R v L HC Auckland CRI 2004-092-6552

[2005] NZHC 1229

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004-092-6552

THE QUEEN

v

S S L

Hearing:         18 March 2005

Appearances: P Hamlin for Crown

P Davey for Prisoner Sentence: 18 March 2005

SENTENCING NOTES OF LAURENSON J.

Solicitors:
Crown Solicitor, Auckland for Crown

Counsel: P Davey for Prisoner

R V L HC AK CRI 2004-092-6552 [18 March 2005]

Introduction

[1]                 Ms L, you appear for sentence having been convicted following verdicts of guilty by a jury in this Court on 11 February 2005 of:

[a]Attempting to sexually violate a 15 year old youth by unlawful sexual connection, namely, connection between your vagina and his penis. This charge is laid pursuant to s129 of the Crimes Act 1961 for which the maximum penalty is 10 years imprisonment.

[b]Sexual violation by unlawful sexual connection in respect of the same victim, namely, connection between your vagina and his penis. This charge is laid pursuant to s128(1)(b) of the Crimes Act for which the maximum penalty is 20 years imprisonment.

Factual background

[2]                 You were 49 years of age at the time of the offending. The victim was the son of your cousin with whom you had a close relationship, as did the members of your respective families.

[3]                 The evidence at trial revealed that, it was not uncommon, for various younger members of your family, and the victim’s family, to sleep with you at night. On a number of occasions between 28 February 2003 and 15 March 2003 when he was staying at your home, you insisted that he sleep in your bed.

[4]                 On one occasion near the beginning of this period you made sexual advances to him whilst in bed. He did not know how to respond but you finally desisted when he asked you to stop. There was another occasion not long afterwards when you made similar advances to him but, as he said, nothing really happened. On the third occasion, however, near the end of that period the evidence was that you started kissing him, then grabbed his penis and tried to put it into your vagina but he would not let it go in. He said, you “tried doing it a couple of times” but he told you he “couldn’t do it”. He was “too afraid”, he got up, said “goodnight” and went to sleep.

[5]                 On 18 March 2003 you were able to overcome his objections. You got on top of him and had sexual intercourse. Afterwards you told him this was the day he “lost his virginity, and you kept repeating this afterwards. He wanted to cry. He pretended, however, to be happy. He wanted to tell somebody, he was going to tell his mother, but he did not want to hurt her feelings or make her sad or angry. He said he “kept it quiet”.

[6]                 The Crown alleged that, from that point on, until about the end of January 2004 you had intercourse with him on many occasions. The jury found you  not guilty in respect of these. Obviously, they were not satisfied that the Crown had proved these charges beyond reasonable doubt. I suspect that it may well have been a doubt on the issue of consent. Whatever it was, it is irrelevant for the purposes of sentencing. What is relevant is that, sometime about the end of January 2004, the victim’s behaviour had become such that his mother became concerned. She enlisted the aid of a close friend who was a counsellor assisting within the Samoan community. That person spoke to the victim and, as a result, he revealed what had happened.

Pre-sentence report

[7]                 In order to assist me when considering sentence I have received several reports. The first is a pre-sentence report prepared by a probation officer who interviewed you. This refers to the following matters:

[a]You are now 51 years of age. You have four adult children. The report does not mention what happened to the father of your children.

[b]You grew up in Samoa, where you were the second eldest in a family of 13 children. The report then goes on to reveal something which I consider to be very significant in the context of this case. It says:

She said that she had a good upbringing until the time she was 9 years old. Ms  L stated that  she was  raped for  the first time when she was 9 years of age. She said the rape did not have a huge impact on her at the time because she said that “I thought it was part of  the game”.  Ms  L  said  that she was showered with gifts for being sexually violated by

the perpetrator. She reports moving to New Zealand in the 60s with her family and indicated she was raped for the second time when she was 19 years old. She reports that the rape was much more violent and as a result she had a son whom she elected to keep. Miss L reports that she has had counselling to help he deal with the ordeal of being sexually violated.

[c]You left school in the Fifth Form without qualifications and thereafter you worked as a manufacturing worker and later as a team leader.

[d]You indicated that you were not in very good health and are currently in receipt of a sickness benefit, and that you are also attending a mental health centre. You were discharged from Middlemore Hospital on 5 March 2005 after having surgery for appendicitis. You  also report suffering from depression and insomnia as a result of the charges you faced.

