R v S HC Auckland CRI-2010-004-4325

[2011] NZHC 875

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF PRISONER.

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-4325

THE QUEEN

v

S

Counsel:         S Moala for Crown

T Saseve for Prisoner

Judgment:      22 July 2011

SENTENCING NOTES OF BREWER J

SOLICITORS

Meredith Connell (Auckland) for Crown

Tua Saseve (Auckland) for Prisoner

Introduction

[1]      “S”, you have been found guilty by a jury of 10 offences related to sexual offending against your stepdaughter.   Your offending took place over a period of some three years. Your stepdaughter was in the region of seven to 10 years old at the

time.

R V S HC AK CRI-2010-004-4325 22 July 2011

Facts

[3]      At your home in Wellington you raped your stepdaughter while she was in the shower and shortly afterwards again in her bedroom.  You were also convicted of unlawful sexual connection, in relation to two separate occasions, when you performed oral sex on her and inserted your fingers into her vagina.   Rape and unlawful sexual connection carry a maximum penalty of 20 years’ imprisonment.

[4]      During the rape in the shower you threatened to kill your victim if she said

anything. This charge carries a maximum penalty of seven years’ imprisonment.

[5]     You were also convicted of four counts of indecently assaulting your stepdaughter by performing simulated sexual intercourse on her, kissing her and touching her breast area.  Indecent assault on a child carries a maximum penalty of

10 years’ imprisonment.

[6]      You were also convicted of assaulting your stepdaughter by slapping her to the face as a result of complaints she had made against you to her mother.

Purposes and principles of sentencing

[7]      When sentencing you today I must take into account established sentencing principles.1    These include the need to denounce your offending, to hold you accountable to the community, to protect the community, and to deter you and others against future offending.  Your sentence must be consistent with sentences received by others for similar offending, while taking into account the factors specific to you and to your offending.  Finally, I must consider how you are to be rehabilitated and

reintegrated into the community.   I will particularly take this factor into account

when considering the Crown’s application for a minimum period of imprisonment.

1      Sentencing Act 2002, ss 7 and 8.

[8]      Sentencing is a two-step process.  First, I have to consider the seriousness of the offending itself.  In doing that, I fix a starting point for imprisonment in relation to the offending.  The second step is to consider matters relating to you personally in order to determine whether the starting point should be adjusted up or down.

[9]      In setting the starting point I have to have regard to other cases which tell me what ranges of starting points are applicable to cases such as yours. The leading case is the one you have heard the lawyers discussing this morning; it is a case decided by the Court of Appeal called R v AM.2

[10]     I  agree  with  the  Crown  and  with  Mr  Saseve  that  the  following  are aggravating factors of your offending:

(a)       There has been extensive harm to your young victim.  In her victim impact statement she says:

If I was to judge the way I feel on a scale where one was the worst I ever felt and ten was the best I would say that every day I am about a four.  I don’t feel good about myself and feel unhappy and scared a lot of the time.

I think about what has happened every day.   I don’t know what makes me think about what he has done to me, but when  I  do  it  makes  me  sad  and  angry  and  scared. Sometimes it only lasts a short time, but sometimes it can last a long time.

...

One of the most hurtful things was my mother not believing me and leaving me with him.  I don’t know why she didn’t do anything about it.

Because of what happened I do not trust anyone, not my mother or my father or anyone else in my life.   Because I don’t trust anyone I don’t have anyone to talk to.

(b)As your victim’s stepfather, you abused a position of trust.   This is what your stepdaughter says about that:

2      R v AM [2010] 2 NZLR 750 (CA).

When I was growing up I thought that [S] was my real father and I called him Dad.  I loved him like a father and he did bad things to me.

Other than the bad stuff that he did to me he treated me very well.  I trusted him to look after me.  I did not like the things he would do to me, but I still used to like him and trust him.

I know now that the stuff that he did to me is wrong, but when I was growing up I thought it was just normal and that it was what everyone else did when they were growing up.

(c)      Your victim was vulnerable due to her young age and relationship with you;

(d)Your offending involved planning and premeditation.   For example, the offending which took place in the cemetery was planned so that you could be alone with the victim;

(e)      The offending occurred on a number of occasions and over a period of three years or so;

(f)      You used violence and threats of violence.  This factor is made worse because of the context of the threats and use of violence.  That context was to stop your victim complaining or prevent her from complaining.

