R v PW
[2022] NZHC 2247
•30 August 2022
ORDER MADE PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
ORDER MADE PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF DEFENDANTS
PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
THE NAMES OF THE DEFENDANTS IN THIS JUDGMENT HAVE ALSO BEEN ANONYMISED HERE FOR SUPPRESSION REASONS
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2020-031-1090
[2022] NZHC 2247
THE QUEEN v
P W S W
Sentencing: 30 August 2022 Appearances:
B D Vanderkolk and A Barham for the Crown
P L Murray and P A C Foster for the Defendant P W S N Hewson for the Defendant S W
Oral Judgment:
30 August 2022
ORAL JUDGMENT OF GENDALL J
R v P W [2022] NZHC 2247 [30 August 2022]
Table of Contents
Introduction [1]
Factual summary [5]
Police investigation [15]
Submissions of the parties [18]
Crown submissions [18]
Defence submissions [24]
Approach to sentencing [34]
Purposes and principles of sentencing [38]
Victim impact statement. [41]
Pre-sentence reports [42]
Psychological Assessment Report [46]
Provision of Advice to Courts (PAC) report [47]
Psychiatric report [49]
Section 27 report [50]
Letter in support [51]
PAC Report [53]
Psychological report [56]
Psychiatric report [57]
First step — Starting Point [59]
Aggravating factors of the offence [62]
Planning and premeditation [65]
Violence [66]
Vulnerability of victim [67]
Harm to victim [68]
Multiple offenders [72]
Scale of offending [74]
Breach of trust [75]
Degree of violation [76]
Mitigating factors of the offence [77]
R v Rose [79]
R v F [86]
R v K [88]
F (CA844/2013) v R [89]
Analysis [91]
Administering methamphetamine offending [95]
Making objectionable publications offending [100]
Second step — aggravating and mitigating factors of the offender [104]
Previous convictions [105]
Issues over previous good character [107]
Guilty plea [108]
Remorse [123]
Personal circumstances [127]
Sentence calculation [136]
Totality [140]
Minimum period of imprisonment (MPI) [153]
Preventive detention [160]
Registration on the Child Sex Offender Register [165]
Name suppression [168]
Result [169]
Other orders [171]
Introduction
[1] P W (Mr W) and S W (Ms W) you are here for sentencing in this Court today on a significant number of charges to which you have pleaded guilty. Mr W and Ms W, you are the stepfather and mother of the victim respectively. You have pleaded guilty to a wide range of charges of sexual offending and administering methamphetamine against your daughter who for anonymity reasons I will now refer to as the victim.
[2]You, Mr W, appear for sentence on 34 charges which are:
(a)one charge of sexual conduct with a child outside New Zealand under the Crimes Act 1961, carrying a maximum 10 year imprisonment penalty;
(b)10 charges of making an objectionable video/image under the Films, Videos, and Publications Classification Act 1993, carrying a maximum penalty of 14 years’ imprisonment;
(c)eight charges of sexual violation by rape under the Crimes Act, carrying a maximum penalty each of 20 years’ imprisonment;
(d)seven charges of sexual violation by unlawful sexual connection under the Crimes Act, carrying a maximum penalty each of 20 years’ imprisonment;
(e)six charges of administering methamphetamine under the Misuse of Drugs Act 1975, carrying a maximum penalty of life imprisonment; and
(f)two charges of possession of objectionable images under the Films, Videos, and Publications Classification Act, carrying a maximum penalty of 10 years’ imprisonment.
[3]You, Ms W, appear for sentence on 20 charges which are:
(a)four charges of sexual conduct with a child outside New Zealand under the Crimes Act, carrying a maximum penalty of 10 years’ imprisonment;
(b)two charges of administering methamphetamine under the Misuse of Drugs Act, carrying a maximum penalty of life imprisonment;
(c)eight charges of sexual violation by unlawful sexual connection under the Crimes Act, carrying a maximum penalty of 20 years’ imprisonment; and
(d)six charges of making an objectionable video/image under the Films, Videos, and Publications Classification Act, carrying a maximum penalty of 14 years’ imprisonment.
[4] For the purposes of your sentencing, the Court must accept all facts either express or implied that are essential to your pleas of guilty here. The following is the brief factual background to the charges you face.
Factual summary
[5] Between October 2013 and August 2019, both in Australia and New Zealand, you both sexually abused and filmed that abuse of the victim and plied her with methamphetamine during the course of doing this. Your offending began when the victim was eight years old and continued until she was 15. Your offending followed sustained grooming behaviour. The offending was repeated and regular.
[6] You both recorded much of the abuse. There are over 14 hours of video and 91 still images the Crown has, detailing sexual abuse against the victim. Some of this material has been provided to me.
[7] The footage and images I have viewed is disturbing and concerning. It shows you, Mr W, vaginally and anally raping the victim and you both performing oral sex on her. She is also forced many times to perform the same on you, Mr W. You both on many occasions are seen penetrating the victim with sex toys and then forcing her
to use sex toys on herself. Footage also shows you, Mr W, strangling the victim at one point while raping her. Explicit phrases are written in glow-in-the-dark ink on the victim’s body and the victim is required to wear a red leash around her neck restraining her, as well as adult lingerie. On multiple occasions the victim is violated while her legs are restrained and placed in stirrups and on other occasions while she is on a love swing hammock. Footage of the offending against the victim often shows you both feeding her methamphetamine while sexually abusing her.
[8] All this began in about 2012 when you, Ms W, began grooming the victim, then aged eight, it seems for your husband’s sexual gratification.
[9] A March 2019 video of some concern, just after the victim’s 14th birthday, shows you, Mr W, putting her legs in stirrups before raping her. While doing so, you put your hands on the victim’s neck, strangling her. All the time you provided the victim with methamphetamine while raping her and made her say she enjoyed sex with you.
[10] Towards the end of that or a subsequent video you, Mr W, told the victim that her way of apologising to you was to accept any physical pain and also it appears, rather chillingly, that you told her you would get $10,000 for that particular video.
[11] Frequent videos show you both providing the victim methamphetamine by holding a glass pipe to her mouth and lighting the contents while you, Mr W, performed oral sex on the victim before raping her again in a range of different positions.
[12] On 15 June 2019, a series of 10 objectionable images of the victim were taken wearing a crotchless costume, posing in such ways so as to expose her genitals or posing together with you, Ms W, touching each other’s genitals.
[13] One image shows the victim with the words “Slut baby girl” written on her bottom. An earlier video depicts the victim whilst restrained and during an episode while performing oral sex on you, Mr W, being required to refer to you as “master”.
[14] On 17 January 2020 you, Mr W, took a further series of objectionable images of the victim, again when she was aged 14. One image shows the victim with the words “a dirty slut 4 use Dad like Mummy and love it” written on her body.
Police investigation
[15] All this, it seems, came to an end when police executed a search warrant at your address on 12 November 2020. They seized numerous electronic items as exhibits including several computer hard drives and iPhones. More than 61 objectionable images of the victim were found on the hard drive. These included images of the victim posing in costumes exposing her breasts and genitals, images of you, Mr W, raping her and images of both of you, Mr and Ms W, putting sex toys in the victim’s anus and genitals.
