R v Sehgal

[2018] NZHC 1145

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-092-3680

[2018] NZHC 1145

THE QUEEN

v

AVNEESH SEHGAL

Hearing:	22 May 2018
Appearances:	N E Walker and K S Li for Crown G Newell for Defendant
Judgment:	22 May 2018

SENTENCING REMARKS OF LANG J

R v SEHGAL [2018] NZHC 1145 [22 May 2018]

[1]    Mr Sehgal, you appear for sentence having pleaded guilty to three charges of dealing in a person under the age of 18 years for sexual exploitation.1 That charge carries a maximum sentence of 14 years imprisonment. You have also pleaded guilty to a charge of receiving earnings from commercial sexual services provided by a person under the age of 18 years.2 That charge carries a maximum sentence of seven years imprisonment.

Background

[2]    I sentence you on the basis of a summary of facts that you do not dispute. This records that the victim of your offending arrived in New Zealand in April 2014. The victim’s mother was on a visitor’s visa, and this expired whilst she remained in New Zealand. From that point on the victim and her family were overstayers in New Zealand.

[3]    Initially the family lived in Whangarei but subsequently moved to Auckland. There they resided at several addresses between 2014 and 2016. You became involved in a relationship with the victim’s mother during 2015. This resulted in you moving in to live with the victim and her family in mid-2015. During this period you were providing the victim’s mother and the remaining members of the family with financial support.

[4]    Shortly before the victim’s fifteenth birthday, her mother told the victim she would be required to engage in prostitution so that the family could meet its needs. The victim was initially told that this would be for a limited period only. Reasonably elaborate preparations were then made for this to occur. The victim was required to undergo a series of photographic shoots at which she was photographed in provocative clothing and poses. Advertisements were then placed in three publications in which the victim was advertised as being available for sexual services for reward. She was depicted in these advertisements under a false name and a false age.

1      Crimes Act 1961, ss 98AA(1)(a)(i) and 98AA(1)(e)(i).

2      Prostitution Reform Act 2003, ss 21 and 23.

[5]    The victim’s first client was on her fifteenth birthday. Over the next 18 months the summary records that the victim had sex for reward on approximately 1,000 occasions. On some occasions she was required to have sex with clients multiple times during the course of a day.

[6]    During the initial stages, the clients would come to the victim’s family home where sexual services would be provided to clients. Subsequently, however, the family moved to an apartment and it was no longer possible for clients to visit the victim at her home. Thereafter, she would travel to see clients either at their homes or at motel units rented for the purpose. The summary records that an average of $100 would be received per encounter. As a result, more than $100,000 was generated from the undertaking.

[7]    There is no dispute that you played a far lesser role in the offending than the victim’s mother. Nevertheless, you played a significant role. First, you allowed your bank accounts to be used to receive funds derived from the sexual services provided by the victim. On occasions you would also deposit cash derived from the provision of sexual services into the account. Over the 18-month period during which the offending occurred a total of approximately $86,000 was paid into your account. The Crown accepts that a single deposit of $26,000 was unlikely to be related to the offending, but submits that the balance of the deposits is likely to reflect the rewards derived from the offending. Further cash was no doubt retained and used to pay expenses.

[8]    You also undertook the role of paying advertising agencies for the advertisements that were placed in relation to this offending. You paid more than 70 advertising accounts having a total value exceeding $5,000. On at least one occasion you discussed with the victim’s mother the wording to be used in an advertisement.

[9]    The victim’s mother arranged for a driver to transport the victim to assignations away from her home. On occasions, however, the driver was not available and you would transport the victim to motels and clients’ homes. Often this would be in the company not only of the victim but also her mother and grandmother. On these occasions you would engage in discussions with the victim’s mother regarding the best

means by which to obtain the client’s identification. You also discussed how money was to be paid into the bank account. In addition, you told your partner she should pay for motels using cash so the payments would not show up in your bank account.

