R v K
[2015] NZHC 1778
•30 July 2015
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2014-019-6097 [2015] NZHC 1778
THE QUEEN
v
K
Hearing: 30 July 2015 Appearances:
J Foster for Crown
M McIvor for DefendantSentence:
30 July 2015
SENTENCING REMARKS OF WOODHOUSE J
R v K [2015] NZHC 1778 [30 July 2015]
[1] You appear for sentence having pleaded guilty to 52 offences of a sexual nature against six victims. I will refer to them using letters simply as A, B, C, D, E and F, and I know the Crown has used numbers. The letters correspond.
[2] The offences are as follows:
Victim A
(a) A is the older of your two daughters. The offences against her occurred between 2006 and 2010 when she was aged between 13 and
18 years. The offences, in terms of charges, are: three of rape; four of unlawful sexual connection, with one of those being a representative charge; six of sexual conduct with a young person under 16, of which two are representative; and one of indecent assault.
Victim B
(b) B is your younger daughter. The offences were between 2008 and
2014 when she was aged between 12 and 16 years. The offences are: four of rape, with three representative; four of unlawful sexual connection with three of those being representative; eight of sexual conduct with a young person under 16, with five of those being representative; and four offences of indecent assault.
(c) In addition, with B, there are ten offences of knowingly making an objectionable publication — photographs and videos — over a six year period to October 2014 and four related offences of possession of objectionable material, that is to say, photographs and videos, over the same period.
Victim C
(d)There is one charge relating to C — that is, an indecent act with a child under 12 — the substance of the charge. C was aged between five and ten.
Victim D
(e) There is the same charge in relation to D, who was aged six at the time.
Victims E and F
(f) There are two charges relating to victims E and F. These are charges of making an intimate visual recording. These offences occurred in April and June 2011.
[3] There is a detailed summary of facts which I have of course read and I take it into account. I do not intend to record the facts in any detail. It is unnecessary to do so to explain my sentence — and submissions of Mr McIvor on your behalf as well as those of Ms Foster for the Crown indicate why. What I will do is outline the essence of your offending, adapting a summary in the submissions for the Crown.
[4] Your convictions for the offences against your two daughters reflect a lengthy course of sexual offending by you against them. You used both of your daughters for your own sexual gratification, from the time they reached puberty through their teenage years. The offending is characterised by the targeting of particularly vulnerable victims by you. You engaged in a deliberate course of grooming in the earliest years before you subjected each of your daughters to rape, sexual violation by digital penetration and oral sex, and other sexual offences including forcing them to perform oral sex on you.
[5] Your daughter A, estimates that you engaged in sexual acts on her on an average of twice a week when she was aged between 13 and 18.
[6] As recorded in the summary of the offences, the offending against your younger daughter B was even more extensive. She estimates, as best as these things can be estimated, that between the ages of 13 and 16 you sexually abused her two to three times a week and in the same sort of ways that you abused your other daughter.
[7] Your offending against B has the additional serious aggravating feature that you further violated her by taking photographs and videos of her in various stages of dress, naked and engaging in sexual acts. You filmed yourself engaging in sexual acts against your daughter and then, for your own gratification you stored those images, but also uploaded images of you abusing your daughter to a child pornography website.
[8] The offence against C occurred when she was aged between 5 and 10 years old. You worked at a community centre. You befriended C’s family and then befriended C and became, superficially, physically affectionate with her. On one occasion while C was sitting on your knee, aged approximately 6, you deliberately moved her around on top of your lap while you had an erection, pushing your erect penis against her.
[9] D was 6 years old when you offended against her in a broadly similar way. As with C you began grooming D. You began socialising with her family away from the community centre. You began spending more and more time with D. The offence occurred when you were found in D’s bedroom, with the door closed. You were on D’s bed with her, lying with your groin against her back with your leg over her waist and an arm around her torso. When you were told to get out of the room you effectively said it was unreasonable to be asked to leave and that the two of you, one being a 6 year old, should be allowed to be together.
[10] Although the offences against C and D, when compared — and I emphasise compared — with the offences against your daughters, are less serious, in the context of the earlier offending against your daughters, this was still serious offending. Quite apart from the acts themselves it was cynical and deliberate sexual grooming of new victims, and I accept the Crown’s submission in that regard. It is almost obvious.
