R v Rae HC Auckland CRI 2007-004-021910

[2008] NZHC 2617

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-004-021910

THE QUEEN

v

SIMONE MAREE RAE

Hearing:         9 October 2008

Appearances: G Kayes for the Crown

K Trotter for the Prisoner

Judgment:      9 October 2008 at 9 October 2008

SENTENCE OF POTTER J

Solicitors:           Crown Solicitor, P.O. Box 2213, Auckland 1140

Copy to:            K Trotter, P.O. Box 105-421, Auckland 1143

R V RAE HC AK CRI 2007-004-021910  9 October 2008

Charges

[1]      Simone Marie Rae you are before the Court for sentence on five charges of unlawful sexual connection with a young person under the age of 16 years.   The charges to which you entered guilty pleas on 28 May 2008, are under s 134 of the Crimes Act 1961 and carry a maximum penalty of ten years imprisonment.   The maximum penalty was increased from seven years to ten years in 2005.  As the Court of  Appeal  noted  in  R  v  Boyd  (2004)  21  CRNZ  169  at  [40]  this  is  protective legislation:

… quite deliberately put in place by our Parliament to protect young girls against precisely the sort of thing that occurred in this particular case … the fact that the conduct could in a sense be described as “consensual” is of no moment.

[2]      The victims of the offending were Ms Rae’s own daughter S aged 14 years at the time and her friend M aged 15 years at the time of the offending.  Both girls were staying with Ms Rae, S being normally in the custody of her father who lives in Tauranga.

[3]      In relation to M Ms Rae is charged as principal offender in respect of oral connection between Ms Rae’s mouth and M’s genitalia and digital penetration of M’s genitalia by Ms Rae.  In relation to S, Ms Rae is charged as a party, the principal offender being Raymond Hessell.  The charges relate to oral connection between S’s mouth and Hessell’s genitalia, the digital penetration of S’s genitalia by Hessell and oral connection between Hessell’s mouth and S’s genitalia.

[4]      Mr Hessell faces a further four charges in addition to the five charges in which he is charged jointly with Ms Rae.  I am advised that he has entered not guilty pleas to all charges and that there is a firm fixture for the trial in December of this year.

Background facts

[5]      The events that give rise to these charges took place on 22 September 2007 when the two girls were staying with Ms Rae at her Mt Eden home.

[6]      Around 1 p.m. Ms Rae took the girls to the liquor store where they purchased a considerable quantity of liquor.

[7]      That evening Ms Rae was visited by Raymond Hessell, a man she had only recently met and with whom she had a one-night stand.   Mr Hessell and Ms Rae smoked methamphetamine together, though apparently not in front of the girls.  The girls were drinking alcohol and became intoxicated.  They watched a DVD and then Mr Hessell and Ms Rae went to his place  and uplifted two more pornographic DVD’s and a dildo, which were given to the girls.

[8]      Mr Hessell and Ms Rae went into Ms Rae’s bedroom where they consumed more drugs and began having consensual sex.  The girls became curious and peeped through the curtain which divided the bedroom from the sitting room.  They were invited into the bedroom where Mr Hessell and Ms Rae were lying naked on the bed. Ms Rae accepts that she agreed to the girls being invited into the room despite feeling uncomfortable about it.

[9]      There followed discussion of a sexual nature.  Mr Hessell then asked the girls to sit on the bed and remove their pants.  They did so.  Then followed the acts of sexual connection to which the charges relate.  While Mr Hessell alternated between the victims, orally and digitally penetrating them simultaneously, Ms Rae sat on the bed watching.   Both girls were participating but Ms  Rae  acknowledges  that  M looked uncomfortable.  Ms Rae then orally penetrated M and inserted her finger in M’s vagina.  She says she knew it was not right but that she was “too wasted to think straight”.  She admitted that watching the sexual activities with Mr Hessell and the girls aroused her sexually.

[10]     Ms   Rae   states   that   she   stopped   touching  M   as   she   began   to   feel uncomfortable about it, and could tell that M was perhaps not as willing as she appeared.  Both girls then left the room.

[11]     The girls remained at Ms Rae’s house for the next few days where apparently nothing was said about the offending.   Mr Hessell was also present during this period.   The girls then went to stay with S’s aunt to whom they disclosed the offending.  When confronted, Ms Rae immediately acknowledged the offending.

Pre-sentence report

[12]     A pre-sentence report has been provided to assist the Court in sentencing.

[13]     Ms Rae is 36 years of age.  She was unemployed at the time of the offending as the result of her drug addictions, though had previously held responsible positions in employment.  S is her only child.

