R v Smith

[2015] NZHC 1992

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-077-585 [2015] NZHC 1992

THE QUEEN

v

STEVEN COLIN SMITH

Hearing:	21 August 2015
Appearances:	N Tahana for Crown M J Hine for Defendant
Sentence:	21 August 2015

SENTENCE OF M PETERS J

Solicitors:           Gordon Pilditch, Crown Solicitor, Rotorua

Families Matter Law Practise, Rotorua

R v SMITH [2015] NZHC 1992 [21 August 2015]

[1]      Mr Smith, you are for sentence on 10 charges to which you pleaded guilty in the Rotorua High Court on 3 August 2015.  You initially pleaded not guilty to the various charges, but changed your plea on the day your trial was to commence.

[2]      Five of the offences are sexual violation by rape, two are sexual violation by unlawful sexual connection and three are of indecent assault on a person under the age of 16.

[3]      With the exception of the one offence you committed against J in 1989, you committed the offences between 2007 and 2009 against K and T.1

[4]      The most serious offences are those of sexual violation.   The maximum penalty for that offending, insofar as committed against K and T, is 20 years’ imprisonment.   It is of academic interest only that in 1989, when you offended against J, the maximum penalty was less – some 14 years.

[5]      The maximum term of imprisonment for your indecent assaults, all of which were committed against T, is 7 years.

[6]      J was 15 and you were 19 or 20 when you offended against her in 1989.  J went home to visit her parents.  They were not at home but you were, and you took advantage of their absence.  You raped J whilst she was in the shower, despite the fact that she was crying and screaming and attempting to push you off.

[7]      You were in your late 30s when you offended against K and T between 2007 and 2009.

[8]      K was aged between 7 and 9 at the time and contending with a learning disability.   Mr Hine has drawn my attention to s 9A of the Sentencing Act 2002 which of course applies but I accept the Crown’s point that in the circumstances it

adds very little, given the other matters to which I will come.

1      The penalty for sexual violation was increased from 14 years to 20 years on 1 September 1993 by s 2 Crimes Amendment Act (No 3) 1993 (1993 No 62).  Charges 1 – 3, 6 and 9 are brought pursuant to s 128(1)(a) Crimes Act 1961, Charges 4 and 5 are brought pursuant to s 128(1)(b) Crimes Act 1961 and Charges 7 – 9 are brought pursuant to s 134(3) Crimes Act 1961.

[9]      You raped K for the first time, which is charge 2 – in the shower, again –

when you were staying at the house at which she was living.

[10]     Charges 3 to 6 all relate to K and all arise out of a subsequent incident.  With her mother’s permission, K accompanied you to another address.  When you arrived, you took off K’s clothes – with force – and then raped her; then made her perform oral sex and recorded it on your phone; then inserted your fingers into her vagina; and then, whilst K pleaded with you to let her go, you raped her again.

[11]     At about this time you also offended against T, who was then 15 years old or thereabouts.  In addition to three indecent assaults against her, you raped T, silencing her screams by putting your hand over her mouth.

[12]     Accordingly, there is one sexual violation in 1989, a lapse of some 20 years, then a sexual violation against K, then four sexual violations of K in a separate incident, then a sexual violation of T and three indecent assaults against her.

[13]     This is not your only offending of this nature.   In April 2009 you were convicted of doing an indecent act upon a girl aged 12 to 16, an offence which you committed in 2008.  And in April 2013 you were convicted of four indecent assaults against a female aged 12 to 16, that offending having been committed in 2011.  It is unnecessary for me to say more about that offending because the charges on which you are for sentence largely pre-date them.   But your history demonstrates a clear propensity on your part for sexual offending against young girls.

Victim Impact Statements / Provision of Advice to Courts Report

[14]     I acknowledge the presence of K in the Court.   I have heard her victim statement and I have read the other two provided to me from J and T.  Those victim impact statements say exactly what I would expect.  Your offending terrified them, and caused physical and mental distress, the latter of lasting effect.

[15]     Corrections’  advice  is  that  you  do  not  accept  responsibility  for  your offending, let alone show any insight or remorse.   Your counsel tells me you are remorseful.  There is no reflection of that in Corrections’ report.  On the contrary,

there appears to be a complete lack of acceptance of responsibility, and I reject any submission that remorse should be taken into account in sentencing you.

[16]     Corrections also tell me that you require specialist treatment to reduce the risk of further sexual offending.  You should attend any such programmes you are offered.