[e]You have no relevant previous convictions.

[f]Under the heading of “Motivation and Readiness to Change”, it is noted that you have continued to unequivocally deny your guilt throughout the assessment process and clearly perceive yourself to be the injured party in these proceedings. Therefore, your motivation to address your offending behaviour is assessed as low. Given your low motivation your risk of offending must be considered high. This risk is further aggravated by your limited insight into the factors identified as contributing to your offending.

[g]In the summary to the report, I am advised that supervision and community work would be able to be undertaken. However, your lack of insight, constant denial and low levels of motivation to address the key factors that have been identified as contributing to the offending make your suitability for rehabilitative programmes questionable at this point, and therefore neither supervision nor community work is recommended. It is noted that the Court may wish to consider granting you leave to apply for home detention. The final recommendation is, however, imprisonment.

Victim impact statement

[8]This is a detailed document.

[a]It refers for a start to the relationship with you, and how he, the victim, being 34 years younger than you, regarded you as his Aunt. He was grateful to you for spoiling him with gifts and money; however, he felt like they were bribes to get him into your home. He trusted you as an older and wiser family member. By dint of his

background he is a person who will always do what an adult tells him to do. He mentioned, however, that you were also very pushy and manipulative.

[b]The effects of the offending – When you began hugging him in a different way he thought it was wrong. You did it when nobody was watching and it made him feel very uncomfortable. He let you do it because he was confused and did not know what else to do. He felt weak and powerless and could not control what was happening to him. He wondered “how God could let these things happen” to him. The day he lost his virginity to you will stick in his mind forever because of the way you went about it and kept reminding him of the date. He is very sad that such an important thing in his life has been taken away from him and he is ashamed that his first time was with you.

Later, he felt ashamed and disgusted with himself and felt suicidal  and seriously considered killing himself. He even got some pills which he hid in his room. One of the reasons he could not tell anybody about what had happened was because he felt you were always watching everything he said and did. He says that you told  him not to tell his mother or anyone else. On top of that he was terrified of his family finding out about it.

When the offending was revealed it was a very emotional and upsetting time for him. The process of having to go to the Police and tell the officers what had happened, go through a video interview with another officer was, he said, “horrible”. It was made doubly difficult when other members of his family had to be involved with the Police investigation.

[c]From having been a good student his work deteriorated badly during the year 2003. He became very depressed and had trouble concentrating on school work. His school performance has been

affected by the time away from school required for counselling, preparing for trial and for actual trial. His interaction with other people has suffered. He was very embarrassed when a school teacher was required to give evidence at trial. He did not want anyone at the school to know about what had happened to him because he was so ashamed.

[d]I have already referred to the change in the victim’s behaviour and how it got to the point that his mother became concerned. He found undergoing counselling later difficult.

[e]He said that the effects of the trial have been devastating for him and his family. He feels angry about what you did to him and the fact that you will not admit to what you did. At this point, he just wants to forget about what happened. Talking about it just brings back all his feelings of shame and disgust. He does not think he will ever get over it.

Emotional harm report

[9]                 I also ordered an emotional harm report. The victim has declined to participate in the preparation of this report because he considers that his position has been adequately set out in the victim impact statement, which I have referred to at some length.

Aggravating factors – Section 9(1) Sentencing Act 2002 (“the Act”)

[10]The aggravating factors which have been identified are:

[a]The extent of the harm t the victim resulting from this offending is, in my view, very significant.

[b]Perhaps the most notable aggravating factor is the extent of the breach of trust by you as a senior and trusted family member.

[c]By reason of the family and ethnic background, and the compliant nature of the victim, I consider it is reasonable to infer that the victim was particularly vulnerable in this case.

[d]There is the issue of premeditation. The circumstances leading up to the first act of sexual violation. To my mind, and as submitted by the Crown, it shows a clear degree of premeditation, and premeditation in the face of objection by the victim.

[e]In addition to the matters referred to in s9(1) I note your complete lack of remorse and continuing, unequivocal, denial of any responsibility.

Mitigating factors – Section 9(2) of the Act

[11]Your counsel has drawn attention to the following matters:

[a]At 51 years of age you have no relevant previous convictions and you are otherwise of good character.

