R v SLT

[2015] NZHC 938

PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY

S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE PRISONER OR CO-OFFENDERS

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-020-146 [2015] NZHC 938

THE QUEEN

v

SLT

Hearing:	6 May 2015
Appearances:	F Cleary for the Crown AJS Snell for the Prisoner
Sentence:	6 May 2015

SENTENCING NOTES OF TOOGOOD J

R v SLT [2015] NZHC 938 [6 May 2015]

[1]      I make a permanent order for non-publication of the prisoner’s name and any information that might identify him or his co-offenders or any other member of the family.   The order is made solely to support the statutory prohibition against identifying the victims.

[2]      SLT, you appear for sentencing having pleaded guilty to seventeen charges of sexual offending, most of them representative.  They include one charge of rape, two of sexual violation by unlawful sexual connection, four of indecent assault on a child, five of incest, four of being a party to sexual conduct with a young person, and one of conspiracy to commit incest.

[3]      Seven of the representative charges relate to your conduct with your daughter K before she attained the age of 12 years. Three representative charges relate to your conduct with K after she turned 12.  One non-representative charge relates to your conduct with K when she was 12.  Four representative charges relate to your conduct as a party to C’s offending with K.   One relates to a conspiracy between you and another daughter H for having sexual contact with K.   The final charge is one of incest with H.

Charge	Section	Maximum penalty
1	Indecent assault on a child under 12 (representative) By touching K’s breasts	132(3) Crimes Act	10 years
2	Indecent assault on a child under 12 (representative) By having K masturbate him	132(3) Crimes Act	10 years
3	Indecent assault on a child under 12 (representative) By kissing K on the mouth	132(3) Crimes Act	10 years
4	Indecent assault on a child under 12 (representative) By removing K’s clothing and being naked with her	132(3) Crimes Act	10 years
5	Sexual violation by unlawful sexual connection (representative) Digital penetration of K’s genitalia	128(1)(b) Crimes Act	20 years
6	Sexual violation by rape (representative)	128(1)(a) Crimes Act	20 years

7	Sexual violation by unlawful sexual connection (representative) Penetration of K’s anus with penis	128(1)(b) Crimes Act	20 years
8	Incest (representative) Digital penetration of K’s genitalia	130(1) Crimes Act	10 years
9	Incest (representative) Intercourse	130(1) Crimes Act	10 years
10	Incest (representative) Penetration of K’s anus with penis	130(1) Crimes Act	10 years
11	Incest Intercourse	130(1) Crimes Act	10 years
12	Party to sexual connection with a young person under 16 (representative) Digital penetration by C of  K’s genitalia	134(1),  66(1) Crimes Act	10 years
13	Party  to  sexual  conduct  with  a  young  person under 16 (representative) Penetration by C of K’s genitalia with sex toy	134(1),  66(1) Crimes Act	10 years
14	Party  to  sexual  conduct  with  a  young  person under 16 (representative) Penetration by K of C’s genitalia with sex toy	134(1),  66(1) Crimes Act	10 years
15	Party  to  sexual  conduct  with  a  young  person under 16 (representative) Connection between K’s mouth and C’s genitalia	134(1),  66(1) Crimes Act	10 years
16	Incest Sexual connection with H	130(1) Crimes Act	10 years
17	Conspiracy to commit incest Conspiring    with   H   for    H   to   have    sexual connection with K	130(1), 310(1) Crimes Act	7 years

Facts

Background information

[4]      Both complainants are your biological daughters.  K was aged ten when the offending against her began, and she was 13½ when it was reported to Police.  Until shortly before the offending was reported, K and her younger siblings were living with you.  You did not raise H, nor know her until she reconnected with you as an adult when she was 19. The offending with H began after that.

Charges 1-7: conduct with K before she reached age 12

[5]      K recalled the first inappropriate contact with you being in the lounge of your home, where you groped her breasts.  You also kissed her on the lips, and sometimes

you put your tongue into her mouth and throat.  On other occasions, you took K into your bedroom and made her take her clothes off before you got undressed yourself. You would place K’s hand on your penis, take her hand in yours, and have her masturbate you. You placed your fingers inside K’s vagina.

