R v K HC Auckland T013385

[2002] NZHC 1028

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY T013385

PUBLICATION OF NAME, ADDRESS OR OTHER INFORMATION IDENTIFYING PERSONS PROHIBITED.

THE QUEEN

V

“K”

Date: 18 September 2002

Charges: Rape (x1) Unlawful sexual connection (x1) Indecent assault (x6)

Pleas: Not Guilty

Sentence: 15 years imprisonment in total

Counsel:
M Rogers for the Crown
M I Koya for the Prisoner

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors:
Meredith Connell, PO Box 2213, Auckland for the Crown
Mr M I Koya, PO Box 47228, Ponsonby, Auckland for the Prisoner

[1] Mr K, you appear for sentence having been found guilty on one charge of sexual violation by rape, one of sexual violation by unlawful sexual connection and, altogether, six counts of indecent assault. All are representative counts. You were acquitted on charges of wilful ill treatment of your children and two counts of sexual violation by penile penetration of your sons’ anus.

Background

[2] The background to this offending is that you and your wife, whom you married in 1989, have eight children. They were born between 1990 and 1997. The charges, of which you have been convicted, relate to the abuse of the elder six of those children.

[3] The offending came to light when they were taken into care as a result of concerns about their welfare generally. The caregivers immediately noticed signs of highly sexualised behaviour by the children, including simulated sexual intercourse and repeated acts of masturbation. This led to disclosures by the eldest two children, M and Z, of sexual abuse of them and their four younger siblings.

[4] Their evidence was supported, in general terms, by the evidence of the psychologist called by the Crown, Ms Mafi, who explained that highly sexualised behaviour in children is a strong indicator of sexual abuse. The evidence which by their verdicts was accepted by the jury, was that M was raped by you between the ages of about six and eight. On one occasion that she could recall it caused her to bleed. You also fondled her genitalia.

[5] Z, your second child, was sexually violated by your inserting your finger in his anus on several occasions at least when he was aged between five and seven. Over the same period you also fondled his genitals after removing his clothes and your own.

[6] The jury found also that you had fondled the genitals of the four younger children, S E, S A, O and S J. Both you and the children would be naked. It is not possible to pinpoint their ages at the time with accuracy but S J could not have been more than three and S E, who was the eldest of the four, would have been aged about six or even younger.

Victim impact reports

[7] Only the two eldest children have been spoken to. The victim impact reports, prepared as a result, make depressing reading. Both children have been seriously damaged. M, as the eldest, probably bore the brunt of your conduct and she must have been further damaged by witnessing what you did to her brothers and sisters.

[8] To select only a few of the observations in the victim impact report, M feels totally betrayed by you. She feels unsafe in the presence of men unless she knows them well. She is generally mistrustful of other people. She keeps having flashbacks accompanied by feelings of fear and disgust. She experiences dissociation, a coping mechanism which you will recall was specifically mentioned by Ms Mafi at the trial. She is generally fearful and has feelings of disgust and revulsion of herself. Tragically too, she has lost not only her parents but is also apart from her brothers and sisters.

[9] The victim impact report concludes that M has suffered emotional and psychological trauma which will probably have a lasting effect on her life. She will require specialised counselling in her adolescent and adult years to overcome the difficulties which I have sought to summarise.

[10] Z also exhibits symptoms of post-traumatic stress disorder. As listed in the victim impact report, they include hyperarousal, high levels of anxiety, intrusive memories of the abuse, hypervigilance, difficulties sleeping and nightmares. He demonstrates confusion about boundaries and what is right and what is wrong. He is delayed in all areas of his development socially, emotionally and cognitively. He also has the dissociative symptoms exhibited by M. They result in him being unable to concentrate at school. He is lonely. He is socially immature.

[11] As the eldest boy in the family, the report points out that he would have identified strongly with you as his father. As a result of what has happened, he experiences total confusion and struggles with feelings of betrayal and mistrust. Because he has been prematurely sexualised, this will impact on his normal sexual development. It has already resulted in him behaving in sexually inappropriate ways towards other children. He feels shame and embarrassment. He has low self-esteem and continues to wet the bed. In summary, the report says he has experienced disrupted social, psychological, sexual, emotional and cognitive functioning and development. Like M, he also grieves the loss of his family.

[12] The younger children were not interviewed but I am able to obtain some further insight into the likely consequences of the abuse for them. In her report on M, the psychologist says that it is likely that they will present with behavioural problems and developmental difficulties as a result of the sexual abuse that occurred.