[14]     Ms Rae grew up in Auckland as the middle of three siblings.   Her older brother sexually abused her from the age of 7 to 14 years.  When her parents became aware of this, Ms Rae was briefly removed to a girls’ home and then boarded at Whangarei Girls High, which she enjoyed, until leaving school at age 16.   She reports two other instances of abuse, including rape, during her childhood.  She was again the victim of rape when aged 21.  She has been diagnosed with post-traumatic stress disorder as a result of these experiences.

[15]     Ms  Rae  suffered  symptoms  of  abuse  during  her  childhood,  including isolation, lack of trust, eating disorders, stealing and rebellion.  She reports starting drinking at the age of 12.  She began smoking cannabis at 16 or 17, which quickly escalated to 6 – 8 sessions per day for many years.  She started using P at age 23, and remained addicted until very recently.

[16]     S was born when Ms Rae was 20 years old.   Ms Rae separated from the father after three years, and he has had custody of S ever since.   Ms Rae has had contact with her daughter over the years but has been unable to establish a strong

relationship due to her drug abuse.  In August 2007 she attempted to stop using P after it caused her to lose her job but relapsed after a friend committed suicide.  She is currently on a sickness benefit.

[17]     Ms Rae describes the offending as “impulsive” as says that she did not think of the consequences at the time.  She says had consumed three cannabis joints and around half a gram of P on that day, which contributed to the offending.  She regrets her actions and was visibly upset on interview about not keeping the girls safe.

[18]     Since the offending, Ms Rae  has been involved in psychotherapy and is reported to be engaging well and showing motivation.  She is assessed as having a having a high risk of re-offending given the nature of the charges, but also as having a high level of motivation to affect change.  The report writer has been in contact with SAFE and recommends that Ms Rae attend a programme for female sexual abusers of minors.  The report writer recommends imprisonment but notes that home detention may be considered.

[19]     Ms Rae has one previous conviction for drink driving in 2000.

Victim impact statements

[20]     I have received victim impact statements which not surprisingly show that the offending has had a significant impact upon, and consequences for the two victims.

S

[21]     Following the offending, it was discovered that Mr Hessel had Hepatitis C. S was  obliged  to  undergo  tests  but  fortunately  did  not  contract  any  sexually transmitted infections.

[22]     To cope with the offending, S confided in some school friends.  One of these told others, and the offending became the subject of gossip around her school.  She has been teased and taunted which resulted in her wagging school.  Her grades have

dropped  significantly  and  she  has  lost  a  lot  of  friends.    She  has  become  less outgoing.

[23]     S currently receives counselling, though she feels that this does not really help.   In August, she was struggling to cope with the pain of the offending and attempted to cut her wrists.  She says that after initially arguing a lot with her father she is now able to talk things through with him, which she finds helpful.

[24]     S states that she used to have a good relationship with her mother, though this has suffered since the offending.  She felt that a part of her was missing when her mother went to prison but she sees hope for her mother and acknowledges that Ms Rae is helping herself by undergoing therapy and drug and alcohol rehabilitation.

M

[25]     M is evidently struggling to cope with other people’s perceptions of her following the offending.  She says she is ostracised at school.  While she and S made a ‘pact’ not to tell anyone about the offending, it nevertheless became common knowledge at the school that she and S both attend.  Like S, she has lost friends and become less socially outgoing.

[26]     Her mother reports that M suffers flashbacks and is on medication to help her sleep.  She says her daughter has become a different person.  Bullying at school has resulted  in  her  being moved  to  a  different  classroom.    She  has  been  receiving counselling and recently has been seeing child mental health professionals due to suicidal thoughts.

Aggravating factors

[27]     There are seriously aggravating factors of this offending.   First the harm caused to the victims, which is only too apparent from the victim impact statements. Secondly the fact that there were two victims of this offending.   Thirdly the significant breach of trust.   Ms Rae’s daughter and her young friend should have

been able to look to Ms Rae for care and protection, particularly while they were staying in her home.  Instead, she exploited the trust she had in respect of them by exposing them to and indeed encouraging, serious sexual offending against them.  It is only too clear that Ms Rae was much more concerned for her own drug habits and her ability to pursue them, than she was about protecting her daughter and her young friend in a situation where she held a position of trust towards them.  Fourthly, Ms Rae was well aware of the victims’ ages.  She exacerbated the vulnerability of their youth by providing them with alcohol and encouraging them to use it.   She knew they were intoxicated at the time of the offending.

Mitigating factors

[28]     There  are no  mitigating  factors  of  the  offending.    As  I have  previously observed this law exists to protect girls at an age when it is considered they are not yet able to make their own mature decisions.   The participation of Ms Rae in the offending denied the protection these two young victims were entitled to receive from her.