[16] More than 30 objectionable images of the victim were found on an iPhone. These included images of you, Mr W, performing oral sex on the victim, as well as images of the victim with sex toys in her anus and posing erotically.
[17] At the conclusion of the investigation, more than 14 hours of video and 91 still images were seized and analysed. When questioned by police you, Mr W, declined to make any statement but you, Ms W, made a full statement to police and admitted all the facts as you had outlined.
Submissions of the parties
Crown submissions
[18] The Crown describes the offending as “nothing less than prolonged sexual subjugation of an unspeakable form” and submits the Court must denounce this offending. To this end, the Crown notes the purposes and principles of sentencing. Of particular relevance in this case are the need to hold you both, Mr and Ms W, accountable for the harm you have caused to the victim and the need to deter you and others from this type of offending.
[19] The Crown seeks a starting point at the maximum available as it contends the offending is undeniably within the worst cases of its kind. The Crown relies on s 8(c)
of the Sentencing Act 2002 which provides that the Court must impose the maximum penalty prescribed if the offending is within the most serious of cases for which that penalty is prescribed.
[20] An overall starting point of 23 years’ imprisonment is sought for each of you in this case to mark the extremely high culpability of your offending as a whole. This involves a starting point of not less than 20 years’ imprisonment for the totality of the sexual offending against the victim. The Crown contends this offending is within the most serious of all sexual violation cases for which a maximum penalty of 20 years is prescribed. The Crown says this offending fits squarely at the top of band 4 as outlined in R v AM and that a starting point at the very top of the range at 20 years is required in this case.
[21] In particular, the Crown says there are a number of aggravating features present in your offending, namely a high degree of planning and premeditation, a degree of violence, an extremely vulnerable victim, and very significant harm caused to her, the scale of the offending, a complete breach of trust by the two of you, and an extreme degree of violation. The Crown notes the charges of administering methamphetamine to the victim and the charges of making objectionable publications are different in kind from the sexual offending and they require separate analysis and warrant a cumulative approach to the sentence to be imposed. The Crown seeks discrete uplifts of 18 months’ imprisonment for each of the administering methamphetamine charges and the objectionable publications charges, bringing the starting point for the sentences to 23 years’ imprisonment.
[22] With respect to aggravating and mitigating factors personal to you both, the Crown does note you have no criminal history, Ms W, and says also it does not seek an uplift for your limited criminal history Mr W, but it also rejects any suggestion of credit for any previous good character for either of you. As an acknowledgement of your early guilty pleas, Mr and Ms W, the Crown submits credit of only 10 per cent at most should be allowed. The Crown says the strength of the evidence against you both was such that you had little choice but to plead guilty here, and there was little benefit therefore to the victim or any witnesses provided by those guilty pleas. End sentences for you both of around 20 years’ imprisonment are sought.
[23] The Crown also seeks a minimum period of imprisonment of 10 years for each of you. The Crown says this is to hold you both accountable for the extreme harm done to the victim by your offending as well as to denounce and to deter this conduct. The Crown does not seek preventative detention in this case, however. Mr Vanderkolk for the Crown maintains that a lengthy determinate sentence is preferable and will provide both adequate protection for society in this case and act as a fitting denunciation of your offending.
Defence submissions
[24] Turning to defence submissions, I will address first those advanced for you, Mr W. Your counsel, Mr W, accepts a starting point at the top of band four towards the 20 year mark as described in R v AM is inevitable here. He describes your offending as an example, in his words, of the “paradigm case” of sustained intra-familial abuse described in R v AM.1
[25] The uplifts sought by the Crown for the serious administration of methamphetamine and objectionable publications charges are also accepted at the further 3 years suggested.
[26] Your counsel, Mr W, however urges quite properly that the end sentence must remain in proportion to the overall gravity of your offending, pursuant to the totality principle.
[27] He then goes on to suggest there are no personal aggravating factors, and also there is a basis to make allowance for your circumstances, Mr W. He says there is a nexus between your background Mr W (in particular your early life experiences, which it is suggested involved sexual abuse and deprivation) and your offending. He also submits there should be some recognition provided for your potential for rehabilitation here.
[28] And, turning to your discount for an early guilty plea, he submits a discount far greater than 10 per cent is warranted in recognition of this. The inevitability of
1 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [109].
conviction in this case he accepts but he submits the social utility of an early guilty plea here was “far greater” than is acknowledged by the Crown. A guilty plea discount of the maximum 25 per cent allowance he maintains is appropriate.
[29] And, an MPI of between 40 and 50 per cent is accepted as unavoidable in this case. Finally, despite the Crown no longer pursuing a sentence of preventive detention, your counsel, Mr W, argues strongly against the imposition of such a sentence by the Court in this case.
[30] I now turn to defence submissions advanced for you, Ms W. Your counsel, Ms W, accepts the offending here unavoidably falls into band four as outlined in R v AM. He acknowledges there is clearly a significant breach of trust, coupled with extreme victim vulnerability and a prolonged period of serious offending. It is acknowledged too that the making of digital recordings and the use of methamphetamine at various stages in the offending are “extremely aggravating factors”.
[31] Mr Hewson submits, however, the real issue before the Court is to what extent discount can be made available to you, Ms W, on the grounds of your role, the coercive control and manipulation you were submitted to by your husband and other personal factors that permitted the evolution of the offending. He maintains there is no uplift required for personal factors and there are grounds for deductions of up to 50 per cent from the starting point to take into account your role, Ms W, in the offending and that coercive control from your husband which led you to participate in the offending.
[32] In recognition of your very guilty plea, it is submitted that in these circumstances a full 25 per cent guilty plea discount is available. When you were arrested, Ms W, you made a full and frank evidential video interview with the police, which has been relied on in part by the Crown in bringing the charges here. Thankfully, this has limited the need to interview the victim. Your counsel says too, Ms W, that you have encouraged resolution of this matter throughout and pleaded guilty to all charges as soon as they were appropriately laid in court.
[33] Your counsel, Ms W, submits also that imposing a minimum period of imprisonment is not necessary for you here.
Approach to sentencing
[34] I now turn to the sentencing approach I must take in this case. I follow the general two-step approach to sentencing introduced by the Court of Appeal in Moses v R.2 In doing so, I must take into account the principles of sentencing under s 8 of the Sentencing Act and may also consider the relevant purposes under s 7.
[35] The first step is to calculate the starting point, incorporating the aggravating and mitigating factors of the offence. At this step, I assess a number of features which add to or reduce the seriousness of the conduct and the criminality involved. The overall objective is to adopt a starting point reflecting the culpability inherent in this particular offending.3
[36] The second step is to adjust the starting point, applying uplifts and discounts that reflect the aggravating and mitigating factors personal to you, Mr and Ms W, as well as any guilty plea discount, to reach an end sentence.
[37] It is appropriate here to adopt a global starting point for all your offending, taking the sexual offending as the lead charges before applying discrete uplifts for the remaining offending to the extent I consider it appropriate to do so.
Purposes and principles of sentencing
[38] The principles of sentencing which I am required to take into account are set out in s 8 of the Sentencing Act. I did not read these out in Court for timing reasons. These sections provide, however:
Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
(a)must take into account the gravity of the offending in the particular case, including the degree of culpability of the
2 Moses v R [2020] NZCA 296.
3 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [28] and [32].
offender; 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 the offender 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 the offender 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, in accordance with the hierarchy of sentences and orders set out in section 10A; and
(h)must take into account any particular circumstances of the offender 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 the offender’s 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; and
(j)must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10).
