R v Tia HC Auckland CRI 2009-092-7402

[2010] NZHC 1945

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-092-7402

THE QUEEN

v

NOFO TIA

Hearing:         5 October 2010

Counsel:         P S Dean for the Crown

I Sapolu for the Prisoner

Judgment:      5 October 2010

SENTENCE OF POTTER J

Solicitors:       Crown Solicitor, P O Box 2213, Auckland 1140

Sapolu Law, P O Box 75420, Manurewa, Auckland

R V TIA HC AK CRI-2009-092-7402  5 October 2010

Introduction

[1]    Nofo Tia, you appear for sentence today on sixteen charges of sexual offending which were laid in May 2009.   You entered guilty pleas on 11 November 2009. Your offending involved five young victims and extended over a period of approximately eight years between 1977 and 1985.  In relation to your first victim there are two counts of sodomy against a boy under the age of 16, one count of sodomy, two counts of indecently assaulting a boy under the age of 16, one count of an indecent act with a boy under the age of 16, and one count of indecent assault.

[2]    In relation to your second victim there are charges of attempted sodomy and indecent assault against a boy under the age of 16.

[3]    There are seven counts of indecently assaulting a girl under the age of 12 which relate to your third, fourth and fifth victims.

[4]    Eleven of the charges are representative charges, meaning that the offending happened more than once in the period specified.

[5]    I have been assisted in my task today by various materials including a pre- sentence  report,  victim  impact  statements,  and  we  have  heard  four  of  these statements read in Court today, and the submissions of counsel.  Two reports were prepared to assist the Court in considering preventive detention, but the Crown does not seek a sentence of preventive detention and I do not propose to refer to the detail of those reports.

[6]    I want particularly to mention the submissions of counsel.  There have been a number of legal  complexities associated with the sentencing due to the historic nature of the offending and statutory changes affecting the offences charged in the period between offending and sentencing.   I was obliged to seek supplementary submissions from counsel and I acknowledge the co-operative and constructive way both counsel have assisted me in all respects.

Factual background

[7]    Your offending began in 1977 and continued to 1985.  It involved five young victims all of whom were related to you.  They, of course, are now adults.  I must address the offending which gives rise to the counts in the indictment to which you entered guilty pleas.  It is a long and sorry account, and will take me some time.  The victims will not be named.  They are entitled to protection.  I refer to them as the first to fifth victims.  I summarise from the summary of facts but I note that some of the dates in the summary of facts differ from those in the indictment.  The indictment must govern.

First victim

[8]    Your first victim was your nephew.   Your offending against him continued from the time he was eleven to when he was nineteen or twenty years old.  Between February and May 1977, when the victim was eleven years old, you, the victim, and his brother, shared a bedroom at the home of your sister and her husband in Tokoroa. When you found yourself alone with your nephew and both sitting on your nephew’s bed, you pulled your penis out from under your clothes and played with it in view of your nephew.

[9]    After this, through to late June 1977, you continued to abuse your nephew.  He would have been eleven or twelve years old.  You would sleep on a mattress between your two nephews.  You would reach up into his bed and fondle his penis under the blankets.  You would get off the floor and lie on top of your nephew.  You would force your nephew onto his stomach and sodomise him.   You would sometimes masturbate him.   Such was the frequency with which this would occur that your victim would roll over when you approached him, knowing what was to come.

[10]  Your sister’s family moved from Tokoroa to Auckland in about June 1977. You went with them.   Your sister and her husband separated shortly afterwards leaving you as the main authority figure in your nephew’s life.  He was twelve when you moved to Auckland.

[11]  You all initially moved  to  your cousin’s home before  your sister and  her family moved to a separate address.  You would alternate between the two addresses. You offended against your cousin’s children.  I shall come to that later.

[12]  The  sleeping  arrangement  with  you  and  your  young  nephews  was  as  in Tokoroa.  In Auckland, too, you would get into bed with your nephew.  You would often sodomise him to the point where he would ejaculate.  He would often beg you not to do so because of the pain it caused him.  On other occasions you would lie facing your nephew.   You would spit saliva between his legs and with your penis stimulate sexual intercourse until you ejaculated.   You would also have him masturbate you until you ejaculated.   This offending occurred between June 1977 and May 1981.

