R v Tamatea

[2016] NZHC 1412

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATION OR IDENTIFYING PARTICULARS, OF VICTIM PROHIBITED BY S 202 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2013-070-004661 [2016] NZHC 1412

THE QUEEN

v

ANDREW JOHN TAMATEA

Counsel:

H C Mallalieu for Crown

D M Goodlet for Defendant

Sentence:

28 June 2016

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Tamatea, this morning I am sentencing you on the following charges:

(1)Three  representative  charges  of  sexual  connection  with  a  young person;1

(2)       Two specific charges of sexual connection with a young person;2 and

(3)       Four charges of doing an indecent act on a young person.3

1      Crimes Act 1961, s 134(1). Maximum penalty of 10 years’ imprisonment.

2      Crimes Act 1961, s 134(1). Maximum penalty of 10 years’ imprisonment

3      Crimes Act 1961, s 134(3). Maximum penalty of 7 years’ imprisonment.

R v TAMATEA [2016] NZHC 1412 [28 June 2016]

[2]      You pleaded guilty to these charges on 2 March 2016, following a sentencing indication given by Simon France J on 15 August 2014.4   Simon France J adopted a starting point of eight years’ imprisonment.  I say from the outset I intend to adopt the same starting point.

[3]      In sentencing you I shall:

(1)      Describe your offending.

(2)      Explain the impact of your offending on the victim.

(3)      Explain why the starting point of eight years set by Simon France J

should be adopted.

(4)      Explain the adjustments to the starting point. (5)         Explain your final sentence.

Your offending

[4]      You were aged between 46 and 48 years at the time of your offending.  The victim was aged between 12 and 13 years.   You were in a relationship with the victim’s mother and lived with the victim and her mother as a family unit at the time of the offending. You were in effect the victim’s stepfather.

[5]      The offending spanned approximately 18 months between 2012 and 2013 at three separate addresses where you lived with the victim and her mother.

[6]      The offending involved:

(1)Regular instances of sexual intercourse, sometimes as often as twice a week.  During this offending you would sometimes place your hand over the victim’s mouth to stop her calling to her mother who was

sleeping in a nearby room.

4 Sentence indication of Simon France J [2014] NZHC 1926, at [10].

(2)Indecent  acts  such  as  rubbing  the  victim’s  breasts,  genitalia  and engaging in simulated intercourse.

[7]      The victim would tell you that she did not like the sexual activity that was occurring and that she would report you to her mother if it continued.  To dissuade the victim from telling anyone about what was occurring, you told her she would ruin the family because you would go to jail.   You also told the victim that her mother would go into rehabilitation and that the victim would go into the care of CYFS.

[8]      You also purchased items for your victim including a cellphone, synthetic cannabis, food and drink to bribe her from saying anything.

[9]      During the period of your offending, you and the victim would be frequently seen around the town where you lived behaving in an intimate manner.   This behaviour involved kissing the victim on her lips when dropping her off at school and during cycling excursions.  The Crown refers to this behaviour as “grooming”.  I am  not  convinced  this  is  an  accurate description  but  I do  consider it  to  be an aggravating factor.  In my assessment, your overall behaviour was more in the form of manipulative rather than grooming behaviour.

[10]     To compound matters, you approached the victim when she complained to the police and said that if you did not go to jail you would place some money into her bank account.  You also told the victim that you loved her, and her mother and that you missed them both and that you were sorry for your conduct.

The impact on the victim

[11]     The victim’s impact statement has been read in court.

[12]     It is very clear your offending has had a profound impact upon the victim and that  her  life  has  changed  significantly  as  a  result  of  your  offending.    As  a consequence of your offending the victim has lost her self-esteem and has at times attempted to harm herself.  She has suffered emotionally and says that she is a sad,

depressed and anxious young woman.  The victim impact report makes it clear that

you took the victim’s childhood and her future from her.

Starting point

[13]     Simon France J adopted a starting point of eight years’ imprisonment.  That starting point was accepted by both the Crown and your counsel.  I do not consider a lower starting point is appropriate.

[14]     In  reaching  this  conclusion,  I  have  taken  into  account  the  following aggravating factors:

(1)There  was  frequent  sexual  connection  on  a  regular  basis  over  an eighteen month period.

(2)Nature of the sexual conduct.   The offending involved full sexual intercourse.

(3)Breach of trust.   You were in a position of trust and authority in relation to the victim.

(4)Manipulative behaviour.  Your offending involved efforts to dissuade the victim from reporting what was occurring in a manipulative manner, through your words and supplying items by way of bribes.

(5)      Targeting. You engaged in a deliberate course of conduct to obtain the

victim’s participation in sexual acts.

(6)Age disparity.  There was an age disparity of approximately 34 years between you and your victim.

(7)      Vulnerability. The victim was young and vulnerable.

Adjustments to starting point

Previous offending

[15]     The only potentially aggravating factor relevant to you personally is your previous conviction for sexual offending.   In 1981 you were convicted of having sexual intercourse with a girl aged 12 to 16.   Over 30 years has elapsed however since your previous offending.   I have therefore decided not to take your previous offending into account.

Remorse

[16]     Your  counsel  has  submitted  a  discount  should  be  given  to  reflect  your remorse.  She says that you have acknowledged your wrongdoing and that you are sorry.

[17]     I do not find evidence of genuine remorse in your case.   The pre-sentence report says you blamed the victim for “leading” you on and that you “demonstrate a lack of insight” into your offending.   While I commend the steps you have taken towards receiving psychological counselling, I do not consider a discount is justified in the circumstances of this case to reflect any form of remorse.

Guilty plea

[18]     Simon France J indicated a discount of 10 per cent would be appropriate for your guilty plea.  That discount was less than might otherwise have been available because of the delays that occurred before your decision to plead guilty.   Having heard from your counsel on the extent of the discount that should be granted for your guilty plea, I have decided to grant a discount slightly in excess of 10 per cent.  The discount will be 12 months.

Final sentence

[19]     Mr Tamatea, please stand.

[20]     I  am  sentencing  you  to  seven  years’  imprisonment  on  each  of  the representative charges of sexual connection with a young person.  Those sentences are concurrent.

[21]     I am also sentencing you to seven years’ imprisonment in relation to the two specific charges of sexual connection with a young person.   Those sentences are concurrent.

[22]     I am sentencing you to three years’ imprisonment in relation to the four

charges of doing an indecent act on a young person. Those sentences are concurrent. [23]     This means that your sentence is one of seven years’ imprisonment.

[24]     Stand down.

D B Collins J

Solicitors:

Crown Solicitor, Whanganui

Debbie Goodlet, Whanganui for Defendant