences.

[11]   Your third indecent act offence occurred on 29 October 2018, when you approached another nine-year-old girl walking along a footpath. From your car, you told her you had a special video you wanted to show her. As she reached your vehicle, you sat up in your seat, exposing your penis to her.

[12]   The last offence occurred on 31 October 2018. You drove up to a ten-year-old girl standing at the end of her driveway, and asked for directions. As she talked with you, you held up your mobile phone and showed her sexual images. You unzipped your pants and showed her your penis, asking if she wished to touch it. She became frightened and ran into her house. This is your attempted sexual conduct offence.

[13]   The Crown makes the point that since the kidnapping the subsequent offences have all been targeted at children – girls – on their own. I acknowledge that is the case. The Crown wishes me to go further to say that is a strategic choice by you, to avoid groups of children. I do not take that as going so far.

[14]   At least the October 2018 offending occurred while you were on bail, and bound then not to offend.

Victim impact statements

[15]   The girls or their parents have provided me with statements of the impact of your offending on them. You have heard some of them read this afternoon.

[16]   The girls each note the traumatising impact of your offending on their self- confidence and feelings of personal safety, of their stress at being alone in public. The parents identify the wider detrimental impacts of your offending on their children’s freedom of movement and in play. They note the girls’ increased caution, fear, anxiety, and loss of innocence and trust. All required counselling, whether by their parents or from specialists.

[17]   Children are entitled to make their way in the world beyond the confines of their family home or school. They should be free to play, travel, and socialise without adult supervision. They are entitled to look to adults for care, help, protection and support. When that trust is broken, as it was by your offending, they are entitled to know that it will be punished, so far as possible to prevent you acting like that again and to protect them and other children from you.

[18]   These are among my objectives in sentencing you. I hope they give the children and their families some sense of closure to your unwelcome intrusion into their lives.

Personal circumstances

[19]I also have some statements about you, Mr Cash.

—pre-sentencing reports

[20]   Probation officers have provided me with advice on your personal circumstances from their interviews with you. The first of those notes the “vast escalation” in the seriousness of your current offending from initial nuisance offending to the present. You were employed in a career as a gas technician. You wish to return to it. You initially said you were pressured to plead guilty. As recently as July 2020, you are recorded as saying you were not guilty. You deny any sexual attraction to children, and say you cannot recall the circumstances of your offending.

—background report

[21]   You have asked me to hear from Vanessa Moodie, from speaking with you and others who know you, on your background. She explains you grew up in a context of extreme violence. You had sole custody of your son. You are seen to have cared and provided for him and for vulnerable members of your wider family, without recognition or return. You left school at fourteen as a very young father, whose daughter then died early at the age of six months; you struggled to maintain your relationship with her mother in your grief, and turned to alcohol and heavy methamphetamine use. You are said to be clean of their influence for the past four years. Your custodial experience is difficult as a segregated prisoner, but you are contributing as the prison barber and hope to obtain work release. Ms Moodie concludes your background has led to your significant disadvantage, trapping you in your lifestyle, and leading to your offending. She says your sense of shame has limited your ability to accept responsibility for your offending.

—letter to the Court

[22]   That last is evident from your letter to me, in which you say you are ashamed of yourself and your “mistakes”, “silly choices”, and “nonsense”. You apologise for your actions to the victims and their families, and to your own, and say you are ready to be rehabilitated. I thank you for your letter.

Approach to sentencing

[23]   Mr Cash, sentencing is a two-step process. I first set a starting point for your offending – by non-mechanical reference to similar cases, and to any aggravating or mitigating features of the offending – to adjust that up or down to take into account your personal circumstances, including your guilty pleas.6 Your kidnapping conviction will be the lead charge for sentencing purposes; given their connection in time and type, I will treat your other convictions as aggravating your culpability, to impose concurrent sentences for them,7 that means for which you will serve at the same time, while considering the totality of your offending.8

[24]   I am required to have regard for the statutory purposes and principles of sentencing.9 I must hold you accountable for your offending, and encourage you to be responsible for and acknowledge the harm you have caused. Your sentence should be sufficient to denounce your conduct and protect the community. I must consider the gravity and seriousness of your offending, and take into account its impact on victims. The sentence is to be the “least restrictive” appropriate in the circumstances, consistent with appropriate sentencing levels.