[b]You have brought up a family of four children and now have six grandchildren. Your son described you as a “generous person” who was prepared to mortgage her house to help her family.

[c]Your General Practitioner has provided a report confirming the excellent way in which you dealt with a complex health problem in respect of one of your grandchildren.

[d]Several references have been provided deposing to the extent which you have assisted others in the community and which show a compassionate and caring woman who assists others in need.

[e]Reference was also made to your own traumatic personal history, which I have referred to. In addition, it is reported that you were in a

violent married relationship for approximately twelve years. This included physical violence towards you and your children.

[f]Your Doctor also refers to the many stress related physical symptoms that are consistent with what you have mentioned to the probation officer.

[g]A report has been provided by your current Psychiatrist, Dr Gunawardena, which confirms that you first sought help in 2000 with mental health problems and again in November 2004. The diagnosis was that you suffered from Dissociative Episodes and Post Traumatic Stress Disorder. However, there is currently no evidence of any thought disorder or delusional thoughts and your Doctor is planning  to tail off that medication. You are also diagnosed as suffering from mild to moderate depression.

[h]It is submitted therefore that, because of these psychiatric difficulties, a sentence of imprisonment will weigh more heavily on you than it would on a person in normal health.

[i]Finally, it was reported that you have been ostracised by other members of the family apart from your children. It is reported that you have been physically assaulted by one of your own sisters after you were convicted. This has been confirmed by your Doctor.

Purposes of sentencing – Section 7 of the Act

[12]             I have considered the purposes referred to in this section and note the following as being particularly relevant in this case:

(a)           to hold you accountable for harm done to the victim and the community by the offending; or

(b)              to promote in you a sense of responsibility for, and an acknowledgement of, that harm; or

…

e) to denounce the conduct in which you were involved; or

(f)       to deter you or other persons from committing the same or a similar offence; or

(g)to protect the community from you; or

(h)to assist in your rehabilitation and reintegration.

Principles of sentencing – Section 8 of the Act

[13]             Again, I have considered all the principles in this section but note the following as being particularly relevant:

a) must take into account the gravity  of  the  offending in the particular  case, including your degree of culpability; and

(b)         must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and

(c)       must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to you make that inappropriate; and

(d)     must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to you make that inappropriate; and

(e)        must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and

(f)           must take into account any information provided to the court concerning the effect of the offending on the victim; and

(g)       must impose the least restrictive outcome that is appropriate in the circumstances; and

(h)      must take into account your particular circumstances that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and

(i)      must take into account your personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.

Imprisonment

[14]Section 128B of the Crimes Act provides:

2) Every one who is convicted of sexual violation shall be sentenced to imprisonment unless, having regard to the particular circumstances of the offence or of the offender, including the nature of the conduct constituting the offence, the Court is of the opinion that the offender should not be so sentenced.

[15]             In addition, and by reference to s16 of the Act, I am satisfied that no other sentence other than imprisonment would be consistent with the application of the principles in s8, which I have referred to.

Sentencing guidelines

[16]             In this case I am presented with the comparatively rare situation where a female person has been found guilty of what is, in effect, unlawful sexual intercourse in circumstances where, if the victim had been a woman, the crime charged would have been rape. In R v Herbert (CA70/98 21 May 1998) the Court of Appeal has made it clear that, there is no distinction to be drawn between male and female offenders in sexual abuse offending. In that case four years imprisonment was imposed on the prisoner involving sexual violation by sexual intercourse with a 10 to 11 year old boy over a period of one year. In that case there was a plea of guilty.

[17]             In R v Manukau (T23309 HC Auckland 30 January 2003) a sentence of 2½ years imprisonment was imposed on a 44 year old female who was found guilty of sexual violation involving oral sex on her own 14 year old stepson.

[18]             In R v Matthews (T2/4757 HC Rotorua 20 June 2003) a sentence of 4½ years imprisonment was imposed on a female who pleaded guilty to three counts of sexually violating a 10 and 11 year old boy by sexual intercourse over a period of 8 months.

[19]             In R v Shaskey (T23/03 HC Christchurch 14 August 2003) a sentence of 5 years imprisonment was imposed on a 35 year old female who was found guilty of

sexually violating a 13 year old boy involving sexual intercourse over a 5 year period. The Court adopted a 6 year starting point, the same as in Matthews (supra).