[10]   Funds from this enterprise were divided equally between the victim and her mother. From the funds to be paid to the victim, the mother would deduct amounts she claimed were owing in relation to rent and other household expenses.

[11]   Throughout this period, the immigration status of the victim meant she could not attend school. In addition, she was kept confined within the home and not allowed to play outside in case she would meet other young persons. Not surprisingly, she was left in a state of complete social isolation and had nobody to whom she could turn for help. She was not able to disclose the offending until she left Auckland to live in Whangarei in the latter part of 2016.

[12]   The offending has had a devastating effect on the victim. That has been outlined to a large extent already both in Court and in the press following the sentencing of your partner. For present purposes it is sufficient to say that the effects of the offending will last with her forever.

Starting point

[13]   Any sentence that is imposed on you must reflect the sentencing purposes of deterrence, denunciation and the need to hold you accountable for your offending.3 Importantly, however, I need to select a sentence that broadly relates to that imposed on your partner.4

[14]   The Judge who sentenced your partner selected a starting point of nine years six months imprisonment to reflect the overall culpability of all the charges she faced.5 Importantly, however, she faced a charge of dealing in slaves.6 This was a much more serious charge than those that you face even though the maximum sentence is the

3      Sentencing Act 2002, ss 7(1)(a), 7 (1)(e) and 7(1)(f).

4      Sentencing Act, s 8(e).

5      R v Lata [2018] NZHC 707.

6      Crimes Act 1961, s 98(1)(i).

same. In addition, there is no dispute that your partner was the instigator of the offending. She was the one who placed moral and emotional pressure on her daughter. She was the person who dealt with clients and in all material respects managed the prostitution business. For that reason the Crown accepts the starting point for the sentence to be imposed for your offending must be significantly less than that selected for your partner.

[15]   Both counsel have referred me to several cases that provide limited assistance in relation to the starting point to be selected for your offending.7 The Judge who sentenced your partner had regard to sentencing guidelines used in the United Kingdom to sentence persons convicted of similar offending to this.8 Taking those guidelines into account, the Crown suggests your offending would attract a starting point of between five and eight years imprisonment if you were to be sentenced in accordance with them. Taking the aggravating factors of your offending into account, the Crown submits I should select a starting point between five and six years imprisonment. Your counsel submits your lesser role in the offending does not justify a starting point beyond three to four years imprisonment.

[16]   There are several aggravating factors I need to take into account in selecting the starting point. The first is that the offending obviously involved a significant degree of planning and premeditation. Although these are inherent to some extent in the charges, nevertheless you became involved in the setting up and use of bank accounts and the payments for advertising.

[17]   The next factor is the vulnerability of the victim. She was trapped within a family environment that left her with little scope but to obey her mother’s demands. She was isolated from the family and other support networks that would normally be available to a person her age. You were prepared to become involved in the offending notwithstanding the fact that you must have known the extent to which she was vulnerable.

7      Hastie v R [2011] NZCA 498; Doling v Police HC Tauranga CRI-2010-470-000012, 18 March 2010; R v Dunkova [2010] EWCA Crim 1318, [2011] 1 Cr App R (s) 40.

8      R v Lata above n 5, at [41]; Sentencing Council for England and Wales Sexual Offences: Definitive Guideline (December 2017) at 89.

[18]   One of the most significant aggravating factors in relation to your partner was the gross breach of trust that occurred when she allowed her daughter to be used for the purposes of prostitution. The Crown accepts that this issue is not directly relevant in your case because you were not the victim’s father. Nevertheless, you were just one step away because you assisted the victim’s mother to perpetrate the offending against her own daughter. You must have known the gross breach of trust that was being committed here.

[19]   The next aggravating factor is the length of time over which the offending occurred. It occurred on a regular basis over approximately 18 months. Allied to this is the number of occasions on which the victim was required to engage in sexual activities with clients who paid for them.

[20]   The offending was also carried out purely for financial gain. I accept that you may not have received a large part of the proceeds of the offending. Nevertheless, a considerable portion of the proceeds went into your bank account and was no doubt used for household purposes. You therefore received a direct or indirect benefit from the offending.