[6]      The sexual contact progressed to a point where you would get on top of K and have sexual intercourse with her.  On these occasions you did not say anything to K about what you were doing, and she says she felt sore and scared.  You would remove your penis and ejaculate over K, then tell her to get dressed and not to “say anything”.  This type of sexual contact occurred on multiple occasions in the house where you, K, and your other children lived.

[7]      As the offending progressed, you began purchasing inappropriate underwear for K, including lacy underwear and G-strings.  During this period, K described how she would shake and feel scared of being left alone with you.  The sexual offending continued on at least a weekly basis for a period of more than three years.

Charges 8-10: conduct with K after she reached age 12

[8]      The sexual contact with K was so frequent that she eventually became conditioned to what was happening, and started to regard it as normal.   You encouraged this conditioning by offering her inducements such as money or sweets so that she would participate in sexual acts with you.  By the time K was 13 years old, she had become a fully sexualised and apparently willing sexual partner.  I say “apparently willing” because it is clear that legally, and in reality, there was no true consent involved.

[9]      The sexual intercourse began to include occasions where  you would  not withdraw your penis but would instead ejaculate inside K.  The sexual encounters continued to occur on at least a weekly basis, and included both vaginal and anal intercourse.   When K was 12 years old, you arranged for her to be placed on the contraceptive pill. You lied to the nurse involved, telling her that K was not sexually active but planned to be soon with someone she had a crush on.

Charge 11

[10]     When K was 12 years old, she stayed in a motel room with you and her sister H, who you had only recently met.  All three of you shared a bed.  During the night, you had sexual intercourse with K.

Charges 12-15: offending as a party to C’s principal offending

[11]     Around K’s 13th birthday, you began a sexual relationship with a woman, C, who moved into the home you lived in with K and her siblings.   Between the beginning of this relationship and the time when the offending was reported to Police, you continued to offend against K.   Often, the offending occurred on Wednesday nights when C was out for the evening.

[12]     You began to talk to C about the fact that you were having sexual contact with your daughter, and you suggested that K should join you and C in bed for sexual activity.  Eventually, C agreed.  On at least four or five separate occasions, you brought K into your bedroom, where she apparently willingly undressed and joined you and C in bed, and participated in a variety of sexual acts.

[13]     On the first occasion, you had both vaginal and anal intercourse with K.  On the second occasion, you had anal intercourse with K while C used a vibrator on K’s vagina.  On at least one occasion the vibrator entered K’s vagina.  On this occasion (and on other occasions), C also inserted her fingers into K’s vagina and fondled K’s breasts.   On another occasion, you had K wear a strap on dildo.   That was then inserted into C’s vagina.  On yet another occasion, K performed oral sex on C.

[14]     All of the sexual conduct between C and K was in your presence, and you encouraged it.

Charges 16 and 17: offending involving H

[15]     You are H’s biological father, but you did not meet her until she was an adult. When you first met, she was pregnant.   From that first meeting, you struck up a

relationship.  H moved in with you when K was ten years old. At some point after H

moved in, you and she had sexual intercourse.

[16]     During this relationship, you and H had regular contact by text message. Some of your exchanges included discussions about the possibility that H could have sexual encounters with K.  H was initially reluctant because she was afraid that if she were caught, her child would be taken from her.   However, you continued to encourage her, and eventually H agreed that she would have a sexual encounter with K.  You wanted to watch this encounter, but as it would be H’s first experience with another  female  she  did  not  want  you  to  watch.    The  offending  relates  to  the agreement to carrying out this activity not to the fact that it occurred.  You are not charged with that.

[17]     Soon after this, Child, Youth and Family obtained a custody order for K and her siblings, and C made an initial complaint to the Police about you and your offending.  She deserves credit for bringing this appalling state of affairs to an end.

The effect of the offending on the complainant and other victims

[18]     I do not need to refer to a victim impact statement to assess the grievous impact of your offending on K.   This type of offending invariably affects child victims well into adulthood.  The gravity of the effect on K is evident in the fact that she began to accept your conduct as normal, and became overtly willing to engage in sexual activity with you.

