R v Lata

[2018] NZHC 707

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE COMPLAINANT, A PERSON UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-092-3680

[2018] NZHC 707

THE QUEEN

v

KASMEER LATA

Hearing:	17 April 2018
Appearances:	N E Walker and K S Li for the Crown KAN Trotter for the Defendant
Sentence:	17 April 2018

SENTENCING NOTES OF MUIR J

Counsel/Solicitors:

Kayes, Fletcher Walker, Manukau KAN Trotter, Barrister, Auckland

R v LATA [2018] NZHC 707 [17 April 2018]

[1]    The defendant, Ms Kasmeer Lata, has pleaded guilty to and is now to be sentenced in respect of the following charges:

Offence	Date of offence	Section / Act	Maximum penalty
Dealing in Slaves (representative)	Between 1 Feb 2015– 30 Nov 2016	s 98(1)(i) Crimes Act 1961	14 years’ imprisonment
Dealing in a person under 18 for sexual exploitation (representative) (x2)	Between 1 Feb 2015– 30 Nov 2016	s 98AA(1)(a)(i) Crimes Act 1961	14 years’ imprisonment
Receiving earnings from commercial sexual services provided by person under 18 years	Between 1 Feb 2015– 30 Nov 2016	ss 21 and 23 Prostitution Reform Act 2003	7 years’ imprisonment

Summary of Facts

[2]    The defendant is the mother of the complainant. The complainant herself was born in Fiji. In 2014 the defendant moved to New Zealand with the complainant and one of her younger siblings. They entered on now expired visitors’ visas. After initially staying with the defendant’s mother in Whangarei they moved to Auckland where they rented various properties in Manurewa, Papatoetoe and Takanini.

[3]    From the time of her arrival in Auckland the defendant worked as a prostitute. After a period, she asked the complainant, her daughter, to do likewise to help pay for food and to earn enough money, she said, to start a business. The complainant initially refused, but was told the family would starve if she did not, and she would only have to do it for a month or so. The defendant placed various advertisements for the complainant’s sexual services on websites and in the New Zealand Herald, and arranged for her to be photographed and videoed in various stages of undress and in provocative poses. She was advertised as being 18 years of age or over. Some of these advertisements were allegedly placed with the assistance of the defendant’s partner, who has pleaded not guilty to these charges and is awaiting trial. I will make some brief observations at the conclusion of this judgment in relation to the importance of suppression of all details relating to the defendant’s partner.

[4]    The defendant arranged for the complainant to see her first, if I may call him this, ‘client’ on her 15th birthday at their home. She dressed her, put her makeup on and coached her on how to have sex. Her first ‘client’ was a man in his 50’s, who engaged in full penetrative sex for which a fee of $200 was paid. Thereafter, commercial exploitation for sex subsumed the complainant’s life.

[5]    After a period, the defendant and her family had to move houses to avoid suspicion from neighbours. They took an apartment in Takanini, from which it was not possible to service clients, with the result that the defendant arranged for the complainant to meet her ‘clients’ in their own homes or motels. The defendant and allegedly her partner would drive her to these addresses. The defendant would often wait outside.

[6]    At one point, the complainant told the defendant that she did not wish to continue working as a prostitute. The defendant then started charging her for rent, food, utilities and letting fees knowing that, without any ability to lawfully work in the country, this would inevitably force her back into prostitution. The complainant kept half of what she earnt, but much of it went to payments that the defendant demanded from her. The other half went directly to the defendant. The complainant would often be forced into seeing as many as five ‘clients’ per day.

[7]    Around mid-2015 the complainant became pregnant by one of her clients, indicating that protected sex was not at all times, if at all, being practiced. The defendant told her to have an abortion, and that she would have to keep working to pay for it. The complainant did so in August 2015.

[8]    On 30 November 2016, the complainant disclosed the offending to the police in Whangarei. In total, the complainant worked as a prostitute for 18 months: from her 15th birthday through to that date.

