R v Smith HC Wellington CRI: 2007-485-44

[2007] NZHC 1906

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI:  2007-485-44

THE QUEEN

v

PETER SMITH

Hearing:         21 - 25 May 2007

Appearances: N Chisnall with C Patterson for the Crown

S Robinson for the Prisoner

Sentencing:     22 June 2007

SENTENCING REMARKS OF MALLON J

The charges

[1]      Mr Smith, you appear for sentence on convictions, following trial, on the following charges:

a)        Sexual violation under s 128(1)(b) of the Crimes Act which carries a maximum penalty of 20 years imprisonment;

b)Stupefying  under  s  191(1)(a)  of  the  Crimes  Act  which  carries  a maximum penalty of 14 years imprisonment;

c)        Indecent assault under s 141(a) of the Crimes Act which carries a maximum penalty of seven years imprisonment;

R V PETER SMITH HC WN CRI:  2007-485-44  22 June 2007

d)Indecent  assault  under  s  135  of  the  Crimes  Act  which  carries  a maximum penalty of seven years imprisonment; and

e)       Two  charges  of  attempting  to  pervert  the  course  of  justice  under s 117(e) of the Crimes Act each of which carries a maximum penalty of seven years imprisonment.

Circumstances of offending

[2]      The circumstances of your offending was as follows.  The sexual violation, the stupefying and indecent assault convictions relate to a young man, who I shall call J, who you met because J was a friend of your daughter.  You employed J on a casual basis at a subdivision which you were undertaking.  You paid him, and others you employed, what was viewed as good money.   You were also kind to J.   You spent time talking with him about the various difficulties and issues that J felt he had at that stage of his life.  You also bought him a motorbike.  The arrangement was that he was to pay you back for that from his earnings from you and another job he had taken on at the time.   J saw you as a “father figure” and obviously liked and looked up to you.  J also found you intimidating – it seems at least in part because of stories you had told him about your time in Indonesia and because he had once seen you hitting your son in the back of a car when a drink had been spilled.

[3]      The background to the first indecent assault charge was that you borrowed a key to the flat of someone who was also working on the subdivision.  On that first visit to the flat you gave J a massage on his back over his shirt on the bed in the bedroom of the flat.  On the second occasion, again on the bed in the bedroom in the flat, you gave J a massage on the back and legs having asked and J agreeing to take his shirt off.  On the third occasion you asked, and J agreed, to take off his shirt, shoes and pants so that he was clothed only in his boxer shorts.  Again J was on the bed.   On this occasion you had massage oil.   You massaged him but you also reached into his boxer shorts and touched his penis.  J said that he immediately said “no  way”  and  you  immediately  desisted.    The  indecent  assault  relates  to  you touching his penis on that occasion.  On a fourth occasion you took J to the same flat and gave J a massage over his clothes on his back in the bed in the bedroom.  The

defence presented for you at trial was that you had massaged J but that this touching had not occurred.   The jury’s verdict means that this defence was not accepted. Reflecting the jury’s verdict, I sentence you on this charge on the basis that you intentionally touched J’s penis knowing that J did not consent to that touching.  At the time of the indecent assault J was aged 16 years. You were then aged 45 years.

[4]      The sexual violation and stupefying convictions relate to an occasion more than a year later.   J had ceased contact with you at least in part because of the indecent assault.  However, he made contact with you because he wished to obtain the return of his “music tabs” which he used for playing his guitar.  Before arriving at your house he made it clear that he did not want any sexual contact with you.

[5]      He came to your house in the early evening.  You were at home with your son.  Your wife and daughter were away that evening.  Although J’s initial reaction was to obtain the “music tabs” and leave, he decided to stay and talk to you.

[6]      You were drinking a spirit and you offered beer to him.  In the course of the evening J drank about eight 330ml bottles of Tui beer which you either got for him or he got for himself from the fridge at your invitation.  You cooked him a meal.  J also consumed two pills.  J said that you had offered him these pills telling him they were anti-depressants.  You offered him one earlier in the evening and one shortly before he became dizzy and needed to sleep.

[7]      Your defence was that J must have helped himself to the pills when you were settling  down  your  son  for  the  evening.  The  jury’s  verdict  means  that  your explanation was rejected as a reasonable possibility.  I accordingly sentence you on the basis that you did offer the pills to J telling him they were anti-depressants.  In fact  the  pills  were  Frisium  that  had  been  prescribed  for  your  son,  who  has  a disability, to control your son’s aggressive behaviour when it became difficult to manage. The expert evidence was that these pills would have a sedative effect as well as causing dizziness, unsteadiness and muscle weakness amongst other things and that these effects would be increased when taken with alcohol.

