R v Tamaiparea
[2015] NZHC 74
•5 February 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2012-009-013648 [2015] NZHC 74
THE QUEEN
v
MANA TENGU TAMAIPAREA
Hearing: 5 February 2015 Appearances:
K B Bell for the Crown
A J Davis for DefendantJudgment:
5 February 2015
SENTENCING REMARKS OF GENDALL J
[1] Mr Tamaiparea, you appear today for sentencing having pleaded guilty to one count of doing an indecent act on a young person under 16 years.1 That charge carries a maximum penalty of seven years’ imprisonment.
[2] You may be seated until I ask you to stand.
The offending
[3] Turning first to the offending. The offending occurred whilst you were living with your long-time partner, a close and trusted relation of the victim. You met your partner around 20 years earlier whilst in prison for serious violence and other sexual offending, those sexual offences having been committed against a young person who was not a blood relation. You were released from prison in 2001 whereupon you
started living together with your partner until you relocated to Christchurch in 2003.
1 Crimes Act 1961, s 134(3).
R v TAMAIPAREA [2015] NZHC 74 [5 February 2015]
The victim lived with you and your partner from about 2008 after Child Youth and Family Services previously raised some concerns about her care. Your previous sexual offending was not disclosed to the whanau. There was therefore no safety plan in place.
[4] On 11 March 2011, the day of the Japanese earthquake and tsunami, the victim became scared and went to bed crying because of those events. You went in to comfort her, hugged her and told her that it would be alright. You later that night returned, got into bed with her, put your hands down her pyjama pants and began rubbing her vagina area which included you touching her clitoris with your fingers. The victim was too scared to do anything at the time and blocked her ears and started crying. You stopped, said you were sorry and left.
[5] In the following 16 months you offended against the same victim in a similar way on between 10 and 15 occasions. You would go into her room, put your hands underneath her clothing, rub and touch her vagina area (including her clitoris) and also touch her breasts.
[6] In an attempt to resist your unwanted advances, the victim began wearing clothes to bed, including tight ‘skinny jeans’ and a hoody, often with other clothes underneath, all tucked in. The victim was scared of you and your offending only came to light when she told a school friend what you had been doing to her, which resulted in the police becoming involved in August 2012.
[7] You pleaded guilty to this offence on 15 October 2014. A first-strike warning was given to you by His Honour Whata J and two s 88 reports were ordered for the purpose of considering a sentence of preventive detention.
Victim impact statement
[8] Turning now to the victim impact statement, the victim has bravely provided a victim impact statement. I wish to acknowledge the difficulty for her in doing so and to recognise the harm your actions have caused her. It is clear your offending has had a devastating effect on her. She says that before you offended against her she was just a normal little girl with friends and a good life. She was happy living
where she was, though was not happy with you. When you began to indecently assault her she had no one to talk to about things of a sexual nature, which she found awkward. She is proud of trying to stop you by wearing tight and extra clothes to bed at night and crying, even though it did not work.
[9] She eventually spoke to some friends, who encouraged her to see a counsellor which she did. This in turn got the police involved which has led to where we are now. She is nervous and uncertain, suffers flashbacks and has difficulty trusting and forming friendships with males.
Sentencing Act 2002
[10] In sentencing you Mr Tamaiparea I am required to have regard to the purposes and principles of sentencing contained in the Sentencing Act 2002. The sentence I impose must hold you accountable for the harm done to the victim and to the community by your offending, it must promote a sense of responsibility in you for that harm and denounce the conduct in which you were involved. It is also necessary to impose a sentence that deters you from future offending, and protects the community from you. The sentence must similarly deter other persons from being tempted to commit offending of this type.
[11] There is no dispute that the only appropriate sentence in your case is one of imprisonment. The real issue is whether I should sentence you to a finite term of imprisonment, or impose the indeterminate sentence of preventive detention. As you have heard, the Crown here seeks a sentence of preventive detention.
Purposes, principles, aggravating and mitigating features
Purposes and principles
[12] Turning now to the purposes of sentencing upon which I will place weight today, this is a case in which in my view you need to be held accountable for the
harm done to the victim and the community by your offending,2 I need also to
2 Sentencing Act 2002, s 7(1)(a).
promote in you a sense of responsibility for what you have done,3 your conduct must be denounced and deterred, for both you and others,4 and the community must be protected from you.5 I also place weight on assisting you in rehabilitating and reintegrating into society.6 I also note that I am obliged to impose the least restrictive sentence that is appropriate in the circumstances.7
Aggravating and mitigating features of the offending
[13] I turn now to consider the aggravating and mitigating features of your offending. The Crown has identified various “culpability assessment factors”, with which your counsel, Mr Tamaiparea, agrees. These are:
(a) Level of touching: this touching involved skin on skin contact – rubbing of the victim’s genital area (including her clitoris) and also touching of her breasts. I agree with counsel that this is very serious and highly culpable touching.