[20]             The Crown has submitted that, essentially, the offending in this case amounted to sexual violation by rape and that the starting point as indicated by the Court of Appeal in R v A [1994] 2 NZLR 129 (CA) of 8 years is appropriate in this case.

[21]             Your counsel has submitted that, account should be taken of the fact that the victim in this case, was somewhat older than the victims referred to in the cases I have referred to and further, that the verdicts upon which sentence must be passed involved only two occasions of offending.

Discussion

[22]             It is clear to me that the offending in this case was engendered in no small  part as a result of your own upbringing including, in particular, the offending that occurred against you when you were young. If it was as you said to the Probation Officer “all part of the game” insofar as that offending was concerned, it behoves  this Court to make it absolutely clear that such offending is not “part of the game” in this county. The reaction of the victim in this case is ample confirmation of that fact.

[23]             It is equally clear to me that the offending came about as a result of your own selfish sexual needs, and that you were prepared to ignore any normal standards of decency to achieve your ends. Furthermore, you blithely ignored the position of trust which really enabled you to carryout the offending.

[24]             I can see no logical reason why an 8 year starting point should not be adopted in this case and indeed, that this should be increased to take into account the aggravating factors which I have referred to and, in particular, the gross breach of trust.

[25]             I am, however, required to take into account the requirement to achieve consistency in sentencing. The sentences in Herbert, Matthews and Shaskey, all

indicate a starting point, including aggravating factors, of between 5 and 6 years imprisonment.

[26]             In your case I consider that the greater age of the victim in this case counts for little other than to emphasise the extent of your determination to offend, and the persistence displayed by you, I have no doubt that the victim was completely at a loss to know how to deal with these situations, despite his total disgust at your advances. It clearly indicates to my mind a high degree of persistence on your part.

[27]             The decisions in Matthews and Shaskey as I say, all provide a starting point  of between 5 and 6 years. I find it difficult to reconcile these with the decision in Herbert, but it may be that the Court has tacitly at least accepted that, where what amounts to rape of a female occurs in relation to a male, the lack of actual physical invasion may justify a lesser level of sentencing. Be that as it may, I consider that,  an appropriate starting point, taking into account aggravating features, is 6 years imprisonment.

[28]             In R v Tapueluelu (CA172/99 29 July 1999) the Court of Appeal was required to consider a situation where an offender accused of attempted murder had clearly suffered from serious psychiatric difficulties. The Court said at p6:

Each case ultimately falls to be determined by reference to its own features, although some generalised observations may be made, as they were by the appeal division of the Supreme Court of Victoria in R v Tsiaras [1966] 1 VR

398 at 400. In an analysis which was not intended to be and is not exhaustive, serious psychiatric illness was considered by the Court there to be capable of reducing moral culpability as distinguished from legal responsibility and thereby affecting the punishment that is just in all the circumstances. It was also recognised that by reason of a psychiatric illness a given sentence may weigh more heavily on the prisoner than it would on a person in normal health.

[29]             It is clear from Dr Gunawardena’s report that, the psychiatric problems you suffer from, are not anywhere near as severe as those which were relevant in Tapueluelu (supra). It does seem to be clear, however, that you do suffer to some extent from a psychiatric disorder described by Dr Gunawardena as a Dissociative Disorder not otherwise specified, with mild to moderate depression. However that disorder is categorised, I am satisfied that the net result will be that any period of

imprisonment will bear more heavily on you than would be the case of somebody  not suffering from the same affliction. Taking this into account, and your previous record of good behaviour within your own family and the community, I consider that an appropriate net sentence is 4½ years imprisonment.

[30]             The Crown has not sought a minimum period of imprisonment. Taking into account your age and the condition which I have referred to, I consider it is appropriate that the Crown should not have made any such application. Bad as they are I do not consider the circumstances of the offence justify a minimum term of imprisonment in terms of s86 of the Act.

Result

[31]             You are therefore sentenced to 4½ years imprisonment on the charge of sexual violation pursuant to s128(1)(b), and to 3 years imprisonment on the charge  of attempting to sexually violate pursuant to s129 of the Act. The two terms are to be served concurrently.

[32]Please stand down.