[19]     You have received K’s victim impact statement, a part of which has been read to the Court.  She says that because of your offending, her whole attitude to life has changed.  She feels her ability to trust is gone, and she has unpredictable reactions to physical contact.  She has anxiety attacks.  She cannot tolerate being touched by her peers.  Contact with males can cause her anxiety.  She has trouble concentrating at school.  She has flashbacks and nightmares about the offending on most nights.  She hears voices telling her to forgive you, that you are sorry, and to tell them she made it all up.  She worries she will never be the same again.

[20]     K blames herself for the offending, although it was not in any way her fault. She feels isolated from her peers.  Because of your offending, she has had to move into CYFS care, and she has been separated from her friends and family.   She is intensely protective of her siblings, and she feels her separation from them profoundly.  Although K is not yet 15 years old, she feels that you have taken her childhood from her, and forced her to grow up too quickly.   She says that all she wants for herself is a concrete room to slowly die.  She often harms herself; she has suicidal thoughts and has attempted suicide more than once as a result of  your abusive behaviour.   It is to her great credit that she says she is proud of herself for staying strong and surviving.

Purposes and principles of sentencing

[21]     I now consider what sentences should be imposed to best meet the sentencing purposes and principles set out in the Sentencing Act 2002.   The purposes that are important in your case are:

(a)       holding you accountable for the harm done to your victims and the community by your offending;

(b)promoting    in    you    a    sense    of    responsibility     for,    and    an acknowledgment of, that harm;

(c)       denouncing your conduct;

(d)      deterring you and others from offending in this way; (e)           protecting the community from you; and

(f)       assisting in your rehabilitation and reintegration.

I also take into account the principles of sentencing set out in s 8 of the Act.  In this case, the gravity of your offending is a prominent consideration.

[22]     The  approach  I  have  followed  in  arriving  at  the  appropriate  sentences involved considering the circumstances and the seriousness of your offending, using guideline decisions and comparable cases to set a starting point.  I then considered whether there were any aggravating or mitigating features, including your guilty pleas, which might increase or reduce the sentences from that starting point.  This process gave rise to a final finite sentence.1

[23]     However, because you are being sentenced for more than one offence, I also considered which offence or offences to focus on first, and looked at what effect the other offences should have to reach an effective end sentence which reflects the totality of your offending.   On a number of occasions the Courts have found it appropriate to adopt cumulative rather than concurrent sentences where there are multiple  victims.2      I have  approached  this  case  on  the  basis  that  a  cumulative sentence might be appropriate for the offending against H, because it was separate from the offending against K, but I looked at the offending against K in the round.

Submissions of counsel

Crown submissions

[24]     The Crown submits that this is extremely serious offending which falls at the lower end of band four of the guideline Court of Appeal judgment, justifying a starting point for the offending against K of 17 years’ imprisonment.   The Crown says there should be a modest uplift for the incest charge involving H, and that there are no mitigating features of the offending.   It is submitted that a discount of 10-

15 percent  for  the  guilty  plea  is  appropriate,  and  that  a  minimum  period  of

imprisonment should be imposed.

1      R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).

2      See for example R v Mwai [1995] 3 NZLR 149 (CA); R v Thompson CA370/04, 27 April 2005; R v Te Amo CA435/00, 29 March 2001; R v Liu CA196/02, 18 November 2002; Hemi v Police HC Wellington CRI-2008-435-7, 21 July 2008.

[25]     Mr Snell has submitted on your behalf that the offending on the lead rape charge falls at the top of band two or the bottom of band three of the guideline, for a starting point of 12-13 years, with an uplift of no more than 3 years to reflect the totality of the offending, including the incest.  That would give a total starting point of 15-16 years.

[26]     In terms of adjusting the starting point, counsel suggests a discount of 10-

15 percent for the guilty plea.  He submits that I should treat your lack of previous convictions as a further mitigating feature relevant to you personally.3    That would give a total reduction of 20-25 percent and an end sentence of 12-13 years’ imprisonment.

[27]     Mr Snell has cited in support of that contention two cases which speak to the idea that a fall from grace is a punishment in itself and that there is greater potential for rehabilitation where community involvement and good character bear witness to a reduced probability of reoffending.4    I do not think that either of those cases is relevant here, for reasons which I will come to.

