R v Setu HC Auckland CRI 2009-092-6162

[2010] NZHC 538

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI 2009-092-6162

THE QUEEN
v

MOSES SETU

Hearing:               30 April 2010

Counsel:               Scott McColgan for Crown

Michael E Mann for Mr Setu

Sentence:             30 April 2010

SENTENCING NOTES OF HUGH WILLIAMS J

Sentences Imposed

Indecent assault (x2) (over clothing)  18 months imprisonment.

Indecent assault (x1) (kissing)  3 months imprisonment

All sentences to be served concurrently.

Leave to apply for substitute Home Detention sentence not granted

Solicitors:

Crown Solicitor, PO Box 2213, Auckland

Email:  [email protected]

Public Defence Service, PO Box 76715, Manukau City, Manukau (M Mann) Email  [email protected]

Copy for:

Law Commission, Sentencing Unit, Wellington.

Case Officer:           [email protected]

R V MOSES SETU HC AK CRI 2009-092-6162 30 April 2010

Mr Setu, it is normal that people stand while they are being sentenced but nowadays sentencing remarks have to be quite extensive so you and the escort can remain seated until I ask you to stand, thank you.

Mr Setu:

[ 1 ]  On 10 February this year, at the conclusion of a trial, the jury found you

guilty on three counts on three counts of indecent assault on a girl under 12 (in fact your six year old niece), two of placing your hand on her genitalia over the top of her clothing and one of kissing her on the mouth. One of the indecent assaults by placing the hand on the genitalia was representative over about a six month period as was the indecent assault by kissing. The specific offence was provoked by your sister-in-law seeing you with your niece on the carpet in the lounge. The maximum sentence which might be imposed on you is one of 10 years’ imprisonment.

1. The offences occurred during about a six month period in early 2008 when you were living in your half brother and sister-in-law’s house. You were then about 30 years of age.

2. It is important to note that you initially faced another five counts but you were acquitted on those and they were of somewhat more serious offending arising out of the same set of facts as the circumstances on which you came to be convicted.

3. You have been on bail since the jury’s verdict and the matter has taken a little longer than normal to come to sentencing because you and your half brother’s family were considering the possibility of some form of restorative justice, ifoga, something of the sort. Unfortunately, there were some administrative hiccups in relation to that and, understandably in the circumstances, your half brother’s family were guarded about the possibility of engaging in anything of that sort. So you have been on bail for the last two-and-a-half to three months and now come to be sentenced.

4. As Mr Mann accepts, you have a fairly unenviable record of previous convictions, something like 28 between the years 1996 and 2008. They involve

violence, dishonesty, traffic and the like. It is of interest to note, however, there are no sexual crimes in that list. But you have been on supervision, you have had community work and had periodic detention. Perhaps most importantly in August 2005, you were sentenced to two years two months imprisonment on a variety of offences and leave to apply for home detention was declined on that occasion.

1. The pre-sentence report shows that you have had a reasonable education - in fact, Mr Mann says you have been continuing with your polytechnic course up until the present time – but you have had poor health and been on a sickness benefit for something like 18 months. It seems as though you may well have some mental health problems. Mr Mann suggests you are schizophrenic. The pre-sentence report speaks of a “psychosis of sorts”. One does not need to delve into that too much but clearly you do have some mental health difficulties.

2. You told the probation officer and Mr Mann has repeated it today, that you accept the jury’s verdict, you accept what the young girl said took place and I quote from the pre-sentence report “I knew what was right and wrong”. But one of the main problems in sentencing is, to quote from the pre-sentence report, that you:

   “... displayed no victim empathy, shifting responsibility for his offending onto his victim.”

As Mr McColgan says, you seem to have regarded her as something of a “siren” and that is a disturbing issue when it comes to sentencing. It also lapped over into the terms of bail to which you were admitted and laps over the question whether you should be granted leave to substitute a sentence of home detention for that of imprisonment.

1. Bearing on that question, too, is the lack of victim impact statements here, although your half brother and sister-in-law have given a statement saying that for family and other reasons they do not wish to provide a formal victim impact statement. It is of interest that your sister-in-law said that she had been observing her daughter, the complainant in the case, since the middle of 2008 when this offending came to light and, so far at least, she has been unable to discern any behavioural problems or the like. So that gives a little confidence for the future.

We cannot be entirely assured by that because these issues often come to light after quite a lengthy period, but it gives a certain amount of hope that your offending has not seriously affected your niece on a long term basis. But the offending occurred because of your sexual arousal and the Probation Service recommends imprisonment. Indeed, that is the unanimous view of the Crown and the defence as well.

1. Mr McColgan, for the Crown, makes the point that this is of course offending

against a very young girl and deterrence is important. He points to a number of cases, particularly R v Accused[1] that in cases of this sort, imprisonment is almost the invariable outcome. Offending of this sort does require to be denounced, particularly against young and vulnerable girls, and particularly against a young girl who was entitled to protection from you, not to have you offend against her in the way you did.

[1] R v Accused (CA298/88) [1989] 2 NZLR 698 (CA).

[ 10] He also refers to a number of cases and I will include the references in the sentencing remarks. The case of R v M[2] in 2000 and another R v M[3], in 2009, in somewhat similar circumstances where the Court of Appeal said the appropriate starting point was a two year sentence but after mitigating features there was a sentence of 20 months imposed without home detention.

