R v Martin
[2017] NZHC 1571
•7 July 2017
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2015-021-319 [2017] NZHC 1571
THE QUEEN
v
TERRENCE MARTIN
Hearing: 7 July 2017 Counsel:
C E Clarke for Crown
P M Keegan for DefendantSentence:
7 July 2017
SENTENCING NOTES OF THOMAS J
[1] Mr Martin, you pleaded guilty following a sentence indication to seven charges of sexual violation by unlawful sexual connection;1 one charge of indecency with a boy under 12;2 and one charge of attempted sexual violation by rape.3 All of the charges were brought on a representative basis.
[2] In sentencing you, I will first outline the summary of facts to which you pleaded guilty. I will then turn to your personal circumstances, the pre-sentence report and the victim impact statements. I will set a starting point for the sentence before making adjustments to reflect your personal circumstances, engagement with restorative justice, and guilty plea. Following that I will deal with some mandatory
sentencing matters.
1 Crimes Act 1961, ss 128(1)(b) and 128B(1) (maximum penalty 20 years’ imprisonment).
2 Section 140(1)(a) (maximum penalty 10 years’ imprisonment).
3 Section 129(1) (maximum penalty 10 years’ imprisonment).
R v MARTIN [2017] NZHC 1571 [7 July 2017]
Circumstances of the offending
[3] Mr Martin, the victims of your offending were all relatives of yours, M, H
and K. Your offending against M occurred between September 1993 and December
2001. During this time you were aged 17 to 25 years. M was aged between eight and 15 years. The offending involved you kissing M, making M perform oral sex on you, you performing oral sex on M, inserting your penis into M’s anus, and making M insert his penis into your anus. The offending happened on a number of occasions. M recalls one specific occasion when you were having a party. You and another party goer forced M to sniff petrol. You then forced M to perform oral sex on you.
[4] Your offending against H occurred between September 1993 and December
1998. During this time you were aged 17 to 22 years. H was aged between six and
11 years. For part of this time (November 1995 to February 1996) you and H were both living at a shared relative’s house. The offending involved you touching H’s penis and making H perform oral sex on you. H recalls two specific occasions. The first occurred when H was playing video games in the lounge. You entered the lounge and sat next to him. You put your hand down H’s pants and touched his penis. H ignored you. You continued touching H’s penis for five to 10 minutes. You then smacked the Playstation controller from H’s hands and forced H to perform oral sex on you. The second occasion was when H was approximately 10 years old. You forced H to perform oral sex on you. M was also present on this occasion.
[5] Your offending against K occurred between November 1995 and April 1996. During this time you were aged 19 to 20. K was aged six years old. You and K were living at the same relative’s house. The offending involved forcing her to perform oral sex on you, you kissing her on the thighs, stomach and neck, and you inserting your finger into her vagina. You would also remove her underwear, force her to sit on top of you and bounce her up and down on your penis. You did not penetrate her vagina. She recalls this occurring once in the lounge and at least five or six times in the bedroom.
Personal circumstances
[6] I turn now to your personal circumstances. You are currently 40 years old. You have previously appeared before the Court, mainly for dishonesty, driving and violence offences.
Pre-sentence report
[7] I have read your pre-sentence report. The report suggests your risk of re-offending is moderate, and because of the nature of your offending, your potential to cause harm to others is assessed as high. The writer acknowledges you have expressed remorse and demonstrated insight into your offending, despite taking a long time to take responsibility for it.
[8] The writer also acknowledges your accounts of sexual offending against you as a young person and your comment that sexual offending throughout the family was rife. You conceded a desire to “get back” at those who offended against you was your primary motivation in this offending, rather than any sexual arousal. The writer notes you are awaiting the outcome of a sensitive claim with ACC to address these matters.
[9] You described to the writer your desire to undertake a restorative justice process and your hope this would begin a process of healing within your family. The writer notes there remains division in your family regarding support for you, but your sister continues to support you and encourage you to make positive change.
[10] You confirmed to the writer that you have considered the intervention programmes available in prison, and are willing to complete those programmes, despite your fear of opening old wounds.
Victim impact statements
[11] I have received victim impact statements from all three of the victims. Additionally, I have had regard to the victims’ views as recorded in the restorative justice conference report. I will speak in more detail of the conference shortly.