[28]     As  for  the  minimum  period  of  imprisonment,  counsel  accepts  that  there should be one, and suggests that a period of half the length of your sentence as appropriate.

The starting point

The lead offences – rape and unlawful sexual connection

[29]     The charges of rape and unlawful sexual connection are the most serious you face.  I treat those as the lead offences.

3      Citing R v Howe [1982] 1 NZLR 618 (CA) in support of the proposition that lack of previous convictions can be a mitigating feature even in serious cases,

4      R v Findlay [2007] NZCA 553 and R v Davidson [2011] NZCA 356.

[30]     You planned your offending carefully so as to avoid being caught, even to the point of arranging for K to be placed on the contraceptive pill, and conditioning her to believe that the offending was normal for her.5   K was just ten years old when the offending began and  you were the only parent in her life.   She was  incredibly vulnerable.  Worse still, when another adult, C, came into K’s life you encouraged her, too, to offend against the child.6

[31]     Your offending was a gross breach of trust and of your duty as K’s father to protect her.  The harm you have caused K has been devastating and it will continue to have profound effects on her.7

[32]     In itself, the fact that you involved two other people in the offending against K would be enough to place your offending into the highest band of possible sentences.8    But there are other aggravating factors.  The offending continued on a

frequent basis for three and a half years;9  that is offending on a very serious scale.

Forcing K to perform sex acts, and particularly to use a sex toy, on C, and offending against  K  with  her sister present,  was  particularly degrading.10     The frequency, duration and variety of your sexual offending against K make it extremely serious.11

Other offending against K

[33]     The Crown charged you with incest rather than rape for the offending after K’s twelfth birthday, because there might have been serious evidential difficulties with proving absence of consent.  But it is clear that the incest was part of the same course of offending as the indecent assaults and unlawful sexual connection.   K’s apparent consent was the result of your efforts to condition her into thinking that the abuse was normal.   The charges of incest; being a party to sexual violation of a

young person; and indecent assault would have by themselves merited significant

5      R v AM, above n 3.  Planning and premeditation at [37].

6 Vulnerability at [42]-[43]; breach of trust at [50].

7 Level of harm at [44].

8      Multiple offenders at [45]-[46].

9      Scale of offending at [47]-[49].

10     Scale of offending at [47]-[49].  Compare R v Tia HC Auckland CRI-2009-092-7402 5/10/2010 and  R  v  B  (CA41/07) [2007] NZCA 292 where the offending was considered particularly degrading.

11 Degree of violation at [52].

sentences.   As to the conspiracy charge, the relevant act would have been sexual connection between H and K, and you appear to have been the driving force in that conspiracy.   These facts underlying the charges demonstrate the depravity of your offending.

Conclusions as to initial starting point

[34]     In the guideline judgment for sexual violation (both rape and unlawful sexual connection),12   the  Court  of Appeal  identified  a  number  of  relevant  aggravating factors,  and prescribed  bands of appropriate sentences where certain factors  are present.13    Many of the aggravating factors outlined in the guideline are present in your offending.

[35]     The Court of Appeal says that offending involving “repeated rapes of one or more family members over a period of years” is the paradigm case of offending in band four, the highest band.14   After giving examples of offending at the higher end of that  band,15   the Court  of Appeal  noted that  the cases  all  involved  sustained offending over a period and breach of trust of vulnerable victims with unsurprisingly

severe impact on the victims. That characterises your offending.

[36]     The considerations persuading me not to impose a starting point at around

19-20 years are the absence of physical violence and the fact that K was the only direct victim.   Having said that, the emotional harm caused by your insidious grooming and exploitation of K is just as great as if you had forced her into compliance by fear.

[37]     I take a starting point of 17½   years’ imprisonment on the lead charges of unlawful sexual connection and rape; that is, charges 5, 6 and 7.

12     R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.

13     At [37]-[64].

14 At [109].

15 At [111].

[38]     Imposing  cumulative  sentences  for  the  other  offending  against  K  would offend against the totality principle.  The scale of the offending and the involvement of other parties are reflected in the starting point I have adopted for the unlawful sexual connection charges, so I do not consider an uplift to be justified for the other offending against K.

