R v Karauria
[2017] NZHC 2759
•10 November 2017
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANTS/PERSONS 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.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2016-087-000346
[2017] NZHC 2759
THE QUEEN v
GENE ELLEN KARAURIA AND
LENEITH CHARLES MOEKE
Hearing: 10 November 2017 Appearances:
A J Pollett for the Crown
R O Gowing for the Defendant, Karauria G R Tomlinson for the Defendant, Moeke
Sentence:
10 November 2017
SENTENCE OF EDWARDS J
Solicitors: Hollister-Jones Lellman, Tauranga
Gowing and Co Ltd, Whakatane
R v KARAURIA and MOEKE [2017] NZHC 2759 [10 November 2017]
Introduction
[1] Mr Moeke, Ms Karauria, you both appear for sentencing today having been found guilty of one charge of ill treatment of a vulnerable adult. That charge carries a maximum penalty of ten years’ imprisonment.
[2] Mr Moeke, you were also found guilty of one charge of assault with intent to injure that same vulnerable adult. That offence carries a maximum penalty of three years’ imprisonment. You pleaded guilty to one charge of assault on a child which carries a maximum penalty of two years’ imprisonment. I am sentencing you today for those offences also.
[3] Both of you were convicted of these offences following a jury trial in this Court. You were acquitted of a number of other violence related charges against the vulnerable adult.
The offending
[4]I turn now to the offending which gives rise to the charges.
[5] The ill treatment of a vulnerable adult charge arose out of your care of a 32- year-old man. He has an intellectual disability which affects not only his IQ, but also his day to day living skills. Expert evidence at trial assessed his communication skills, personal self-care, domestic skills, and socialisation skills as being equivalent to that of a child aged anywhere between two years 10 months for some skills and 11 and a half years for others. It was that intellectual disability that made him vulnerable.
[6] You took the victim into your home. He was living down by the banks of a river at the time. Initially things went well. However, for the last four or five months of his time with you, you treated him extremely poorly.
[7] Your ill treatment of him took different forms which in combination amounted to a major departure from the standard of care expected of a reasonable person.
[8] You restricted the food that he could eat, and at times he was only provided with one meal a day. There was medical evidence at trial that his hair loss was consistent with poor nutritional status, including not having enough food or not eating well enough.
[9] You also subjected him to verbal abuse by frequently yelling and swearing at him. That verbal abuse was witnessed by others.
[10] Although you initially allowed him to use the washing machine and shower when he first moved in, that changed, and by the end of his time with you, he was made to use the hose outside to clean himself and his clothes.
[11] You both took his money and took control of his eftpos card. He was paying you board, but you took more than what was reasonable in the circumstances. And while that may not have been ill treatment in and of itself, it added to the victim’s suffering because it deprived him of his independence and control over his own affairs. I have no doubt that this was your central motivation in having him live with you. Intellectually disabled adults who receive an income whether from a benefit or other sources may be particularly vulnerable to this type of exploitation.
[12] Finally, when he was uplifted from your care, his body was covered in scars and he had wounds on his arms and feet. You were acquitted of charges in relation to the assaults which caused those wounds. But they were injuries which required medical attention. They would have been obvious to you, and yet you did not take him to a doctor or to a hospital to ensure he received the requisite medical attention.
[13] The most telling evidence of the impact of all of this on the victim was the evidence given at trial by his aunt. She saw him shortly before he was uplifted from your care. She described him as looking as if he had been burnt, his face ashen, his hands thin like he had lost a lot of weight, and as being frightened and shaking like a leaf. When she was asked to describe his face, she said it was a little bit like Darth Vader – dark. She burst into tears at seeing him. I accept that much of this may have been due to the assaults on him of which you were acquitted. But I have no doubt that your callous treatment of him contributed in a significant way to his suffering.
[14] The assault with intent to injure conviction against you, Mr Moeke, also concerns the vulnerable adult. You punched him more than five times while he was mowing the lawns. He fell down and got up again twice. The punches were to the back of the neck, the back of the head, and under the ribcage. You were seen doing this by someone across the road. That witness conceded under cross-examination that these punches could have been pushes. But, for reasons which I will come to later, I am sure that they were punches, and I intend to sentence you on that basis Mr Moeke.
[15] Finally, the charge which you, Mr Moeke, pleaded guilty to at the outset of the trial involved an assault on a relative who was living with you. He would have been either 12 or 13 years of age at the time. You kicked him twice in the bottom for drawing in his school books. He said in evidence that it was forceful enough to move him forward, but it was not really painful.
