R v Takamore

[2013] NZHC 719

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-044-000627 [2013] NZHC 719

R

v

FRED TAKAMORE

Hearing:         11 April 2013

Appearances: K Lummis for the Crown

R Mansfield for the Prisoner

Judgment:      11 April 2013

SENTENCING NOTES OF WOOLFORD J

Solicitors:

Crown Solicitor, Auckland

R Mansfield, Barrister, PO Box 2674, Auckland 1140

R V TAKAMORE HC AK CRI-2012-044-000627 [11 April 2013]

[1]      Mr Takamore, you appear for sentence today having been found guilty by a jury on the following charges:

(a)       one count of sexual violation by unlawful sexual connection, which

carries a maximum penalty of 20 years’ imprisonment;1 and

(b)      one representative count of indecent assault on a female under 12,

which carries a maximum penalty of 10 years’ imprisonment.2

Facts

[2]      The victim in this case, who I will call S, was 11 years old at the time of the offending.  You are not related to her.  The offending occurred during the Christmas holidays of 1993 to 1994 when S stayed over at a friend’s farm house.  During this time, you and your family also stayed at the house.  S was friends with your children and she had met you through school and sporting activities.

[3]      On a number of occasions during the summer you approached S while she was alone in the house.  You would touch her breasts on top of her clothing and kiss her.   This gives rise to the count of indecent assault on a girl under 12.   It is a representative count, meaning that it happened on more than one occasion.

[4]      On one occasion you took S and your son to Orewa beach and parked in a carpark near KFC.  You asked your son to leave the car and go down to the beach. You told S to get into the front seat.  You then lowered the seat and began rubbing her breasts and vagina.  This was initially over her clothes, but you then removed her shorts and underwear and inserted  your fingers into her vagina.   S described a stinging sort of pain and feeling sore and uncomfortable.  She later found blood in her  underwear.    This  offending  gives  rise  to  the  charge  of  sexual  violation  by

unlawful sexual connection.

1      Crimes Act 1961, ss 128(1)(b) and 128B(1).

2      Crimes Act 1961, s 133(1)(a).

[5]      I will now move on to the effect your offending has had on S.

[6]      S has provided the Court with a victim impact statement.  She says you were a man she and her family trusted, yet you took advantage of her in a way no child should have to experience.  S says your offending has seriously impacted on her life and it has, and I quote, “mentally and emotionally ... screwed me up for years”.  She says that it made her an angry young girl and that you basically ruined her life.  It took S a number of years to put your offending behind her and to move on with her life.

Personal circumstances

[7]      I turn now to your personal circumstances.  You are 61 years of age.  You are in full time employment.  Although now single, you were in a relationship for 43 years which came to an end when this offending came to light.   You have three children and six grandchildren whom you appear to have regular contact with.

[8]      I have also had the benefit of reading a number of character and employment references which have been put before the Court today.  These show you have been a reliable and conscientious worker throughout your life.  A number of people clearly think and speak highly of you.

Prior Convictions

[9]      You do not have any prior convictions.

Pre-Sentence Report

[10]     I have also received a pre-sentence report prepared by the Department of

Corrections to assist in sentencing you.

[11]     The report writer assesses you as being a low risk of reoffending, both of a general nature and sexually.  However, you deny that you committed these offences and so you are assessed as not being motivated to explore your identified rehabilitative needs.   Given this, you would not be eligible for psychological treatment or child sex offender rehabilitation programmes if you were sentenced to imprisonment.  This is because an acknowledgement of guilt is required before you can be added to a waiting list.

[12]     The report writer recommends you receive a sentence of imprisonment.

Purposes and Principles of Sentencing

[13]     In sentencing you today I have taken into account a number of sentencing purposes and principles as set out in the Sentencing Act 2002.  The relevant purposes I have taken into account are:

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

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

(c)       denouncing your conduct;

(d)      deterring you and other persons from such offending; (e)       protecting the community from you; and

(f)       assisting in your rehabilitation and reintegration.

[14]     I have also taken into account the principles of sentencing set out in s 8 of the

Sentencing Act.

Crown submissions

[15]     Counsel  for  the  Crown  submits  that  the  charge  of  sexual  violation  by unlawful sexual connection is the lead offence.  The Crown submits there are five clear aggravating features present in your offending.   These are: planning and premeditation; S was vulnerable; the offending caused harm to S; the scale of the offending; and a substantial breach of trust.