Victim Impact Statement

[9]    I have received and considered a victim impact statement from the complainant. It makes for harrowing reading, as all those present in Court who have heard it read by Ms Walker will, I am sure, agree. She says she now lives alone,

without family support as her younger siblings blame her for her mother’s arrest and detention. Her immigration status is uncertain, as she has not been able to obtain an appropriate visa, meaning she cannot even enrol in education, let alone undertake paid employment. Indeed, she says she is not even able to work within the voluntary sector. She is anxious that she may at any stage be deported. She finds it difficult to meet new people, particularly men, as she has become excessively cautious in their company. She no longer trusts anyone, including her family. She feels the need to resort to self-harm to escape the emotional pain she feels. She has made one serious suicide attempt, having undertaken research on the internet prior to doing so. She writes of crippling anxiety because she worries she will meet someone who she has been with, and won’t know how to react. She describes how her mother forced her to have an abortion because she became pregnant by a client, and has since had lower back pain from this procedure. However, what resonates most strongly is the sense of betrayal she feels. She writes of how her mother does not care about her, and how all she ever wanted was her mother’s attention. She writes of how she becomes angry when she hears others speak of their mothers, as she wonders what she did to deserve a mother who would force her to prostitute herself.

[10]   I am left in no doubt that the defendant’s actions have caused long-lasting, if not irreparable damage to her daughter. The complainant’s feelings of betrayal, anger, and anguish are palpable. I bear all of this in mind in reaching an appropriate sentence.

Personal Circumstances

[11]   The defendant is 36 and was born in Fiji. She has been, as I have indicated, in New Zealand with her children since 2014. Besides the complainant, she has two young sons. She had a positive relationship with her own mother. Many of her family, including her mother, reside in New Zealand as permanent residents. She left education after intermediate school. In New Zealand, she worked variously as a cleaner and prostitute, including during the period when her daughter was forced into similar work, though the defendant says they did not work together.

Approach to Sentencing

[12]   In sentencing the defendant, I must have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.1 Of particular relevance to this very serious offending is the need to denounce the defendant’s conduct, to hold her accountable for the harm done to the victim and to deter her and others from committing the same or similar offences. I am, nevertheless, obliged to impose the least restrictive outcome appropriate in the circumstances.

[13]   The approach I take to the sentencing is well settled.2 Firstly, I must establish a starting point, based on the characteristics of the offending. Secondly, I must consider whether any of the defendant’s personal circumstances justify an adjustment to that starting point, including any exceptional remorse she has shown. Thirdly, I will consider the quantum of discount appropriate for the defendant’s guilty plea. Finally, I will consider whether a minimum period of imprisonment is appropriate.

[14]   Both the Crown and Defence agree that the charge under s 98(1)(i) of the Crimes Act is the lead charge. They also agree that the sentences for dealing in a person under 18 for sexual exploitation should be concurrent with that of the lead charge. Each of these three charges have maximum sentences of imprisonment of 14 years. There is disagreement between counsel about whether the Prostitution Reform Act charge should be the basis of a concurrent or cumulative sentence and, if the former, whether there should be an uplift on that account, which I will discuss later.

The lead charge

[15]The lead charge arises under s 98(1)(i) of the Crimes Act which is in terms:3

[98] Everyone is liable to imprisonment for a term not exceeding 14 years who, within or outside New Zealand … Being a parent or guardian of any child under the age of 18 years, delivers that child to another person with intent that the child or his or her labour shall be exploited

1      Sentencing Act 2002, ss 7–8.

2      R v Taueki [2005] 3 NZLR 327 (CA); Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607.

3      Crimes Act 1961, s 98(1)(i).

[16]   This appears to be the first New Zealand case prosecuted under s 98(1)(i). Necessarily, therefore, the sentencing must proceed from first principles without the assistance of any directly analogous case. Both Crown and defence submissions draw on wider analogies to which I consider some reference might usefully be made, and I will do that when I come to set the starting point.

[17]   I commence, however, by considering the aggravating and any mitigating features of the offending.

Aggravating Factors

[18]I consider the aggravating features to be as follows:

Sexual Nature of the Exploitation

[19]   What may, I think, have been overlooked in the defence submissions is that the exploitation captured by the section need not be sexual in nature. The requirement of the offence is simply that a parent deliver up their child under 18 with the intent their labour be exploited. The fact that the labour in this case is prostitution is, in my view, a significant aggravating feature.

Breach of Trust

[20]   This case involves, in my view, an egregious breach of trust. The defendant and complainant were respectively mother and daughter. At a point in the complainant’s life when her mother should have been providing her with protection and stewardship in her transition to adulthood, she instead manipulated her into agreeing to engage in prostitution and effectively “pimped her out” for 18 months. She did so by telling her daughter the family needed the money for food and to start a business. She told the complainant that she needed to contribute to household expenses and rent, knowing that the only way the complainant could afford to do this was by prostituting herself.