(b)Scale of offending: this offending occurred between 10 and 15 times, which is a substantial number.
(c) Duration of offending: this offending occurred over a period of approximately 16 months which, again, is substantial.
(d)Breach of trust: your relationship with the victim, Mr Tamaiparea, was such that there was a gross breach of trust. You knew the victim well and occupied a position of power in her life.
(e) Vulnerability of the victim: the victim was only 13 to 14 years old at the time you offended against her. The reason you were even part of
her life was that, due to her history, she had to move from her then
3 Section 7(1)(b).
4 Section 7(1)(e) and (f).
5 Section 7(1)(g).
6 Section 7(1)(h).
7 Section 8(g).
family environment to gain stability. Her age and her past, which you were aware of, rendered the victim quite vulnerable.
(f) Premeditation: I agree with views expressed by counsel today that while one incident might be viewed as opportunistic, the ongoing nature of your offending here imports at least some element of premeditation.
(g)Harm to the victim: offending of this sort is known to have lasting psychological impacts. This is evidenced in the victim impact statement I have received and read carefully. It makes very sad reading.
[14] Turning now to mitigating features of the offending, in my view there are no mitigating features of the offending here.
Aggravating and mitigating features personal to you
[15] I turn now to consider aggravating and mitigating features personal to you. In terms of aggravating features here, it is common ground that you have previous convictions for sexual offending against a child, namely four counts of unlawful sexual connection with a female under 12 and one count of male rapes female under
12. You were convicted for this offending in 1994. You also have several violence convictions including male assaults female, aggravated assault and wounding with intent to cause grievous bodily harm.
Discount – the final mitigating feature
[16] In terms of mitigating features, you are entitled to some credit for your guilty plea. Even though you have had a trial, and were facing a retrial, your plea came late. Pleading to the charge which you faced was offered to you by the prosecution immediately following your trial, which ended on 27 March 2014. Ultimately, you pleaded only one month out from your scheduled retrial, originally set down for November 2014.
Appropriate finite sentence
[17] Before considering preventive detention, I will first set out the finite sentence you would receive, Mr Tamaiparea, if that is the sentence I am to impose upon you today.
The position of the parties
[18] In a somewhat unusual turn, it appears that your counsel, Mr Tamaiparea, and the Crown are more or less in agreement as to the appropriate finite sentence that should be settled upon if a finite sentence is to be imposed. In reliance on two decisions, O v R and R v B, the Crown contends that a starting point of three and a half years’ imprisonment is appropriate as the situation here is more serious than those cases,8 that there should be an uplift for previous convictions and the Crown says a five per cent discount should be allowed for your guilty plea.
[19] Mr Davis for you, Mr Tamaiparea, responds to that as follows in his written submissions:
…the calculation which the Crown suggests in relation to the sentencing is accepted as appropriate as is the starting point and counsel takes no issue with the Crown submission in respect to the aggravating and mitigating features [and] in respect to the credit to be given on the guilty plea.
[20] That is somewhat deceiving however as Mr Davis as we have heard today has earlier suggested the credit to be given for the plea should be 15 per cent rather than the 5 per cent advocated by the Crown.
Resolution
[21] Here, I am in agreement with counsel that the appropriate starting point is three and a half years for the offending alone. There needs to be an uplift for your prior offending, but this is somewhat offset by the length of time which has elapsed since. I will therefore uplift this by six months only. This takes me to an adjusted
starting point of four years’ imprisonment.
8 O v R [2010] NZCA 609; R v B CA281/98, 12 November 1998.
[22] As I have said, you are entitled to some credit for your guilty plea. The Crown says this should be no more than five per cent, and your counsel says 15 per cent would be more appropriate. The plea has come late, of that there can be little doubt. However, by pleading you have saved the victim the trauma of having to go through a retrial and have avoided what might be seen as the unnecessary use of the Court’s resources. I am therefore going to fix the discount at 10 per cent, which works out to be five months when rounded up.
[23] Accordingly, if you are to be sentenced to a finite period of imprisonment you will be sentenced to a term of 43 months, or three years, seven months’ imprisonment.