[12] I acknowledge the presence of one of the victims here today and at least one of the others wished to attend but there were difficulties associated with victim support.
[13] The victims’ statements are useful to give insight into the effects your offending has had on the victims. The victims in their statements speak of the significant damage to them, which continues to this day, and the impact on the wider family as a result of this offending. I express my gratitude for the views of all three victims.
[14] M speaks of feeling outcast, being called a liar, subject to stigma within the family, and running away from home at an early age. The offending has strained his relationship with his family, particularly with his father, which is only now beginning to heal. He suffers from depression, and struggled to maintain a brave face for his own children in the lead up to these proceedings. His comments in the restorative justice conference were imbued with understanding, empathy, forgiveness and love. Such a position is nothing short of remarkable.
[15] H describes self-medicating with alcohol and drugs. He speaks of feelings of anger at you. Your actions damaged his relationship with his mother and others. He is fearful of leaving his own children with others, but is also fearful of a detrimental impact on his children’s development. He has received counselling, which has helped, but he would like these proceedings to end so he can move on with his life.
[16] K’s original victim impact statement described how she hated what you did to her and how it has affected her everyday life. She said she had learned to live with it until her daughter turned four, and then the bad memories came flooding back and no matter how hard she tried, she could not block it out. She suffered from anxiety and depression and was on antidepressants. She was also paranoid about her children and in this way she says what you did to her now impacts on them. She is insecure and trusts no-one. She has revised her original victim impact statement following the restorative justice conference. She says the conference was awesome. It was a chance for her and her cousins to let you know about the mental scars they have had to deal with. She says, after hearing your story, she started to realise that, just like
them, you have those same scars and have to live with the ugly memories, just like them. And just like them, you will be affected for the rest of your life. She thanks you for being honest. She knows you are sorry. She says she can never forget what you did to her, but she does forgive you and she would like to thank her cousins for standing with her. Her comments at the conference were equally imbued with empathy and love; again, a position that is remarkable in this context.
Starting Point
[17] The guideline sentencing judgment for starting points for sexual violation offending is R v AM.4 The Crown submits your offending falls into the most serious band, band four, and the appropriate starting range is between 16 and 18 years’ imprisonment. Your defence counsel accepts your offending falls into band four and submits a starting point of 14 to 16 years’ imprisonment is appropriate.
[18] The factors from R v AM relevant to your offending are:
(a) planning and premeditation – recognising at times your offending could be considered opportunistic;
(b) threats of violence;
(c) vulnerability of the victims – they were your young relatives and there was disparity between their ages and yours;
(d)harm to the victims – there will always be psychological harm to victims of this type of offending. The long-term psychological impact is attested to in the victim impact statements I have already discussed. M also suffered physical harm at the time of your offending;
(e) scale of offending – your offending involved extended abuse of three victims over a prolonged period; and
4 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
(f) breach of trust – your victims were all younger relatives. It was a significant breach of trust by you as an older relative. I note, however, that you were relatively young yourself at the start of the offending, at 17 years old.
[19] This analysis includes the relevant aggravating features set out in s 9A of the
Sentencing Act 2002.5
[20] Your offending can properly be classified as falling into rape band four. This is offending which involves “multiple offending over considerable periods of time rather than single instances”.6 Your offending is comparable to the examples of cases at the lower end of rape band four.7 Your offending is more serious than the examples provided at the high end of band three, because it was for prolonged
periods of time and against a number of vulnerable victims. I accept the breach of trust is less egregious than offending involving a parent or grandparent. I also accept the threats of violence associated with your offending, while serious, were at the lower end of the scale.
[21] The starting range for band four is between 16–20 years. The circumstances of your offending means it lies at the lower end of band four, and a starting point of
16 years is appropriate.
Personal Aggravating Factors
Previous convictions
[22] Previous convictions for similar offending may require me to add an uplift to the starting point I have just mentioned. While you have a long list of previous convictions, these are mainly for dishonesty, violence and driving offences. They are different in nature from the type of offending for which you are being sentenced
today and therefore no uplift is warranted.