[21]   The defence acknowledges that there is a breach of trust. It argues, however, that as the offence requires the existence of a parent-child relationship, a breach of trust is inherent in the offending. That may be the case but what is not inherent is the

severity of the breach of trust because the offence itself is not, as I have indicated, limited to parents who prostitute their children. For those who do, the breach of trust is, in my view, far greater than where a parent, for example, forces a child into service of a non-sexual kind.

[22]   The defence also submits that the defendant’s efforts in “persuading” the complainant to work as a prostitute were not a calculated manipulation, but rather a manifestation of the defendant’s belief that the only way for the family to make ends meet was for her daughter to work as a prostitute, as the defendant and the defendant’s mother before her had done.

[23]   I accept that unlike, for example, cases where young women have been brought to countries on the pretext of legitimate work, had their passports confiscated and then forced into prostitution with all proceeds kept by their “handlers”4 (perhaps a purer form of commercial exploitation) the defendant’s primary motivation appears to have been to underpin the family’s finances. However, this was clearly at a level which greatly exceeded any normal such requirements.

Vulnerability of the Complainant

[24]   The Crown submits the victim was vulnerable because of her young age—she was 15–16 over the course of the offending—and her social isolation. Because of her immigration status, the complainant could not, as I have already indicated, work or attend school. Her mother did not allow her outside of the house during weekdays. She had no friends her own age, and very limited ability to interact with people other than within her own family and, of course, those who were purchasing from her sexual services.

[25]   The defence submits that the youth of the complainant is inherent in the offence and does not accept greater vulnerability on account of her immigration status.

[26]   The offence itself is directed to delivery up of a child under the age of 18. To that extent I accept the defence submission about youth being an inherent part of the

4      As in the English case of R v Demarku [2005] EWCA Crim 2049.

charge. But the complainant was only 15 (indeed to the day) when she was first introduced to prostitution. She was not of a legal age of consent and had no element of emotional or financial independence from her mother as a result of their recent arrival in a foreign country. I accept that the fact that the complainant was in such a socially isolated position made her more vulnerable to her mother’s manipulations. If she had been in education, attending work or allowed to interact with others, it may have been more likely that she would have realised her mother’s behaviour was unacceptable in New Zealand, or indeed more likely that someone would have questioned her or her mother’s behaviour. I am left in no doubt that the complainant’s isolation and therefore vulnerability contributed substantially to the duration of the offending.

Gravity and Scale of the Offending

[27]   The offending occurred over a period of 18 months. It frequently involved penetrative sex with adults—and often older adult male clients. Approximately 1,000 sexual contacts occurred, sometimes with as many as five clients in one day. The estimated earnings were approximately $100,000 of which the defendant retained a half. As I have indicated, the complainant was required to pay rent and contributions to household expenses from the share she retained. Such money as the complainant was able to keep for herself (and it is unclear what this was in total) must be considered modest in the context of the overall degree of her exploitation.

Planning and Premeditation

[28]   Both Crown and defence agree there was planning and premeditation in the offending. The defence submits some level of premeditation is, however, inherent in the offending. The Crown argues that there is a high level of premeditation given that the defendant placed advertisements in three different publications, some involving extensive sexualised photography. She arranged for her daughter to travel to and from different addresses, such as motels and ‘clients’ homes, she oversaw ‘bookings’ for her services and had significant involvement in associated financial arrangements. I accept the Crown submission that the offending involved high and continuous levels of premeditation and planning. However, I do not regard this as the most serious of the aggravating features I have identified. To some extent I accept the defence’s

submission that planning and premeditation will inevitably be implicit in this type of offending.

Harm to the victim

[29]   The defence very properly accepts that the level of harm to the complainant cannot be disputed. It clearly approaches the most serious level realistically able to be contemplated, taking into account the complainant’s ongoing history of self-harm, her suicide attempt and her continuing sense of betrayal and distrust.

Mitigating Factors

[30]   Neither counsel specifically identify any mitigating features of the offending. The most that can be said is that the delivery up of the complainant for exploitation was for purposes, at least in part, related to the provision of financial support for the family, as I have previously identified. Whether properly identified as a mitigating factor or the absence of the type of aggravating factor present in a non-familial and purely commercial context, I do take that aspect into account.

