R v Samuel

[2013] NZHC 689

PROHIBITION ON PUBLISHING THE NAME OR IDENTIFYING PARTICULARS O F ANY PERSON UPON WHOM AN OFFENCE AGAINST SS128 - 142A, 144A CRIMES ACT 1961 HAS BEEN OR IS ALLEGED TO HAVE BEEN COMMITTED.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-7203 [2013] NZHC 689

THE QUEEN

v

GRAHAM TE AHURU S AMUEL

Respondent

Appearances: P P Crayton for the Crown

M N Sturm for the Prisoner

Judgment:      9 April 2013

SENTENCING NOTES OF PRIESTLEY J

Counsel:

P P Crayton, Crown Solicitor, Hamilton. Email: [email protected]

M N Sturm, Barrister, Hamilton. Email: [email protected]

R V SAMUEL HC HAM CRI-2012-019-7203 [9 April 2013]

[1]      Graham Te Ahuru Samuel, it is my task to sentence you today on two serious charges.   The first is a count of rape committed between the August 1966 and August 1967 period.   The second is a count of indecent assault on a young girl committed some time between 1971 and 1973 which involved digital penetration.

[2]      You pleaded guilty to both these charges when the matter was first called in the High Court in February.   The more serious count of rape carries a maximum, which then applied, of 14  years imprisonment.   The charge of indecent assault carries a maximum of 10 years imprisonment.

[3]      I need very briefly to outline the circumstances of the offending.  The rape occurred in a Waikato town when you were aged 19 or 20.  Your victim, who was a whanau member, was aged six at the time.  You were a frequent visitor to her family home.   You took her to a church where the family and you worshipped as you wanted to pick up a book.  Inside the church you removed her clothing, placed her on a table adjacent to the alter, and raped her.  This caused her huge physical pain. On the journey home you threatened to kill her if she told anyone what had occurred.

[4]      The indecent assault offending took place in the early 1970s.   Your victim then, according to the summary of facts, was aged between six and eight years.  She tells me she was seven at the time.  Again, this took place in a Waikato township. You again were inside her home.  Shortly after the victim used an upstairs bathroom you called her into an upstairs bedroom where you were waiting.  You bent her over the bed, removed her underwear, and after a number of inappropriate sexual contacts you inserted your finger into her vagina and penetrated her.   Again, this caused immediate physical pain so far as your victim was concerned.

[5]      From then onwards, and fortunately for you, your offending seems to have stopped and until complaints were made to the police over four decades later you never drew attention to yourself and have led a blameless, and indeed exemplary life.

[6]      Both your victims, who are now middle aged women, have prepared victim impact statements which were read out in Court to me this morning.  Both of them describe the harrowing emotional effects which your offending had on them.  I have

no doubt at all that, in common with many victims of sexual abuse, those emotional shadows hover over them today.  Where you have been fortunate, and where they have been resilient, is that because of their Christian faith they have, many years ago, been prepared to forgive you.  What both victims said today is not retribution against you but instead healing for the entire whanau.  Their approach is commendable and is one which I know from your own faith you will respond to.

[7]      I need to say something about your personal circumstances.   You are 65 years of age.  You have been married for over 40 years and have four adult children. You are of Ngati Haua and Ngati Tuwharetoa descent.  Your entire family for many years have been devout Christians of the Brethren faith and I note that your parents and  other  members  of  your  family  have  from  time  to  time  embarked  upon missionary work in the Western Pacific.   You have been gainfully employed throughout your life.  You have taught.   You have various health problems which have been itemised in a doctor’s letter to me, including early diabetes and hyper- tension, all of which are being contained by medication.   You also suffer from industrially inflicted deafness as a result of the many years you were involved in the welding industry and teaching it.  You are a senior elder of your Church and I repeat again that in the various communities which you have served over the years, you have led an exemplary life.   You have obviously positively affected the lives of many people and I have received a large number of letters and testimonials from people who speak highly of you.  You have no previous convictions.