[11]     The Crown submits that I should take the two rapes as the lead charges and submits that your offending falls within band 3 of the Court of Appeal’s guideline in R v AM.  The Crown seeks a starting point of 12-13 years’ imprisonment and submits that I should impose a minimum period of imprisonment of 50% of that.

[12]     On your behalf, Mr Saseve submits that your offending falls within band 2 of R v AM.   In his spoken submissions to me this morning, Mr Saseve said that an appropriate end sentence is nine-10 years’ imprisonment.  He says that although the aggravating features I have just gone through may indicate a starting point within band 3, the two rapes occurred within the same incident of offending and the level of violence was low so that your offending fits better into the band 2 classification.

Culpability of offending

[13]     In my view, the main aggravating features of your offending are the young age of the victim, her relationship with you and the long period of time over which the offending occurred.  There were also threats of violence and an incident of actual violence, both aimed at preventing your victim from complaining.   I have decided that your offending is more serious than the cases which fall into band 2.

[14]     Rape band 3 carries a starting point range of 12-18 years’ imprisonment.  It is a  band  appropriate  for  offending  which  involves  two  or  more  of  the  factors increasing blameworthiness to a high degree, such as a particularly vulnerable victim and serious additional violence, or more than three of the aggravating factors to a moderate degree.  In my view the aggravating factors I have identified are all to a moderate degree.

[15]     The incident of violence is not a moderate one in itself.   But I take into account the purpose for which it was inflicted.  In my view it is appropriate that your case should be determined under rape band 3.  Taking into account the offences other than rape, and looking therefore at the totality of your offending, a starting point of

14 years’ imprisonment is appropriate on the lead offences of rape.  This puts your offending in the lower half of rape band 3.

Personal factors

[16]     I now turn to your personal factors. You are 50 years old. You are of Samoan descent and immigrated to New Zealand in 2003.  You have two children with your former partner, who is the victim’s mother.  In relation to this offending you continue to maintain that you are innocent and your new wife continues to support you.  No doubt this has made things all the more difficult for your stepdaughter.

[17]     You have previous convictions for mostly driving offending.  However, you do have a conviction for male assaults child in 2008.  The Crown has provided the summary of facts from that incident, which reveals an underlying sexual basis to that offending.  It occurred during the period in which you were offending against your

stepdaughter  and  you  served  a  sentence  of  community  work  in  respect  of  it. However, I note Mr Saseve’s submission that you strongly deny the matters set out in the summary of facts.   On that basis, I have decided not to treat your previous convictions as aggravating factors.  But they do mean that you are not entitled to a reduction  in  sentence  for  previous  good  character,  notwithstanding  the  positive things which have been said about you in the references which have been provided to me.

[18]     I note that you do not display any remorse because you continue to maintain that you did none of the things which your stepdaughter gave evidence about.

[19]     Accordingly,  I see no factors which should either increase or reduce the starting point.

Minimum period of imprisonment

[20]     The Crown seeks a minimum period of imprisonment of one-half of your sentence.  This is because the Parole Board would normally consider you for release on parole after one-third of your sentence had been served.   The Crown says that your case is one where I should decide that the Parole Board should not be allowed to look at you for parole until you have served one-half of your sentence.  The law says that a minimum period of imprisonment should only be imposed if the Court is satisfied that the normal one-third non-parole period would be insufficient; that is, insufficient for all or any of the purposes of holding the offender accountable for the harm he has done, denouncing his conduct, deterring the offender, and protecting the

community.3

[21]     I have decided not to impose a minimum period of imprisonment.  I take the view that your offending, although serious, did not involve unusual callousness or extreme violence.  You used your position in the household and you exploited your relationship with the victim to obtain sexual gratification over a period of three years

or so.  The sentence I must impose is a lengthy one.  It will enable the Parole Board

3      Sentencing Act 2002, s 86(2).

to  assess  your  situation  and  make  appropriate  decisions  without  any  further assistance from me.

Sentence

On  each  of  the  two  counts  of  rape,  you  are  sentenced  to  14  years’

imprisonment.

On each of the two counts of sexual violation by unlawful sexual connection,

you are sentenced to eight years’ imprisonment.

On each of the four counts of indecent assault of a child, you are sentenced to

three years’ imprisonment.

On  the  count  of  threatening  to  kill,  you  are  sentenced  to  one  year’s

imprisonment.

On  the  count  of  assault  of  a  child,  you  are  sentenced  to  three  months’

imprisonment.

[22]     All of the sentences will be served concurrently with each other.  That means

that the effective term of imprisonment is 14 years.  Stand down.

Brewer J