R v H

[2018] NZHC 2144

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2017-029-001069

[2018] NZHC 2144

THE QUEEN

v

M H

Hearing:

21 August 2018

Counsel

RB Annandale for Crown

ID Tucker and TSM Spencer for Defendant

Judgment:

21 August 2018

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Whangarei Tucker & Co, Auckland.

TSM Spencer, Auckland.

R v H [2018] NZHC 2144 [21 August 2018]

Introduction

[1]    Mr H, you are for sentence on 17 charges of sexual offending—all in relation to your three granddaughters. You  sought a sentence indication.  I gave you one on  5 June 2018. You pleaded guilty the same day. I will sentence you as I then foreshadowed.

[2]As observed, you face 17 charges:

(a)Two of sexual violation by rape.  Both are representative.

(b)Seven  of  sexual  violation  by  unlawful sexual connection.    Six are representative.

(c)Eight  of  doing  an  indecent  act  on  a  child  under  12.     All are representative.

Facts

[3]Your victims, A, B and C, stayed with you frequently.

[4]    A did so between 7 February 2016 and 7 November 2017. She was then seven and eight. You repeatedly raped her. You also repeatedly put your penis into her anus. On one occasion, you put your penis into her mouth. You also repeatedly: put your fingers into her genitalia; penetrated her genitalia with your mouth; touched her on the bottom; and had her touch your penis.

[5]    B stayed with you between 1 January and 7 November 2017. Like A, she was also seven and eight. You repeatedly: raped B; put your penis into her anus; and put your penis into her mouth. You also repeatedly: put your fingers into her genitalia; made her touch your penis; and touched her bottom.

[6]    Your offences against C occurred over the same period as B. She was a similar age: six and seven. Your offending against her was a little different in that it was less intrusive. But, it was still very serious. You would regularly: place your penis against her genitalia; touch her genitalia; touch her bottom; and have her touch your penis.

[7]    All but one of your charges is representative: you engaged in a pattern of conduct. Consequently, the precise number of rapes, violations and indecent acts you committed is unknown, save of course for the single occasion in which you put your penis into A’s mouth.

Aggravating factors

[8]Five things make your offending more serious.

[9]    First, the victims’ age. A, B and C were children only. And young children at that.

[10]   Second, you breached each victim’s trust—repeatedly—while each was in your care. Staying with a grandfather should be the stuff of fond memory, not nightmare.

[11]Third, the nature, scale and intrusiveness of your offending makes it depraved.

[12]   Fourth, victim harm. There have been “massive changes” in A’s behaviour because of what you did to her. A has also exhibited, meaning demonstrated, sexualised behaviour. B and C have become angry, defiant and less able to cope with life’s demands. Sexual offending can cause incalculable psychological harm, particularly when the victim is a child or young person. This is one reason the law treats sexual offending so seriously.

[13]   Fifth, while it is possible you committed some of these offences opportunistically, that cannot be true for all of them. The obvious should be stated: you committed systematic sexual abuse of three victims.

[14]   You are not a first offender. But, your criminal record—which mainly consists of drink-drive offences—does not make this offending more serious.

Starting point

[15]   Mr Tucker and the Crown agree your offending is within the most serious band for rape.1 This band attracts starting points of between 16 and 20 years’ imprisonment. The Crown contends your offending should attract a starting point of 17 or 18 years’ imprisonment. Mr Tucker contends the correct starting point is a little lower, 16 years’ imprisonment. Neither cited other similar cases.

[16]   There was no need to: your offending does not require fine analysis. That against A and B is so serious it is self-evidently within the band I have referred to. And once your offending against C is added to the mix, 18 years is easily reached as a starting point. I adopt it.

Mitigating features

Age and other matters

[17]You are 73.

[18]   You have “possible fluctuating hearing loss”. You struggle to express yourself, perhaps because of a learning disability. You often experience headaches, perhaps because of earlier concussions. Mr Tucker contends these features and another to which I will come, should result in a significant deduction.

[19]   You served in the Vietnam War. Mr Tucker contends medical and other records confirm a diagnosis of post-traumatic stress disorder in the wake of your war experience, and related depression. Your pre-sentence report refers to post-traumatic stress disorder and depression, albeit in passing only.