[11] The two offences against E and F involved surreptitious video recording by you of the two of them having sexual intercourse on two occasions. E was a friend of yours. Without his knowledge or the knowledge of F, you installed software into
the computer at his home which enabled the computer’s camera to be motion
activated.
[12] I agree with the Crown’s summary of all of this. Your offending represents a continuum of deviant sexual offending over a prolonged period during which you preyed both on your own family members as well as deliberately targeting other victims outside the family — children and adult.
Victim impact statements
[13] I have received victim impact statements from A, B, D’s mother, E and F.
D’s mother read her statement in Court. It was a brave thing to do.
[14] I do not intend to summarise the content of the other victim impact statements. Again, for the purposes of sentencing, it is unnecessary to record the detail. I do assure the victims that I have nevertheless taken into account what each of them has said.
[15] There has been significant harm, in various ways, to all of them. And in the case of your two daughters — and I say this without in any way diminishing the extent of the harm to the others — in the case of your two daughters you destroyed their teenage years. During those years you inflicted on them, over lengthy periods, really significant harm. It is reasonably likely that some of the problems you have created for them will be with them for the rest of their lives. I will touch on some of these aspects when discussing aggravating features of your offending.
Personal matters
[16] You are aged 47. You have a small number of previous convictions. Standing alone, they would not warrant any increase in a sentence and it is not suggested by the Crown that they should. But in my judgment, they do mean, when coupled with the lengthy period of your offending which started in 2006, that there can be no credit for previous good conduct.
[17] You have written a letter, effectively to me, which Mr McIvor submits on your behalf indicates remorse. I am not persuaded that it does, even when reading the letter in isolation. The primary focus seems to be on you. And I am not persuaded, I regret, that the pre-sentence report indicates anything different.
Starting point
[18] I come more directly to the assessment of the sentence. A sentence starting point has to be fixed for what are called the lead offences, that is, the most serious offences. These are the offences against your daughters. The Court of Appeal decision of the R v AM provides those guidelines.1 It also takes account of all of the principles and purposes of sentencing, and I do not intend to go into any of that.
[19] Both counsel agree that your offences are in what is called band 4 of that case which is a starting point of between 16 to 20 years imprisonment. I emphasise that there is no quarrel on your behalf by Mr McIvor that it comes within that band, and I am here talking only about the offending against your two daughters. The Crown submitted 18 years with a qualification I will come to. Mr McIvor submits that the lower end should be the starting point, and that is to say, closer to 16 years or perhaps somewhat above that, but the lower end. The Crown submits 18 years for the sexual offending that is common to A and B and therefore excluding the offensive photography and videos. Mr McIvor’s submission as to a starting point is that it is appropriate for all of the offending.
[20] The offensive filming should be assessed as an aggravating feature of the offending against A and B overall. It should not be treated as quite distinct offending with an uplift to be added to the sexual offending starting point. This is indicated clearly in the decision of R v AM, and perhaps even more clearly in a more recent
decision of the Court of Appeal in Baldwin v R.2
1 R v AM [2010] 2 NZLR 750.
2 Baldwin v R [2010] NZCA 472 AT [27]-[30].
Aggravating factors
[21] I will outline all of the aggravating features of all of the offending. I nevertheless agree with the Crown that what can be called a preliminary starting point should be fixed first for the sexual offending of a type common to your offences against A and B. The aggravating features are the following, and I do need to go into some detail.
[22] First, the degree of planning and premeditation is aggravating, particularly where it involves the grooming of children or young persons, taking steps to get victims alone and other predatory behaviour. I am referring, in these preliminary observations about aggravating features, to statements in the case of AM before coming to factors relating specifically to your offending. On this matter, your offending represented a long period of grooming and premeditated offending against your daughters. Much of the offending occurred when your wife was not in the house, or when you had made A or B go somewhere alone with you, such as a tent, the park or their grandmother’s home. You also warned your daughters about reporting your offending.
[23] Second, the vulnerability of the victim or victims because of age can be an aggravating factor. Offending against children and young people is aggravating. The victims here were your daughters. They were aged 12 and 13 at the start of the offending. You appear to have groomed them to the extent that the offending became a normal part of what was a completely abnormal and awful life.