Victim impact statement
[16] The vulnerable adult victim has provided a victim impact statement. He describes having nightmares about you both, and about being afraid to go out in case he will see you. He said that you both made him feel ugly and scared, and he wanted to run away. He never wants to see you again. It is clear that your conduct has had a very lasting effect on him.
Sentencing approach
[17]I turn now to the sentencing approach I will adopt in sentencing you today.
[18] The sentence I fix must be in accordance with the purposes and principles of the Sentencing Act 2002. The purposes which are particularly relevant in your case are:
(a)To hold you both accountable for the harm done to the victim;
(b)To provide for the interests of the victim of the offence;
(c)To denounce your conduct and deter others from committing the same or similar offences;
(d)To protect the community from you; and
(e)To assist in your rehabilitation and reintegration.
[19]The principles which are particularly relevant include:
(a)the gravity of your offending and the degree of your culpability;
(b)The general desirability of consistency with appropriate sentencing levels;
(c)The effect of the offending on the victim;
(d)Your personal, family, whanau, community, and cultural background; and
(e)The requirement that I impose the least restrictive outcome that is appropriate in the circumstances.
[20] The sentencing approach is well established. First, I must consider your offending with regard to aggravating or mitigating factors. That leads to a starting point. I then make adjustments, as necessary, for aggravating and mitigating features which are personal to you.
[21] I am going to sentence you first Mr Moeke. I am going to undertake your sentencing as follows
(a)First, I am going to set a starting point for your offending against the vulnerable adult. I start with the ill treatment offence as the lead offence, and consider an uplift for the assault offence. That offending formed part of a course of conduct against the same victim and I
consider concurrent sentences, that is, sentences to be served at the same time, are appropriate for those two offences.
(b)Second, I will consider any discounts for personal aggravating and mitigating features.
(c)Third, I will consider separately the conviction for an assault on a child offence to which you pleaded guilty. I consider that offence separately because it involves a different victim, a different type of offending, and it is otherwise unconnected to the other offences. I consider a cumulative sentence, that is a sentence which is served following the other sentences, is appropriate for this offence.
(d)Fourth, and finally, I will consider whether home detention is an available sentence for you.
[22] Once I have sentenced Mr Moeke, I will then sentence you, Ms Karauria, on the ill treatment offence. As with Mr Moeke, I will consider the question of home detention after I have determined what the likely length of the sentence of imprisonment would be in all the circumstances.
MR MOEKE
Starting point
Ill treatment of a vulnerable adult
[23] So, to you, Mr Moeke. The first step is to set a starting point and, as I have already said, I take the ill treatment of a vulnerable adult offence as the lead offence.
[24] The Crown submits that the breach of trust and the impact on the victim are two aggravating features of your offending. Those are not contested by your counsel and I agree.
[25] The complainant, or the victim, was a vulnerable person living in your home. Although he was an adult, he required the care of others. You showed him kindness to begin with, taking him in off the streets where he was living homeless, and providing a roof over his head. That established a relationship of trust between you. But the callous way you treated him in the latter months of his time with you broke that bond of trust.
[26] In terms of the impact on the victim, I have already described his physical condition when he was uplifted from your care. The emotional harm is ongoing, as was made clear by his victim impact statement.
[27] The principle of consistency requires me to have regard to sentences imposed for comparable offending. There is no tariff decision for ill treatment offending pursuant to s 195(1) of the Crimes Act 1961.
[28] The Crown has cited three cases concerning sentences for ill treatment offending:
(a)In M v R, the Court of Appel upheld a starting point of two and a half years’ imprisonment for a father, and two years for a mother, who abused and neglected their 12 to14-year-old daughter over 18 months. The conduct involved assaults, forced baths in cold water, and tying the daughter up on occasions.1
(b)In Heppell v R, a starting point of four years’ imprisonment was upheld on appeal to the High Court. That case involved extreme neglect over an extended period of a 91-year-old woman.2
(c)Finally, Adams v Police,3 was an appeal from the sentence imposed in the District Court. A starting point of two years, six months’ imprisonment had been adopted in that case. That case involved force- feeding of a young child, hitting with a wooden spoon on the legs,
1 M v R [2017] NZCA 274.
2 Heppell v R [2017] NZHC 64.
3 Adams v Police [2014] NZHC 42.
restricting his water intake, and forcing him to sit on the toilet for long periods of time when he got older. The appeal to the High Court focused on whether a sentence of home detention should have been imposed instead of a sentence of imprisonment (the sentence of imprisonment was upheld on appeal), but there was no adverse comment on the starting point adopted by the Judge.