5 Sentencing Act 2002, s 9A(2)(a), (b), (c) and (d).
6 R v AM, above n 4, at [108].
7 See R v Gordon [2009] NZCA 145; and R v Martin CA251/99, 12 October 1999.
Offending while on bail or subject to a sentence
[23] Your offending occurred over an extended period of time from 1 September
1993 to 31 December 2001. Your criminal record shows in May 2001 you committed an aggravated robbery and male assaults female. You were sentenced for the male assaults female charge to periodic detention in July 2001 and for the aggravated robbery to three years, six months’ imprisonment. This means it is likely you were either on bail or subject to periodic detention during the course of this offending. However, as the exact timing is unclear, there will be no uplift to the
sentence on this basis.8
Personal Mitigating Factors
Youth
[24] I turn now to your personal mitigating factors. One factor which may justify a reduction in sentence is youth at the time of the offending. Your offending started when you were 17 years old and continued until you were 25 years old. I do not consider a discount for youth is appropriate. The offending continued into your adulthood, therefore conflicting with the purposes of giving a discount for youth. However, your age and the discrepancy in age between you and the victims is relevant and has been taken into account in setting the starting point.
Remorse and restorative justice
[25] Additional factors I am required to consider in mitigation are remorse and the outcome of the restorative justice process.9 You indicated a willingness to undertake such a process after pleading guilty, and two of the victims agreed to take part. I acknowledge at this point that it is relatively unusual for restorative justice to be undertaken for this type of offending and what I am about to describe shows just
how meaningful that process can be.
8 Also under s 24(2)(c) of the Sentencing Act 2002 the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact.
9 Sentencing Act 2002, ss 9(2)(f), 8(j) and 10.
[26] Mr Keegan, your counsel, submits the restorative justice conference is evidence of your courage, genuine remorse and taking full responsibility for your offending and the harm you caused. He suggests a discount of 10–15 per cent is warranted, and refers to various cases in support of that position.10 The Crown agrees your genuine remorse may justify a reduction, but suggests any reduction needs to be balanced against the sentencing principles of accountability, denunciation and deterrence,11 as well as the lateness of your apology and failure to appear at your first trial.
[27] The conference occurred over two days at the beginning of June. Other than facilitators and prison staff, it was attended by you, two of the victims, M and K, and two of your supporters, your sister and your cousin. It was, by all accounts, a remarkable event. I agree with Mr Keegan that the report following the conference is a compelling document. It is of great value to this Court, but more importantly it is of immeasurable value to you, the victims and your wider whānau in mending what were revealed to be deeply painful experiences extending beyond your offending.
[28] At the conference, you accepted full responsibility for your offending. You revealed you too had suffered similar abuse when you were young, from about age five until age 15 to 16, at the hands of older relatives. You had told trusted family members at the time, but were reprimanded for speaking out. You were hurt and angry because of that experience. You explained you stopped your own offending when you remembered all the hurt you felt when you yourself had been abused.
[29] You acknowledged your fear at being labelled a paedophile and your initial refusal to accept responsibility. You regret that. You explained your thought processes immediately prior to pleading guilty – that you realised you should accept responsibility, say your offending was not right, and you should avoid causing your family more pain by dragging them through the Court. You saw that as your first
step towards making amends and breaking a cycle of abuse. Your comments make it
10 R v Shirley [2009] NZCA at [23]; R v Turirangi HC Whanganui CRI-2010-083-2891, 21 June
2011 at [26]; and R v Fanguna [2009] NZCA 316 at [32]–[34].
11 R v Shirley, above n 10, at [23] and [24]; and R v Emery HC Tauranga CRI-2010-070-7808,
1 July 2011 at [42].
clear you have a real understanding of your offending, your behaviours, and the steps which will be needed to overcome these.
[30] During the conference you listened to both M and K when they described the effect your offending had on their lives. You listened to the comments of your support people who were able to add valuable context to aid understanding on both sides. M and K spoke of their stress and unhappiness. M in particular noted the pain and effects of not being believed when he told others of your offending. He also noted how he enjoyed your company despite your offending, and felt a sense of loss regarding that. He said he understood your offending in light of your own experience, and acknowledged abuse in the wider whānau had been systemic.
[31] K revealed her previous uncertainty about attending the conference, but was glad she had. On the second day of the conference, she noted the conference had allowed her to sleep soundly when she had previously been unable to do so. She was happy going back to her family knowing that you were on the path to making amends and being part of the whānau again. She too acknowledged that abuse had been part of the wider family experience.