[39] I may also take into account the general purposes of sentencing in s 7 of the Act. Also I did not read these out in court in full for timing reasons.
7 Purposes of sentencing or otherwise dealing with offenders
(1)The purposes for which a court may sentence or otherwise deal with an offender are—
(a)to hold the offender accountable for harm done to the victim and the community by the offending; or
(b)to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
(c)to provide for the interests of the victim of the offence; or
(d)to provide reparation for harm done by the offending; or
(e)to denounce the conduct in which the offender was involved; or
(f)to deter the offender or other persons from committing the same or a similar offence; or
(g)to protect the community from the offender; or
(h)to assist in the offender’s rehabilitation and reintegration; or
(i)a combination of 2 or more of the purposes in paragraphs (a) to (h).
[40] In this case, I consider the purposes of sentencing most relevant are holding you both, Mr and Ms W, accountable for the harm done to the victim, promoting a sense of responsibility for that harm, denouncing your conduct and deterring others from committing such offending but also assisting, as far as possible, your rehabilitation and reintegration.
Victim impact statement.
[41] Next, I turn to the victim’s victim impact statement. This Court and all present have heard the extensive victim impact statement. I have had the opportunity to consider this for some time. It is chilling and harrowing to hear the victim’s genuine words about this haunting ordeal for her. Her statement is detailed, eloquent and, no doubt, heart-felt. I thank the victim very sincerely for her statement.
Pre-sentence reports
[42] The Court has received a number of reports for its assistance in this matter. I will turn first to those reports prepared for you, Mr W.
[43] Your counsel submits the reports prepared for you demonstrate a nexus between your background and your offending. Counsel submits that you, Mr W, suffered sexual abuse and deprivation in your early life experiences, which have shaped the adult you have become and your attitudes and behaviours, particularly towards sex.
[44] Your counsel, Ms W, contends the reports prepared for you form a basis for a finding that you have been the subject of extreme and coercive control and grooming by your husband, and he has denied you entirely any access to support networks. Counsel submits, without overlooking the seriousness of your offending that you committed against your daughter and your responsibility in that offending, that the combination of these factors have, at least in part, made you, Ms W, a secondary victim to the overall offending.
[45]I now turn to the particular reports prepared for you, Mr W.
Psychological Assessment Report
[46] A psychological assessment report has been prepared by Dr Melanie Simons, a registered clinical psychologist, in March 2022. This assessed you, Mr W, as being of above average risk of sexual offending, with sexual offending against a pre-pubescent or pubescent female known to you, or with whom unsupervised contact is allowed, the most likely re-offending scenario. The report writer recommended too that you be considered for the Child Sexual Offender Treatment Programme.
Provision of Advice to Courts (PAC) report
[47] A PAC report was prepared relating to you, Mr W, and listed as specific offending-related factors for you:
(a)relationships;
(b)lifestyle;
(c)attitudes;
(d)drug use;
(e)violence; and
(f)offending-related sexual arousal.
[48] The report writer assessed you as having a dysfunctional upbringing, Mr W. Insecure attachments, a self-destructive lifestyle and self-sabotaging behaviours were underlying factors that controlled your impulsive and risky sexual behaviour. The report writer, however, did note a lack of insight on your part, Mr W, into your offending, compounded by your illicit drug abuse, which resulted in repeated and escalated offending. Ultimately your likelihood of re-offending was assessed as high, as well as you having a high risk of harm to others.
Psychiatric report
[49] The Court has also received a report for you, Mr W, pursuant to s 88 of the Act from Dr Oliver Hansby, a consultant forensic psychiatrist. In that report, Dr Hansby records a reported traumatic and unstable upbringing involving extrafamilial sexual abuse. He noted what he described, Mr W, as your mental distress and drug abuse. Of concern, he said, the sexual acts perpetrated by you on your step-daughter involved psychological and physical coercion, involving inherently degrading and sadistic acts. Dr Hansby noted, Mr W, that your presentation and history did not support a diagnosis of bipolar disorder, despite you self-reporting as such. He did conclude, however, you presented with personality dysfunction and sexual deviance. In terms of the risk of your re-offending, Mr W, Dr Hansby described a risk that appears contextual, for example a risk that would escalate if you were in a dominant relationship with another adult who provided access to a young female.
Section 27 report
[50] Your s 27 report, Mr W, lists the following negative factors by way of background:
(a)experience of sexual abuse;
(b)normalisation of violence;
(c)normalisation of problematic alcohol and substance use; and
(d)mental health difficulties.
Letter in support
[51] The Court has also received a letter in support of you, Mr W, dated 18 August 2022, from Audrey White, who recently has worked with you as a counsellor. Meetings with you have occurred approximately every two weeks. Ms White advises in this letter that you “continue to engage well and are determined to work through your past issues and you continues to show good progress.”
[52]I now turn to the particular reports prepared for you, Ms W.
PAC Report
[53] The PAC report prepared identifies a number of factors that may have contributed to the offending as:
(a)unhealthy relationships and lifestyle choices;
(b)family violence;
(c)drug use;
(d)friends and associates; and
(e)offending-related sexual arousal and attitudes.
[54] As I understand it Ms W, you accept all but the last two of these as contributing factors to your offending.
[55] The PAC report describes increasingly violent and controlling behaviour by your husband towards you, Ms W, with an increase throughout in demeaning demands made on you. This, it is said, included requiring you to have sex with his friends, to engage with dating sites, and to exchange sex for drugs. The report also describes material suggesting that you, Ms W, felt threatened, isolated and constantly at risk of being abused, which affected the decisions you then made. The report says too you were scared of being left alone, scared of the threat of future punishment and incapacitated by fear of your husband’s control. The report says you, Ms W, presented
as anxious and highly traumatised, and significantly it assesses your risk of reoffending as relatively low.
Psychological report
[56] The Court has also received a psychological report for you, Ms W, prepared by Kelly Fisher, a registered psychologist. In that report, the report writer concludes you are at a low risk of re-offending sexually. The report writer suggests that to assist you to live an offence-free lifestyle, it would be important to address the trauma you experienced as a victim in your relationship with Mr W as well as the real trauma you have experienced due to offending against your daughter, the victim. Ms Fisher says you would also benefit from understanding how your life experiences and personality traits make you vulnerable to entering exploitative relationships, and how to manage a development of networks within the community following your release from prison.
Psychiatric report
[57] A psychiatric report prepared for you, Ms W, by Dr Lorraine Davison, a consultant psychiatrist, relates a number of the same factors as the other two reports I have mentioned. Dr Davison notes that you have a notable lack of risk factors here, Ms W, and no evidence exists that you exhibit sexual deviance, a psychopathic personality or a major mental illness. The report writer states there is no evidence that you harbour sexually violent ideations or have entrenched attitudes supporting sexual violence against others.
[58] Dr Davison sets out five treatment targets in her report, including participation in a drug treatment programme, improvement of self-assertiveness skills, self- confidence, navigating intimate relationships, and improving self-awareness and insight.