[8]      Immediately after consuming the second pill J felt dizzy, uneasy on his feet and had difficulty focussing.  He needed to sleep.  You offered him the couch in your living room.  Once the lights were turned off and J was settling down to sleep you returned and asked him to lift off his shirt.  He did so.  You began by massaging him. You turned him over and undid his belt and removed his pants and boxers.   You licked his nipples and masturbated him and performed oral sex on him.  Throughout this J felt unable to do anything.   He said he  “just froze, he just couldn’t say anything”, and he “just couldn’t do anything”.   As soon as you left the room he gathered up his belongings, left your house and called 111.

[9]      Consistent with the statement you made to the police, the defence presented for you at trial was that the sexual activity had not occurred at all – it was put to J that you had kicked him out of your house having found him going through your wallet and that his complaint to the police was a false one.  It was also said that on J’s own evidence he was not stupefied.  Reflecting the jury verdict on the stupefying and the two related counts, I sentence you on the basis that you gave J the pills and alcohol in order to seriously interfere with J’s ability to resist.  And that you did so in order to have non-consensual sex with him.  You knew that J was not in a position to resist your sexual contact with him.

[10]     The attempting to pervert the course of justice charges relate to your actions when the police were investigating J’s complaint.   The jury found that you had wilfully attempted to pervert the course of justice.  You did so by requesting that a friend of yours provide the police with a false statement to the effect that he was present with you on the evening on which the sexual violation occurred.  This was apparently to back up your story that J had made up these charges because you caught him taking money from your wallet. Your defence was that you wanted your friend to make this false statement to your wife and daughter, rather than to tell this false story to the police.   The jury verdict means that they did not accept this defence.

[11]     The jury also found that you directed your daughter, a friend and a former girlfriend of J, to threaten J in order to have him withdraw the complaint he had made to the police.  Following your call to your daughter, she sent a series of texts to

J to try and get him to withdraw the complaint.  Your defence on this charge was that there was no instruction to your daughter to threaten J.  The jury verdict means that they did not accept this defence.

Victim impact statement

[12]     The effect of your offending on J, on the evidence at the trial and according to his victim impact statement, was destructive and harmful.  J thought of you as a good friend.  You were even like a father to him.  He looked up to you. As a young man, he sought your guidance in dealing with the personal issues in his life at that time.  You abused the trust he placed in you.  He said in his evidence that sometimes he wishes that he had never woken up after being stupefied and violated by you.  In the victim impact statement J says that your actions have caused him to have suicidal thoughts.    Your  actions  have  on-going  effects  in  how  J  interacts  with  others including with his current girlfriend.

Report and your letter

[13]     I have read your pre-sentence report.  You are now 48.  You are separated from your wife, though she is still your main support.  You have four children.  This report advises that you maintain your innocence and that you are therefore unwilling to   attend   any   programmes   and/or   counselling   to   address   your   offending. Accordingly your motivation to address your offending is low.

[14]     You have, however, written a letter which presents a different picture.  In that you say you have difficulty expressing yourself verbally and that is why you did not try to explain yourself to the probation officer.  You say that you are truly remorseful and realise you have hurt and angered many people.   You say that you wish to apologise to the victim and everybody that has been affected by it.  You say that you have little recollection of the event because you were under the influence of alcohol. You say that you have had an alcohol problem for some years and despite some attempts to overcome that problem you have not been successful.  You say that your offending was uncharacteristic and will not happen again. And I note the submission

from your counsel this morning that you no longer maintain your denial of the offending.

Sentencing Act principles

[15]     In sentencing today I am required to take into account certain principles and purposes of sentencing in criminal offending.   The Crown has identified certain relevant purposes and principles.  These include the need to hold you accountable for the harm you have done to J; to try to promote a sense of responsibility in you; and the need to denounce and deter the conduct.  Importantly in offending of this kind they also include the need to provide for J’s interests and to take into account the effect the offending has had on J.   Your counsel has placed emphasis on the need for consistency  with  similar  offences  and  the  need  to  impose  the  least  restrictive outcome that is appropriate.  All these principles and purposes are relevant as is the need to consider rehabilitation and re-entry into the community.

Starting point

[16]     For offending of this kind imprisonment is the only sentencing option to me. I understand from your probation report that you understand that.  The term of your imprisonment is set firstly by an assessment of the nature and gravity of the offending.  It can then be increased or decreased because of factors personal to you.

[17]     The Crown submits that the sexual offences, including the earlier indecent assault, and the stupefying could be treated as similar in kind and interconnected  – with the lead offence being sexual violation.  The stupefying would be treated as a serious aggravating feature of the sexual offending.  It submits that an appropriate starting point for these offences, on a totality basis, is 10 to 11 years’ imprisonment. This, it submits, is justified on the basis that a starting point of six and half to seven years imprisonment is appropriate on the sexual violation count taking into account aggravating  features.    It  submits  that  a  seven  to  eight  year  starting  point  is appropriate on the stupefying taking into account aggravating factors.