Preventive detention
[24] The Crown however is seeking preventive detention here. In submissions made to me the reasons the Crown advances for this are:
7.The Crown acknowledges that ordinarily the Court may view that a finite sentence combined with the possibility of an extended supervision order would ordinarily be appropriate in a case like the present. Especially so where rehabilitation options were available and an offender was expressing motivation to address their offending causes.
8.However, given the denials by the prisoner of having committed any sexual offending (both present and past) and the lack of rehabilitation options that flow from his denials, the Crown submits that the finite sentence that would otherwise be imposed would be insufficient to protect the community from the prisoner. Given the position taken by the prisoner (which is indicative of a long standing position that has been adopted by him), there is currently no prospect that his risk of reoffending is able to be addressed in the time that a finite sentence would otherwise provide.
[25] Preventive detention is a sentence of imprisonment for an indefinite period. If it is imposed on you, Mr Tamaiparea, you will only be released when the Parole Board is satisfied that you no longer pose a risk to the community. I can impose preventive detention only if I am satisfied you are likely to commit another sexual or violent offence at the expiry of your finite sentence. Section 87(4) of the Sentencing Act sets out the matters to which I must have regard in determining whether to impose such a sentence on you. It is to these factors that I now turn.
Pattern of serious offending
[26] The first factor is the pattern of serious offending. There is little doubt that your history of offending is serious. As I have already mentioned you have been convicted of three counts of unlawful sexual connection on a female under 12 and one count of raping a female under 12. You also have several serious convictions for offences involving violence, as well as a range of other offending. I do note, however, that there has been a substantial period during which you have not offended, your latest conviction before this charge arose from events occurring in
1993, around 18 years before the events giving rise to the current charge.
[27] What is concerning, however, is that despite entering your guilty plea you maintain that you have not committed this offence. Indeed, you say that you have never committed any sexual offending. Your motivation for entering the plea you say is that you wanted to save the victim the ordeal of a retrial. I will consider the implications of your denials shortly.
Seriousness of the harm to the community
[28] The second matter I need to turn to is the seriousness of the harm to the community. Offending such as yours Mr Tamaiparea is both subversive and insidious. It occurs inside the family home, a place where victims should feel safe and secure, and has broad reaching impacts. Your victim has disclosed that your offending has instilled in her a distrust of men generally as well as many other negative effects.
[29] No community should have to fear the predations of unknown offenders against young persons. Any sexual offending against minors causes unnecessary and irreparable harm to the fabric of society and communities and ought to be condemned.
Tendency to commit serious offences in the future
[30] The next matter I need to consider is your tendency to commit serious offences in the future. Several reports have been placed before this Court which
assist me in assessing your likelihood, Mr Tamaiparea, of committing further serious offences in the future. I start with the pre-sentence report prepared by the Department of Corrections, which states amongst other things:
Given Mr Tamaiparea’s denial of this offence his motivation to realistically address the identified causal factors of the offending is assessed as being low. In respect of the earlier sexual offences for which, he received a significant term of imprisonment; Mr Tamaiparea also denied his guilt. Given his stance it is impossible to formulate a realistic rehabilitative plan addressing the core issue supporting his offending, namely the factors driving his sexual offending. … Because he does not accept his guilt he is assessed as being at high risk, in the future, of placing himself in a position where this type of offending is likely to occur.
[31] Next, the first s 88 report prepared by Dr Simone McLeavey, a consultant psychiatrist, relevantly discloses the following:
With regards to the specifics of his convictions over time, Mr Tamaiparea declined to discuss these in detail. He said he pleaded guilty to all non- sexual violent offending but denied his guilt with regards to the 4 x Unlawful Sexual Connection Female Under 12 in 1995, Male Rapes Female Under 12 in 1995 and the more recent index offence of Indecent Assault (young person) in 2014. He said that all these convictions were based on false allegations despite being convicted (found guilty) by Jury trial [and his recent guilty plea].
…
When asked specifically about the [current] offending, Mr Tamaiparea said that these were false allegations and the incidents did not occur. A key issue in Mr Tamaiparea’s case is his emphatic denial that he committed the index offence. I discussed the benefits of acknowledging his offending and the potential consequences of not doing so, while reflecting on possible reasons as to why he could be denying his offending and ways of potentially resolving such issues. He remained steadfast in his denial. He accepted that there was little reason for progressing with an enquiry of his account of the current offence, as he did not wish to discuss it further.