[8]      I do  not  intent  to dwell  on  the various authorities  and  principles  of the Sentencing Act which must guide me.  These have been correctly identified by both counsel.  I accept that public safety issues are not a factor.  Nonetheless, Mr Samuel, your behaviour all those years ago must be denounced and I must impose a sentence on  you which recognises that  you  are accountable personally for the harm  you inflicted on your two victims.  I also think it is appropriate, in a case such as this, to give weight to the principle that the sentence I impose upon you should be the least restrictive outcome possible.

[9]      There are various mitigating factors relating to you which I shall identify shortly.     There  is  certainly  no  mitigating  factor  relating  to  your  offending.

Mr Crayton has correctly identified various aggravating features of your offending. These include:

[a]        the extreme vulnerability of your two victims, because they were just children, young girls;

[b]       an element of breach of trust;

[c]       the  predatory,  and  indeed  premeditated  nature  of  your  sexual offending;

[d]      your threat in respect of your first victim to kill her if she complained; [e]     the physical damage you inflicted;

[f]       the long-standing emotional harm which your offending produced. Those are all factors I have to bear in mind when assessing your culpability.

[10]     Sentencing you presents a number of difficulties.  Since your offending you have led an exemplary life.  You are a committed Christian and a senior elder in a Brethren Church.   You have an excellent work record.   Your former employer, kaumatua, and church office holders speak highly of you.  You are appearing before me as a first offender.  You are not a sexual predator at this stage of your life nor a risk to the public.  The risk of your re-offending has been assessed, and correctly so, by the probation report writer, as low.

[11]     You are aged 65 and have been diagnosed, but not to any significant life- threatening extent, with hypertension, high blood pressure, and early diabetes, in respect of which conditions you are prescribed extensive daily medication.

[12]     Because  your  offending  is  historic  (1966-1967  and  1971-1973),  your sentence must be crafted against the backdrop of the law as it then was.  There were maximum sentences then lower than those which exist today, and no tariff cases.

Mr Crayton is correct, with reference to R v Accused,1 in submitting that present day attitudes must govern a sentencing approach.  A start point must be fixed in relation to the maximum penalty then available.  But Mr Sturm has helpfully referred me to relevant dicta in R v R2  which confirms the approach that a sentence in a historical sexual  abuse case should  fix  a starting point  based  on  sentencing levels  at  the relevant time which reflect a case’s aggravating features.  This approach recognises

that baseline tariff sentences did not then exist.

[13]     It is common ground that I should use count 1, the rape charge, as the lead sentence.   It is also uncontested that the sentence I impose should reflect totality. Mr Crayton submits that, before mitigating factors, an appropriate start point is in the range of 9½ to 11 years imprisonment.  Mr Sturm submits an appropriate start point

is one of seven years imprisonment.

[14]     So I now assess your general culpability.  At the time of your offending you were young, 19 – 20  for the first offending and 24 – 25 for the second offending. This latter offending took place at a time, however, when you should have been a responsible and settled adult – although the dates do not permit certainty, that offending would have been in the same timeframe as the start of your 42 year marriage.   Significantly there was a considerable age gap between you and your victims.  Your first victim was aged about six.  Your second victim was seven.  They were young children.  You violated them.  The emotional scars you inflicted on them were lifelong.  There was physical damage as an aftermath.

[15]     It is difficult, in a whanau context, to assess the extent to which you breached trust.  Clearly you were not the prime caregiver or custodian of either child but as whanau or family members, both they, and the responsible adults who surrounded them, were entitled to assume the girls would be safe from sexual attack.

[16]     Unlike a lot of sexual offending in a familial context, your offending was not repeated but an isolated single event on each victim.   To some extent that must

temper the start point.    I consider the most important culpability factor was the vulnerability and youth of each of your victims.