[18]     The Crown further submits that a cumulative term of two to two and a half years imprisonment, although this morning now submitted to be two years, should be imposed on the two counts of preverting the course of justice.  That would give an overall starting point of 12 to 13 years imprisonment.

[19]     I have to say immediately that I agree with your counsel’s submission that both a 10 - 11 year starting point for the sexual offending, and 12 – 13 years for all the offending, are excessive and quite out of line with other cases.   It appears to double count the aggravating features and it does not take into account significant differences between the offending in this case and different and more serious offending in the cases on which the Crown has referred to.

[20]     Your counsel submits that all the offences are inter-connected.  The counts of attempting to prevert the course of justice were, it submits, the actions of panic in relation to the investigation of the sexual offences.

[21]     The most serious offence is the sexual violation charge.   That is apparent from the maximum penalty.  The stupefying, serious in and of itself, was the means by which the violation was able to take place. Although brought as a separate count, it can be viewed as an aggravating feature of the violation.  How the matters come before the Court does not determine how the overall conduct is to be assessed for sentencing purposes.

[22]     The licking of the nipples and the masturbation – which make up the indecent assault count - was part of the sexual activity that you engaged in and occurred immediately before the oral sex.  The indecent assault should therefore be considered together with the violation in assessing the gravity of the offending.   These two offences and the stupefying were an interconnected course of conduct by which you obtained sexual gratification from J against his will that evening.

[23]     The remaining two counts – those involving the attempt to prevert the course of justice – could be viewed separately from the sexual offences and a cumulative term added, or as your counsel submits, they can also be treated as closely connected with the sexual offences.  I will take your counsel’s approach.  This means that I will

consider them, and the earlier indecent assault, as an aggravating feature of the offending.  As was the approach taken by the Court of Appeal in R v Tuipulotu CA

348/01 26 February 2002, all of the counts can be viewed as a continuum of offences from which an overall view of culpability should be assessed.

[24]     Starting with the most serious charge, the Courts have not set a particular starting point for the appropriate term of imprisonment for sexual violation by unlawful sexual connection.  That reflects the position that these kinds of cases vary considerably in their circumstances.  However the Courts have said that a range of between two to five years imprisonment is a guide although this is also to be seen as conservative.   Imprisonment terms may be higher than this depending on the particular circumstances.  I refer, for example, to the Court of Appeal’s decision in R v Edwards CA 94/04 21 September 2004 where this guide was considered relevant where the violation was by way of oral genital contact.

[25]     As to where the circumstances of this case fits in comparison with the other cases  I agree with  your counsel  that  R  v  Sturm  HC  AK  CRI-2002-004-278640

26 May 2006 is not particularly relevant.  There the most serious charge was sexual violation by anal penetration and some resulting injury occurred. As your counsel submitted it also involved habitual offending over a period of time.  In addition there were three victims.  Similarly I agree with counsel for the Crown and your counsel that R v Arvand (2003) 20 CRNZ 742 is a significantly different case involving, as it did, a large number of charges in relation to nine victims.

[26]     Some guidance is found from the following cases:

a)       R  v  Good  HC  AK  CRI-2004-57-1350  28  June  2006.    This  case involved oral sex of an older man on younger boys. A starting point of seven years was adopted.  However, there there were two counts of sexual violation as well as three of inducing and committing indecencies.  Further, the boy was under 12 years, there was repeated offending over 16 months and there had been planning and grooming with child pornographic images shown to the victim.   As well the

victim was told that the man would be imprisoned if the victim told anyone.

b)R v Turner CA 113/04 4 October 2004.  This case also involved oral sex of an older man on younger boys.  A starting point of eight years was adopted, but there were two charges of sexual violation, 11 charges involving indecencies against five boys and a period of offending over two and a half years.

c)       R v Donaldson (1997) 14 CRNZ 537.   That case involved sexual violation by oral sex performed by a man on his employee, an 18 year old boy,  who  was  drunk  to  the  point  of  unconsciousness.    Other indecent acts were performed and the episode lasted over one and a half years.   The victim was unaware of what occurred until he was later shown a video tape recording of the incident.   The Court of Appeal considered that the appropriate sentence was within the three to five, and potentially four to five year, range.  However this range incorporated the mitigating factors (which included, amongst other things, a guilty plea and some counselling).

d)R v Tuipulotu CA 348/01 26 February 2002.   There  were counts involving   indecent   assault,   sexual   violation,   attempted   sexual violation,  assault  and  attempting  to  prevert  the  course  of  justice. There were four different female victims – varying in age from eight years and older.   The Court of Appeal considered that the overall offending  warranted  a  sentence  not  exceeding  eight  years  and arguably less.   The offending occurred on a greater number of occasions and involved more victims than here.