[13] Mr Koya has submitted to me that the process of counselling and treatment which M and, to a lesser extent, Z underwent has exacerbated their symptoms and the long-term damage they will suffer. I am unable to accept that. I accept the views of the experts that the effects of sexual abuse can only be mitigated by their being confronted and treated by an ongoing process of counselling.

Pre-sentence report

[14] The pre-sentence report which has been prepared tells me that you are a 58-year-old man who was born and raised in Fiji. You were the fourth of fifteen children. Because of the expectation that you would contribute to family finances, you were not educated beyond primary school level. You came to New Zealand in 1964. You were twice married before, in 1989, meeting and, on the same day, marrying your third wife, the mother of the victims who was then aged eighteen years of age. As I have said, you and your wife then had eight children in as many years.

[15] You have not worked since 1981 when you suffered ammonia inhalation and radial nerve damage in an industrial accident. Your health is poor. The pre-sentence report states that you are an asthmatic, a diabetic, you have swollen legs and radial nerve damage, elevated cholesterol and in 1987 you underwent triple by-pass heart surgery. The medical reports I received in the course of the trial were supportive of the conclusion that your state of health is poor. One doctor expressed the view that he was surprised to find that you were still alive.

[16] You were raised as a Muslim and you have continued to practise as a devout Muslim. You continue to deny the charges and it is not possible therefore to gain any insight into the causes of your offending.

Sentence - General

[17] A sentence of imprisonment is inevitable. I accept the Crown’s submission that a term of imprisonment is consistent with the purposes of sentencing set out in s 7 of the Sentencing Act, including holding the victim accountable for harm done and the other matters referred to in ss 7(1)(a), (b), (e), (f) and (g) and that these purposes could not be achieve by a sentence other than imprisonment. I accept also that no other sentence would be consistent with the application of the principles in s 8 of the Act, in particular, those set out in subparas (a), (b), (e) and (f).

Reparation

[18] Before I consider the appropriate term of imprisonment, I am obliged to consider the availability of an order for reparation. The Court is required to impose a sentence of reparation unless it would result in undue hardship or there are other special circumstances which make it inappropriate. I adjourned sentence to enable information to be put before me which would enable me to consider a sentence of reparation. The report is now available. I express my gratitude to the probation officer for the trouble he has gone to to provide the information requested.

[19] The report discloses that your only substantial asset is your interest, with your estranged wife, in your house. Its value is between $140,000 and $160,000. There is a $50,000 mortgage. Your half-share of the equity is therefore about $50,000. Matrimonial property issues still have to be sorted out with your wife.

[20] I am satisfied that there are special circumstances which make it inappropriate to make an order for reparation. It could be achieved only by the establishment of a trust. I do not think this is practicable having regard, in particular, to the fact that the only asset is a house, matrimonial property issues are unresolved and there is also the necessity to take account of the interests of other children who would not be beneficiaries.

[21] I note that there is some prospect that the children will ultimately benefit from your estate. You have expressed an intention to leave your property to them in your will and there is, in any event, the likelihood that they would be able to claim if you did not.

Aggravating factors

[22] The Crown submits that the aggravating features in this case are such that subss 8(c) and 8(d) apply. They emphasise, in particular, the catastrophic effect your offending has had on the children. Ms Rogers has pointed out that, apart from the recognised effects of sexual abuse, they have been removed from the family home and have been split into a number of foster homes. This has been particularly upsetting for the children who were noted to be extremely close to one another.

[23] The second aggravating feature identified by the Crown is the abuse of a position of trust and authority. As the father of these children, you above anyone else apart from their mother owed them full trust and confidence. Their vulnerability is also an aggravating factor. It appears that over the period of the offending they were aged from perhaps only two or three, through to eight years old. M, as I have said, was aged only six to eight when she was raped by you. Z was aged between five and seven.

[24] Finally, there is the prolonged period over which the abuse occurred from, it would seem, as early as 1994 through to when they were removed from the home in September 1998.

Mitigating factors

[25] Of the mitigating factors identified in s 9 of the Act, your age is plainly a factor and I would add to that, as acknowledged to some extent by the Crown and urged on me by Mr Koya, the state of your health. I have regard also to your previous good character. Apart from an alcohol-related driving conviction in 1982, there has been no significant offending on your part.

Term of imprisonment

[26] I accept the Crown’s submission, as mentioned earlier, that s 8(d) of the Act applies and that I must consider imposing a penalty near to the maximum prescribed for the offence which, for the offences of sexual violation, is twenty years imprisonment. That is because the offending is near to the most serious of cases for which that penalty is prescribed.