[24] Third, the harm to the victims is relevant in addition to what is inherent in the offending itself. If the offending, for example, involves unprotected sex, this increases the risk of harm. Escalation of psychological problems and restrictions on the victim’s ability to go about their daily lives is also aggravating. There is no evidence that you used contraception in any of this offending. The psychological harm to your daughters has been significant. Both have self-harmed, have attempted suicide, have trouble maintaining both platonic and romantic relationships, and exhibit anti-social behaviour of different sorts. The relationship between A and B is also strained. One of them lost self motivation in her education and turned to drug
and alcohol abuse. The other, struggled with mental illness, including anorexia, depression and insomnia and consequently is unable to work.
[25] Fourth, the scale of offending must be taken into account. More than one incident, or extended abuse over a prolonged period of time, is more serious, as is repeated rape or other sexual violation and associated degradation or indignity. This includes, in this case, videotaping or photographing. Offending against more than one victim also increases the scale of offending.
[26] The Court of Appeal acknowledged that to recognise the harm caused to each victim where there are multiple victims, warrants higher starting points in what is called rape band 4, or through application of cumulative, concurrent sentences and the totality principles. The Court recognised that where there are multiple victims, particularly in cases where there have been offences over a number of years against multiple victims, a 20 year maximum for one offence is not the maximum available sentence.
[27] The offending I am dealing with at the moment involved two victims. The offending spanned six years for each of them or thereabouts. A was abused twice a week during this period. B was abused two to three times a week. The scale of the offending is undoubtedly at the higher end of seriousness. Further, much of the offending against B was filmed or photographed. B was repeatedly photographed or filmed in a sexually compromising manner. The worst of this offending, if there can be a worst aspect, is that you filmed yourself sexually violating your daughter. You then posted this on a child pornography website. This is a serious aggravating factor. You did not stop at abuse of your daughter. You also wanted to preserve the images not only for yourself, but also for others. You distributed the images on the internet where they could be, and presumably still can be, accessed by other people around the world for the purpose of sexual gratification.
[28] In this way, as well as in all the other ways, you demonstrated complete contempt for your daughter and for her privacy and dignity. You uploaded this material, as you put it, to brag to other people like you. B not only has to live with the ongoing effects of the sexual offending itself, and they may be with her for life,
but also the prospect that complete strangers may have watched and could still be watching the video. The relevant Act, which is called the Film, Videos and Publications Classification Act 1993, provides that sentencing for offences under s 24 requires the Court to take into account whether the publication:
(a) promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes;
(b)describes; describes, depicts, or otherwise deals with sexual conduct with or by children, or young persons, or both; and
(c) exploits the nudity of children, or young persons, or both. Your odious actions fit all three of these aggravating factors.
[29] The sixth aggravating matter is breach of trust. Breach of trust increases the culpability of the offender. Offending within the family involves a breach of trust and offending by a parent against his or her child is particularly serious. In this case you grossly breached familial trust by offending over a long period of time against your daughters.
[30] If the offensive filming is left to one side, the other aggravating features warrant an 18 year starting point. A recent Court of Appeal decision, F v R, summarised some other recent cases and the starting point in those cases reinforces this conclusion.3 I do not intend to summarise the facts of those cases.
[31] The Crown submitted that the further aggravation from the photographs and videos of B justifies an added one and a half to two years taking it to 19 and a half to
20 years. The way in which this might be approached can vary from case to case. The starting point excluding the videos could be 19 years. The increase for the videos might be a bit less. I am in no doubt that the increased starting point, including all of the aggravating matters, and therefore including the videos, should
be 20 years imprisonment.
3 F v R [2014] NZCA 390 at [40]-[45].
[32] I have taken account of Mr McIvor’s submission that there was no physical violence beyond what is inherent in the offences, but that simply means that what would be another aggravating factor is absent. The starting point for the offences against your daughters, as I say, is 20 years.
The other offences
[33] Increases are required for the offences against C, D, E and F. I do not agree with Mr McIvor’s submission, as I understood it, that there should be no increase. The Crown submits that the offending against C, assessed independently, would warrant a starting point of nine to 12 months. I agree with that submission. This is supported by cases such as Shaw v R,4 and Read v R.5 The starting point for the offence against D might be a little less. I am satisfied that an uplift of six to 12 months is required for the offending against C and D.