Setting a starting point

[31]   I accept at the outset that s 98 captures a wide variety of conduct as disparate as service on a ship used for slavery (s 98(1)(f)) and the current charge relating to the abuse of the parental guardianship role.

[32]   Counsel’s researches have only been able to identify one case under the section, which concerned a charge under s 98(1)(a)— selling a woman as a slave— and s 98(1)(j)—offering to sell a woman as a slave— namely R v Decha-Iamsakun.5 That case concerned a 26-year-old Thai woman who was sold to an undercover policeman for $3,000. Temm J noted that the offending was as bad as committing rape, and that he could draw guidance from the kinds of sentence the Court imposes for that crime. He sentenced the defendant to five years’ imprisonment, but noted that he took into account that the defendant came from a different background and culture, and that a term of imprisonment would be harder on him than someone who was

5      R v Decha-Iamsakun HC Auckland T124/91, 18 October 1991.

ordinarily a New Zealand resident. He further noted that this is “a most uncommon offence”, but that other possible offenders should know that if they commit a similar offence, they would go to jail for longer period of time. This sentence, and the comments on the offence being as bad as rape, were subsequently upheld by the Court of Appeal.6

[33]   Expanding the rape analogy, the Crown compares the offending in this case with that in serious rape cases, falling within band 4 of the tariff case R v AM.7 It refers to what is described in R v AM as paradigm offending within this band, being repeated rapes of one or more family members over a period of years especially that involving children or teenagers.8 Cases in that band attract a sentence of between 16–

20 years’ imprisonment.9 The Crown says that in circumstances where the complainant was effectively not offered a choice about providing sexual services, which included full penetrative sex and over a period of 18 months, the level of exploitation could, at least from the complaint’s perspective, be seen as akin to rape within AM band 4. Having regard to the lower maximum sentence for s 98(1) offending (14 years as opposed to 20 years for rape) the Crown says that a starting point of 10–14 years could be contemplated for the lead charge in this case, but then acknowledges that it is possible to envisage worse offending before suggesting a final starting point of 10-12 years by analogy with offending in rape band 4.

[34]   The defence, on the other hand, submits there is no adequate analogy between this charge and band 4 rape cases. It says the analogy is dangerous and will cause unnecessary confusion in later cases. While I would not go quite that far, I find the comparison with rape cases not entirely helpful. The elements of the offences are too different. The main element of this offence is exploitation. It need not involve a sexual element, whereas sexual connection is a necessary element of the charge of rape. Moreover, rape is an inherently violent offence, whereas s 98 offending need not be; although I do accept that implicit in the statement of facts is the proposition that the complainant’s consent to the commercial sexual activity was not freely given. In my view, the best way to proceed in this case is to consider the range of offending that

6      R v Decha-Iamsakun [1993] 1 NZLR 141 (CA) at 148.

7      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

8 At [109].

9 At [108].

could fall under the section, then place this offending in that range, considering the aggravating (and possibly mitigating) features I have identified. At most, I consider the rape cases as something of a cross-check to the sentence which I ultimately arrive at.

[35]   On the approach I adopt, the defence submits the Court should regard s 98 as one offence, with each different way of dealing with the vulnerable person representing different levels of seriousness within an available spectrum. It gives the example of a mastermind of an international human trafficking ring, which it says must be regarded as offending at a very much more serious level than that of Ms Lata. It submits that the offending in this case should be in the lower-middle band of the sentencing range and suggests a starting point of five years’ imprisonment.10

[36]   I consider there to be difficulties with this submission. For a start, the mastermind of a human trafficking ring is likely to be charged under ss 98C or 98D, which attract a higher maximum penalty of 20 years. Clearly in respect of s 98, the legislation has collected a number of quite different offences, each of which, on appropriate facts, can attract a maximum sentence of 14 years. It cannot necessarily be said, for example, that a sale into slavery (s 98(1)(a)) is necessarily more serious than a case of parental delivery up of a child for exploitation, particularly if that exploitation is of a sexual nature. I reject, therefore, some type of internal hierarchy within the various s 98(1) subsections. Each case will turn on its own facts and a particular combination of aggravating and mitigating factors. That is reinforced by the fact that if parental delivery up is for sexual purposes, the maximum penalty    (14 years) is no greater than under s 98AA involving sexual exploitation of persons under the age of 18 generally.