[13]  In 1981 your sister’s family moved again within Auckland.  By this time your nephew was in the fifth form.   You shared a sleep-out with your nephews.   You continued to abuse your first victim in the manner above.

[14]  Following your nephew’s sixteenth birthday you continued to abuse him.  You sodomised him, rubbed his penis between your legs, and made him masturbate you until you ejaculated.  This continued until he was nineteen or twenty years old.  This offending occurred between May 1981 and May 1985.

Second victim

[15]  I come now to your second victim, the son of your cousin.   You offended against him between June 1977 and June 1978, whilst staying with your cousin’s family in Auckland.  You would share a bedroom with your second victim, initially two single beds and later a double bed.  The victim was about twelve years old.  You came to bed one night intoxicated, calling to your victim to see if he was awake.  He ignored you.  You began whispering in his ear, kissing him, caressing his body and removing his clothes.  Your victim ceased pretending he was asleep.  You pulled his hand towards your penis and forced him to touch it.  You tried to stimulate his penis with your hand.   You attempted to penetrate his anus.   He resisted.   You only succeeded in rubbing your penis around his buttocks and lower back.  You forced

your victim to turn and tried to kiss him.  You forced your erect penis to touch the head of your victim’s penis, then rubbed your penis against him, simulating sexual intercourse.  Then, abruptly, you ceased and fell asleep.  Your victim put his clothes on and slept on the floor.

Third victim

[16]  At  this  same  address  lived  your  cousin’s  daughter,  eight  years  old  at  the relevant time.   Your cousin and her husband were shift workers and you would babysit while they were both away.  On one such occasion you were lying on the couch with your cousin’s three children.  You asked this eight year old girl (whom I shall describe as your third victim) to lie with you on the couch, to which she agreed. You had her fetch a blanket which you both lay under.  You pulled up her shirt and started rubbing her stomach.   Your hands moved to her chest.   You asked her whether this was nice.  She did not know what to say, aside from yes.

[17]  The following night you similarly arranged yourself with her on the couch. You began to rub her stomach and, this time, put your hands in her underwear.  You asked her whether this was alright.  Not knowing what else to say, aged eight, she replied yes.  You began to rub her genital area.  You continued to ask her whether that was good.  She replied yes.

[18]  This pattern continued over a further five or six occasions during the period late June 1977 to late August 1978 when her parents were working shifts.  On some of the later occasions you would pull her underwear down.   You would put your erect penis between her legs and simulate sexual intercourse.

[19]  On a separate occasion you inadvertently came across the third victim in the bathroom.    She  ran  back  to  her  bedroom,  got  into  bed  and  covered  herself  in blankets.  You followed her and lifted the blankets.  You lifted up her nightie and pulled her underwear down.  You kissed her once to the genitals.  You asked her if she would like to come and sleep with you, telling her she would like it.   She refused.

Fourth victim

[20]  Your fourth victim was another daughter of your cousin.  She was around five or six years old at the relevant time, late June 1977 to late October 1978.  You would enter her bedroom while she was alone, remove your and her clothing, close the blinds and arrange the mirror so as to see the reflection from the bed.  You would sit on the bed and have your victim straddle you.  Your penis would be in contact with her genitals.  This happened at least twice.

Fifth victim

[21]  I turn finally to your fifth victim, your cousin’s third daughter.   She was around five or six years old at the relevant time.   You and your cousin’s family would visit an aunt who lived in West Auckland.   Your cousin and her husband would sit in the front on the way there, with you in the back and your fifth victim in the middle, often asleep.   You would put your hands in her pants, touching and rubbing her genitals.  You would hold her down when she would try to move away. You would rub her backside.  This happened three or four times.  It was dark.  She did not say anything and the other passengers were unaware.

[22]  On other occasions, your abuse of your fifth victim would resemble that of her sister, your third victim.  You would lie with her on the couch with a blanket over you and with her sisters in the room.  You would rub her backside with your hands. You would rub her genitalia.   You would, on occasion, rub her chest.   Those are facts that inform the charges in the indictment to which you have pleaded guilty.