Uplift for incest with H

[39]     I do, however, intend to uplift the starting point to account for the incest charge against H, which is unrelated and needs to be marked separately.  There is no guideline judgment for incest.   The Court of Appeal has held, however, that father/daughter incest is more serious than sibling incest; that contact beginning as

adults will be a mitigating factor; and that vulnerability is a relevant factor.16    You

did not know H until she was an adult, but I consider your concerted efforts to involve her in the offending against K show a degree of vulnerability on H’s part and culpability on yours.   The maximum penalty for incest is 10 years’ imprisonment. I uplift the starting point by six months to account for that offending against H.

[40]     That means the starting point for all offending is 18 years’ imprisonment.  I

turn next to consider factors personal to you.

Aggravating and mitigating factors

Prior convictions

[41]     You  have  no  previous  convictions.    But  the  extent  and  duration  of  the offending in this case, means that the absence of convictions or evidence as to previous poor character can be held to be a relevant mitigating factor to any degree. The pre-sentence report notes that given the extent of your offending there must be concern that  you have been involved in other sexual offending which has gone

undisclosed.  I make it clear that I do not punish you on that basis.

16     B (CA817/11) v R, above n 23, at [17].

[42]     You are 49 years old.  You are apparently engaged.  You informed the report writer that you had eight children, but it appears that you may also have younger children from other relationships.  Child, Youth and Family have been involved with your children since at least 2003.   You do not appear to have a drug or alcohol problem.   Unsurprisingly, you have not had much contact with your family since your offending came to light.

[43]     Although you pleaded guilty, at the pre-sentence interview you denied your guilt on the vast majority of the charges for which you are now being sentenced. You expressed no remorse to the probation officer; only self-pity about the situation in which you now find yourself.   You showed no insight into the effects of your offending on your victims, and you accepted little responsibility for your actions. You blamed your co-offender, C, for influencing you, and you tried to shift responsibility onto your victims.  You described both of your daughters as engaging in inappropriate behaviour.

[44]     This morning, however, Mr Snell has handed me a note signed by you giving an explanation for some of the observations made in the pre-sentence report to which I have just referred.   You say that because you had never been in jail before you found it hard to speak to a complete stranger about the extent of your crimes instead of being fully open and honest.  You say you ended up shutting down and denying some of these matters, placing blame where you should not have.  You say that these things were too difficult to talk about as you are struggling to come to terms with what you have done.  You now say that you accept that you committed the offences to  which  you  have  pleaded  guilty,  and  that  you  accept  that  full  blame  for  the offending is yours alone.  You say you understand how bad the offending is, that you deeply regret your actions, that you are ashamed of what has happened and that you want to say to your children that you are very sorry for the harm you have done. You say you know you will receive a long prison sentence and you want to seek help.

[45]     I accept that you may now be beginning to appreciate, for the first time, the full implications of your behaviour.  But it has come very late and far too late to be of any consolation to K and the other members of your family.

[46]     You have a deviant sexual interest in children, inappropriate sexual arousal, and an inability or unwillingness to control this arousal.   It is clear that you need specialist treatment by psychologists over a very long period.  If the risk of your re- offending is to be reduced, you will need to fully engage with the treatment which will  be  available  to  you  in  prison,  including  child  sex  offender  treatment programmes such as Te Piriti or Kia Marama.

[47]     You  also  exhibit  an  attitude  of  entitlement  in  your  sexual  liaisons  with women.  You have lived with at least four partners in the past five years; many of these relationships overlapping for a considerable period. Your current fiancée states that you have a very high sex drive, and that in the year prior to your remand in custody,  you  arranged  to  meet  other  women  for  sex  on  multiple  occasions, particularly if she refused to have sex with you.

[48]     The report writer concluded that you presented as manipulative and able to ingratiate yourself with people who would sympathise with you and either actively participate with you, condone your actions, or turn a blind eye to your offending. You are assessed as being at a high risk of re-offending sexually against children in the future.   I consider that that assessment to be entirely right notwithstanding the matters which you have placed before the Court this morning.

[49]     You stated at interview that you were sexually abused by your mother as a child, including having sexual intercourse with her as a teenager.  This information has not been verified and you have not undergone any kind of therapy regarding it. Even assuming that you were abused as you have stated, it does not excuse your offending against your children in any way.

