R v Tuaupiki HC Hamilton CRI 2004-019-2492

[2005] NZHC 1310

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2004-019-2492

THE QUEEN

v

CHRISTOPHER TUAUPIKI

Hearing:         23 March 2005 Appearances: R G Douch for Crown

G Matenga for Prisoner

Sentence Imposed:     Sexual violation by USC (x3)

3½ years imprisonment Indecent assault (x2) 1 years imprisonment

(To be served concurrently) Judgment:  23 March 2005

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 19173, Hamilton Matenga & Associates, PO Box 9440, Hamilton

R V TUAUPIKI HC HAM CRI 2004-019-2492 [23 March 2005]

[1]                  Christopher Tuaupiki, you have been found guilty by a jury on two counts of sexual violation by unlawful sexual connection involving digital penetration, one count of sexual violation by unlawful sexual connection involving penetration by an object (namely a potato) and two counts of indecent assault.

[2]                  You were found not guilty by the jury on two further counts of sexual violation by unlawful sexual connection, one involving an object (a potato) and the other involving digital penetration. Both of those charges related to the first complainant.

[3]                  In my view, the likely explanation for the jury’s decision to acquit you on those charges, given that they must have rejected your evidence on others, is that they gave you the benefit of the doubt on the question whether (having regard to the way in which the first complainant reacted to the first occasions when digital penetration and penetration by the potato occurred) the Crown had excluded the possibility that you had an honest belief on reasonable grounds that she consented to the penetration.

[4]                  That is the basis upon which I intend to sentence you, as I must act on the basis of the jury’s findings which necessarily involves rejection of the evidence you gave at trial.

[5]                  The maximum penalties available are 20 years imprisonment on the charges of sexual violation and 7 years imprisonment on the charges of indecent assault. I  say that to make clear, if it is not already clear, the seriousness of the charges on which you have been found guilty.

[6]                  As I said to you when I refused bail pending sentencing, a sentence of imprisonment is inevitable. The only issue for my determination is the length of the sentence to be imposed.

[7]                  As I say, the jury must have accepted the evidence of the two complainants in preference to your evidence. For that reason, the complainant’s account of events must be taken as the foundation for sentencing.

[8]                  The offending in relation to the first complainant occurred after she had been referred to you so that her son could be treated through traditional Maori healing practices. You were a practising Tohunga, though that term was not used by the public health authorities with which you were associated.

[9]                  You visited her home to see the boy. You indicated that his wairua was affected by tapu transferred from his mother. By that means you  commenced treating her, initially through the application of water and later through the rubbing of a potato onto her naked body, both front and back, while she lay on her bed.

[10]               Later, you rubbed the “herbal infusion” made from rangiora into her body in the same way by way of an alleged treatment.

[11]               The jury found that while applying the water to her you touched her breasts and nipples in a manner that rendered you guilty of indecent assault. The jury also found that you penetrated her genitalia with the potato on one occasion and with your finger on another (when the herbal infusion was applied).

[12]               This offending occurred between 1 March and 31 October 2003. At around the time that that offending is alleged to have been completed, you were told by the health authorities you were not to undertake rongoa of this type in the future.

[13]               Yet, the second complainant’s allegations arose out of an incident that occurred in February 2004 when she was referred to your office at Health Waikato’s premises in Pembroke Street. Contrary to your evidence, the jury accepted that you touched her breasts and nipples during this consultation in a manner amounting to indecent assault and that you penetrated her genitalia with your finger or fingers.

[14]               Mr Douch for the Crown has submitted that aggravating features in this case relate largely to the breach of trust inherent in the abuse of each complainant in the context of a professional relationship they believed to exist.

[15]               It is clear that any consent that they gave to you to touch their bodies occurred because they believed you were genuinely treating them. You accepted, yourself, in evidence that touching in the manner alleged was not something that would be done as part of the healing process, given the symptoms that had been displayed. For that reason, I can only work on the assumption that the touching was for sexual gratification rather than for treatment purposes. Indeed the issue of treatment was taken from the jury by me for reasons I gave at the trial.

[16]               Mr Douch has emphasised that the breach of trust in relation to the first complainant occurred in her home. It occurred in the presence of her child and the activity was repeated with the conduct escalating. Each complainant was vulnerable and deserving of support rather than abuse. It is clear from the victim impact statements I have read that each have suffered severely from the consequence of what occurred to them on these occasions.