First step — Starting Point
[59] In setting the appropriate starting point, I take account of the guideline judgment for sexual offending, R v AM, as well as the aggravating and mitigating factors of the offence.
[60] In R v AM, the Court of Appeal set out four sentencing bands for sexual offending where the lead offence is rape, penile penetration of the mouth or anus or violation involving objects. The four bands are as follows:
(a)Band one — where aggravating factors are either not present or present to a limited extent: six to eight years’ imprisonment;
(b)Band two — where the scale of offending and levels of violence and premeditation are, in relative terms, moderate: seven to 13 years’ imprisonment.
(c)Band three — where aggravating features are at, relatively speaking, a serious level: 12 to 18 years’ imprisonment.
(d)Band four — where there is multiple offending over considerable periods of time rather than single instances of rape: 16–20 years’ imprisonment.
[61] The bands outlined in R v AM are not determinative. What is required is an evaluation of all relevant matters, including the degree to which aggravating and mitigating features are present. In Crump v R, the Court of Appeal emphasised that the point of guidelines “is not to impose a straitjacket on sentencing judges” but is in fact “quite the reverse”.4 There remains at all times discretion and flexibility to go outside the bands.5
Aggravating factors of the offence
[62] The Crown submits here and I agree there are a number of aggravating factors in this case, namely: a high degree of planning and premeditation; a degree of violence; an extremely vulnerable victim; significant harm to the victim; the scale of offending by two parents invovling a complete breach of trust; and an extreme degree of violation.
4 Crump v R [2020] NZCA 287 at [96].
5 Orchard v R, above n 3, at [28].
[63] Both of your counsel, Mr and Ms W, for their part accept there are a number of aggravating features here, in particular the significant breach of trust, the extreme vulnerability of the victim and the prolonged nature of the offending.
[64] Thus it is generally accepted by all parties the offending here does involve a number of aggravating features and falls into the top of band four. For completeness I will describe the presence of these aggravating features in more detail now.
Planning and premeditation
[65] There was a high degree of premeditation present in your offending against the victim. The offending was not impulsive or opportunistic in nature. It carried on for a period of at least seven years. The victim was groomed extensively, one video showing you, Ms W, providing the victim with sweets while your husband sexually violated her. Methamphetamine was provided to the victim throughout many of the incidents. The offending was filmed. It showed costumes, sex toys and other sexual apparatus being used. In some of the footage the victim had explicit writing on her body. These preparations point to considerable planning and premeditation here.
Violence
[66] The offending involved occasional violence being used against the victim. The Court of Appeal noted in R v AM too that there is violence inherent in any act of sexual violation.6 However, the Crown points in particular here to you, Mr W, in one incident strangling the victim by holding your hand on her neck and choking her while sexually violating her.
Vulnerability of victim
[67] The victim was extremely vulnerable. In particular she was young and in a familial relationship with and dependent on you both as her parents. The offending started when she was eight years old and continued through to when she was 15. The early offending took place in Australia, away from family in New Zealand. The victim describes in her victim impact statement being “voiceless and weak” and that “there
6 R v AM, above n 1, at [38].
was no escaping”. I accept the Crown’s submission that during the entire period of the offending, the victim had no way to escape this repeated offending, with no other adult to turn to.
Harm to victim
[68] The Crown acknowledges the harm to the victim is difficult to ascertain at this time, due to the extreme nature of the offending and the fact that recuperative measures to address the effects of the abuse are hard to assess. However, the Crown does point to an assessment of the victim conducted by ACC, which found she suffers from post- traumatic stress disorder (PTSD) as a direct result of the sexual abuse. Crown advice to the Court is that the victim suffers from nightmares, anxiety, panic attacks, intermittent irritable behaviour, including anger, hypervigilance, isolating from others, and loss of pleasure in activities.
[69] It is impossible to know exactly what harm the offending will cause the victim. The victim has been subjected as a child growing up to extreme behaviour and traumatic experiences which will no doubt continue to haunt her for years to come. The victim impact statement is chilling and concerning. It details the loss of her childhood, her freedom and her happiness, as well as worryingly it describes her body being stolen from her as a child.
[70] Overall, the statement reveals the victim as having a remarkably strong and resilient character on her part as a young woman. It seems, fortunately, that the victim may not have developed a dependency on methamphetamine, despite the actions of you both in continuously administering it to her. However, the fact she has not, does not diminish your culpability in putting her in such a situation.
[71] I consider the harm you have both caused the victim a significant aggravating factor in this case.
Multiple offenders
[72] As the Court of Appeal stated in R v AM, the fact the violation involved more than one offender acting together is a factor increasing culpability. In this case often
both you, Mr W and Ms W, acted together, even offending against the victim at the same time or otherwise filming the other sexually abusing the victim and even assisting them in doing so at times.
[73] I consider this factor, involving as it did both of her parents, who should have cared for her, acting in a concerted effort to offend against the victim, aggravates the seriousness of the offending against the victim here.
Scale of offending
[74] The scale of offending in this case was significant, extending the abuse over a prolonged period of time, more than seven years. Mr and Ms W, you recorded the offending and photographed the victim in forced and degrading poses. Derogatory and demeaning phrases were written on the victim’s body which further degraded her, causing additional emotional harm.
Breach of trust
[75] In this case there was a complete breach of trust on the part of both of you, Mr and Ms W. You, Ms W, as the victim’s mother introduced Mr W to the victim as a father figure from a very young age. The Crown submits here there can be no greater breach of trust.
Degree of violation
[76] The degree of violation in this case was extreme. As the Crown says, the victim was violated with the use of sex toys, strap-on dildos and sex apparatus. The victim was violated vaginally, anally and orally. The victim’s body was drawn on and filmed. The victim was not only the subject of sexual acts but was also forced to perform many sexual acts it appears largely on you, Mr W, but also to a lesser extent on you, Ms W. The degree of violation to the victim was significant.
Mitigating factors of the offence
[77] I consider there are no mitigating factors of the offending in this case. I turn now to assess a proper starting point for sexual offending charges here
[78] The guideline judgment in R v AM clearly points to a starting point for the present sexual offending at the top of band four. Nevertheless, in adopting an appropriate starting point for the sexual offending charges, I do need to take account of relevant case law.
R v Rose
[79] In R v Rose, a recent 2021 decision in this Court, the defendants Mr Williams and Ms Rose, who had been in a relationship for approximately 10 years and shared a sexual interest in underage girls, were sentenced on 56 and 55 charges respectively.7
[80] The defendant Mr Williams offended against seven victims who ranged in age between three to 13 years old. His offending included sexual violation by rape, unlawful sexual connection and various other indecencies, including against a child, as well as filming, making and possessing objectionable publications.
[81] The defendant Ms Rose offended against four of these victims. Ms Rose’s offending included inducing a victim to penetrate herself vaginally and anally with sex toys and to masturbate herself. With another victim, Ms Rose befriended and distracted the victim’s mother while Mr Williams offended against her daughter. With two other victims, Ms Rose manually manipulated the victims and helped them adopt sexual positions which exposed their genitalia for Mr Williams to film.
[82] This offending lasted five years. Unlike the present offending, none of the victims in that case, however, were subjected to more than four episodes of abuse.