Personal circumstances and pre-sentence report

[23]  You are now 64 years of age, nearly 65.  You were living, until your arrest on arrival in New Zealand to attend your brother’s funeral, in Canberra.  You say you have been married for at least 30 years with three adult children and an adult adopted daughter with whom you say you have been living.

[24]  You were born and raised in Samoa, one of seven children, five of whom are now deceased.  You migrated to New Zealand at the age of 21.  You say you have worked in general labouring positions in New Zealand and Australia.

[25]  The pre-sentence report records that you report no drug or alcohol use.  You suffer from high  blood pressure and  diabetes.   The report states that  you  were forthcoming and cooperative on interview.

[26]  You state, as recorded in the pre-sentence report, that you are remorseful in relation to the offending.  However this remorse, your pre-sentence report notes, is directed  rather  more  at  your  apprehension  by  police  rather  than  towards  your victims.

[27]  You referred frequently to your faith and having been forgiven.   It is the opinion of the report writer, however, that you do not accept full responsibility for your actions and the effects these actions have had on the lives of your victims.  You are said to lack any genuine empathy for your victims.  I interpolate there to record the submissions made by Ms Sapolu on your behalf today.  She says that you are genuinely remorseful and are shamed by what has happened.  She has presented to me a letter from Pastor Paddy Leuii of the People for Christ Church in Canberra who says that you are a committed and valuable member of the church and a blessing to others.   He says you have taken on board new life in God as have your wife and family.

[28]  The pre-sentence report assesses you as of low risk of reoffending, given your age and limited criminal history, but it states that this risk must be regarded as increased in light of your failure to take responsibility for your actions and their impact upon your victims.  The report states that you are not keen to complete any rehabilitative programmes.  The report writer says that this failure to address your offence-related sexual arousal increases your risk of further offending.   Your motivation to change is assessed as low.

[29]  You have one prior conviction in 1980 for sexual intercourse with a girl aged

12 to 16.   You were fined $400.   Counsel has advised that there is no offending recorded since the offending for which you must be sentenced today.

Victim impact statements

[30]     I refer to the victim impact statements.   I have read them all and we have heard four of the victims read their statements in Court today.  I cannot add to what they have said.  I can only express my sympathy and my respect and admiration for the strength of those victims and for their faith.  We heard today from some very fine people.

Purposes and principles of sentencing

[31]     I must have regard to the applicable purposes and principles set out in the Sentencing Act 2002.  Under s 7 of the Sentencing Act the sentence I impose must seek to hold the prisoner accountable for the harm he has done to his victims and the community and to promote in him a sense of responsibility for and acknowledgment of that harm.  It must denounce the conduct in which you were involved, Mr Tia, and seek to deter you and others from committing similar offences.   It must seek to protect the community from you, but in this respect I note you are assessed as of low or medium to low risk of reoffending and there is no evidence of further offending since 1986.

[32]     In respect of the principles of sentencing set out in s 8 of the Sentencing Act, I must have regard to the gravity of your offending including the degree of your culpability.  I must take into account the desirability of consistency in sentencing and I must impose the least restrictive outcome that is appropriate in the circumstances, taking into account your personal circumstances.  I must consider the effect of the offending on the victims which has been amply and ably articulated and described in the victim impact statements read in Court today, and the fifth victim impact statement which I have read.

[33]     I turn to consider the aggravating and mitigating factors of the offending. These are important.   They are relevant to fixing the starting point for sentencing before account is taken of factors personal to the prisoner either by way of aggravation or mitigation.

[34]     The aggravating factors pursuant to s 9(1) of the Sentencing Act identified by the Crown, which I accept, include:

a)       Actual and threatened violence.   I note that the first victim would often beg the prisoner not to sodomise him because of the pain it caused, which demonstrates the inherent violence in this type of offending, particularly when inflicted on a young child.  But there was not other violence associated with the offending such as violence used to force a victim into submission.

b)Harm to the victims.  As I have said the harm from this offending is only too apparent from the victim impact statements provided.   The harm is wide ranging and long term.  As was said in R v Accused:1

It is a well-settled principle that crimes of this kind call for a sentence which expresses society’s emphatic denunciation of conduct which is a denial of elementary values.  Such crimes are committed against a particularly vulnerable and helpless section of society who are in fact its most precious assets. Children who are victims of prolonged sexual abuse are robbed of much of the joy and innocence of childhood and may be badly affected for the rest of their lives in their own personality and in their relationships with others.