[29] I am satisfied that all three cases cited involved offending more serious than yours. The duration of the offending was longer in all three cases. The nature of the ill treatment was also more serious. The neglect was extreme in Heppell; there were physical acts of violence in M v R; and the ill treatment in Adams v Police also involved deliberate acts of cruelty towards a young child.
[30] The Crown submits that a starting point of 18 to 24 months’ imprisonment is warranted. Your counsel submits a starting point of 18 months’ imprisonment is more appropriate. Taking into account the starting points in those other cases I consider a starting point of 20 months’ imprisonment for your offending is appropriate.
Assault with intent to injure
[31] The next step is to consider any uplift for the assault with intent to injure offence.
[32] As I have already said, I have no doubt that the offending involved punches and not pushing. The witness who gave evidence at trial about what he could see from where he was standing, and what he did see on that occasion, was both credible and reliable. The force involved was significant enough to knock the victim, a grown man, off his feet. You punched him repeatedly, and inflicted blows to his head, neck, and rib cage.
[33] Your counsel submits that that if this incident was sentenced on a stand-alone basis it would not have attracted a sentence of imprisonment. I do not agree. I consider the violence to be such that it could have attracted a starting point of between 10 to 12 months’ imprisonment if sentenced alone.
[34] However, an uplift must be proportionate to the starting point, and I must bear in mind that it is the totality of your offending which is relevant for sentencing purposes. The Crown suggests an uplift of six to nine months’ imprisonment for both this offending, and the assault on a child charge. Your counsel suggests an uplift of four months’ imprisonment for this charge alone on the basis that it was punches. I apply an uplift of five months’ imprisonment for this offending.
[35] That leads to a notional sentence of 25 months’ imprisonment before discounts for personal aggravating and mitigating features are taken into account. I consider those features now.
Personal aggravating and mitigating features
[36] First, I consider aggravating features. You have 27 prior convictions. However, your prior offences are either not relevant or not recent. The Crown does not seek an uplift for that prior criminal history and I do not apply one. However, in the face of those prior convictions, I cannot give you any discount for previous good character.
[37] In terms of personal mitigating factors, you have not expressed any remorse for your offending. To some extent, you still deny it. That is of concern to me. Rehabilitative prospects may be hampered by a failure to take responsibility for your actions.
[38] However, you have offered to pay reparation in the sum of $1,500 to the victim at, which your counsel now suggests to me, $35 per week, with that sum to increase if you obtain work. Given that part of the ill treatment involved taking money from the complainant, I consider an order of reparation to be appropriate in this case, and I intend to order reparation as part of the sentence. I accept that the offer of reparation reflects an acceptance of responsibility, in some respects, for what you have done, and a small effort to make amends. A small discount from your sentence is appropriate in those circumstances. I apply a discount of two months for this factor.
[39] Finally, I am required to take into account the time spent on EM bail. You have spent approximately 16 months on EM bail awaiting trial and now sentence. That includes a restrictive 24-hour curfew at an address distant from your relatives. You have been fully compliant and that is credit to you Mr Moeke. I accept that a discount is appropriate in those circumstances. Your counsel has proposed four to five months. I apply a discount of five months for time spent on EM bail.
[40] This brings your notional sentence for offending against the vulnerable adult to 18 months’ imprisonment.
Assault on a child
[41] I turn now to consider the assault on a child offence, to which you have pleaded guilty.
[42] An assault, any assault, on a child is serious. That is reflected in s 9A of the Sentencing Act which requires me to have regard to a list of aggravating factors in sentencing you for violent offending against a child under the age of 14 years. Your offending did involve a breach of trust as the victim was a relative who was living with you at the time. However, in the scheme of things, I consider the nature of your offending was at the minor end of the scale.
[43] You would be entitled to a discount for the guilty plea to this charge. Although you pleaded guilty on the first day of trial on 7 August 2017, the charge was not laid at the same time as the others. It had a first appearance date of 23 June 2017. I accept a significant discount for your guilty plea could be afforded in those circumstances.
[44] If this offence was sentenced on a stand-alone basis, it could have resulted in a sentence of community work as your counsel submits. However, I must consider this offending in light of your offending against the vulnerable adult. That adds a different colour to it in my view.