[83] In sentencing the defendants, Muir J noted the fact the two defendants acted together increased the seriousness of the offending but acknowledged that the two defendants played different roles in the offending: Mr Williams as a perpetrator in respect of all victims and Ms Rose as a combination of perpetrator and enabler. His Honour also accepted, however, that Mr Williams would not have been able to access the majority of the victims had it not been for the involvement and assistance of Ms Rose.
7 R v Rose [2021] NZHC 2110.
[84] As to starting points, Muir J adopted a starting point for the defendant Mr Williams of 20 years’ imprisonment on the lead charge of rape of the three-year-old victim, with an uplift of six years’ imprisonment for the remainder of the offending on a totality basis.
[85] His Honour adopted a starting point of 20 years’ imprisonment for the defendant Ms Rose. This was reduced to 17 years to take account of her mental health having a causative impact on her offending. An uplift of three years was then applied to account for the remainder of her offending, again on a totality basis.
R v F
[86] In R v F, a 2018 decision again in this Court, Palmer J sentenced the defendant to an end sentence of 19 years and six months’ imprisonment, with an MPI of 50 per cent, for 36 charges of sexual offending against his daughter.8 The offending occurred over a prolonged period of time, starting when the victim was 10 or 11 and continuing until she ran away at age 25. The lead charges were 14 specific and three representative counts of sexual violation by rape. The remainder of the offending included a number of other sexual and violence charges, including unlawful sexual connection and indecent assault.
[87] In sentencing the defendant, Palmer J considered the offending to be a “paradigm case” of band four offending due to the aggravating features of abuse of trust, victim vulnerability, the scale and duration of offending and harm to the victim being present to a high degree, with a moderate degree of associated violence and coercion. His Honour found the offending to be equivalent to cases with starting points of 19 to 20 years’ imprisonment. His Honour took an overall starting point of 19 years and six months’ imprisonment, which became the end sentence with no further personal aggravating or mitigating factors.
8 R v F [2018] NZHC 1313.
R v K
[88] R v K, a 2015 decision again in this Court, involved prolonged sexual offending against the defendant’s two daughters, one while aged 13 to 18 years old and the other 12 to 16 years old.9 The offending against both daughters included charges of rape, unlawful sexual connection, sexual conduct with a young person under 16 and indecent assault. In addition, in relation to the defendant’s younger daughter, the defendant took photographs and videos of her in various stages of dress, naked and engaging in sexual acts. The defendant stored the images for his own gratification but also uploaded images of himself abusing his daughter to a child pornography website. In sentencing the defendant, Woodhouse J adopted a starting point of 20 years’ imprisonment. The fact there was no physical violence beyond what is inherent in the offences counted as the absence of an aggravating factor rather than a mitigating factor. His Honour applied uplifts for other lesser sexual offending against four other victims, resulting in a starting point of 21 to 21-and-a-half years’ imprisonment. After discounts were applied for personal mitigating factors, the defendant was sentenced to an end sentence of 15 years and nine months’ imprisonment with an MPI of eight years.
F (CA844/2013) v R
[89] In F (CA844/2013) v R, a 2014 Court of Appeal decision, the defendant was sentenced for serious sexual offending against a friend of his children from the age she was seven or eight to age 16 and an indecent assault on another girl on one occasion.10 The defendant’s offending against the first victim involved him, apparently on hundreds of occasions, putting his penis into her mouth and ejaculating. This escalated to raping her on regular occasions from when she was aged 12 or 13 until she was 16 years old.
[90] The District Court Judge in sentencing the defendant adopted a starting point of 20 years’ imprisonment before allowing the defendant the full 25 per cent discount for his guilty pleas, resulting in a sentence of 15 years’ imprisonment with an MPI of
9 R v K [2015] NZHC 1778.
10 F (CA844/2013) v R [2014] NZCA 390.
seven-and-a-half years.11 On appeal, the Court of Appeal concluded the offending was within the most serious of cases and upheld that starting point adopted of 20 years’ imprisonment.
Analysis
[91] In the present case, Mr and Ms W, the Crown submits that your offending in this case is more serious than the offending in the three cases R v F, R v K, and F (CA844/2013) I have outlined above. This is due to the fact that you acted together in your abuse of the victim. The Crown says you were the victim’s “whole world” and together you sexually enslaved her from the age of eight. You added to the already unimaginable abuse, the Crown says, by writing degrading phrases on the victim’s body and recording the acts. They say the victim was irretrievably denied her childhood.
[92] The offending in R v Rose did differ somewhat from the present offending, in that the offending in that case involved multiple victims, although the abuse suffered by each victim was more limited. The Crown contends the offending in your case, Mr and Ms W, involved a higher level of trust breached, and says the degree and scale of violation was greater in this case given the victim, your daughter, suffered abuse for a number of years rather than only a few specific instances.
[93] Overall, I am satisfied here there are a number of aggravating factors to your offending in the present case. I am of the view the offending here is a clear example of the “paradigm case” of band four offending involving intra-familial rape over a period of years. As I see it, the offending in this case falls within the most serious of all sexual violation cases. The lack of significant violence occasioned against the victim or the fact there is only one victim does not mitigate the gravity of the offending. A starting point at the very top of the range is called for in this case.
[94] I therefore adopt a starting point for the sexual offending charges for you both, Mr W and Ms W, of 20 years’ imprisonment.
11 R v [F] DC Whangārei CRI-2013-088-1435, 21 Whiringa-ā-rangi | November 2013.
Administering methamphetamine offending
[95] The Crown submits the charges of administering methamphetamine to the victim are different in kind from the sexual offending, they require separate analysis and will necessitate a cumulative approach to the starting point. The Crown suggests an uplift of 18 months or more is appropriate.
[96] In the present case, Mr and Ms W, you administered methamphetamine to the victim on at least six known occasions during the course of your sexual offending against her. The Crown suggests it is not known what harm this had on the victim at the time and what effect this will have on her as she grows up. I note positively the victim records she has been clean for over a year-and-a-half and reports she does not have any cravings for methamphetamine. Given her age at the time the victim was repeatedly administered methamphetamine this is fortunate. One can only hope this continues.
[97] The Crown maintains this offending by itself could warrant a starting point of five years’ imprisonment or more. Taking totality into account, the Crown says an uplift of 18 months is appropriate here. Both of your counsel, Mr and Ms W, seem to accept an uplift along these lines is appropriate.
[98] The administering methamphetamine charge is different in kind from the sexual offending and I accept it warrants a cumulative approach. As far as quantum is concerned, I am of the view the uplift of 18 months is in line with the authorities and appropriate here.
[99] Accordingly, I impose an uplift of 18 months for the charges of administering methamphetamine.
Making objectionable publications offending
[100] The Crown submits the charges of making an objectionable video/image are distinct from the sexual offending and methamphetamine charges. They say these recordings add a further element of degradation to the offending as a whole and an
uplift to mark the different and additional harm caused by the recordings made in this case is sought.
[101] In particular, the Crown advises these charges have had an impact not only on the victim, but also on the police detective conducting the investigation, who had to spend in excess of 100 hours watching, re-watching and listening to the disturbing and graphic content in the videos. Such an impact was recognised in R v Rose as a factor taken into account in sentencing the defendants in that case.12
[102] The offence of making an objectionable publication carries a maximum penalty of 10 years’ imprisonment. The Crown submits it is difficult to think of a worse case than the publications made in this case. Having regard to the importance of retaining proportionality between the gravity of the offending and the sentence to be imposed pursuant to the totality principle, the Crown says an uplift of 18 months’ imprisonment is appropriate to mark this offending. Generally your counsel, Mr and Ms W, seem to accept these charges are serious offences in their own right and acknowledge such an uplift is appropriate.