[32] Dr McLeavey then went on to consider your risk issues, Mr Tamaiparea, and commented:
6.Overall the historical and situational risk factors support the view that Mr Tamaiparea poses a significant risk of sexual offending in the absence of further assessment and treatment of sexual arousal patterns and the absence of external supervision. He has a long history and pattern of deviant sexual behaviour and such entrenched behaviour is unlikely to change without treatment. Without treatment he is likely to remain at high risk of reoffending in a sexual manner. If he does offend again, potential victims could
include family members or the children of acquaintances and his most likely victim would be a pubescent or prepubescent female.
[33] The second s 88 report was prepared by Cristina Fon a clinical psychologist from the Department of Corrections. She too notes, Mr Tamaiparea, that you consistently deny both your past and current sexual offending. She notes that your denial is a significant reason why you have received no past treatment for sexual offending. In terms of her overall summary of your risk and risk management she sates:
38…Mr Tamaiparea is considered at medium-high risk of committing further sexual offences against female children in the future. Any potential victims are likely to be female (children and teenagers) within his home environment and over whom he has a parenting role. While his prior convictions would suggest that he is capable of very intrusive offending, his index convictions indicate that he is more likely to commit indecent assault. He is likely able to manipulate those around him in order to offend, and easily convince others that he poses no risk.
Absence of, or failure of, efforts to address the cause of the offending
[34] Next I need to consider the absence of, or failure of, efforts to address the causes of your offending. As I have set out under the previous heading which I have just discussed, your steadfast denials, Mr Tamaiparea, that you have not offended sexually, despite your previous convictions and now your guilty plea to a count of sexual offending, means that it is impossible for you to exert any effort in establishing the roots of your offending, let alone addressing them. This is deeply troubling.
A lengthy determinate sentence is preferable if it provides adequate protection
[35] Lastly I need to consider whether a lengthy determinate sentence is preferable if it is to provide adequate protection. I am aware that I must balance the available determinate sentence which I have reached against the option of imposing preventive detention. The former is to be preferred if I reach a point where I consider it will provide adequate protection for the community.
The least restrictive sentence available in the circumstances
[36] Next I need to bear in mind the least restrictive sentence that is available and appropriate in the circumstances here. In doing this and having considered the two options available to me, I am now required to stand back and determine how I should exercise my discretion. I remind myself that a sentence of preventive detention is not about your punishment, Mr Tamaiparea, but rather protection of the community.
[37] I have carefully considered here whether a lengthy determinate period of imprisonment would provide adequate protection for the community coupled perhaps with some subsequent supervision. I have reached the view that it will not. A primary reason for this is your absolute denials, Mr Tamaiparea, that you have committed both this offence and previous offences, despite your respective guilty plea and findings of guilt at trial by jury. This in turn drives an inability to formulate a treatment plan, or provide adequate resources to identify and address the genesis of your offending.
[38] Without treatment, the professional evidence is that you are at least at a medium-high risk of reoffending. Dr McLeavey categorises your risk of reoffending as significant. The pre-sentence report writer concurs. These reports, coupled with the other factors I have mentioned, have driven me to the conclusion that absent proper treatment you will likely commit a further sexual offence if afforded the opportunity.
[39] Offending against children, as I have noted, is subversive to the mores of our society and the fabric of our communities. Children should be protected. They should not be exposed to sexual violation or indecent acts because the prurient proclivities of other individuals cannot be shackled.
[40] In deciding that this is the only appropriate course in this case, I have had regard to the possibility that an extended supervision order might curtail the need for a sentence of preventive detention. This might well have been the case had you taken the ownership of your sexual offending, Mr Tamaiparea, and opened the door to seeking help and rehabilitation. You have not done so; your denial remains
steadfast. A lengthy determinate sentence, even coupled with an extended
supervision order, would not be sufficient for the community’s protection.
Outcome
[41] Mr Tamaiparea, please stand.
[42] I would like to again acknowledge the braveness of the victim to come forward and disclose this offending. I recognise that the impact of such offending can be profound and that talking about it to anyone, let alone the police can be difficult.
[43] Mr Tamaiparea, His Honour Whata J gave you a three strikes warning for this offence on 15 October 2014. You know what this means and I will not repeat it here.
[44] Mr Tamaiparea, on the charge of doing an indecent act on a young person under 16 years I sentence you to preventive detention. You will serve a minimum period of imprisonment of five years, which is the statutory minimum under s 89 of the Sentencing Act 2002.
[45] Please stand down.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
Clark Boyce, Christchurch
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