[29]     The personal mitigating factors advanced on behalf of Ms Rae by her counsel Mr Trotter, are essentially not disputed by the Crown.  First, she entered guilty pleas as soon as an amended indictment was filed.   I accept that may be treated as the equivalent of an early guilty plea and Ms Rae is entitled to a reduction in the penalty that would otherwise be imposed, on account of the early guilty pleas.

[30]     Secondly, in a letter dated 15 May 2008 counsel for Ms Rae has indicated that she will be available to give evidence against Mr Hessell.  That offer has been accepted by the Crown and a signed brief of evidence dated 25 July 2008 has been completed.  On the authority of R v Hadfield CA337/06 14 December 2006 she is entitled  to  credit  for  the  assistance  she  has  provided  to  date  as  well  as  her undertaking to provide future assistance by giving evidence at the trial of Mr Hessell.

[31]     Thirdly, Ms Rae has made a full and frank confession to the Police and has expressed her profound remorse for the events which implicated her daughter and her daughter’s young friend in such an unfortunate way.

[32]     Fourthly,  Ms  Rae  has  taken  positive  steps  to  address  the  causes  of  her offending which are essentially drug related and to seek to significantly reduce the risk that she will re-offend.   She has sought the assistance of a psychotherapist, CADS and Narcotics Anonymous.  In an addendum to the pre-sentence report dated

3 October 2008, the probation officer reports that Ms Rae has undergone a preliminary interview for admission to the SAFE programme.  That has resulted in an “Expression of Opinion” that Ms Rae “appears to be a suitable candidate for treatment”.   The addendum report notes that full assessments for the SAFE programme are not completed until a community based sentence is imposed and that acceptance of Ms Rae on to the programme will depend on her being assessed as suitable when she undergoes the full assessment.  The report notes that if she were not to be accepted, alternative counselling would need to be arranged.  However, the report also records that Ms Rae is assessed as motivated to undergo the SAFE programme.

[33]     Fifthly, Mr Trotter refers to the previous good character of Ms Rae.   As I have noted she has only one previous conviction for driving with excess breath alcohol.

Principles and purposes of sentencing

[34]     Counsel have helpfully referred me to the relevant purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002 which I take into account.

Sentencing

[35]     I have been assisted by thorough and constructive submissions by counsel for the Crown and for Ms Rae.  Both counsel submit that a starting point in the region of two and a half to three years imprisonment would be appropriate in this case.

[36]     Counsel referred to a number of relevant authorities, accepting that because of the variety of circumstances in cases of unlawful sexual conduct with young people under 16, there is no particular guideline case or tariff.   I have considered

particularly those cases that post-date the 2005 amendment which increased the maximum penalty for this type of offending to ten years imprisonment.   These include R v Savelio HC WG CRI 2007-485-28 28 March 2007, Miller J and R v A CA194/07, CA271/07 17 October 2007 and Marino v Police HC GIS CRI 2008-416-

4 22 February 2008, Lang J.

[37]     Perhaps the closest factually to the circumstances of this case is R v A where A, a female, was convicted by a jury of six counts of unlawful sexual connection against two male victims, one aged 15 and the other aged 14.  A was 40 years old at the time.  She was sentenced to three years imprisonment from a starting point of three and a half years imprisonment.

[38]     The facts of that case are briefly that A was staying with family members of whom one of the victims was a son and the other victim was a close friend of the son.  The members of the household were drinking on the evening in question and A supplied both boys with alcohol.  A took the boys, B and C, to a shed on the property and had sexual intercourse with B.  C fondled A during this activity.   Back at the home A performed oral sex on both boys and then had sexual intercourse with both boys.  A continued for approximately a month to have a sexual relationship with the victim who was the son of the relatives with whom A had been staying.  Among the aggravating factors identified in the case of A, were the predatory nature of her behaviour and the continuing course of conduct.  Both those factors are not present in the case of Ms Rae’s offending, which I accept was opportunistic, though not entirely unpremeditated.  The breach of trust within the family is common to both cases.

[39]     I take as an appropriate starting point for sentencing two and a half years imprisonment.   I increase that by six  months to reflect the  aggravating factors, particularly the harm caused by the offending and the significant breach of trust involved.

[40]     There are the significant mitigating factors relating to Ms Rae to which I have previously referred, particularly the early guilty pleas, the full confession and co- operation with the Police, and the positive steps Ms Rae has taken to address her

history of addiction and the impact on her life of her own early experiences of sexual abuse by her brother.   I consider a reduction approaching 50% from the adjusted starting point of three years to be warranted.  The sentence I reach is one year eight months, or 20 months imprisonment.  This imports a discount for mitigating factors, of 45%.