[103] Accordingly, I impose an uplift of 18 months for the charges of making an objectionable publication. In conclusion on this first step, the final overall starting point here is one of 23 years’ imprisonment.
Second step — aggravating and mitigating factors of the offender
[104] I turn now to the second step of the sentencing process, at which I adjust the starting point with uplifts and discounts to reflect factors personal to you both here.
Previous convictions
[105] Though you, Mr W, have a limited criminal history, including a family violence charge of male assaults female dating from 2008, no uplift is sought by the Crown in this regard and I do not consider it appropriate to impose such.
[106]You, Ms W, have no previous convictions.
12 R v Rose, above n 7, at [93].
Issues over previous good character
[107] I decline to provide any discount for previous good character to either of you, Mr W and Ms W, for reasons as have been outlined already. You both offended against the victim repeatedly for seven years. Your offending came to light by chance. I accept the Crown’s submission there is no telling how long the victim would have continued to suffer your abuse had it not. The offending spanned seven years, that is half the lifetime of the victim, your daughter, at the time. The offending came about despite your parental responsibilities to your daughter. The persistent offending against her over a number of years removes, in my view, any claim either of you might have had to a discount for previous good character.
Guilty plea
[108] Whether and when an offender pleads guilty may be a mitigating factor supporting the provision of a discount to a sentence.13 In doing so, however, the Court must undertake a flexible enquiry that has regard to all of the circumstances of the case.14
[109] The credit given for a guilty plea should reflect the benefits of the plea to the criminal justice system as well as to the victims and witnesses.15
[110] It is accepted on all sides that to your credit, Mr and Ms W, you both entered pleas at the earliest reasonable opportunity.
[111] However, the Crown submits this was a case where, since the entirety of your offending was recorded, you had little choice but to plead guilty. The Crown says that in this case the guilty pleas provided no benefit to the victim or to any witnesses. Because the recordings existed, very few witnesses would have been required and the victim may not have been required to give evidence.
13 Sentencing Act, s 9(2)(b).
14 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
15 At [45].
[112] The Crown submits the only benefit of the pleas was that they saved the state the modest cost of running a very short trial. The Crown submits a discount of less than 10 per cent is appropriate in this case.
[113] I disagree with the Crown on this point. I consider the Crown takes an unduly restrictive view of the benefits of the guilty plea in this case.
[114] Undoubtedly, as the Supreme Court stated in Hessell v R, the weight of the prosecution’s case against defendants, and the probability of a conviction, is relevant to the level of discount to be provided for a guilty plea. The Supreme Court there was of course rightly concerned about the criticism that unjustified windfall benefits are provided by the system to those who have little choice but to plead guilty if it were otherwise. However, this does not mean that only a very modest discount should be available for a guilty plea where the strength of a prosecution case is high. As the Court of Appeal stated in Millar v R:16
… it would be wrong to treat those comments of the [Supreme] Court as standing for the proposition that the stronger the prosecution case, the lower the guilty plea discount. The focus of the Court in this aspect of Hessell was on the genuineness of the offender’s acceptance of responsibility. That is the inquiry the sentencing court must make …
[115] In Millar, even though the case against the offender was “overwhelming”, the Court of Appeal restored a 25 per cent credit to the offender on the basis that he fully accepted responsibility for his offending.
[116] Apart from the cost of running a trial, there are a number of other benefits flowing from a guilty plea. Perhaps the most important of these is that it avoids a witness or victim having to testify orally. However, the social utility of a guilty plea goes beyond saving a witness or victim from having to give oral testimony at trial. Even where a trial is conducted on the basis of recordings as opposed to live witness testimony, it can still be severely traumatic for all involved, including a jury.
[117] The benefit of a guilty plea to a victim of offending also goes beyond not having to give testimony in court. There may be a lesser need to interview a victim
16 Millar v R [2019] NZCA 570 at [36].
(particularly in an extensive manner) and a victim may not have to provide any additional information or evidence. A victim may also be assisted, in a more restorative sense, through the offender’s acknowledgement of responsibility for the wrongdoing.17 A guilty plea is one of the more tangible ways for a defendant to acknowledge responsibility for their offending and signal to the victim and community that they accept wrongdoing.
[118] I also accept that a guilty plea can help to avoid additional trauma for those involved in a case apart from the absence of a trial per se. The continued assertion of innocence, even (or perhaps especially) in the face of overwhelmingly strong evidence, can continue to have effects on those affected, including victims and witnesses but also officers, both of the police and of the court and wider justice system.
[119] I therefore do not accept that the only benefit of the guilty pleas in this case, a case admittedly with overwhelmingly strong evidence, was the administrative saving.
[120] Your counsel, Mr W, suggests the social utility of the guilty plea in this case is far greater than what has been acknowledged by the prosecutor. Both defence counsel contend a reduction of up to 25 per cent should be available for each defendant.
[121] Here, both of you, Mr W and Ms W, pleaded guilty at the earliest reasonable opportunity. Ordinarily this would entitle you to the full 25 per cent discount typically provided for a guilty plea entered at the first reasonable opportunity. I consider in this case your guilty pleas have had benefits beyond merely the administrative savings of the cost of a short trial. I note you, Ms W, in particular made a full and frank evidential video interview before police, which has been relied on in part by the Crown in bringing charges here. However, at the same time, I do acknowledge the Crown’s argument that the evidence against you both here, and the likelihood of conviction, was strong. Taking the comments of the Supreme Court in this regard into account, in these circumstances I consider a discount of 20 per cent for each of your guilty pleas, Mr and Ms W, is appropriate.
[122]I apply a discount of 20 per cent for your guilty pleas to each of you.
17 See Adams on Criminal Law (Thomson Reuters) at [SA9.18].
Remorse
[123] Next, I address the issue of remorse. Turning first to you, Mr W, your counsel suggests that some expressions of remorse from you are evident in the various reports. He does acknowledge however that your remorse and understanding of the distorted and perverse way in which you thought and behaved in carrying out the offending here will not be fully formed until you do receive intensive treatment. I encourage you, Mr W, to engage with treatment as you state you have committed to, but I decline to allow any discount to you for any remorse. Such a discount would be plainly inappropriate. In my clear view there is no evidence before the Court at this point of any genuine remorse on your part.
[124] In terms of you, Ms W, I consider the situation is quite different. Your counsel maintains there is a basis for a finding that in your marriage you felt entirely threatened and isolated and that the threat of being abused affected the decisions you made. There are suggestions you did feel scared of the threat of future punishment from your husband and incapacitated by fear of his control if you did not acquiesce. According to the PAC report, you saw your arrest and remand in custody as a blessing because it got you and your daughter, the victim, out of the situation. The report notes, Ms W, that you presented as “highly traumatised” and sad at your inability to keep your daughter safe from this offending, as well as anxious to know how your daughter, the victim, was doing. In all the material before the Court, as I see it, genuine remorse on your part, Ms W, is clear.
