R v Popeea

[2015] NZHC 1882

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-11440 [2015] NZHC 1882

THE QUEEN

v

EDUARD-LAURENTIA POPEEA

Hearing:	11 August 2015
Appearances:	S McColgan for Crown A Speed for Defendant
Sentence:	11 August 2015

SENTENCING REMARKS OF LANG J

R v POPEEA [2015] NZHC 1882 [11 August 2015]

[1]      Mr Popeea, you appear for sentence today having pleaded guilty to a charge of indecent assault.   That charge carries a maximum sentence of seven years imprisonment.   You originally faced three much more serious charges.   After the police consulted with your victim the Crown agreed to reduce the charge to the much less serious charge of indecent assault.

Background

[2]      Your offending occurred when you and the complainant were both passengers on a cruise liner travelling between Brisbane and Auckland.  The ship left Brisbane on 13 October 2014.   Your offending occurred around midnight on the night of

16 October 2014. At that stage the ship was still in international waters.

[3]      The offending occurred after you and an associate met the complainant and others in a nightclub on board the vessel at some stage after midnight.  The group shared several drinks, and then you and your associate went back to your associate’s cabin accompanied by the complainant.  There the three of you shared a bottle of wine.  Once the wine was finished you and the complainant went back to your cabin, ostensibly so that you could obtain a phone number.  Once you were back in your cabin the events occurred that gave rise to the charge of indecent assault.   You removed at least some of your clothing.  You then had the complainant touch your penis and you touched her genitalia.  The complainant says that she was inebriated at the time and she was scared because of what was happening.  She says that she was afraid to resist or say no.  There was also a suggestion that she fell asleep at some stage during the incident, and that you touched her genitalia whilst she was asleep.

[4]      Those matters are all recorded in the summary of facts, and you have pleaded guilty on the basis of that summary.  I note that the pre-sentence report indicates you maintain that sexual contact was consensual. You also deny that the complainant fell asleep.  I sentence you on the basis of the matters contained in the summary of facts.

[5]      The offending had a significant impact for the complainant.  She immediately made a complaint about what had happened.   This meant that the New Zealand Police became involved when the ship berthed in Auckland.  The complainant was then required to undergo embarrassing and stressful interviews with the police, and

also forensic examinations.  It is also clear from the material on the Court file that your offending has had significant ongoing effects for the complainant.   This is likely to take some considerable time to resolve.

Sentencing Act 2002

[6]      In the present case I consider it is important to place the interests of the victim to the forefront.  You have no connection with this country, other than the fact that the offending was reported here and New Zealand assumed responsibility for the prosecution.  In any case involving unauthorised sexual activity, however, issues of deterrence and denunciation are always to the forefront.  It is also necessary to hold the offender accountable for his or her actions.  In your case I accept your counsel’s submission, supported as it is by the Crown, that the Court should impose the least restrictive outcome possible.

Starting point

[7]      Counsel agree that there is no tariff or guideline judgment of the Court of Appeal of cases involving indecent assault.   This is because the offence can be committed in a huge variety of ways.  In serious cases sentences of imprisonment are imposed.   In less serious cases, the offender receives a fine or community-based sentence.

[8]      Ordinarily this offending would have attracted a starting point of around six to seven months imprisonment.  You would then have been entitled to a discount for your guilty plea.   Although it did not come at an early stage, nevertheless you pleaded guilty to the reduced charge as soon as it was made available.  This would ordinarily reduce the starting point by around 20 per cent.  This would leave an end sentence of around four to five months imprisonment.

[9]      You are 62 years of age and have no previous convictions.  You have been married for 37 years, and your wife is fully aware of the incident that gave rise to the charge.  She remains supportive of you.

[10]     This  incident  has  had  very  significant  effects  for  you.    First,  you  were required to remain in New Zealand on bail for a considerable period.  This was an added cost for you because you needed to meet the costs of supporting yourself in New Zealand.  Because you were outside Australia for a lengthy period, you also lost your right to receive your superannuation in Australia.  Eventually you were granted bail on strict terms and you were able to return to Australia.  The conditions of your bail required you to return to New Zealand for the trial callover, and also to return two weeks before the commencement of your trial.   You faithfully complied with those conditions at no doubt a significant financial cost.  The fact that you have been required to return to New Zealand again for a lengthy period prior to your sentencing has also meant that you have ceased to receive superannuation benefits in Australia.

[11]     I mention these factors because they are relevant to the sentence that the Court imposes.   Having reached an end sentence of around four to five months imprisonment, an offender in your circumstances could ordinarily expect to receive a sentence of home detention or community detention coupled with community work. Neither of those sentences is a viable option in your case because you cannot offer an address in New Zealand at which you could be required to serve your sentence.

[12]     Section 39 of the Sentencing Act 2002 permits the Court to direct an offender to pay a fine rather than serve a sentence of imprisonment.  I do not consider a fine to be an appropriate form of sanction in this case, because it would be payable to the Government of New Zealand.  As I have indicated, this country has no connection with you other than the fact that it assumed responsibility for the prosecution.

[13]     The  Court  has  the  power  to  direct  an  offender  to  make  a  payment  of reparation to the victim of the offending.  This is designed to compensate the victim for the physical and emotional stress and harm that the victim has suffered as a result of the offending.  I consider that that is an appropriate sanction in your case.  I note also that you have already offered to pay reparation in the sum of $5,000 to the complainant.  The complainant resides in Australia.  I consider that an appropriate amount of reparation to be paid to her is AU$5,000.  I make an order accordingly.

[14]     In addition, you have caused the Government of New Zealand to expend significant sums in bringing this prosecution.   You added to the cost of the prosecution to some extent by making pre-trial applications, as was your right.   I direct that you are to pay the sum of $3,000 towards the costs of the prosecution.

[15]     I further direct that you are to surrender your passport to your counsel.  I do so having received your counsel’s undertaking that he will not return the passport to you until you have made arrangements to pay both the reparation and the order for costs that I have made.

[16]     Stand down, Mr Popeea.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

A Speed. Auckland