[50]     I am prepared, in acknowledging that in your 49 years you have stayed out of trouble, to make some modest allowance for good character in respects other than

your criminal offending.  I allow a discount of three months’ imprisonment on that account.

Discount for guilty pleas

[51]     You pleaded guilty, but you did not do so until the last working day before your trial was due to begin.  You had abundant opportunities to acknowledge your guilt much earlier in the face of a Crown case that was overwhelming.   K had already travelled from out of town to give evidence, and of course she suffered while anticipating that ordeal.  However, your last minute pleas spared the other witnesses and her, and saved the state the cost of a trial.

[52]     I take those factors into account when considering your guilty pleas as a mitigating factor.17   The largest discount I can allow for your guilty pleas is one of one year and nine months’ imprisonment, which is around 10 percent.

Total end sentence

[53]     That  means,  after  discounts  totalling  two  years,  the  total  effective  end sentence will be one of 16 years’ imprisonment.

[54]    I have not overlooked the need to impose the least restrictive outcome appropriate in the circumstances,18 but this was serious, premeditated and prolonged offending.  You strategised and you found other people who were willing to offend with you. You offended against two of your daughters, at least. Although 16 years is a long term, it is necessary to reflect the factors I have discussed, including the nature, extent, frequency and duration of your offending; the vulnerability of your victims; the breach of trust; and the severe harm you have caused to others.   A lengthy sentence is necessary to deter you and others from this type of offending

and, given the high risk that you will re-offend if you do not respond to treatment, to

protect the community from you.

17     Hessell v R [2011] 1 NZLR 607 at [56]-[65], [70], [74]-[75].

18     Sentencing Act 2002, s 8(g).

Imposition of a minimum period of imprisonment

[55]     For the same reasons, I consider that it is necessary to impose a minimum period of imprisonment, as Mr Snell has properly accepted I must.

[56]     I am satisfied that, by itself, a finite sentence of 16 years’ imprisonment, which would see you eligible for parole after you had served only one-third, or five years and eight months, would not be adequate to give a degree of reality to the sentence and the outcome.   The level of your culpability or blameworthiness is increased by the age and vulnerability of your principal victim; the period over which your offending occurred; and the serious harm you have inflicted.

[57]     In fixing the appropriate minimum period, and looking at the factors I am required to consider,19 I give particular weight to the high risk that you will re-offend and the need to ensure that you remain in prison long enough for attempts to be made to rehabilitate you by treatment.  I impose a minimum period of imprisonment of 8½ years on the lead offences.  How long you will actually serve before you are released will depend on how long it takes you to fully acknowledge and address your serious psychological problems.

Sentences

[58]     SLT, please stand.

[59]     On each of charges 5, 6 and 7 (rape and unlawful sexual connection), I sentence you to 16 years imprisonment.  Under s 86 of the Sentencing Act, I order that you shall serve a minimum period of 8½ years on each of those charges.

[60]     On each of charges 1, 3 and 4 (indecent assault), I sentence you to two years’

imprisonment.

[61]     On charge 2 (the most serious charge of indecent assault), I sentence you to

three years’ imprisonment.

19     Section 86(2).

[62]     On each of charges 8, 9, 10 and 11 (the incest charges involving K) I sentence you to five years’ imprisonment.

[63]     On each of charges 12, 13, 14 and 15 (being a party to sexual conduct with a young person) I sentence you to four years’ imprisonment.20

[64]   On each of charge 16 (incest with H) I sentence you to one year’s imprisonment.

[65]     On charge 17 (conspiracy to commit incest), I impose a sentence of three

years’ imprisonment.

[66]     All  of  these  sentences  are  to  be  served  concurrently,  at  the  same  time, meaning that the total effective end sentence is one of 16 years’ imprisonment of which you shall serve at least 8½ years.

[67]     Stand down.

…………………………….

Toogood J

20     In relation to those charges, the prisoner appears to have been the driving force behind C’s choice to offend.  Were it not for the fact that C has already been sentenced as the principal in this offending, and I am concerned to maintain consistency with her sentence, I would have imposed a harsher sentence on the prisoner.