[17]     The cases referred to me by counsel and cited in the authorities mentioned

range widely.   In R v Accused3

involving multiple sexual crimes, including rape,

committed by a father against his daughter and three other children in the five to 13 age range, a start point of eight years imprisonment was upheld by the Court of

Appeal.

[18]     Looking at your own culpability, when set against the 14 year maximum which applied in 1966, I consider that a start point between six and seven years would have been appropriate.   I also consider that, to reflect totality, an uplift of between 18 months and two years would be justified to reflect the marginally less serious violation committed by you approximately six years later.  So the start point I

intend to adopt is one of 8½ years imprisonment.

[19]     You are entitled to a substantial reduction to reflect a blameless life and the good reputation you have earned with your family and your church and secular communities.  To that major component I intend to extend a small discount to reflect your remorse (which I consider to be genuine), and a further discount to reflect your age and your ill-health.  The remorse is the least important of these factors, but you have indicated you are prepared, and have for some time been prepared to participate in a restorative justice programme.  Nonetheless for all those four mitigating factors

I allow a discount of two years, which brings the sentence down to 6½ years.

[20]     You are also entitled to a further discount in terms of Hessell v R.4

I intend

to allow you a further 18 month discount which is in the order of 23 percent.   I consider you are entitled to that generosity given your effective admission of guilt in respect of one of your victims at a counselling session in 2008 and also your entry of pleas in this Court immediately after committal.   There is force in Mr Sturm’s observation that difficulties, 40 years later, in sorting out factual ramifications, led to delays in formulating appropriate charges against you. There is also the fact that, I

suspect  for  deep  psychological  reasons,  you  could  not  yourself,  so  you  say, remember the details of your offending.  I consider such a discount is amply justified given that it means two middle-aged women who have essentially forgiven you are spared the trauma of having to give evidence.  Your pleas also minimise what could well have been division amongst members of your whanau – so often a factor in familial sexual abuse cases.  As one of your victims helpfully told me this morning, it is clear to me that the whanau are now focused on healing rather than past division.

[21]     That further discount of 23 percent brings me to an end sentence of five years imprisonment.  Taking a step back, I consider such a term is totally consistent with the Sentencing Act’s purposes and principles which must, as I have said, include denunciation and, in your case, the least restrictive outcome.  It also, in my view, is consistent with the sort of sentence which would have been imposed on you in the

1970s.  Nor is it inconsistent with the forgiveness which, consistent with committed

Christianity, has been extended to you by both your victims. [22]     Stand up please.

[23]     On count 1 I sentence you to five years imprisonment.  On count 3 I sentence you to four years imprisonment.  Both those sentences are to be served concurrently.

[24]     On counts 2 and 4 you are discharged without conviction pursuant to s 347 of the Crimes Act 1961.

[25]     To the extent that I have powers of recommendation, I recommend to the prison authorities that you be given the opportunity to pursue your faith.   I also recommend to the prison authorities that, if the two victims are willing, facilities be extended to you so some restorative justice programme can take place whilst you are in prison.   I point out to the prison authorities that you have considerable skills which could well be used to good effect if they so desire.

[26]     The fact that you are a sexual offender creates certain problems.  Whether or not you want to attend some form of programme designed for sexual offending is entirely up to you Mr Samuel.  For my part, given what is in the probation report and

the exemplary life you have led over the past 40 years, I see no useful purpose in you taking part in such a programme.   In saying that it would be my expectation the Parole Board would not hold against you, when you become eligible for parole, the fact you have not participated in such a programme.

[27]     Finally, I point out you are subject to an extensive regime of medication, and that should be continued.

[28]     What my sentence means is that you will not be eligible for parole until you have served approximately 20 months.  After that, whether or not you are eligible for parole will be entirely a matter for the Parole Board.  I would be surprised, however, if you were not paroled, given your background and record, at an early stage.

[29]     Thank you.  Stand down.

.......................................… Priestley J