[37]   Looking then at the range of potential offending under s 98(1)(i), it need not, as I have already identified, involve a sexual element. A parent who delivers up their child to undertake non-sexual services for no or exploitative rates of remuneration commits an offence under that section. Such offending would typically fall towards the bottom of the range. But where delivery up is of a young person for sexual

10     In support of this, they cite the case Hastie v R [2011] NZCA 498.

services, that must always, in my view, be a seriously aggravating factor which takes the offending to at least the middle level of the range. When, in addition, the young person involved has not attained the legal age of consent, is required to engage in full penetrative sex, is presented with no practical option but to prostitute himself or herself, is severely socially isolated so as to limit his or her options to disengage and is as traumatically affected as the complainant in this case, the offending, in my view, comfortably falls within the upper middle band, even absent violence or threats of violence. Decisions such as Doling v Police and R v Wales indicate a generally stern approach for offending involving sexual exploitation, even where, by intervention of the police, the exploitation has not in fact occurred.11 I agree that this is appropriate, having regard to the commercial element associated with the offending and the role of deterrence in that respect.

[38]   I consider myself assisted by the English decision in R v Dunkova.12 In that case a 15-year-old girl ran away from a Children’s Home in Slovakia. She was taken to the United Kingdom by the appellant and compelled to work as a prostitute on the streets. All of her earnings were given to the appellant and her co-offenders. The 15- year-old victim was threatened that she would be killed should she run away. The victim and the appellant arrived in London on 7 June 2009 and the Police became involved on 13 June 2009; so the duration of the offending was rather short. During this period the victim had sexual intercourse with paying customers approximately 40 times. The Court of Appeal considered that the appellant’s role was subordinate to that of the two male co-offenders, who had threatened the victim, imprisoned her and put her on the streets. The appellant’s role was to move the victim from London to Sheffield and supervise the victim. The Court of Appeal considered that a suitable sentence on each offence (two counts of trafficking into the United Kingdom for sexual exploitation, one count of causing child prostitution and one count of controlling a child prostitute) was seven years’ imprisonment. All sentences were concurrent except the charge of controlling a child prostitute, which was made consecutive. This resulted in an end sentence of 14 years’ imprisonment.

11 Doling v Police HC Tauranga CRI-2010-470-000012, 18 March 2010 (attempting to enter an arrangement in which a person aged 15 was to supply commercial sexual services); R v Wales [2012] NZHC 138 (Crimes Act s 144C—making travel arrangements to engage in underage foreign sex).

12     R v Dunkova [2012] EWCA Crim 1318.

[39]   Even more useful, in my view, is the English decision in R v Demarku where a 16-year-old Lithuanian girl was tricked into travelling to London where her identity card was taken from her and she was advised that she had been sold and would have to work as a prostitute to recover the money.13 She was told it was impossible for her to escape and there was no one who would help her. She was required to work seven days a week at one of the brothels run by the appellant together with his co-offenders and all money went to them. The offending lasted approximately two months at which point the Police searched the brothels operated by the appellant and his co-offenders. The appellant was convicted of six counts of trafficking women for sexual exploitation or allied offences, including one charge of controlling child prostitution which attracted a maximum penalty of 14 years’ imprisonment. In relation to this charge, the Court of Appeal noted it involved “the deliberate control of the child reasonably believing and later knowing that she was in fact under 18 … aggravated by the fact that he knew she was unwilling”.14 The Court further observed:15

These were exceptionally serious offences. As the Judge said when sentencing, this was a degrading, despicable activity producing untold misery and insofar as the girls who were unwilling and forced into prostitution were concerned, it had echoes of slavery.

[40]   I endorse those comments as applicable, with adjustments appropriate to the facts, to the present case. The Court observed that if the offence of controlling child prostitution had been sentenced alone it would have considered a term of nine or 10 years’ imprisonment would have been appropriate.16 But, for the reason of totality, that sentence was reduced to four years.