[16]     The Crown submits that a starting point in the region of four to five years’ imprisonment is appropriate to reflect the totality of your offending.   The Crown argues there are no mitigating features relevant to you.

Offender’s submissions

[17]     On your behalf, Mr Mansfield accepts that the charge of unlawful sexual connection should be the lead offence.  However, he submits that a starting point of three years’ imprisonment is more appropriate.  He further submits that because you are now 61 years old and these offences are your first convictions, you should be entitled to a discount of 12 months to reflect your previous good character.   This would reduce the sentence to one of 2 years’ imprisonment, which would engage my discretion to impose home detention.  Mr Mansfield submits that a sentence of no more than 12 months’ home detention is the most appropriate sentence for your offending.

Sentencing approach

[18]     I now come to fixing the sentence.   The approach I intend to follow in arriving at the appropriate sentence is that established by the Court of Appeal in several well-known cases.3    In brief, it involves considering the circumstances and

seriousness of the offending you committed and setting what is known as the starting

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

point with the aid of any guideline decisions or comparable cases.   I then need to consider whether there are any mitigating features relevant to  you which might reduce that starting point.

[19]     Because there is more than one offence, I need to consider which offence to focus on and what effect the other offence should have on that sentence as well.

Tariff case

[20]     I agree with the Crown that the offence of sexual violation by unlawful sexual  connection  should  be  taken  as  the  lead  offence.    The  tariff  case  which provides guidance on the starting point for this type of offending is the Court of Appeal’s decision in R v AM.4    The Court of Appeal has said that those guidelines should be applied to all sentencing that takes place after 31 March 2010 but this includes historic offending such as yours.  However, I must bear in mind that your offending occurred around 20 years ago when different sentencing levels applied. Nevertheless, the maximum penalty for unlawful sexual connection of 20 years’

imprisonment has remained the same.

[21]     In R v AM the Court of Appeal identified a number of factors relevant to assessing the seriousness of sexual offending.   By making an assessment of those factors the Court can then assign the offending to one of the three bands suggested by the Court of Appeal in order to set the starting point.   The three bands for unlawful sexual connection are:

(a)       band one: 2 – 5 years’ imprisonment;

(b)      band two: 4 – 10 years’ imprisonment; and

(c)       band three: 9 – 18 years’ imprisonment.

[22]     I note that the upper reaches of band one cross over with the lower limits of band two.  The Court of Appeal said band one will cover offending at the lower end

4      R v AM [2010] 2 NZLR 750 (CA).

of  the  spectrum  and  one  or  more  factors  increasing  culpability  will  place  the offending towards the top of the band.5   The Court said that band two is appropriate for cases of relatively moderate seriousness and will encompass cases involving two or three factors increasing culpability to a moderate degree.6

Analysis

Setting the starting point

[23]     I consider that there are a number of aggravating factors to your offending. First, in my view, the offending was planned and premeditated. You took steps to get S alone by taking her to the beach.  S was also vulnerable due to her young age, the disparity in physical size between you and her and the fact that you were around 30 years older than S.  In R v AM, the Court of Appeal said that offending will be more

serious the greater the age gap between victim and offender.7      The harm to S as

shown through her victim impact statement is also aggravating.   Likewise, in my view, the scale of the offending is aggravating due to the pain S felt and the blood she found in her underpants.   The indecent assault offending also occurred on a number of occasions.  The breach of trust involved is also aggravating.  You were a family friend and one of the adults in the house.  S should have been able to trust you for care and protection.

[24]     I have taken into consideration a number of cases referred to by the Court of

Appeal in R v AM. These cases fall within upper band one and lower band two:

(a)      In R v Kincaid,8  the offender, aged 51, touched the breasts of the 15 year old victim one afternoon as she worked as a cleaner.   Three weeks later, as the two were the last people left at work, the offender grabbed the victim and started kissing her and touching her genitalia. He told her if she told anyone she would lose her job.  He took her to

another  part  of  the  building,  removed  her  pants  and  digitally

5 At [114].

6 At [117].

7 At [42].

8      R v Kincaid [1991] 2 NZLR 1 (CA).

penetrated her for about two minutes before unsuccessfully trying penile penetration. This was a case at the top of band one.

(b)In  R  v  C,9   the  victim  was  11  years  old  and  was  effectively  the offender’s stepdaughter.   She was entrusted into his care for a few days.   The offender, aged 20, induced the victim to masturbate him before he masturbated her and digitally penetrated her.   This was a case at the bottom of band two.

