R v K

[2012] NZHC 951

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2010-070-4081 [2012] NZHC 951

THE QUEEN

v

K

Hearing:         23 April 2012

Appearances: J C O'Brien for Crown

F C Deliu for Prisoner

Sentence:       23 April 2012

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Tauranga

R V K HC TAU CRI 2010-070-4081 [23 April 2012]

[1]      K, you appear for sentence for assaulting your daughter in law G; a sustained series of assaults between April 2008, shortly after she married your son S, until 7

June 2009, when she left your home. You were found guilty at trial of assisting your son in assaults he made and thus to being party to the offence of a male assaulting a female. You are also for sentence for the offence of assault in your own right.

[2]      The Crown case against you at trial was that you were instrumental in having your son, then aged about 30, marrying G. She was then a 20 year old girl from the Punjab  of  the  Sikh  religion,  as  you  are. You  hoped  in  that  way to  arrange  an acceptable marriage, the Crown case was, to bring to an end a relationship your son then had with a Brazilian woman who was in New Zealand on a temporary work permit.

[3]      The Crown's case was that almost immediately G entered into your home, the home that you and your husband shared with your son, you and your son assumed complete control of her life. G, the Crown case was, became your servant. She kept the house, she prepared the meals and in time she also worked long hours at a packing house. You and your son, the Crown case was, isolated G almost completely. Only occasionally, and with you, was she able to attend the Sikh temple. Otherwise she remained in your house or she went to the pack house.

[4]      To keep G subject to  your will, the Crown case was, you and  your son assaulted her either together or individually. The Crown case was that your son was the primary offender, that he assaulted her in your presence and also when they were alone. When he assaulted her in your presence, the Crown case was, he slapped and punched her and pulled her arms and may have kicked her.

[5]      You assisted, the Crown case was, by slapping her yourself and otherwise confining her when she was being assaulted. You abused her and encouraged your son's violence but you also offended in your own right.

[6]      At trial you denied that any of these offences happened. You denied that G was subjected to the disciplines more generally that were features of the Crown case. Your son's defence, which you shared, was that G never wanted to live with your son

or your family and that she was intent on obtaining residence in her own right under the policy of the New Zealand Immigration Service protecting migrant women who are the subject of domestic abuse. The jury, as is  clear from their verdict, was satisfied as to the truth of G's complaint. You are to be sentenced on that basis.

Victim impact statement

[7]      G's victim impact statement has been prepared by a psychologist, who has expressed a clinical opinion as to the effect of your offending on her mental and emotional wellbeing; an assessment that I did not anticipate when I required a victim impact statement to be prepared.

[8]      Counsel for the Crown contends that it is quite normal for victim impact statements to be prepared by psychologists. Your counsel contends, however, that even if that were so, he had no notice that a report was to be prepared and has had no ability to respond by contrasting opinion. As a result counsel have agreed that I should sentence you today on the narrative in the report and set to one side the clinical opinion expressed. I treat the report in that way.

[9]      In her statement, just as in her evidence, G confirms that the control that you and  your  son  assumed  over  her  life  and  the  assaults  to  which  you,  and  more especially your son, subjected her, have caused a complete dislocation in her life; that she then suffered physically and that she has continued to suffer financially and mentally and emotionally.

[10]     Just as in her evidence, G says that she came to New Zealand, having not completed her education in India, leaving a family in which she was well loved as the only daughter, anticipating that she would be received by your family with equal affection and security. As a result of your offending and that of your son, she says, she now finds herself completely isolated.

[11]     Her family in India have repudiated her and she cannot return there and the effect of this offending has also been to separate her from the wider community in New Zealand and certainly the Sikh community. She had to remain within a safe

house for the first year after she left your family. That meant that she could not begin any  kind  of  normal  life  or  begin  to  earn  a  living.  The  Court  proceedings  in themselves have had an effect upon her.

[12]     G describes the effect on her emotional life graphically. She is presently taking anti depressant medication.   Clearly, on any view, it will take her a considerable time to bring any semblance of normality to her life.

Pre-sentence report

[13]     You are, your pre-sentence report says, aged 64. You arrived in New Zealand in 2004. You do not speak or understand English. You have been completely dependent, since you arrived in New Zealand, on your husband, but more considerably your son, to live a normal life beyond your home.

[14]     You are a sickness beneficiary. You suffer diabetes, arthritis and high blood pressure. Just as you are dependent on your husband, your husband, who has health issues himself, is also dependent on you. In your son's absence you have been reliant on one of his friends as a boarder.

[15]     You continue to deny the offences of which you stand convicted, your report says. You continue to blame G for the predicament in which you now find yourself. You express no remorse. Equally, you are assessed to be at low risk of re-offending or of harm to others and you have no previous criminal history.

[16]     Your  pre-sentence  report  recommends  a  sentence  of  community  work combined with community detention, a sentence capable of being served at your home that the police do not oppose.

Crown submissions

[17]     The Crown contends that you should be sentenced to imprisonment for a term between six - 12 months for your part in your son's offending principally, which as the Crown says was more serious inherently than the assaults you committed in your

own right. Such a sentence, the Crown contends, is called for not merely to hold you accountable for your offending but to serve as a general deterrent.

[18]     Offending of your kind, the Crown contends, is not peculiar to arranged marriages. It is offending capable of happening within any household. People who offend as you have, either encouraging or assisting in more serious violence on the part of others, the Crown contends, must be deterred.