We have heard testimony of that today.

c)      Particular cruelty.   The offending at times was degrading and objectionable.  On occasions the prisoner would ejaculate on his first victim.    He  also  spat  saliva  between  the  boy’s  legs  to  create  a lubricant   before   putting   his   penis   between   the   victim’s   legs.

1      R v Accused CA48/88, 20 June 1998 cited with approval in R v Accused [1991] 2 NZLR 277 (CA)

at 279.

However, there were not additional acts of cruelty associated with the offending.

d)Abuse of trust.  The prisoner was an uncle or considered as an uncle, of all five victims.   He was trusted by their parents to stay at their home and to look after them when the parents were away, often working.     The  prisoner  abused  the  trust  placed  in  him  by  the children’s parents and more seriously, he gravely abused the trust these young children placed in him as an adult member of their family and a member of their households.

e)       Vulnerability of the victims.  By reason of their age and relationship to the prisoner, the victims were extremely vulnerable.   Sometimes Mr Tia would take advantage of them while they were asleep.

f)        Premeditation.  The enduring nature of this offending against multiple victims puts it well out of the category of opportunistic.  The prisoner planned the offending against his various victims.   In respect of the first victim the abuse was perpetrated so often and over such a lengthy period that the boy came simply to accept it, and would roll over when the prisoner approached him.  In relation to the female victims the prisoner seized on opportunities when the parents were out and he was babysitting.

[35]     There are additional aggravating factors in the lengthy period of time over which the offending was committed - February 1977 to May 1985 - over about eight years.   There were multiple victims, namely five.   There was a disparity in age between the prisoner and his victims.  He was their uncle or in the position of an uncle and considerably their senior.  They were young children, although in the case of the first victim the offending continued from the age of eleven or twelve until he was either nineteen or twenty years old.

[36]     There are no mitigating factors related to the offending.

[37]     Mr Tia has a prior conviction for sexual intercourse with a girl aged between

12 and 16 in 1980.   I do not regard this as an aggravating factor to be taken into account  in  sentencing,  but  as  the  Crown  notes,  the  prisoner  cannot  call  on  a blameless record.

[38]     The mitigating factors advanced for the prisoner are his guilty pleas, his age

(he is now 64 years old) and his severe medical condition.  He has diabetes.

[39]     It was also submitted that he is remorseful and has empathy for his victims and I have referred to the submissions made on his behalf by Ms Sapolu and to the letter from his Pastor in Canberra.   It is difficult to accept that when such serious offending against young people has been committed over a period of approximately eight years of which there has been no acknowledgment prior to entry of the guilty pleas  last  year  and  no  acknowledgment  or apology since,  that  there  is  genuine remorse and empathy for the victims rather than regret by the prisoner that he has finally been apprehended for this offending.

[40]     The prisoner is entitled to a discount for his guilty pleas entered about six months after charges were laid.  Those pleas indicate acceptance of guilt and saved the victims the additional trauma and humiliation of a full trial.

Legislative changes to sodomy offending

[41]  I turn to consider legislative changes in relation to sodomy offending.  This is complex legal material but it may assist in understanding the approach I must take to sentencing.   Mr Tia’s sentencing today relates to historic sexual offending.   The offences to which he has pleaded guilty have been subject to legislative reform in the intervening years.  The reforms have raised a number of quite complex issues as to the proper approach to sentencing.  I have addressed these issues with counsel in a series of written memoranda over recent weeks and have received submissions from counsel on the issues raised.  The memoranda and submissions have been extensive

but I present my conclusions in a summary form.  I will not refer to the references included in the footnotes which will appear in my written sentencing notes.

[42]  There are two ways in which the legislative changes impact upon the sentences

I am to impose.