[21]   Finally, there are the effects of the offending on the victim to which I have already referred.

[22]   Taking these factors into account I fix an overall starting point of five years nine months imprisonment. This reflects your culpability on all charges.

Aggravating factors

[23]   You have no previous convictions. For that reason there are no aggravating personal circumstances that would require me to increase the starting point I have selected. It remains only for me to reduce the sentence to reflect mitigating factors personal to you.

Mitigating factors

[24]   Given the fact that you have no previous convictions you are entitled to credit for your prior good character. Nevertheless, the credit to be given for this factor is tempered by the fact that the present offending occurred over such a lengthy period. You are also just 26 years of age. For that reason you cannot be given as much credit as a more mature person who has led a blameless life up until the first instance of offending. For that reason I propose to allow a discount of three months to reflect your previous good character.

[25]   I also need to take into account whether I should provide a credit in relation to remorse. The pre-sentence report paints a picture of a person who does not accept responsibility for his offending. The writer of the pre-sentence report states that you expressed some remorse, but this was not considered to be sincere. Today you have handed me a letter in which you express your remorse. If your remorse was genuine  I have no doubt you would have expressed it much earlier than today. For that reason I am not prepared to give you any credit for remorse.

[26]   The only remaining factor to which I need to give consideration is that relating to your guilty pleas. Your counsel suggests I should give you a credit of around 20 per cent to reflect these. This submission needs to be considered against the fact that you pleaded guilty on 17 April 2018, less than a week before your trial was due to commence.

[27]   In addition, the circumstances surrounding your guilty pleas need to be taken into account.   You  were on bail whilst awaiting your trial.   In the  early hours of   17 April 2018 you were arrested at Auckland International Airport after having checked in to travel on flights leading you to India. Quite clearly you did not intend to stay in New Zealand to stand trial. To your credit you entered guilty pleas the day you were arrested at the airport.

[28]   Nevertheless, the circumstances in which you entered your pleas reduce the discount I am prepared to give to reflect them. I propose to make an allowance of ten months, or approximately 15 per cent, to reflect your guilty pleas. This leads to an end sentence of four years eight months imprisonment.

Minimum term of imprisonment

[29]   In any case where the end sentence is one of two years imprisonment or more the Court may order a minimum term of imprisonment to be served before an offender is eligible to apply for parole.9

[30]   The Court may make such an order whenever the ordinary parole provisions are not sufficient to reflect the sentencing principles of deterrence, denunciation, the need to hold the offender accountable and the protection of the community.10 The last of these factors is not engaged in the present case because your counsel tells me you will be deported after completing your sentence. Nevertheless the Crown submits the remaining three factors are engaged, and that a minimum term of around 50 per cent should be imposed. Your counsel submits that a minimum term is not required and that the parole authorities should determine when you are released and deported.

[31]   In the ordinary course of events you would be eligible to apply for parole after serving just over 18 months of your sentence. I consider that would be manifestly insufficient to reflect the sentencing principles of deterrence, denunciation and, in particular in your case, the need to hold you accountable for your actions. For that reason I consider the imposition of a minimum term of imprisonment is appropriate.

Sentence

[32]   On each of the charges of dealing in a person under the age of 18 years for the purposes of sexual exploitation, you are sentenced to four years eight months imprisonment. Those sentences are to be served concurrently. On the remaining charge you are sentenced to two years six months imprisonment. That sentence is also to be served concurrently with the sentences imposed on the other charges.

[33]   On each of the charges of dealing in a person under the age of 18 years for sexual exploitation, you are ordered to serve a minimum term of two years four months imprisonment before being eligible to apply for parole.

9      Sentencing Act 2002, s 86.

10     Sentencing Act, s 86(2).

[34]Stand down.

Lang J

Solicitors:

Kayes Fletcher Walker, Manukau G Newell, Auckland