[27] There can have been few cases of abuse of children by a parent which involved as many children as young as those in this case. I have to say, Mr K, that your conduct towards them was absolutely depraved. It was bestial behaviour. The home for these children, instead of being a place of sanctuary, was a house of horror. You treated them as your slaves who were available for your sexual gratification whenever you wanted it. As Ms Rogers said, these children have lost their childhood. The damage to them, especially to M and Z, will be profound and will be permanent.

[28] The Crown submits that because the offending involved the grossest breach of trust and having regard to the number of victims and the consequences for them, I should be considering a prison sentence of between seventeen and eighteen years.

[29] The Crown has referred me to several cases, including R v Kolio (CA219/01, 1 November 2001) and R v Hawkins (CA51/02, 22 May 2002) which support a sentence of that order. Both cases had aggravating features that were not present in your case. On the other hand, there are features of your offending, in particular, the number and age of the victims and the consequences for them, which require a starting point at or near to that adopted in those cases.

[30] Having regard to what the Court of Appeal has said, I judge seventeen years to be the appropriate starting point. Although considerations of deterrence and denunciation are paramount, I believe I should have regard for your age and especially for what I judge to be the precarious state of your health. Prison will be a much greater burden for you than for a younger and fitter man. In my view, that warrants a reduction in the term of imprisonment to fifteen years. That is in no way intended to minimise the gravity of the offending but merely to give some humane recognition to your personal circumstances.

Minimum period of imprisonment

[31] The Crown has also asked that I impose a minimum period of imprisonment. Although your offending took place before the new Sentencing Act came into force, s 86, which deals with minimum periods of imprisonment, applies because your offending included serious violent offending. A minimum period of imprisonment can be imposed if I am satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under the Parole Act. By s 86(3), the circumstances may be regarded as sufficiently serious for this purpose if the Court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.

[32] I am satisfied that the offending is sufficiently serious to justify a minimum parole period. The question I must consider, however, is whether or not I should exercise my discretion to impose that minimum period and, if I do so, what that minimum period should be.

[33] As I discussed in an earlier sentencing which I carried out, R v Thompson (T020435, 25 July 2002), I am of the view that in deciding whether or not to exercise that discretion, the Court can have regard to all relevant factors, including those set out in ss 7, 8 and 9 of the Act. I consider it important, however, that in exercising the discretion it is important to avoid, as emphasised in R v Rongonui (CA321/00, 9 May 2001), an element of double-counting. Those considerations which go to denunciation, punishment and deterrence should be disregarded as they will have been reflected in the finite sentence. It is those which bear on the safety of the public that can properly be considered. That, as I said in Thompson, includes an examination of the character and proclivities of the offender as well as relevant aspects of the offending.

[34] In this case the probation officer has assessed the risk of reoffending as high. I think Mr Koya is right to say that that assessment must necessarily be based largely on your denial of the offending and any expressed lack of remorse.

[35] But, having regard to the fact that there is no indication of any conduct of this nature in the past, I cannot avoid the conclusion that your perverted behaviour was a product of the particular conditions in which you were living and the way that you responded to them. I can go no further than that. I consider that I am entitled to conclude, on the basis of all of the evidence, that you pose no threat to strangers and, sexual misconduct aside, you pose no risk to others of physical violence. Given your age and your health, I consider the risk of reoffending is significantly reduced from that assessed by the probation officer. I do not think there are any proper grounds on which I could come to the view that you would pose a risk to the general public if you were released at the earliest time on which you become entitled to parole.

[36] Ms Rogers has pointed out, however, that there is a significant risk that on your release you would come into contact with the victims. She points out that at that time M would still be relatively young. I accept that the prospect of contact with you may cause anxiety to her, although I would not accept that there was any risk of offending against her or the other children. But more importantly, for present purposes, I consider that the concerns of the victims and their interests can appropriately be assessed by the Parole Board at the time that you become eligible for release. I consider that other public safety factors can also more appropriately be assessed by the Parole Board at that time.

[37] For those reasons, I decline to impose a minimum sentence.

Result

[38] In the result, the sentence that I impose on you is one of fifteen years imprisonment. That is, on count 1, a sentence of fifteen years imprisonment. On count 6, also of sexual violation, a sentence of twelve years imprisonment. On each of the other counts of which you were convicted, 3, 7, 9, 10, 12 and 13, terms of six years imprisonment. All of those terms are to be concurrent. You may stand down.