[125] I note too in particular the victim’s impact statement in this regard. In that statement, your daughter expresses anger, upset and disappointment in you, her mother. Nevertheless, she also expresses forgiveness towards you. Indeed, the victim expresses a gladness now at being able to build her relationship with you again, as well as a commitment to support you in your situation. The clear sense conveyed from that statement is a cultivated situation of calculated, manipulative and domineering control by the victim’s step-father, against both the victim and you, her mother. I consider it demonstrates clearly the dynamics of the household situation and the reality of the coercive situation.
[126] In these circumstances I am prepared to allow you, Ms W, a five per cent discount for remorse.
Personal circumstances
[127] I turn first to you, Mr W, and note that your counsel submits there is a basis in this case to make allowance for circumstances particular to you. While sexual deviance is a contributing factor, counsel submit your early life experiences, Mr W, were marked by sexual abuse and deprivation and there is a nexus between this background and your offending.
[128] As to your upbringing, counsel notes, Mr W, you had a history of poor mental health, including what is said to be transient suicidality. Mr W, you apparently suffered incidents of head trauma as a child and as an adult, as well as experiencing what were said to be traumatic sexual experiences as a child and young person. In particular, you report having been sexually abused multiple times at a very young age by being raped by a male family friend. You also say you were sexually abused in the company of your mother and step-father, which involved being required to masturbate in front of them. You report too that while at secondary boarding school, you were given alcohol by the matron, who then commenced to repeatedly sexually abuse you.
[129] Your counsel submits these repeated incidents of sexual abuse precipitated, maintained and escalated your early sexualisation, Mr W, which later became significantly deviant. He suggests you have since relied on sexual means and substance use to manage your unstable moods, and you have distanced yourself from meaningful relationships for self-protection. The current offending, he says, was maintained by deviance, disinhibition and situational impairment due to intoxication, the presence of a co-offender, distorted rationalisations for the offending, and a lack of regard for the rights and needs of the victim. These, it is submitted, all linked back to your formative experiences, Mr W, and form a clear linkage between those experiences and the present offending in this way.
[130] Your counsel also seeks a discount for recognition of your potential for rehabilitation, Mr W, which furthers the goal of community protection. He contends you have never sought to dispute this offending or aspects of it. He says too you
understand that specialist long-term interventional treatment is necessary and that you have both expressed a desire and demonstrated a motivation to engage in such treatment.
[131] I acknowledge your own reports of sexual abuse occasioned against you, particularly as a child Mr W, though as far as I am aware there is no independent report before the Court of any of this. Nevertheless I am prepared to take them into account to an extent here. I also acknowledge, Mr A, you appear to have struggled with poor mental health and substance abuse. I do note however that, while you self-report as having bipolar disorder, Dr Hansby, who has examined you, does not consider you suffer from bipolar disorder or, for that matter, any other mental illness.
[132] Nevertheless, in recognition of the above factors, I consider a modest discount of five per cent is warranted here. I am satisfied this discount acknowledges the difficulties Mr W you seem to have experienced in life, including experiences which may today have shaped your behaviours, particularly your sexually deviant behaviours. I also consider this discount acknowledges your stated wish to engage in treatment and rehabilitation.
[133] I allow you, Mr W, a five per cent discount to recognise factors personal to you which have contributed to the present offending.
[134] Turning now to you, Ms W, your counsel submits there can be a discount from the starting point to take into account your role in the offending and the coercive conduct that led you into the offending. I deal with this below, in respect of issues over the totality of your sentence.
[135] Mr Hewson further submits, however, there are grounds for further deductions from the starting point on the basis of factors personal to you, Ms W. Certain personal factors have been identified as leading you to engage in the present offending in this way, namely your unhealthy relationships and lifestyle choices, influences by and separation from friends and associates in respect of the offending, and evidence of family violence and drug use. In all the circumstances here, I am prepared to grant you, Ms W, a five per cent discount to take account of these factors and I now allow
this five per cent discount for factors relating to your personal circumstances resulting in the offending.
Sentence calculation
[136] As will be apparent from the above, I consider a starting point of 23 years’ imprisonment for each of you, Mr W and Ms W, is appropriate in respect of the present offending.
[137] I am satisfied as I have noted that a discount of 20 per cent is appropriate in this case to recognise your guilty pleas.
[138] So far as you, Mr W, are concerned, I am also satisfied a discount of five per cent is warranted for personal circumstances which have contributed to your present offending. This amounts to a total discount of 25 per cent. This results in a provisional end sentence for you, Mr W, of 17 years’ imprisonment.
[139] With respect to you, Ms W, I am also satisfied a discount of five per cent is appropriate to recognise your clear remorse in respect of the offending as well as a further discount of five per cent to recognise factors relating to your personal circumstances, a total discount of 30 per cent. This amounts to a provisional end sentence for you, Ms W, of 16 years’ imprisonment.
Totality
[140] I turn now to the issue of totality. Since the present case involves sentences of imprisonment for more than one offence, I am required to have regard to the totality principle, under which the total sentence must be proportionate to the gravity of the overall offending.18
[141] Total sentences here must represent the overall criminality of the offending. How the total sentence is made up, whether cumulative or concurrent sentences, or a mixture of both, is a matter of individual discretion and assessment by the Court.19
18 Sentencing Act, s 85.
19 R v Williams CA91/00, 31 Haratua | May 2000 at [11].
[142] Where the offending involves multiple offences, the total sentence imposed can be greater than the maximum penalty allowed for any one offence. This is because the maximum sentence available for a particular offence may not be sufficient to mark the overall culpability of the offender.20
[143] Sentencing is not a mathematical exercise. As the Supreme Court stated in Hessell v R, it must involve a “full evaluation of the circumstances to achieve justice in the individual case”.21 As the Court of Appeal has more recently stated, this requires flexibility and discretion.22
[144] Mr W, standing back and considering your sentence as a whole, I am satisfied that the total sentence of 17 years’ imprisonment is appropriate in the circumstances to recognise the gravity of your offending.
[145]This is the final sentence I will impose on you, Mr W.
[146] However, in respect of you, Ms W, I do not think the total sentence of 16 years’ imprisonment accurately represents the overall criminality of your offending here.
[147] In saying that, I do not understate your involvement in the overall offending against your daughter, the victim. You groomed the victim for sex largely by your husband but also by yourself and later normalised the offending. You assisted your husband substantially in the abuse of the victim. You also at times actively recorded videos and images of the offending and you also engaged yourself in numerous and prolonged sexual acts with the victim.
[148] However, in my view in all the circumstances here, your culpability in respect of the present offending is significantly lesser than that of Mr W. In the evidence that has been provided to me, a clear picture emerges of some manipulation, coercion and control by you, Mr W, over both the victim and your wife Ms W. I accept in one sense you, Ms W, in a way may have been a secondary victim of your husband’s offending
20 R v Mackwood CA197/95, 28 Poutūterangi | March 1996.
21 Hessell v R, above n 14, at [38].
22 Zhang v R [2019] NZCA 507 at [120].
in this case which could be categorised as a situation of “social entrapment”.23 A possible argument exists that you, Ms W, would not have offended against the victim in the way you did had it not been for the coercive and controlling influence of your husband Mr W including through fear, intimidation and increasing isolation.