—starting point

[25]   Unlike some other offences, there are no guideline judgments for kidnapping sentencing, because of the “infinite variety of circumstances which underlie the crime of kidnapping”.10 But I can look to starting points adopted in similar cases to arrive at a starting point on the kidnapping charge.

[26]   On a more serious kidnapping – in which some hours passed before the kidnapped child was found, and during which the child was indecently assaulted – the Judge took a starting point of seven and a half years’ imprisonment. The duration and indecent assault make that more serious than your case. On the same man’s attempted kidnapping the previous day – when three children playing on the street were invited

6      Moses v R [2020] NZCA 296 at [46]-[48].

7      Sentencing Act 2002, ss 83 and 84.

8      Section 85(4).

9      Sections 7 and 8.

10     R v Wharton (2003) 20 CRNZ 109 (CA) at [11].

into the offender’s car but their mother intervened – the Judge took a starting point of two and a half years’ imprisonment. While the vulnerability of the three children is similar to those in your case, none of those children was in fact kidnapped. 11

[27]   In another also more serious kidnapping – in which a 15-year-old with a developmental age of eight or nine was abducted, sexually violated, and indecently assaulted – an overall starting point of six years was justified, and the kidnapping alone could have attracted a starting point of two to three years.12 Your victim was substantially younger and still more vulnerable.

[28]   In another case, the offender grabbed a five-year-old boy waiting with others at a bus stop, and attempted to take him towards his car. When the other children resisted, the offender returned to his car and drove off. While little harm resulted in fact, the offending was serious and sinister and disclosed a need for community protection and deterrence. A starting point of two years’ imprisonment was upheld on appeal.13

[29]   I will be careful not to double-count these factors when I come to an uplift for your other offending. But I view as aggravating here your kidnapping offending’s contexts of your sexual offending against children,14 whose vulnerability and risk of incalculable long-term damage is self-evident;15 and your premeditated prowling of streets looking for your prey,16 which contributes to your offending’s culpability.17

[30]   Compared to the cases I have just outlined, a standalone starting point for your kidnapping offending in its context is four to five years’ imprisonment. I will take the mid-point, at four and a half years’ imprisonment.

11     R v Robertson HC Tauranga CRI-2005-070-453, 4 October 2006.

12     R v Muavae [2000] 3 NZLR 483 (CA) at [18].

13     R v Harrison [2009] NZCA 162 at [25].

14     Sentencing Act 2002, s 9(1)(g).

15     R v B (an accused) [1986] 2 NZLR 751 (CA); R v Accused (CA265/88) [1989] 1 NZLR 643 (CA);

R v Accused (CA291/90) [1991] 3 NZLR 405 (CA); and R v Tipene [2001] 2 NZLR 577 (CA).

16     Sentencing Act 2002, s9(1)(i).

17     R v Mako [2000] 2 NZLR 170 (CA) at [36].

[31]   Starting points of 12 to 20 months’ imprisonment have been upheld on multiple indecency charges.18 None of your actions was simply offensive. You sought directly to engage with younger and further victims here, in individually more serious offending. A starting point of three years’ imprisonment was in prospect on the attempted sexual contact, three indecent act, and indecent communication  offences.  I will uplift your starting point by 18 months on account of that other offending.

[32]   I further uplift this starting point by six months to recognise your October 2018 offending took place while you were on bail, although on the arguably unrelated charge of family violence.19 Your disregard for court orders alone means your sentence should engage additional personal deterrence.20

[33]   My starting point for your sentencing is thus six and a half years’ imprisonment. Standing back, I am satisfied the totality of your offending appropriately is addressed by that starting point.

—adjustments for personal circumstances

[34]   I now turn to adjust that starting point up or down, taking into account your circumstances, together with a discount for your guilty pleas which will be reflected as a percentage of the adjusted starting point.21

[35]   As to these personal circumstances, you are now 28 years old with nine previous convictions, all unrelated to the present sexual offending (although the family violence offending could have borne more scrutiny). Neither uplift nor discount is available on these grounds.