[32] M and K showed a remarkable measure of empathy and nuanced understanding of your offending and the wider family dynamic. Both spoke of the importance of relationships, and repeatedly said “I love you”. K indicated she was happy for you to meet and be around her children. Both M and K expressed a desire to continue to engage with you over your period of imprisonment, and both indicated their intention to be at the gate to pick you up when you are released. Mending whānau connections and preventing any further harm was clearly important to all parties.
[33] Everyone’s involvement in the conference was courageous. By the close of the conference, it was clear that M and K were deeply grateful for your honesty. They offered you their understanding and forgiveness, and were willing to help you in the future.
[34] The formal outcomes of the conference were a series of actions:
(a) You are to undergo anger management and stopping violence programmes, and the outcome of these are to be shared with your victims.
(b)You will seek counselling while in prison, if possible, for the abuse you suffered.
(c) You will be assessed and undertake a Harmful Sexual Behaviour Treatment course in prison or on release, and the outcomes of this are to be shared with your victims.
(d) Your treatment provider will be invited to a whānau hui for feedback
on your progress.
(e) Everyone agreed to speak up and assist others to seek support should any further abuse be observed or known. Whānau hui was discussed as an option.
(f) M and K indicated they would like to contact or visit you in prison, and you agreed to sign the forms enabling them to do so.
(g)You agreed to make yourself available should H ever wish to proceed with a restorative justice conference.
[35] The record of the conference confirms your genuine remorse. This was also identified in the pre-sentence report. Since pleading guilty, you have taken considerable steps towards repairing the relationships you damaged with your offending. You made repeated reference to the conference being part of the journey and that being sorry was not enough to make right the effects of your offending. I agree. But your actions at that conference, and those of two of the victims, have laid a critical foundation for positive change in you and your whānau.
[36] I must balance this against two factors. First, as I will discuss in more detail when I address your guilty plea, you did not appear for your original trial. And secondly, H chose not to attend the conference, as was his right and is entirely
understandable. The report notes H indicated some willingness, but was unable to access funding from victim support and ultimately decided not to take part. Importantly, at the conference everyone acknowledged H’s absence in empathetic terms. It was noted H would be supported and encouraged if he wanted to attend a restorative justice conference in the future.
[37] In the restorative justice conference and indeed in your pre-sentence interview, you described the abuse you suffered as a child which was similar in nature to your own offending. Your account was endorsed by your sister, and acknowledged by M and K at the conference. While I do not have the necessary evidence to be satisfied the abuse you suffered materially contributed to your offending to enable any reduction in sentence for this,12 it comes as no surprise that someone who suffered sexual abuse as a child might then go on to commit similar offences. However, as you, M and K recognised, the restorative justice process is a
step towards breaking that cycle.
[38] In all the circumstances I conclude a discount of 15 per cent is warranted for your remorse, and participation in and contribution to a remarkable restorative justice conference.
[39] As you acknowledge, your journey is not over. I understand many of the programmes offered in prison will become available to you only towards the end of your sentence. That is some years away. It is my hope you will be given early access to as many programmes as possible to maintain and build on your currently positive and receptive frame of mind.
Guilty Plea
[40] The final factor to take into account is your guilty plea. The Crown submits a reduction of 10 per cent would be appropriate, despite your failure to appear at your scheduled trial in 2016 when all three of the victims attended, ready and prepared to
give evidence. Mr Keegan submits a discount of 20 per cent is appropriate.
12 R v Whiu [2007] NZCA 591 at [33] and [37]; R v Paton [2009] NZCA 155 at [38]–[39]; Pitceathly v R [2010] NZCA 95 at [27]; Davidson v R [2011] NZCA 356 at [9] and [11]; and Tuau v R [2012] NZCA 146 at [35].
[41] I agree that a discount greater than 10 per cent is justified in these circumstances. The victims were saved the trauma of giving evidence at trial. There is significant benefit to them and their families in your taking responsibility for your actions, and bringing finality to the proceedings. As one of the victims said in their victim impact statement, “he needs to admit what he did to me and my cousins so hopefully we can then move on”. This was confirmed by the restorative justice process. However, I consider 20 per cent too high, particularly given your non-appearance at trial. I allow a discount of 15 per cent for your guilty plea.