[41]   Having considered all of these authorities, in my view a starting point of nine years and six months’ imprisonment is appropriate for the lead offence in this case.17 This offending is undoubtedly among the more serious captured by s 98(1)(i),

13     R v Demarku [2005] EWCA Crim 2049.

14 At [11].

15 At [14].

16 At [11].

17 In coming to this figure, I have had regard to the United Kingdom Sentencing Council Sexual Offences Definitive Guideline, especially as the equivalent offence in the UK—Sexual Offences Act 2003, ss 47–51—also has a maximum penalty of 14 years. The Court of Appeal has commented that the UK Sentencing Guidelines can provide a useful guide for New Zealand where there are no other sentencing guidelines: S v R [2011] NZCA 324 at [21]. In terms of these guidelines the relevant sentencing range for the s 98(1)(i) offence would be 6-11 years.

particularly having regard to the duration of the offending, the vulnerability of the complainant, the number of sexual contacts into which she was forced, and the level of harm she has suffered. However, I accept that one can envisage more serious offending as, for example, if there had been more than one victim, or the victim(s) were younger, or there was violence, or threats of violence involved. “Headroom” must be recognised, therefore, in the event that offending with these additional characteristics were to come before the Court.

Factors Personal to the Defendant

[42]   I am not in this case prepared to recognise a discrete discount for exceptional remorse. That is because at the time the pre-sentence  report  was  prepared  in  March 2018, Ms Lata’s position was that the complainant had, willingly and of her own accord, decided to prostitute herself. She stated to the report writer that she did not know why her daughter would accuse her of these actions apart from possible resentment because she would not allow the complainant contact with her boyfriend. She said on that occasion that she had no intention of having any further contact with her daughter. The report writer noted in particular that her manner was nonchalant and showing little insight into her actions.

[43]   That is to be starkly contrasted with a handwritten letter provided to me today in which the defendant expresses fulsome remorse for her actions, and the hope that her daughter might one day forgive her for what has occurred.

[44]   It is not possible to reconcile these two responses. I am left with a concern that the expression of remorse conveyed to me today may at least in part be motivated by the severity of sentence the defendant faces, and a desire to obtain maximum discounts possible. Given that concern I decline to recognise exceptional remorse, but I will give the defendant the benefit of the doubt, based on her letter today, when I come to assess an appropriate discount for her guilty plea.

[45]   The defendant does not have any previous convictions. The rationale for giving a discount for the absence of previous convictions is that it is evidence of otherwise good character, and the defendant is therefore more likely to be able to be

rehabilitated.18 The defence also submits the defendant has been somewhat desensitised to prostitution, as both her and her mother have prostituted themselves in the past. It submits this offending was at least in part driven by financial desperation. I allow a small discount of 2.5%, equating to three months’ imprisonment, for the lack of prior convictions and to recognise the extent to which prostitution was “normalised” in the defendant’s own upbringing. The discount is modest because of my concerns about the remorse expressed by the defendant which, at least in light of one of the authorities, would count against a presumption of good character.19 Allowing for this discount, the start point of her sentence is reduced to nine years and three months’ imprisonment.

Discount for a Guilty Plea

[46]   I must now consider the quantum of discount appropriate for the defendant’s guilty plea. In this case the charges were first brought in March 2017. However, the defendant’s formal written statement was only completed on 12 December 2017 when the amended charge notice was also submitted.   The defendant pleaded guilty on     9 February 2018 after the second trial callover. Although this cannot be considered the first opportunity to do so, I take into account late amendment to the charges, the relative novelty of the charge under s 98(1), a late change in counsel (who was appropriately allowed adequate time to consider the amended charges) and the intervention of the summer vacation. Against this background I have been persuaded to allow a greater discount than the 15–20% contended for by the Crown. I am particularly exercised by the fact that the guilty plea has meant that a vulnerable and severely anxious victim has, as a result, been relieved of the additional stress of trial. I recognise that implicit in a guilty plea is acceptance of responsibility for the offending and some element of associated, what I will call, “baseline” remorse. Were it not for the letter provided to me today I would have concluded, based on the pre- sentence report, that this was absent from the present case. However, adopting the most favourable view I can of the letter, I allow the full 25% discount for the guilty plea. The final sentence I therefore impose on the lead offence is six years and 11 months’ imprisonment.

18     Taylor v R [2017] NZCA 574 at [24].

19 At [24].

Section 98AA Charges

[47]   The defendant faces two representative charges of dealing in a person under 18 for sexual exploitation.20 These relate specifically to when the defendant arranged for the complainant’s services to be advertised in the New Zealand Herald, when she arranged for photographs to be taken and placed on the New Zealand Girls website, and when she drove the complainant to her ‘appointments’. Each charge also carries a maximum penalty of 14 years’ imprisonment.