[36]   I am unable to accept Ms Moodie’s unexplained conclusion your offending is caused by your background. I have no doubt, as a consequence of colonisation, you have experienced what Sir Mason Durie has termed a “trapped lifestyle”.22 This is a collection of socioeconomic circumstances and confused cultural identity resulting in

18     Hosking v R [2012] NZCA 460; Partridge v R [2017] NZHC 2440.

19     Sentencing Act 2002, s 9(1)(c).

20     Clunie v R [2013] NZCA 110 at [23].

21     Moses v R, above n 6, at [46].

22     See M Durie Ngā Kāhui Pou: Launching Māori Futures (Huia Publishers, Wellington, 2003).

marginalisation and diminished self-respect. Because of resulting behaviours, that places Māori at disproportionate risk of incarceration. As Ms Moodie notes, this phenomenon can be seen at work in your own life history of whānau dysfunction, early exposure to gang culture, early parenthood, and loss of your own childhood.

[37]   But I cannot see any causal relationship between these aspects of your background and your offending. They do not reduce your culpability. These aspects of your life history may go some way to explaining your feeling “broken, shut out, and helpless”. I acknowledge that. But none of the information put before me explains how you may have been predisposed to, or otherwise resulted in your, sexual offending against children.

[38]   Your responses to the probation officers, to Ms Moodie, and to me all illustrate a singular lack of insight into both your responsibilities as an adult toward children, and the damage you have caused by your actions. Your reported care of your own child and your siblings is not enough to overcome that. To some degree, your recognition of familial care exacerbates the seriousness of your offending against children unknown to you. Your expressions of remorse, undermined by your failure to accept the seriousness of your offending, do not address the real damage you have done. To be clear, your offending is not a ‘mistake’, ‘silliness’ or ‘nonsense’; it is your deliberate and serious breach of community standards to protect the vulnerable. Your inability to recognise that means your prospects of rehabilitation are hugely diminished. No discount is justified on account of your personal circumstances.

[39]   That leaves your guilty pleas. The guilty plea discount is available to recognise the savings to victims and the community in not having to prepare for or attend trial.23 In your case, your attempts to vacate your original plea added to their burdens. I can only acknowledge, in the end, you spared the victims and their families the distress of a trial, for which I will allow a discount of ten per cent, or a reduction in the term of your imprisonment by eight months.

[40]This produces an end sentence of five years and ten months’ imprisonment.

23     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45]-[47].

—minimum period of imprisonment

[41]   You would ordinarily be required to serve at least one-third, or 23 months, of that sentence before being eligible for parole.24 If that period is too short for the purposes of sentencing in your case, I may require you to serve up to two-thirds, or nearly four years, of your sentence before you would become eligible for parole.25

[42]   Your sentence is required to have a degree of reality about it.26 Your experience in custody may deter you from further offending against children. But the prospect you may be released into the community in less than two years is insufficient to hold you accountable for the harm you have done, or properly to denounce that conduct, or to protect the community from you.27 On the other hand, to require you may not be released for nearly four years is to deny you much incentive to obtain the insight your successful rehabilitation will require.

[43]   For those reasons I will require you to serve a minimum period of imprisonment of three years. During that period you will not be eligible for parole. Even if then released, you would be subject to release conditions for the balance of your term of imprisonment. Whether you are then released depends entirely on you satisfying the Parole Board, if released, you will not pose an undue risk to the safety of the community or to children in particular. Mr Cash, you have a great deal of work to do to get to that standard.

Sentence

[44]Please stand.

[45]Mr Cash:

(a)on the charge of kidnapping, you are sentenced to five years and ten months’ imprisonment;

24     Sentencing Act 2002, s 84(1).

25     Section 86(2).

26     R v Gordon [2009] NZCA 145 at [15].

27     Shaw v R [2016] NZCA 110 [24]; and Fleming v R [2011] NZCA 646 at [22].

(b)on the charge of attempting to do an indecent act on a child under the age of twelve, you are sentenced to eighteen months’ imprisonment;

(c)on the charge of engaging in indecent communication with a young person under the age of 16, you are sentenced to twelve months’ imprisonment; and

(d)on each of the three charges of doing an indecent act with intent to insult or offend, you are sentenced to nine months’ imprisonment.

[46]   As I said before, you will serve all sentences concurrently, at the same time, so your total sentence is of five years and ten months’ imprisonment. I impose a minimum period of imprisonment of three years.

[47]You may stand down.

—Jagose J