[45] Taking into account the personal mitigating features referred to already and the discount for the guilty plea, I consider a sentence of one months’ imprisonment for
this offence would be appropriate. As I have already said, this sentence will be served after the other sentences have been served.
Totality
[46] In effect, that leads to an end sentence of 19 months’ imprisonment for the totality of your offending. Standing back and considering your offending as a whole, I am satisfied that 19 months’ imprisonment reflects your culpability. As the sentence is one of short duration, the only remaining question is whether I should impose a sentence of home detention instead of imprisonment.
Home detention
[47] I have considered that question with reference to the purposes and principles of sentencing that I mentioned at the beginning of this sentencing.
[48] As you will have heard in my exchange with your counsel, I say at the outset that I can only sentence you to home detention if I am satisfied that the proposed address is suitable. I am not so satisfied. There is a lack of clarity around who has been living at that house and who will be living at that house if home detention was to be granted. The suitability of any occupants is an important part of the assessment to be made of the proposed address for home detention. The question then is whether I should grant you leave to apply for home detention in the event that a suitable address could be identified.
[49] In terms of your rehabilitation and your reintegration back into the community, I note that the pre-sentence report writer has recorded that you are responsive to Maori cultural interventions and have responded well in the past to Tikanga Motivational Programmes. Home detention would allow you to participate in those programmes, although they may also be available to you in prison. However, I do note that you have not made any effort to engage in any rehabilitative programmes whilst on EM bail, or in fact any effort at reform at all.
[50] As to the protection of the community, I note that the pre-sentence report records your risk of re-offending as moderate. I put little weight on that report as it
appears to have, perhaps not expressly, referred to charges on which you were acquitted. You have been fully compliant with EM bail, and you have completed sentences of community work and supervision in the past, and it has been several years since you last offended. Those factors point towards home detention rather than imprisonment.
[51] However, there are several factors which point the other way. They are: holding you accountable for the harm done, denouncing your conduct, and deterring you and others from committing similar offences.
[52] The ill treatment offence carries a penalty of ten years’ imprisonment. That is double the maximum penalty which applied for the previous offence of cruelty to children. The maximum penalty provides some indication of the seriousness with which Parliament regards the ill treatment offence.
[53] In addition to the ill treatment offence, you were convicted of a serious assault against the vulnerable adult. I do not agree with your counsel in respect of that offence. I consider that offence elevates the gravity of your offending. It needs to be strongly denounced and you need to be held accountable for it.
[54] The deterrence of others from engaging in the type of ill treatment and violent offending you engaged in is extremely important in cases involving vulnerable adults. Detection and enforcement of this type of offending can be difficult. The intellectual disability which makes an adult vulnerable in the first place, may also make it difficult to hold offenders to account for what they have done. For that reason, a very strong message needs to be sent to deter others from engaging in this type of conduct.
[55] Home detention is not a soft option. But, I do not consider that it is a sufficiently stern response to hold you accountable, and to meet the purposes of accountability, denouncement and deterrence when the totality of your offending is considered. A sentence of imprisonment is the least restrictive sentence in the circumstances, and that is the sentence I intend to impose.
Sentence
[56]Mr Moeke, please stand.
[57]For the offence of ill treatment of a vulnerable adult, I sentence you to:
(a)18 months’ imprisonment.
(b)I also order you to pay reparation to the complainant in the sum of
$1,500 to be paid by instalments of at least $35 per week to the vulnerable adult victim. Reparation payments will commence as soon as you are in receipt of either a benefit or paid income.
[58] For the offence of assault with intent to injure, I sentence you to five months’ imprisonment. That sentence is to be served concurrently with the sentence for the ill treatment charge.
[59] On the charge of assault on a child, I sentence you to one months’ imprisonment. That sentence is to be served cumulatively with the sentences of imprisonment for the ill treatment and assault with intent offences. That results in a total end sentence for all three charges of 19 months’ imprisonment.
[60]Mr Moeke, please stand down.
MS KARAURIA
[61]Ms Karauria, I now turn to sentence you.
[62]You are for sentence on the ill treatment of a vulnerable adult offence only.
Starting point
[63] You and Mr Moeke were charged as joint principals with the ill treatment of a vulnerable adult. You were jointly responsible for his care, and you are both responsible for his poor treatment during the time he resided with you. There is no basis to distinguish your culpability from that of Mr Moeke for this charge, and your
counsel does not seek to do so. I therefore adopt the same starting point of 20 months’ imprisonment.