Purposes and principles of sentencing

[17]     For offending of this kind the purposes and principles of sentencing to the forefront are deterrence, not only of you but anyone in the community who might be minded to offend in a similar manner; denunciation of your offending; to seek to make you understand that your behaviour has been and is harmful and that you are responsible for it; to ensure the sentence reflects the gravity of the offending and to ensure that you are treated consistently with others.   I must also impose the least restrictive sentence appropriate in the circumstances.

Sentencing process

[18]     Sentencing is  a three step process.   First, it is necessary to  determine a “starting point” which reflects the culpability or wrongdoing inherent in your offending. The second step is to adjust the starting point, upwards or downwards, for any factors relating to you personally.  And the third step is to apply an appropriate discount for your guilty plea.

[19]     In the usual course of events I would identify, and fix a starting point for, the most serious offending – which in this case is the four sexual violations of K in charges 3 to 6 committed at the address to which you took her.  I would then uplift the starting point to the extent necessary to reflect the culpability inherent in the other matters on which you are for sentence, probably consider the offending against J separately given the lapse in time, and then consider whether the sentence that I had arrived at was proportionate to the offending as a whole.

[20]     The Crown submits, however, and your counsel agrees, that I should set a “holistic” starting point which reflects the wrongdoing in all of your offending, with all sentences to be concurrent, that is served at the same time.

[21]     For myself I think little turns on the precise approach I adopt, and so I shall proceed as the Crown proposes.

Starting point

[22]     In  setting  the  starting  point,  I  must  have  regard  to  other  cases  and,  in particular, to the Court of Appeal’s decision in R v AM (CA27/2009).2    In that case the Court of Appeal set out ranges of starting point to reflect features of sexual violation offending.

[23]     The dispute between counsel in this case is whether your offending falls within band 2, as Mr Hine submits, or band 3 as the Crown submits.

[24]     Band 3 is appropriate if the offending includes at least three of the factors the Court of Appeal identified as aggravating, to a moderate extent.  In my view, your offending falls within band 3 because you sexually violated K and T – and one of them, K, four times on a single occasion.  K was particularly vulnerable being the youngest and, as I say, contending with a disability.  There was a clear element of premeditation  in  your  separating  K  from  her  mother  and  taking  her  to  another address.   Moreover, you degraded K by filming her performing oral sex on you. There is also, I accept from the Crown’s submission, an element of grooming with T in the sense that you bought her alcohol and cigarettes and so on.

[25]     Although not related to the victims, you were closely associated with their families, and therefore in a position of trust.  You used a degree of force but no more than is inevitable in this type of offending.   There is also the further offending against J but, as I say, I accept Mr Hine’s point that it was some 20 years prior. Taking that offending into account or not, in my view this is still a band 3 case.

[26]     The range of starting points open for offending falling within band 3 is 12 to

18 years imprisonment.  I have considered the cases to which the Crown and your counsel referred me, being R v SLT, R v AN and R v Prasad.3   I propose to adopt a starting point of 13 years, 6 months on all sexual violation charges, and uplift by a further 6 months for the indecent assaults on T.   That gives a starting point of

14 years.

[27]     I come onto the third step which is to take account of guilty pleas.  Those pleas spared the victims the ordeal of a trial.  The Crown acknowledges that some discount is appropriate but submits it should be modest, given the late stage at which the plea was entered.  As I recall, however, your counsel had tried to see you on numerous occasions over the preceding month, both at Mt Eden and Waikeria, all to no avail.  I accept counsel’s submission that the pleas might well have come earlier if he had had a proper opportunity to take your instructions.

[28]     Bearing that in mind , I propose to give you a discount of 15 per cent on your sentence. That means your total sentence will be 12 years’ imprisonment.

[29]     Corrections have suggested various conditions might be imposed on your release.  I do not have jurisdiction to impose those conditions but no doubt the Parole Board will consider them in due course.

[30]     Please stand Mr Smith:

(a)       on charge 2, being a sexual violation against K, I sentence you to

12 years’ imprisonment;

(b)on charges 3, 4, 5, 6 and 9, being all other sexual violations against K and T, I sentence you to 12 years’ imprisonment to be served concurrently with the sentence in (a);

(c)       on charge 1, being a sexual violation against J, I sentence you to

8 years’ imprisonment to be served concurrently with the sentence in

(a); and

(d)on  charges  7,  8  and  10,  being  the  indecent  assaults  against  T,  I sentence you to 6 months’ imprisonment, again each to be served concurrently with the sentence in (a).

[31]     Stand down.

..................................................................

M Peters J