[19]     A sentence of community or home detention, the Crown contends, would not suffice to have that deterrent effect and, if you were detained in your home, that would be no punishment. Nor would it be seen to be in the community any kind of punishment or deterrent.

Defence submissions

[20]     Your counsel contends for the least restrictive sentence within the community that is able to be imposed and supports the recommendation in the pre-sentence report, a sentence of community detention coupled with community work. At the most, he contends, your sentence ought not to be any greater than a sentence of home detention in the range three - six months.

[21]     You continue to deny this offending, as I understand your counsel to say, and to that extent the issue of remorse does not arise. What is beyond dispute, your counsel submits, is that a sentence of imprisonment for you would be disproportionately severe for the reasons set out in your pre-sentence report.

[22]     You are not, he submits, to be equated with women in the general community able to speak English, even those who suffer a degree of bad health and are of your age. Your needs as a Sikh woman, he submits, would not be met adequately within a prison environment.

[23]     A sentence of home detention may safely be imposed on you, he submits. There is no prospect of you offending again within your home. Such a sentence, he submits also, would materially assist your husband, given his state of health. It is not

to be ignored either, he submits, that your son, who has assisted both of you, will be serving a lengthy term of imprisonment.

Sentencing purposes and principles

[24]     In sentencing you I must hold you accountable for your offending and I must also impose on you a deterrent sentence, to the extent that such a sentence is called for.

[25]     I do not consider that a personally deterrent sentence is called for. I am satisfied that this offending arose in unique circumstances. I do regard a generally deterrent sentence as called for, certainly in principle. Violence occurs within all manner of households within New Zealand. It is not confined to households where there are arranged marriages between migrants. Whenever it arises, a level of deterrence is called for in the sentence imposed.

[26]     As against that, I must sentence you as a recent migrant Sikh woman. I must also impose a sentence that is, to the extent possible, rehabilitative; a sentence that assists you to reintegrate into the community. I must also take into account the need to impose on you the least sentence commensurate with your offending.

[27]     I must be careful to ensure that the sentence I impose on you, in contrast to any other woman in the community, is not disproportionately severe. The fact that you are such a recent migrant without English is not to be ignored.

Conclusions

[28]     When  you  arranged  for  your  son  to  marry  G,  you  assumed  a  high responsibility. You arranged for her to leave her family in India at the age of 20 with only a level of English and after an incomplete education. You became responsible for her well being in New Zealand. On the evidence, which the jury accepted, you abused that high trust.

[29]     You not merely made G your servant. You isolated her and you abused her emotionally and physically. Your son may have been the prime offender but, at least to the extent that he offended against her outside the bedroom, on the jury's verdict he did so with your active complicity.

[30]     These assaults might not have been of the most extreme order. G might not have required medical attention. She might not now carry the signs of those assaults. But their frequency within each week, the fact that they were sustained over the entire time she lived with you, the fact that they were always painful, makes them far more significant. According to G's victim impact statement, their effect is with her still.

[31]     You are to be sentenced, I should also add, for what you did, or your son did in your presence and with your encouragement. In sentencing you, I put to one side the more serious sexual offences that your son is to be sentenced for. But it is difficult to see that you did not know something of what was happening in their bedroom.

[32]     Your offences, standing in isolation, well warrant, to my mind, a sentence of six - 12 months imprisonment, as the Crown contends for. However, and with hesitation, I have decided not to imprison you.

[33]     What  distinguishes  you  from  other  women  in  our  community  who  may offend as you have is that you are a recent migrant. Quite apart from the fact that you are aged 64, and that your health is not good, you have always lived within a Sikh community and you speak no English. If you were to be sentenced to imprisonment, I am satisfied, that would be disproportionately severe and so, though a sentence of home detention will have less deterrent effect, that is the sentence to impose on you.

[34]    Counsel for the Crown contends that home detention would involve no punishment because you rarely leave your home now. However, the evidence was clear that you play a full part in the social life of your local Sikh community and that will inevitably be curtailed. As this Court has said more than once, a sentence of home detention is a significant sentence in its own right.

[35]     In sentencing you, as I do, to six months home detention, I need also to say more because that sentence was not anticipated in your pre-sentence report, which recommends community service only.

[36]     I am satisfied, I confirm, on the basis of your pre-sentence report, that your home  address  is  suitable  for  home  detention.  It  has  already been  approved  for community detention. I am also satisfied as to the other threshold conditions.

[37]     Your counsel has, at my request, explained to you, your husband and your boarder what a sentence of home detention involves. He has emphasised that you must remain at home 24 hours a day, seven days a week, except in the case of emergency, and only leave for limited purposes with the consent of your probation officer. You, I understand, have agreed to comply with those conditions and your husband and your boarder consent to you living with them on those conditions.

[38]     The sentence of home detention that I impose on you, I confirm also, is that for the duration of the sentence you remain at your home on the standard conditions of the sentence. I confirm that I do not impose any special conditions, nor do I impose either standard or special post-sentence conditions.

[39]     The sentence I impose on you is to commence tomorrow, not today and that is to enable you to be served with your order and then to return directly to your address  to  meet  there  your  supervising  probation  officer  and  a  security officer, without putting yourself at risk.

[40]     You will therefore be sentenced to home detention on the terms that I have outlined but, for the present you will be granted bail on terms that, after you have been served with the order, you are to travel directly home and to remain there until your  supervising  probation  officer  and  the  security  officer  see  you  tomorrow

morning.

P.J. Keane J