Personal mitigating and aggravating features
[64] In terms of your personal mitigating and aggravating features, you do have a few minor convictions, but nothing warranting an uplift, and the Crown does not seek one. As with Mr Moeke, however, I am unable to give you any discount for previous good character in light of those convictions.
[65] In terms of mitigating features, you have also offered $1,500 in reparation to be paid at least $50 per week. Currently, you are on a benefit but you are hoping to return to work. You have offered to increase the weekly payments when you are in paid employment. In addition, you have written a letter to the victim apologising for the way you treated him, for not taking better care of him, and for verbally abusing him. You state that you take full responsibility for what you did, and you reassure him that he has nothing to fear in the future. You seek forgiveness.
[66] I accept that letter of apology is sincere, and a genuine expression of remorse. That bodes well for your rehabilitative prospects. In that respect, I have put aside the pre-sentence report which appears to have been based on the charges on which you were acquitted. In my view, you are entitled to a greater discount for remorse than Mr Moeke. I apply a discount of four months for reparation, remorse, rehabilitation, and other personal mitigating factors.
[67] Finally, I consider whether to grant you a discount for time spent on bail. Unlike Mr Moeke, you were granted simple bail up until, and for the duration of trial. The conditions of bail were not restrictive, but nevertheless you complied with those bail terms without incident. I granted you bail pending sentence on those terms. In the ordinary course there is no discount offered for that type of bail.
[68] However, as a result of an administrative error by the Court in recording those terms of bail, it appears that you were made subject to electronic monitoring for a period just over six weeks. I don’t know how that error occurred Ms Karauria but I am going to offer an apology from this Court for that, in terms of that administrative
error. This was an unauthorised restriction on your liberty. You had an electronic bracelet fitted during this time, and were presumably monitored as a result. You were granted absences on four separate occasions. You did not appear to have a curfew or any other restrictions imposed as a condition of that bail but nevertheless I do accept that you were subjected to restrictions that you otherwise would not have been subject to had the order been abided.
[69] Your counsel submits that a three month discount to reflect the illegal nature of the detention should be applied in your case. That would be in the case of a sentence of imprisonment. He submits that effectively your time spent on electronic monitoring should be treated as if it was time served towards a home detention sentence.
[70] I do not consider a discount in the order of three months can be justified and I do not consider that a discount by way of compensation for an illegal restraint can be justified. The sentencing process is in respect of the offence for which you have been found guilty. It is not a means to effectively compensate you for an illegal restraint. I consider that the comparison is not to a home detention sentence, but to time spent on EM bail. The Sentencing Act specifically provides for time spent on EM bail to be taken into account in the sentencing process. You were subjected to EM bail when there was no authorisation for that to occur, and that did place greater restrictions on you than would otherwise have been the case. In the peculiar circumstances of your case I consider a discount of six weeks’ imprisonment is appropriate for that time spent subject to electronic monitoring.
[71] Applying these discounts results in a notional end sentence of approximately 15 months’ imprisonment.
Home detention
[72] Finally, I consider whether a sentence of home detention is the least restrictive sentence in the circumstances.
[73] There is an available address for home detention which has been assessed as suitable for electronic monitoring. You have also been compliant with a previous home detention sentence at the address.
[74] Unlike Mr Moeke, you are not for sentencing on violent offending in addition to the ill treatment offence. You have accepted responsibility for your conduct, and have expressed genuine remorse. Holding you accountable for what you did is not as significant in the overall balancing exercise in those circumstances. Those features also mean that the denouncement and deterrence purposes of sentencing can be met with a sentence of home detention in my view. I consider that sentence for you to be the least restrictive sentence in the circumstances.
[75] A home detention sentence must be served in full. There is no parole period as there is for a sentence of imprisonment. Accordingly, a term less than the sentence of imprisonment is usually applied. In your case, I consider a sentence of seven months’ home detention is appropriate.
Ms Karauria – Sentence
[76]Ms Karauria, please stand.
[77]On the ill treatment of a vulnerable adult charge, I sentence you:
(a)To seven months’ home detention subject to the standard statutory conditions. Upon release from the Court you are to travel directly to the address mentioned in the pre-sentence report, and await the attendance of a probation officer and security officer.
(b)I also order you to pay reparation in the sum of $1,500 by instalments of at least $50 per week to the vulnerable adult victim. Payments are to commence immediately.
[78]Ms Karauria, you may stand down.
Edwards J
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