Sodomy

[43]  The first relates to Count six of the indictment.   Count six charges sodomy. The  charge  is  a  representative  charge.    The  victim  (the  first  victim)  was  aged between 16 and 20 years at the time.  This is in contrast to Counts 3, 4 and 8 which charge sodomy and attempted sodomy on a boy under the age of 16 years.

[44]  The  question  arises  whether  sodomy on  an  adult,  irrespective  of  consent, remains an offence following commencement of the Homosexual Law Reform Act

1986.  Section 7(1) of that Act relevantly provides that no person shall be liable to be convicted of sodomy if the act that constituted the offence did not constitute an offence after the commencement of that Act.  Sodomy only constituted an offence after the commencement of the Act if the act was committed on a person who did not consent, a person who was under 16, or (irrelevantly for present purposes) a person who was severely subnormal.

[45]  The victim in this case was 16 years or older.  The summary of facts is unclear as to whether the victim consented.  I consider it most unlikely that he did.  But it is irrelevant.  Lack of consent was not an element of the charge to which the prisoner pleaded guilty.  This is because consent was not a defence to sodomy prior to the commencement of the Homosexual Law Reform Act.  Rather, sodomy is charged in count six in its bare terms.

[46]  The Court of Appeal addressed a similar situation in R v J.2    In that case, the Court considered, obiter, whether on the appellant’s retrial for what the victim described as a brutal homosexual attack, the charge of sodomy on a 16 year old male

could stand in its then present form.   The Court held it could not.   The Court observed that: 3

Pre 1986 the offence was sodomy and the act that constituted the offence was any anal intercourse.  Consent was not a defence.  Sodomy as such is now not an offence.  Section 7(1) precludes a charge in the bare terms of the old s142.  On a retrial count one may be reformulated in terms of an indecent assault of that kind under s141(a) but cannot be maintained in its present form as a charge under s142.

[47]  I respectfully agree with that determination.   The prisoner has not pleaded guilty to an offence the elements of which include any of the three elements by which criminality subsists: a victim that did not consent, a victim under the age of

16, or a victim who was severely subnormal.  Rather, the guilty plea was to sodomy charged in its bare terms.  Sodomy as such is no longer an offence.  Consequently, in respect of Count 6, the indictment does not state any crime.

[48]  Ms  Sapolu  has  today  made,  on  behalf  of  Mr  Tia,  a  motion  in  arrest  of judgment on this ground under s 371(2) of the Crimes Act 1961.  Mr Dean for the Crown has made application that I reserve a question for the Court of Appeal under s 371(3).

[49]  I acknowledge the effect of the above reasoning is that sodomy on a non- consenting adult committed prior to commencement of the Homosexual Law Reform Act is incapable of prosecution under s 142.  I am sympathetic to the submission of counsel for the Crown that in principle such should not be the case.   But such, I consider, is the effect of s 7(1).   It is necessary, I consider, to reformulate such counts in terms of indecent assault.

[50] I grant the Crown’s application.   I invite the Crown to submit to me a memorandum stating the question to be reserved.   I will not impose a sentence in relation to Count 6.  I have previously indicated to counsel my view that if Count 6 were  removed  from  the  indictment  it  would  not  have  an  effect  on  the  overall sentence to be imposed.

3      Cf R v L (No 4) HC Invercargill T3/93, 12 August 1993.

Section 6 of the Sentencing Act 2002

[51]  The second way in which the legislative changes impact upon the sentences I

am to impose relates to the maximum sentence applicable to certain of the offending.

[52]  Section 6 of the Sentencing Act provides that an offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission  of  the  offence  and  sentencing,  to  the  benefit  of  the  lesser  penalty. Section 6 of the Sentencing Act mirrors s 25(g) of the New Zealand Bill of Rights Act 1990.

[53]  I am of the view that s 6 applies to the maximum penalties in respect of the following counts in the indictment: Counts 1, 2, 5 and 9 (the indecency counts), Counts 3 and 4 (the sodomy counts) and Count 8 (the attempted sodomy count).  My reasons follow.