[42] This results in an end sentence in respect of all the offending of 11 years and
six months’ imprisonment.
Minimum period of imprisonment
[43] Another sentencing matter I must address is whether to impose a minimum period of imprisonment (MPI). Where offending attracts a sentence of two years or more, I may impose an MPI if I consider the principles of accountability, denunciation, deterrence and protecting the community would not otherwise be satisfied.13 The decision is discretionary.
[44] At the sentence indication, I observed a 50 per cent MPI would be imposed. This was before the restorative justice conference took place.
[45] The Crown submits an MPI is appropriate and that the restorative justice process should have no impact on the assessment. Defence counsel submits that the views of the victims, remorse, and guilty plea are all relevant to the assessment of whether to impose an MPI.
[46] The Court of Appeal considers that aggravating and mitigating circumstances are relevant in this assessment, to the extent they relate to accountability,
13 Sentencing Act 2002, s 86(2).
denunciation, deterrence and protection of the public.14 I must still, however, be mindful of ensuring consistency between sentences for similar offending.15
[47] The restorative justice process and your guilty plea are relevant to deterrence and denunciation as far as you personally are concerned. These factors are also relevant to the need to hold you to account. These factors demonstrate you have accepted responsibility for your offending and have gained insight into the seriousness of your offending. The relatively historic nature of the offending and your age at the time must also be taken into account. Your level of remorse, commitment to undertaking rehabilitative programmes and level of engagement with the victims further indicate your understanding of the gravity of your offending and its effects. Ultimately this will assist in protection of the community.
[48] I have reviewed cases which impose an MPI of around 50 per cent,16 as suggested by the Crown for your sentence. Those tend to feature a number of aggravating features, but importantly have fewer mitigating factors, in particular concerning remorse and rehabilitative prospects. Further, I have reviewed cases which do not impose an MPI, some of which have a greater number of aggravating factors and/or fewer mitigating factors.17
[49] While the Court of Appeal in R v AM noted the imposition of an MPI of at least half of the nominal sentence is very routine in cases concerning sexual offending against children,18 each case must be considered on its own merits. The sentence of 11 years and six months’ imprisonment is a considerable one and meets the wider need for denunciation and deterrence. Protection of the community is achieved by the length of sentence and importantly by your own response to the
sentence. Although you will be eligible for consideration for release having served one-third of your sentence, that does not mean your release is inevitable. It will be a
matter for assessment by the Parole Board. This is a particularly important
14 R v Nguyen [2009] NZCA 239 at [33]; R v Gordon, above n 7; and R v Walsh (2005) 21 CRNZ
946 (CA).
15 Sentencing Act 2002, s 8(e).
16 See for example R v Gordon, above n 7, and the cases cited therein; Chief Executive Department of Corrections v Clark [2017] NZHC 771; Bell v R [2017] NZCA 90; C v R [2017] NZCA 58; and R v Page [2016] NZHC 2762.
17 See for example Ikinepule v R [2017] NZCA 125.
18 R v AM, above n 4, at [156].
consideration in this case because the real test will be whether you maintain and build on the attitude and willingness to participate in rehabilitation you displayed at the restorative justice conference.
[50] In these circumstances, I consider that the purposes of accountability, deterrence, denunciation and protection of the community are satisfactorily met without the imposition of an MPI.
Child Sex Offender Register
[51] One further consequence for you today is your registration on the Child Sex Offender Register. Because you have committed qualifying offences and have been sentenced to imprisonment, you are a registrable offender under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.19 This means you are required to be entered onto the Child Sex Offender Register. This places reporting obligations on you and you will be given written notice of those
obligations and penalties.
Conclusion
[52] Mr Martin, please stand. Mr Martin, I sentence you to 11 years and six months’ imprisonment which I impose in respect of charges 6 and 8 relating to the sexual violation of M between 1993 and 2001. On the remaining five charges of sexual violation by unlawful sexual connection, you are sentenced to eight years’ imprisonment on each charge. On the charges of indecency with a boy under 12 and the charge of attempted sexual violation by rape, you are sentenced to four years’
imprisonment. These sentences are to be served concurrently.
Solicitors:
Crown Solicitors’ Office, New Plymouth
Thomas J
19 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, ss 4 and 7, and sch 2.
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