[20]   I accept your age and other earlier mentioned difficulties warrant a discount, in part because prison may be harder for you because of them. However, there are obvious difficulties in giving effect to a diagnosis that is not the subject of any evidence, and one which has no apparent connection or nexus to your offending.

1      R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [108]–[112].

Moreover, depression may reflect prevailing circumstance, meaning your incarceration for this offending.

[21]   For these reasons, I confine the discount to your age and tangible problems: possible hearing loss, headaches and communication difficulties. And, I approach this issue holistically with a 15 percent discount.

Guilty pleas

[22]   The charges were laid on 13 December 2017. You pleaded guilty on 5 June this year. The Crown contends discount of between 15 and 20 percent is appropriate. Mr Tucker contends you should be given full credit of 25 percent. He observes real progress was made only after 22 March this year, when you were appointed a communication assistant, Ms Bonetti. I note she is with you today, and helping you.  I thank her for that.

[23]   I am not persuaded your guilty pleas were entered at the first reasonable opportunity, either with or without a communication assistant. You knew what you had done. And, the case against you was strong. You were confronted with the potential testimony of three victims—all relatives. But, your pleas spared the victims the trauma of giving evidence, and the taxpayer the expense of a trial. Discount of  20 percent reflects this mix.

[24]   Mr Tucker raised, albeit obliquely, the possibility of additional discount for remorse. I am not satisfied you have exhibited tangible remorse, indeed, any remorse beyond that inherent to your plea. I note you have shaken your head repeatedly as I have spoken to you today. I also heard you use the word “lies” when I recounted the facts.

[25]   You told the pre-sentence report writer you committed these offences only after the children were “naughty”. You said they kept “jumping” on you. These remarks and your conduct today trouble me. At best, all this implies you have not yet accepted full responsibility for your actions. At worst, it suggests you continue to pose risk to children. You need to reflect on what you have done. Only you are to blame. Unless you come to appreciate this, you may be in prison for a very long time.

[26]   In any event, additional discount for remorse is exceptional. Nothing you have done warrants such a step.

Minimum period of imprisonment?

[27]   Offending of your seriousness would ordinarily call for a substantial minimum period on the bases of denunciation, deterrence and public protection. However, your age counts against a minimum term, especially as the nature of your offending and preference for seclusion are likely to result in solitary confinement, or at least segregation. Your other tangible problems are relevant here too.

[28]   Given this mix, I do not impose a minimum period. Potential parole is better left unencumbered. You have been fortunate.

Sentence

[29]Mr H, please stand:

(a)On the two rape charges, I sentence you  a  term  of  12  years  and two months’ imprisonment.

(b)On the anal violation charges, I sentence you to the same term.

(c)On all remaining sexual violation charges, I sentence you to 10 years’ imprisonment.

(d)On all indecent act charges, I sentence you to a term of four years’ imprisonment.

[30]   All these are concurrent, meaning they run at the same time. Your overall sentence is therefore 12 years and two months’ imprisonment.

[31]   This sentence is nine months less than what I said it might be when I dealt with you in June. It reflects greater discount for your personal circumstances.

Child Protection (Child Sex Offender Government Agency Registration) Act 2016

[32]   Because I have imposed a sentence of imprisonment on you, you are now a registrable offender under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. This means your name and information relevant to you and your offending will be placed on the Child Sex Offender Register. It means also you will have initial and ongoing reporting obligations under the Act. It is an offence to fail to comply with your reporting obligations under the Act. It is also an offence to apply to register a change of your name without first having obtained the written approval of the Commissioner of Police.

[33]   Your reporting obligations begin when you leave custody in relation to these offences—in other words when you are released. You must comply with these obligations for the rest of your life. You will remain on the register for the duration of your reporting period, meaning the rest of your life, including any period during which your reporting obligations are suspended.

[34]   The Registrar of this Court will give you a written notice explaining what I have just told you.

Dismissal of charges

[35]   Before you stand down there are charges to be dismissed. Mr H, because of your pleas and the sentence I have imposed, I dismiss the following charges: 2, 4, 8, 11, 13, 15, 18, 20, 22, 24, 26 and 29.

[36]You may stand down.

……………………………..

Downs J