[54]  I begin with a preliminary matter concerning the ages of the victims as charged in the indictment.  In respect of Counts 1 to 3, the indictment is unclear as to whether the victim was 11 or 12 years old on commission of the offences.  The distinction is germane to sentence.  I proceed on the basis that the victim was 12 years old.  That is, I give the prisoner the benefit of the uncertainty.  An analogous situation arose in

S v Police4  and was similarly approached.  In respect of Counts 4, 5, 8 and 9, the

victim was at least 12 years old on commission of the offences.

[55]  I turn to the indecency counts.  Under s 140 of the Crimes Act as it applied at the time of the offending, indecency with a boy under the age of 16 attracted a maximum penalty of 10 years imprisonment.   The Homosexual Law Reform Act replaced s 140 with ss 140 and 140A.  Section 140 related to indecency with a boy under 12 and attracted a maximum penalty of 10 years imprisonment.  Section 140A related to indecency with a boy between 12 and 16 years and attracted a maximum penalty of seven years imprisonment.

[56]  The victims in respect of these indecency counts (the first and second victims), were 12 or above.  The penalty was varied between commission of the offences and sentencing.  The prisoner has the right to the benefit of the lesser penalty.  The lesser maximum penalty is seven years imprisonment.

[57]  I turn next to the sodomy counts.  Under s 142 of the Crimes Act as it applied at the time of the offending, sodomy on a male under the age of 16 years attracted a maximum penalty of 14 years imprisonment.   The Homosexual Law Reform Act amended s 142.  As amended, anal intercourse (as it was recharacterised) on a person under 12 attracted a maximum penalty of 14 years imprisonment.  Anal intercourse on a person between 12 and 16 attracted a maximum penalty of seven years imprisonment.

[58]  The victim (the first victim), in respect of the sodomy counts, was 12 or above. The penalty was varied between commission of the offences and sentencing.  The lesser maximum penalty is seven years imprisonment.

[59]  I turn finally to the attempted sodomy count.  The victim (the second victim), was 12 or above.   I proceed on the basis that the maximum penalty applicable in respect of count eight is three and a half years imprisonment.  This is the effect of s 311 of the Crimes Act.

[60]  Counsel  for  the  Crown  has  submitted  that  the  old  and  new  offences  are different offences, of differing ambits,5  and that s 6 of the Sentencing Act applies only to changes in the punishment for the same offence.  I have considered Canadian case law and commentary on this point.6    I do not, however, accept counsel for the Crown’s submission.  I prefer the view of Thomas J in R v Afeaki.7   His Honour held in that case that the original s 142 and the amended s 142 provided for substantially

5      R v Accused (1998) 15 CRNZ 622 (CA) at 625.

6      R v Gamble (8 September 1986), 3311 (Ontario Supreme Court) at [56]; R v B (1989) 51 CCC (3d) 35 (PESCTD) at [30]-[33]; Don Stuart Charter Justice in Canadian Criminal Law (3rd ed, Carswell, Scarborough, 2001) at 386; Roderick McLeod, John Takach, Howard Morton and Murray Segal The Canadian Charter of Rights: The Prosecution and Defence of Criminal and Other Statutory Offences (looseleaf ed, Carswell) at [20.2]. Cf Gamble v R [1988] 2 SCR 595 at

[85].

7      R v Afeaki HC Auckland T198/94, 20 December 1994.   See also R v Afeaki HC Auckland

T031488, 10 December 2003. Cf R v Accused, above n 5, at 625.

the same offence and that the predecessor to s 6 applied.  His Honour approached sentencing on the basis that the maximum penalty applicable in respect of sodomy on a 14 year old boy was seven years imprisonment.  I find similarly in respect of the original s 140 and the inserted s 140A.  I note that this was the approach implicit in S v Police.8    I respectfully agree with Thomas J that such an approach is consistent with the clear spirit of s 6 and s 25(g) of the New Zealand Bill of Rights Act.

[61]  As a final matter, I have not overlooked that the current offence substantially similar  to  sodomy  on  a  young  person  (that  is,  a  person  under  16)  is  sexual connection with a young person under s 134(1) of the Crimes Act, attracting a maximum penalty of 10 years imprisonment.  Counsel for the Crown submitted that s 6 is intended to refer to the penalties that apply at the time of sentencing and not to any earlier fortuitously lower but no longer current variation.  But the literal meaning of s 6 is clear: seven years is the lesser of the varied penalties.   In the absence of authority I am not inclined to depart from a literal reading of s 6.