(c)      In R v Bell,10  the victim was 9 years old and was paid to assist the offender with his housekeeping.   A number of indecent assaults occurred over a period of six months and culminated in two instances of digital penetration and licking of the victim’s vagina.   The indecencies included rubbing the victim’s vagina through her clothing and licking and sucking her breasts.  The offender also took indecent photographs of the victim and exposed himself to her and asked her to touch his penis. This case was at the lower end of band two.

[25]     I have also taken into account a number of other cases.  In R v BSW,11  the prisoner was sentenced  on five counts of sexual offending against two victims. There were two representative counts of unlawful sexual connection.  The offending against N commenced when she was between six and eight years old when she would visit the prisoner, who was her grandfather.  The unlawful sexual connection offending involved the offender penetrating N’s vagina with his finger.  He offended against her on a number of occasions over a period of six years.  A starting point of six years’ imprisonment was adopted.

[26]     In SG v R,12 the appellant appealed his sentence of five years’ imprisonment for one count of unlawful sexual connection and one of male assaults female.  The complainant was the offender’s estranged wife.  One night he visited her house and

stayed the night.  She awoke to find him leaning over her and with his fingers in her

9      R v C CA43/98, 28 May 1998.

10     R v Bell CA393/05, 28 April 2006.

11     R v BSW HC Auckland CRI-2009-044-007874, 9 March 2011.

12     SG v R [2011] NZCA 418

vagina.  He demanded sex.  When she refused he began assaulting her.  On the lead offence of unlawful sexual connection, a starting point of four years six months’ imprisonment was adopted.  While the Court of Appeal said this was “at the upper end of the available range”, the sentence was upheld.

[27]   In Bond v R,13  the appellant was sentenced to five-and-a-half years’ imprisonment on one charge of unlawful sexual connection and a representative count of the same.  The offending occurred between 2004 and 2007, when the victim was aged five to eight years old.  The offending involved the appellant touching and penetrating the victim’s genitalia with his finger.   The Court of Appeal upheld a starting point of five years six months’ imprisonment.

[28]     In light of these considerations, I consider your offending sits somewhere between the top of band one and the bottom of band two.  Your offending is not as serious as in BSW as there is only one victim here, although the six year starting point was set with reference to only one victim.   Likewise, it is not as serious as Bond because it was only a single instance of digital penetration.   However, I do consider that your offending is very similar to R v C and R v Kincaid.

[29]     In light of these cases and the aggravating factors present in your offending, I consider that the appropriate starting point for the charge of sexual violation by unlawful sexual connection is one of four years’ imprisonment.

[30]     I increase this by two months’ imprisonment to reflect the representative nature of the charge of indecent assault on a child under 12.  I am satisfied that while this offending itself is not of the most serious kind, it occurred on a number of occasions.   This gives a total starting point of four years and two months’ imprisonment.

Adjusting the starting point

[31]     I must now adjust the starting point to take into account any aggravating and mitigating factors relevant to you personally.

13     Bond v R [2010] NZCA 381.

[32]     There are no aggravating factors. You do not have any prior convictions.

[33]     I turn now to consider whether there are any mitigating factors which would reduce the starting point.  Unfortunately for you, Mr Takamore, you were convicted following guilty verdicts by the jury and so do not receive the benefit of an early guilty plea.  I also do not consider that any reduction should be given for remorse. This is essentially because you have refused to accept any responsibility for your offending and you denied that you committed these offences when interviewed by the writer of the pre-sentence report.

[34]     However, I do accept Mr Mansfield’s submission that you should be entitled to some credit for your previous good character in that you do not have any prior convictions.  I have also taken into account the positive comments and themes which come out of the character references which Mr Mansfield has put before the Court on your behalf.  I consider that a reduction of six months’ imprisonment is appropriate to reflect those factors.

[35]     This means that the end sentence is one of three years and eight months’

imprisonment.

Result

[36]     Mr Takamore, would you please stand.

[37]     On the count of sexual violation by unlawful sexual connection  you  are

sentenced to three years and eight months’ imprisonment.

[38]     On the representative count of indecent assault on a female under 12 you are sentenced to three years’ imprisonment.   The terms will be served concurrently, meaning the total sentence to be served is one of three years and eight months’ imprisonment.

[39]     Please stand down.

……………………………….

Woolford J