[48]   I adopt the Crown’s position that the s 98(1)(i) offence captures the defendant’s overall culpability as a parent who delivered her daughter to men for the provision of, in part, underage commercial sexual services and who thereby exploited her. I intend, therefore, to deal with the s 98AA offences by way of a sentence equivalent to that imposed under the s 98(1)(i) offence and to be served concurrently. No counsel contends otherwise.

Prostitution Reform Act Charge

[49]   The defendant faces one charge under ss 21 and 23 of the Prostitution Reform Act 2003. This relates to the money the defendant received from prostituting the complainant. The maximum sentence for this charge is seven years.21 I consider a starting point of four years is appropriate for this offending.22

[50]   The Crown submits I should apply an uplift in this respect because receiving money is not necessarily inherent in either the s 98 and s 98AA charges. There is, in my view, an artificiality in that submission as the Crimes Act offending will almost inevitably involve the receipt of some compensation for the delivery up or inducement of the child. The offences, in my view, are all similar in kind and arise out of a connected series of events. That militates against uplift and in favour of dealing with the offence on a concurrent sentencing basis.

20     Crimes Act 1961, s 98AA(1)(a)(i).

21     Prostitution Reform Act 2003, s 23.

22 I draw support for this figure from R v King [2012] NZHC 2253; Doling v Police HC Tauranga CRI-2010-470-000012, 18 March 2010; R v Wales [2012] NZHC 138; and R v Hastie [2011] NZCA 498.

Minimum Period of Imprisonment

[51]   My final task is to consider whether it is appropriate to impose a minimum period of imprisonment. If an offender receives a determinate sentence of imprisonment of more than two years, the court may impose such a minimum period of imprisonment; namely one longer than one-third of the length of his or her sentence, which is otherwise the minimum requirement before eligibility for consideration for parole.23

[52]   The Court may impose a minimum period of imprisonment if satisfied that the one-third default minimum is insufficient either to hold the offender accountable for the harm done, denounce the conduct, deter the offender or others or protect the community.24 I do consider that a minimum period of imprisonment is necessary adequately to denounce the defendant’s conduct and to deter other offenders. Significantly, I consider it appropriate to send a strong message to all parents that New Zealand Courts will not countenance the prostitution of their children, whatever their financial or immigration circumstances may be. Such children are entitled to the love, care and support of their parents, not farmed out for financial gain at enormous potential cost to their children’s ultimate physical and psychological wellbeing. I intend to impose a minimum period of imprisonment of three years and five months, which is slightly less than 50% of the total sentence. That is imposed in respect of the charges under ss 98(1)(i) and 98AA(1)(a)(i) of the Crimes Act 1961.

Sentence

[53]   Ms Lata would you please stand. On each of the charges under s 98(1)(i) and 98AA(1)(a)(i) of the Crimes Act I sentence you to a period of imprisonment to be served concurrently in the amount of six years and 11 months.

[54]   In respect of the charge under ss 21 and 23 of the Prostitution Reform Act 2003 I sentence you to a period of imprisonment of two years and 11 months, to be served concurrently.25

23     Parole Act 2002, s 84(1) (the default period).

24     Sentencing Act 2002 s 86(2).

25     Reflecting a 2.5 % discount from my identified starting point of four years on account of absence of prior conviction and a 25 % discount for guilty plea.

[55]I impose a minimum period of imprisonment of three years and five months.

Suppression

[56]   There is one remaining issue to resolve: that of suppression. Heath J granted the defendant interim name suppression on 13 September 2017.26 In that judgment, the sole reason for granting suppression was to protect the complainant’s identity.27 The suppression was granted on an interim basis until the complainant reached the age of 18 years, when Heath J considered she could make an informed decision about whether she wanted her mother’s name to be published. The complainant is now 18 and wishes her mother’s name to be made public. The defence does not seek continuing name suppression.

[57]   Accordingly, I lift the prior order suppressing the defendant’s name. The complainant’s name and all identifying details remain suppressed under s 204 of the Criminal Procedure Act 2011.

[58]   I make one final observation in relation to suppression. The defendant’s co- offender is for trial in the near future. I suppress all details of his identity and his alleged role in the offending to protect his fair trial rights.

[59]Ms Lata you may now stand down.

Muir J

26     R v L [2017] NZHC 2256

27 At [51].