[62]  Counsel for the Crown sought leave to amend Count 3 of the indictment by substituting it with two counts, the first in terms on which it is clear the victim was under the age of 12.  Counsel has, however, been unable to direct me to the Court’s power to grant leave to amend an indictment to which a plea has been entered.   I have raised whether s 359 of the Crimes Act might apply, though I express no view

on the point.9   In the event, the proposed amendment was not pursued by Mr Dean in

oral submissions.

[63]  In summary, I proceed on the basis that the maximum penalties applicable in respect of:

a)        Counts  1,  2,  5  and  9  (indecency,  under  16)  are  seven  years imprisonment;

b)        Counts 3 and 4 (sodomy, under 16) are seven years imprisonment;

8      S v Police, above n 4, at [11].

9      See in this regard R v Brightwell (1995) 12 CRNZ 642 (CA) at 648 as to whether a plea of guilty without sentence having been determined is sufficient to found a plea of previous conviction.

c)        Count  8  (attempted  sodomy,  under  16)  is  three  and  a  half  years imprisonment;

d)       Count 7 (indecent assault, 16 or above) is five years imprisonment;

and

e)        Counts   10   to   16   (indecent   assault,   under   12)   are   ten   years imprisonment.

Approach to sentencing

[64]     I am here confronted with the task of sentencing for historical sexual abuse. The offending occurred between 1977 and 1985.  I am required to fix a starting point for sentence based upon the sentencing levels at that time which recognises and takes into account the aggravating features of the offending (there being no mitigating features of the offending).  I will then make allowance for mitigating factors that are personal to the prisoner.

[65]     This approach to sentencing in cases of historical abuse was set out by the Court of Appeal in R v R,10 and recently confirmed in R v KJB.11   However, as was made clear in R v Accused,12  although the starting point for any sentence must be fixed in the context of the maximum penalty available at the time and generally by reference to any discernible sentencing regime of that era, that does not involve attempting to  reconstruct  the sentencing mores  of  an  earlier  time.    Present  day

attitudes  must  govern  the  sentencing  approach.    I  am  not  required  to  try  to reconstruct a sentencing milieu in which the lower maximum penalties that then applied, reflected that this type of offending was formerly regarded considerably less seriously than it is now.

10    R v R CA244/04 2 November 2004 at [22]

11    R v KJB [2007] NZCA 292 at [34].

12    R v Accused (1998) 15 CRNZ 602 (CA) at 609.

Authorities

[66]     Counsel referred me to a number of authorities which I have considered.  The Crown referred to R v Karup13, R v Wolland,14  R v Afeaki,15  R v Peterson,16  R v KJB,17 R v Darke18 and R v Mackwood.19

[67]     The Crown submitted that the cases of Karup, Wolland and Afeaki are of most assistance because they relate to sodomy charges but the Crown submitted that the offending in this case is more serious than in those cases.

[68]     The defence referred to R v Gainsford.20

[69]     While these authorities provide some general guidance they are of limited assistance.  Not only does each differ factually, often considerably, but the sentences have been imposed in relation to maximum applicable penalties of fourteen years for sodomy offending, whereas the maximum I must apply is seven years.  An exception is R v Afeaki in which Thomas J recalled a sentence and re-sentenced Mr Afeaki on the basis that the maximum penalty applying for sodomy was seven years imprisonment.  I have already referred to this matter.

Sentencing

[70]     I turn then to consider the sentences that it is appropriate to impose in this case.

13    R v Karup HC Auckland CRI-2003-090-11559, 20 July 2004

14    R v Wolland CA437/02, 3 June 2003.

15    R v Afeaki HC Auckland T031488, 10 December 2003.

16    R v Peterson HC Auckland T032189, 17 November 2004.

17    R v KJB [2007] NZCA 292.

18    R v Darke CA255/88, 20 April 1989.

19    R v Mackwood CA197/95, 28 March 1996.

20    R v Gainsford [2007] NZCA 584.

[71]     I treat the two charges of sodomy against a boy under sixteen (Counts 3 and

4) as the lead offences.  As I have explained they carry a maximum penalty of seven years imprisonment.  There are present in relation to this offending the aggravating factors I have identified at [34] and [35].   I take a starting point of five years imprisonment.