[34] A separate uplift for the filming of E and F is also required. The seriousness of this offending should also not be understated. You violated the trust of a friend. You grossly violated his and his partner’s privacy in their most private and intimate moments. They no longer feel safe. They cannot trust others. Their relationship has suffered. It is also a different category of offending to the offending against the other victims. This was a calculated, sophisticated and premeditated plan to violate the privacy of an adult couple. In a case called Hartley v R, a 15 month concurrent sentence was adopted by the Court of Appeal for very similar offending where no
mitigating factors were present.6 A similar starting point would be adopted here if
you were being sentenced on these charges alone. In this case there should be a further uplift of six months. The conclusion at this point is that I agree with the Crown that the overall or uplifted starting point should be 21 to 21 and a half years imprisonment.
Mitigating factors
[35] I come to mitigating factors. The mitigating factors that were suggested were for previous good character, remorse, a degree of understanding of your offending,
4 Shaw v R [2014] NZCA 322.
5 Read v R [2012] NZCA 335.
6 Hartley v R [2014] NZCA 162.
and the guilty pleas. For reasons already indicated, I do not agree about good character and remorse. In respect of your stated better understanding of your offending, I do not wish to diminish that. It is most important, but I do not regard that as a matter that I can properly, or should properly, take into account to actually reduce your sentence. Aspects of this are in fact identified in the way in which matters were put by Mr McIvor on your behalf. What you must do is take advantage of the sophisticated and often very successful programmes that are available in prison, but I am not going to take a risk in advance as to whether you will respond in that regard, and I do not consider that a reduction in sentence is justified as some form of encouragement to you. The sentence has to be balanced, and the critical balance here is in favour of your victims.
[36] You are entitled to a reduction for your guilty pleas. Pleas on one group of charges did not occur at the earliest available time, but there are reasons for this. Pleas on the remainder were prompt. Mr McIvor submits that you should get the maximum reduction, which is 25 per cent. The Crown submitted 20 to 25 per cent. I am satisfied it should be the maximum. This is particularly so given the fact that your victims or their parents will not have to give evidence. I will apply the 25 per cent to the uplifted starting point of 21 years rather than 21 and a half years. That reduces the sentence to 15 years and nine months imprisonment and that will be the sentence.
Minimum term of imprisonment
[37] The remaining consideration is whether there should be a minimum period of imprisonment. The Crown seeks a minimum period of approximately half the sentence imposed. You, through Mr McIvor, submitted that there should not be a minimum period of imprisonment.
[38] Having regard to the seriousness of the offending, I believe that a minimum period of imprisonment of just over 50 per cent is required to hold you accountable, to deter the conduct, denounce you and protect the community. Taking into account your guilty plea and some positive signs that you will engage with rehabilitation and
other programmes in prison, a minimum period of imprisonment of just over 50 per cent is appropriate.
[39] I do note, as Mr McIvor acknowledged, that in cases of sexual offending against young persons or children, minimum periods of over 50 per cent are frequently imposed. At least to that extent, Mr K, you have the benefit of a lesser period.
Sentence
[40] On all of the offences of sexual violation being the offences against A and B, you are sentenced to imprisonment for 15 years and nine months with a minimum period of imprisonment of eight years.
[41] For the offences against A and B of sexual conduct and indecent assault, you are sentenced to five years imprisonment.
[42] For the offences against B of making objectionable publications, you are sentenced to six years imprisonment. For offences against B of possessing objectionable material, three years imprisonment.
[43] For the offences against C and D, the sentence is nine months imprisonment. And I just pause there to observe that these sentences are all concurrent, and particular sentences I am fixing are not indicative of the seriousness of the offences in themselves. They are adjusted for totality within the overall sentencing. I do recognise, as I have already said, the seriousness of the offending not just against A and B, but also against C and D and against E and F.
[44] And finally, for the offences against E and F, the two offences, the sentence on each of them is imprisonment for one year.
[45] There are some other charges you faced which have not been pursued by the
Crown. On those particular charges you are discharged.
[46] Stand down.
Woodhouse J
Solicitors:
Crown Solicitor, Hamilton
Counsel:
M McIvor
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