[2] R v M (CA 197/00) 19 July 2000.

[3] R v M(CA387/2009) [2009] NZCA 456.

[ 11 ] Mr McColgan suggests that the correct starting point here should be imprisonment in the order of 15 months to two years but your previous record and the lack of empathy to the victim, increases that and he says, as Mr Mann accepts, there are really no mitigating features, those would make the sentencing worse.

[ 12] Mr McColgan and Mr Mann refer to a case called R v Hill.[4] That is a rather misunderstood case but the Court of Appeal there does emphasise that if one is contemplating home detention as a sentence it must be imposed in accordance with the principles set out in the Sentencing Act. R v Hill is notable, however, for the

[4] R v Hill [2008] 2 NZLR 381 (CA).

strong motivation and action Mr Hill had taken in order to change his habits and reform his position.

[13] Mr Mann has said, in very helpful submissions, that he accepts the starting point is in the range of 18 months to two years imprisonment; perhaps about 15 months. He says there is no address that you can offer for home detention and that is a point to which I come back. You recognise that a jail sentence is therefore likely outcome.

[ 14] He accepts the aggravating features listed by the Crown and that there are no mitigating features, other than perhaps your mental health.

[15] The sentence which needs to be imposed, of course, should instil in you a sense of accountability, denounce your conduct and deter others. The aggravating features have been already recounted. There is an obligation in the Sentencing Act to impose the least restrictive outcome and that is a factor that needs to be taken into account.

[ 16] Turning to the appropriate sentence, the representative kissing charge should be regarded as the minor conviction of the three, but it was obviously not the ordinary familial kiss on the cheek between uncle and niece. It was done with sexual overtones and that needs to be taken into account. As far as the indecent assaults are concerned, this was a very young and very vulnerable victim and your behaviour was repeated over about a six month period. That affects the sentence to be imposed. The victim is entitled to protection, of course, within the family circle from somebody, her uncle who was living in the house, and it is quite wrong of you to suggest there is any blame on her.

[17] The appropriate sentence on those indecent assaults should accordingly be probably about 18 months or up to two years, maybe even a little bit more.

[ 18] In considering the appropriate sentence, however, it must be acknowledged
that as far as indecent assaults go these are not anywhere near as serious as many that
come before the Court. The touching of your niece was outside the clothing. It was

on the genital area. So they are relatively minor indecent assaults but they were indecent assaults, they were on this young girl, and they were repeated.

[ 19] In my view, the appropriate sentence for the specific indecent assault would have been a jail sentence of probably 15 months but one needs to take into account the representative indecent assaults over the previous six month period coupled with your previous record. Iin my view, the appropriate sentence to be imposed on you accordingly is one of 18 months on each of the indecent assaults other than the kissing and three months concurrent, that is to say at the same time, on the kissing count.

[20] As you know, and has been discussed with counsel this morning, the real question is home detention. We are unable to consider imposing a sentence of home detention at this point because you are not in a position to offer an address which can be properly assessed to see if home detention is appropriate. Mr Mann submits that under s 80I of the Sentencing Act I should consider granting leave to apply for home detention in substitution for the term of imprisonment. Section 80I reads:

80I Leave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases

(1) This section applies if—

(a)a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2) At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[21 ] The important point, as you have heard me discuss with Mr Mann, is that leave to substitute a sentence of home detention for imprisonment can only be granted if “the Court would have sentenced the offender to a sentence of home detention if a suitable residence had been available”. There is a difficulty, as you have heard in the discussion between Bench and Bar, in Parliament using the word “would” in those circumstances, but in my view, the s 80I issue needs to be

approached on the assumption that a suitable home detention address was available and that suitable conditions could be imposed on home detention, and then look at the rest of the offending to say, given that assumption, would home detention have been the sentence.

1. So looking at whether home detention would have been the sentence, the relevant factors, in my view, are first, there seems to be a lack of empathy for the victim still. You may be remorseful, you may have some concerns for her but there does not seem to be a real empathy and recognition of your wrongdoing. There is a lack of effort on your part - which extend from the lack of empathy - to engage in rehabilitative processes or the like. There is the difficulty - which was also a difficulty in setting terms of bail - that inevitably there is going to be some contact between you when you are in the community and between your half brother and his family. There is obviously a close family relationship. During the relevant period of offending you were living in the house. Ever since then you have been living in the general area in which they live. Management of the contact between you and your half brother and his family would have been an extremely difficult issue to incorporate in any terms of home detention.

2. Had a suitable address been available, the principal decision in sentencing would have been whether you would have been sentenced to home detention. It is an issue which having regard to the nature of the offending and the personal circumstances I have just discussed, would have been a serious consideration, but in the end my view is that home detention would not have been a sentence to be imposed even on the assumption that there was a suitable address available. So if that is the case, as I think it is, there is no room for me to grant you leave to apply for home detention in substitution for the sentence of imprisonment.

3. Now I recognise all of that is rather confusing no doubt and it is not always easy for lay people to follow complicated legal arguments. But the result of all that, Mr Setu, is that you are sentenced to 18 months’ imprisonment on the two indecent assaults involving touching your niece on the outside of her clothing but over the genitalia, a three month sentence to be served at the same time for the kissing

indecent assault and you are not granted leave to apply for home detention in substitution for those terms of imprisonment.

HUGH WILLIAMS J.

30 April 2010