[72]     I  propose  to  reflect  the  criminality  involved  in  the  totality  of  Mr  Tia’s offending by imposing  a  cumulative  sentence  in  respect  of  the  indecent  assault offending against the three female victims who were all aged under twelve years. These offences were of a different kind against different victims of a different gender and are not connected with the sodomy and associated offending against the two boys, except to the extent that the prisoner took advantage of young and vulnerable family members whom he exploited for his own sexual gratification.

[73]     Of the indecent assault charges in Counts 10 to 16 which carry a maximum penalty of ten years imprisonment, perhaps the most serious is Count 14 which involved the prisoner putting his penis in contact with the victim’s genitals, although there was no penetration.   I take a starting point of three years imprisonment on Count 14.   To reflect the totality of the prisoner’s offending that sentence will be cumulative on the sentence of five years imprisonment on Counts 3 and 4.   The cumulative starting point is therefore eight years imprisonment.

[74]     I must make an allowance for the mitigating factors.  I make an allowance of twelve months to take account of the mitigating factors advanced on behalf of the prisoner which I have already addressed at [38]-[40].  From the resultant figure of seven years, I allow a reduction of twelve months, approximately fifteen per cent, for

the prisoner’s guilty pleas, in terms of R v Hessell.21   This produces an end sentence

of six years imprisonment.

[75]     As stated, the sentences on Counts 3 and 4, and the sentence on Count 14, are to be cumulative.  The cumulative starting point is eight years imprisonment.  But this must be subject to the allowances for mitigating factors, including the guilty

21    R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.

plea,  referred  to  in  the  previous  paragraph.    I  propose  to  apportion  the  total allowance approximately proportionately against the two sentences, so that the sentences will be three years nine months on each of Counts 3 and 4, and two years three  months  on  Count  14,  giving  a  total  effective  sentence  of  six  years imprisonment.

[76]   Standing back I am satisfied that the resultant sentence of six years imprisonment is not wholly out of proportion to the gravity of the overall offending, a  consideration  I must  take  into  account  under  s  85(2)  of  the  Sentencing  Act. Indeed, as I have said I consider such a sentence is appropriate to reflect the totality of the prisoner’s offending.

[77]     Were Mr Tia to have been sentenced under the current law, the maximum penalty for the most serious offences would have been twenty years rather than seven years.  The increase in penalties reflects the abhorrence with which our society views this type of offending.  But I must sentence in accordance with the penalties that applied at the time of the offending.

[78]     In respect of the remaining charges, I impose the following sentences.

[79]     These sentences are to be served concurrently with the sentences of three years and nine months imprisonment on the sodomy charges, Counts 3 and 4.

a)       Count 1 – indecent act under 16 – one year’s imprisonment;

b)       Count 2 – indecent assault under 16 – one year’s imprisonment; c)       Count 5 – indecent assault under 16 – two years imprisonment; d)       Count 7 – indecent assault – two years imprisonment;

e)        Count  8  –  attempted  sodomy  under  16  –  two  years  six  months imprisonment; and

f)        Count 9 – indecent assault under 16 – one year’s imprisonment.

[80]     The following sentences are to be served concurrently with the sentence of two years three months for indecent assault under 12, imposed on Count 14.

a)       Count 10 – indecent assault under 12 – two years imprisonment; b)       Count 11 – indecent assault under 12 – two years imprisonment; c)       Count 12 – indecent assault under 12 – two years imprisonment; d)       Count 13 – indecent assault under 12 – two years imprisonment; e)       Count 14 – indecent assault under 12 – two years imprisonment; f)        Count 15 – indecent assault under 12 – two years imprisonment; g)       Count 16 – indecent assault under 12 – two years imprisonment.

[81]     On Count 6, no sentence is imposed for the reasons I have previously given. [82]     Would you please stand Mr Tia.

[83]     Mr  Tia,  the  effective  end  sentence  imposed  upon  you  is  six  years imprisonment.

[84]     You may stand down.