[149] This is not purely a comparative exercise with reference to the sentence I am imposing on you, Mr W. It is a totality assessment in its own right taking into account the significant level of coercion your husband Mr W appeared to have levelled against you, Ms W, to offend against your daughter, the victim.
[150] In these circumstances, I am of the view a further discount is appropriate in this situation to more accurately reflect, Ms W, your level of criminality with respect to the present offending. I consider a discount of 15 per cent is appropriate.
[151] I grant a further 15 per cent discount to your sentence, Ms W, by way of a totality adjustment.
[152] The total discount of 45 per cent results in a final end sentence with respect to you, Ms W, of 12 years and six months’ imprisonment.
Minimum period of imprisonment (MPI)
[153] The Crown seeks a minimum period of imprisonment (MPI) here. Under an MPI, an offender must serve a minimum period that is longer than one-third of the length of the sentence but not longer than two-thirds of the full term or 10 years’ imprisonment. The Court may impose an MPI if it is satisfied the one-third default minimum is insufficient to hold the offender accountable for the harm done, to denounce the conduct, to deter the offender or others, or to protect the community.24 The central consideration is the offender’s level of culpability.25
23 For a discussion of social entrapment in an environment of intimate partner violence (IPV), see Julia Tolmie and others “Social Entrapment: A Realistic Understanding of the Criminal Offending of Primary Victims of Intimate Partner Violence” [2018] NZ L Rev 181.
24 Sentencing Act, s 86(2).
25 R v Brown [2002] 3 NZLR 670 (CA) at [32].
[154] The Crown says an MPI of 10 years is appropriate for both defendants here to hold them accountable for the extreme harm done to the victim by their offending as well as to denounce and deter this conduct.
[155] As the Court of Appeal noted in R v AM, the imposition of an MPI of at least half the nominal sentence is “routine” in cases involving multiple counts of sexual offending against children.26 I note that in R v Rose the MPI imposed for both defendants in that case was 40 per cent.
[156] Counsel for you, Mr W, as I understand it accepts an MPI of between 40 and 50 per cent is incontestable here.
[157] In this case I consider that for you, Mr W, an MPI of 50 per cent is appropriate. That is eight years and six months.
[158] With respect to you, Ms W, your counsel submits that, in the absence of any real concerning risk assessment, the only basis for the imposition of an MPI for you would be general or specific deterrence or denunciation. He argues an MPI is not appropriate.
[159] I agree. Having regard, Ms W, to your overall level of culpability in this case and the low risk of offending in the same way again, I do not consider an MPI beyond the one-third default minimum is necessary in this case. I do not impose an MPI in respect of Ms W in this case.
Preventive detention
[160] Under s 87 of the Sentencing Act, the Court may impose a sentence of preventive detention on an offender if it is satisfied the person is likely to commit another qualifying sexual or violent offence if released at the sentence expiry date. The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.
26 R v AM, above n 1, at [156].
[161] The s 88 reports conclude that the risk of the you, Ms W, re-offending is low and would only occur given a specific concoction of factors, including lack of social support and the presence of an exploitative partner. You, Mr W, are assessed in the psychological report as at above average risk of sexual re-offending. In making this assessment, however, the assessor noted your lack of previous convictions and counselling work, and suggested successful completion of intensive treatment is “likely to provide [you] with skills which may assist to manage [your] risk of re- offending”.
[162] As noted above, the Crown does not seek preventive detention for either of you in this case. The Crown submits a lengthy determinate sentence for each of you will provide adequate protection for society in this case, in terms of s 87(4)(e) of the Sentencing Act, and be a fitting denunciation of the offending.
[163] The decision to impose a sentence of preventive detention “remains a matter of discretion” even if the statutory preconditions are established.27 I agree with the Crown’s position that preventive detention is not necessary here. While the offending is serious, I consider a lengthy determinate sentence such as is being imposed here will provide adequate protection to society. When you are both eligible to apply for parole, the Parole Board will assess the risk you pose at that time, having had an opportunity to address the causes of your offending through intensive and offence-specific treatment courses and rehabilitation. If granted parole, or at the end of your finite sentences, an Extended Supervision Order can be imposed for a further 10 years. Given these considerations, I am satisfied that preventive detention is not necessary in the circumstances here.
[164] Accordingly, I do not order preventive detention for either of you, Mr W or Ms W.
Registration on the Child Sex Offender Register
[165] The offending constitutes offences listed in sch 2 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. Each of you, Mr and
27 Kumar v R [2015] NZCA 460 at [78], citing R v C [2003] 1 NZLR 30 (CA) at [6].
Ms W, have received a sentence of imprisonment. Both of you will therefore be automatically registered on the Child Sex Offender Register by operation of law.
[166] This means your names and information relevant to you as defendants, Mr and Ms W, and your offending will be placed on the Register. You will be required to report changes to your personal information, which can be accessed by Police and Corrections and may be shared with particular government agencies.
[167] It is an offence to fail to comply with the reporting obligations without reasonable excuse, or to provide false or misleading information. As defendants you will be required to remain on the CSO Register for life. Reporting obligations will begin when you are released from custody.
Name suppression
[168] As the victim is under the age of 18 years and the subject of one of the specified sexual offences committed against here, her identity is automatically suppressed under both ss 203 and 204 of the Criminal Procedure Act 2011 (the CPA). I am satisfied, given the closeness of you both, Mr and Ms W, as defendants to the victim in this case, that publication of identifying particulars of your names or other identifying particulars would lead to the identification of the victim here. I therefore make an order under s 200(1) and (2)(f) of the CPA for permanent suppression of the victim’s name and your names, Mr and Ms W, as defendants, along with any other identifying details, in order to protect the identity of the victim.
Result
[169]Mr W:
(a)On the sexual violation by rape and other sexual offence charges you are sentenced to 17 years’ imprisonment with an MPI of eight years and six months.
(b)On the administering methamphetamine charges, you are sentenced to 18 months’ imprisonment to be served concurrently.
(c)On the making and possessing objectionable videos and images charges, you are sentenced to 18 months’ imprisonment to be served concurrently.
[170]Ms W:
(a)On the sexual violation and sexual conduct with a child charges, you are sentenced to 12 years and six months’ imprisonment, with no MPI.
(b)On the administering methamphetamine charges, you are sentenced to 18 months’ imprisonment to be served concurrently.
(c)On the charges of making an objectionable video/image you are sentenced to 18 months’ imprisonment to be served concurrently.
Other orders
[171] I also make the following forfeiture and destruction orders sought by the Crown:
(a)For destruction of the objectionable publications seized from the defendants, pursuant to s 136(1) of the Films, Videos, and Publications Classification Act 1993;
(b)Authorising the destruction of the “thing” that contains the objectionable publications, either by wiping or physical destruction pursuant to s 136(3) of the Films, Videos, and Publications Classification Act 1993.
(c)For destruction of the sex toys and paraphernalia and drug utensils found at the defendants’ address, pursuant to s 142N of the Sentencing Act.
Gendall J
Solicitors:
BVA The Practice, Palmerston North for the Crown
Paul Murray Barrister & Solicitor and Peter Foster Barrister for the Defendant P W Simon Hewson Barrister for the Defendant S W
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