Home detention

[41]     Given a sentence of 20 months imprisonment, it is open to the Court to consider a sentence of home detention in lieu of imprisonment.   To that end I adjourned sentencing with the agreement of both counsel on 19 August 2008 to enable a report to be provided, to address the factors as to which the Court must be satisfied under s 80A(2) of the Sentencing Act 2002 before a sentence of home detention may be imposed.

[42]     The report from the probation officer dated 3 October 2008 satisfies me that the proposed home detention residence at Unit 6, 2 Brightside Road, Epsom, Auckland is suitable; that the occupants, Ms Rae’s parents, understand the conditions of home detention that will apply, and consent to Ms Rae serving the sentence in their home in accordance with those conditions, including that electronic monitoring is part of the sentence.

[43]     The  report  recommends  that  a  number  of  special  conditions  should  be imposed if a sentence of home detention is to be considered by the Court.  They are listed in the report.  I am advised by Mr Trotter that Ms Rae has been made aware of and understands these conditions and agrees to comply with them.

[44]     This offending could well warrant a sentence of imprisonment.   However, given the fact that Ms Rae has served approximately five months in custody before bail was granted in May 2008, the personal efforts that Ms Rae has undertaken of her own initiative to address the causes of her offending,  and the favourable home detention report, I consider that a sentence of home detention may appropriately be imposed in this case.

[45]     I turn to consider the length of the sentence of home detention.  I take into account that the duration of the SAFE programme to which Ms Rae may be admitted if finally assessed as suitable, is approximately 12 months as recorded by the probation officer in her addendum report dated 3 October 2008.

[46]     It is important, I believe, that the sentence of home detention is followed by a period during which conditions apply, such that a level of supervision of Ms Rae is maintained to ensure that she obtains maximum benefit from the SAFE programme or alternative counselling during her sentence of home detention.  At the age of 36 this is a “make or break” opportunity for Ms Rae.   A sentence of home detention recognises her particular circumstances and is intended to provide the opportunity for her to address her drug addiction and the other factors in her background which have led to this offending.

[47]     Home  detention  is  a  less  punitive  sentence  than  imprisonment  so  an automatic halving of the appropriate sentence of imprisonment (which I have determined to be 20 months in this case) when computing the appropriate term of home detention, will not always be appropriate: Golding v Police HC Whangarei CRI 2008-488-3 14 February 2008, Rodney Hansen J at [16].  I consider in this case there are important considerations, to which I have referred in the preceding paragraphs, that render a strict arithmetical approach inappropriate.

[48]     I therefore impose a sentence of home detention for a period of 12 months subject to the conditions set out in the probation report, which I shall shortly specify. Pursuant to s 93 of the Sentencing Act I impose the standard conditions in s 14(1) of the Parole Act 2002 for a further six months following the expiry of the sentence of home detention.

[49]     I have imposed the home detention sentence of 12 months with the specific aim and purpose that it provide the opportunity for the rehabilitative processes to be fully undertaken and responsibly supervised.

[50]     Would you stand Ms Rae.

Result

[51]     The sentence imposed upon you is 12 months home detention subject to the following conditions:

a)       You are to reside at Unit 6, 2 Brightside Road, Epsom, Auckland for the  duration  of  the  sentence  and  not  to  move  from  that  address without prior written approval of the probation officer.

b)From the Court you are to proceed directly to Unit 6, 2 Brightside Road, Epsom, Auckland and there to await the arrival of the probation officer and the home detention security officer.

c)       You are to attend further assessment at the SAFE programme and complete the programme as directed by the probation officer or in the event that you are not accepted for the SAFE programme alternative counselling as directed by the probation officer.

d)You are not to have contact with the victim M and not during the term of   your   sentence   to   have   any   unsupervised   contact   with   S. Supervision may be provided by Ms Rae’s mother or any other person approved by the probation officer.

e)       You are not to have contact with any other person as directed in writing by the probation officer.

f)        You  are  to  continue  with  counselling  and  therapy  to  address childhood abuse issues and relationship issues.

g)       You are to continue with alcohol and drug counselling rehabilitation to the satisfaction of the probation officer.

h)You  are  to  undertake  any  other  assessments  and  counselling  as directed by the probation officer.

[52]     In addition there will be imposed standard conditions under s 14(1) of the Parole Act 2002 for a period of six months following the expiry of the sentence of home detention.

[53]     Ms Rae do you understand that sentence?   (Yes)

[54]     I hope you can abide by it and benefit from it.  It is a last chance. [55]          You may stand down.