[27]     The relevant circumstances here are that you knew J had resisted you when you had previously tried to touch his penis.  It was only when he was intoxicated and affected by the pills that you proceeded to lick him and masturbate him and have oral sex  with him.   You knew he was not  in  a  position  to  stop  you  from  sexually gratifying yourself with him.

[28]     I do not accept the Crown’s submission that the offending involved a degree of grooming.  That might have been said about the earlier massages which included the indecent assault, but if that was initially your intention then you were unsuccessful.  J broke off his contact with you and approached you more than a year later because he wanted the return of his property.  I am also prepared to accept that your offending was not pre-planned but was more opportunistic in nature and arose when J had decided to stay and drink beer with you.  However, by the time you had given the first pill to J you had decided to take advantage of him – you told J that the pills  were anti-depressants  when  they were not  and  you  also  knew  J  had  been drinking beer.

[29]     There was no violence and no injuries, but the violation involved a breach of trust that J placed in you – as a friend and confidant at a time when he was suffering personal difficulties.  You were much older and physically stronger than J.  J was vulnerable because of his personal difficulties, his slight physical size and because of the beer and pills he had taken.  The violation has impacted badly on J.

[30]     In relation to the counts of attempting to prevert the course of justice, it is the position that this is viewed seriously by the Courts with terms of imprisonment frequently imposed in a range of nine months and up to three years.  I accept what the Crown says that your actions were serious because they had the potential to effect the outcome of the investigation.   However, I also accept  your counsel’s submission, that the attempts at preverting the course of justice were at the lower end of the scale for this type of offending.  Your daughter’s texts sent on your direction did not contain any express threats and the request to your friend to give a false statement was made without threat and was not persisted with.   These matters distinguish this case from the cases to which the Crown has referred.

[31]     Taking into account all these matters, but for the stupefying I consider that the indecent assault and sexual violation would be at the middle of the two to five year range – that is a three and a half year starting point would be appropriate. But, and having regard to the totality principle, I consider that this should be increased to five and a half years because of the stupefying, the earlier indecent assault and your subsequent actions of panic in attempting to prevert the course of justice.

[32]     For the nature and gravity of all the offending I therefore consider that a term of five and a half years imprisonment is appropriate.

Aggravating and mitigating factors

[33]     I  next  need  to  consider  whether  this  term  of  imprisonment  should  be increased or decreased because of factors personal to you.

[34]     There are no aggravating factors personal to you that increase the appropriate term of imprisonment.

[35]     Your counsel emphasises your previous good character.   He refers to you being  a  hard  working man  who  has  supported  your  family including  providing support for your son who has special needs.  Your counsel also refers to you having no relevant previous convictions – you have only three convictions involving driving matters relating to two occasions in the 1970s.  He submits that this offending was out of character.  He also says that it has come at great personal cost to you.  It has affected your marriage and you are now unable to assist with the care of your son. These kinds of costs are, however, inevitable when serious offending occurs.

[36]     I do accept that the evidence at trial showed you were hard working, that you have a family and that you looked after your son.   Beyond that there is not much information before the Court about.  You did not give permission to the probation officer  to  speak  to  your  family.     No  references  have  been  received.     For approximately  22  years  until  about  2003  you  have  lived  and  worked  out  of New Zealand.

[37]     On the basis of the information before me you are, however, entitled to some discount. You are, in effect, a first offender and I also take into account what you have said in your letter.   In particular, it does seem that you are now prepared to acknowledge the hurt that you have caused.  I am prepared to discount your sentence by six months.

Sentence

[38]   So what this means is that your effective final sentence is five years imprisonment.   The Crown does not seek a minimum term of imprisonment and I do not impose one.

[39]     I need to set out the terms of imprisonment that are appropriate to each charge.  I do so as follows:

a)        Sexual violation – five years imprisonment

b)       Stupefying – three years imprisonment (concurrent)

c)        Indecent assault on 17 September 2005 – nine months imprisonment

(concurrent)

d)       Indecent assault – 2004 – three months imprisonment (concurrent)

e)        Preverting   the   course   of   justice   –   six    months   imprisonment

(concurrent)

f)        Preverting   the   course   of   justice   –   six    months   imprisonment

(concurrent).

[40]     Please stand down Mr Smith.

Mallon J

Solicitors:

N Chisnall, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [email protected]

S Robinson, Paino & Robinson, 20 Princes Street, Upper Hutt, email: [email protected]