[17]               Mr Douch submits that I ought not to give you substantial credit for any mitigating factors in relation to prior good character and reputation.

[18]               Mr Douch observes that your actions, as proved at trial, can be seen as saying you do not deserve the respect previously accorded to you by members of the community. Nor, he submits, ought I to give credit for the fact  that you are now  aged 63 and come before the Court for the first time facing an inevitable sentence of imprisonment which I have no doubt you will find hard to serve.

[19]               Mr Douch has taken me through a number of authorities being decisions by the Court of Appeal by which I am bound for sentencing purposes.¹  He notes that the range of starting point is in the vicinity of 2 to 5 years. However, I note a recent decision in which the Court of Appeal indicated  that  a  starting  point  as  low  as  2

1 R v M [2000] 2 NZLR 60 (CA), R v Karotu (1994) 11 CRNZ 691 (CA) and R v Jackson (1997) 14

CRNZ 573 (CA)

years might be seen as rare and one of 5 years might be appropriate in a serious case, before taking account of aggravating features.²

[20]               Mr Matenga, on your behalf, has accepted the aggravating features put forward by Mr Douch. That was responsibly done. There can really be no quarrel with those factors.

[21]               In mitigation, however, Mr Matenga parts company from the submissions made by Mr Douch. Mr Matenga has emphasised to me that you have a gift and that you have used that gift over many years to assist many people in distress. No other complainants have come forward notwithstanding the publicity that has attended your trial. Mr Matenga submits that I can regard these incidents as isolated and give you substantial credit for the good work you have done over the many years.

[22]               Mr Matenga put forward, on your behalf, that you are saddened about the complaints made about your conduct. I understand you still deny the charges.  I  must act on the basis of the jury’s verdict. I do not hold your denial against you but you are not entitled to any credit that would otherwise be available for remorse.

[23]               Mr Matenga submits to me that a starting point at the lower end of the scale of 2 to 5 years is appropriate and that the sentence ought to be kept as low as  possible for the reasons he put forward.

[24]               There are a number of purposes and principles of sentencing I am required to take into account. I am required to hold you accountable for the harm you have done to the victims and the community generally by your offending. The community generally in this sense is the impact of the guilty verdicts in this case on those who undertake traditional healing.

[25]               An incorrect public perception could arise that healing of this type is inappropriate. It is the conduct you displayed on these occasions that  is inappropriate: not the healing process itself. Nothing in the evidence suggested that what you did and what was proved to be done to the complainants amounting to

2 R v Tranter (CA486/03, 14 June 2004, O’Regan, Wild and Doogue JJ) at paras [93]-[95]

sexual violation and indecent assault could, in any way, be properly regarded as part of a treatment process.

[26]               I must endeavour to promote in you a sense of responsibility for the harm that has occurred. I must endeavour to provide for the interests of the victims and denounce the conduct in which you were involved to deter you and others from committing the same or similar offences.

[27]               I am also required, when balancing factors, to impose the least restrictive outcome appropriate in the circumstances and I am entitled to take into account any particular circumstances of an offender that mean a sentence that would otherwise be imposed might be regarded as disproportionately severe.

[28]               As to aggravating factors, I accept the factors that have been advanced by Mr Douch.

[29]               As to mitigating factors, I agree to a large extent with what has been said by your counsel, Mr Matenga. The approach that Mr Douch has urged upon me has the effect, if not the purpose, of suggesting that the conduct which was displayed on this occasion should be used to suggest that your conduct on earlier occasions was equally inappropriate. I do not regard that as an appropriate approach. There is no doubt, from the evidence I heard at trial, that you have helped many people in the past, that they have received treatment from you that was not inappropriate and I believe that you are entitled to credit for your good works over the years.

[30]               I am just sad that that good reputation has been shattered by the activities that occurred on these two occasions. I am also prepared to give a measure of credit for the fact that you are now aged 63 years, you have limited income or assets, and you face a sentence of imprisonment which, I have no doubt, you will find difficult to undertake.

[31]               It is a mixture of that factor and your prior good character which makes up the essence of mitigating factors in this case.

[32]               I have considered, as I am required to by law, whether a reparation order ought to be made in respect of emotional harm suffered by the victims. The information in the probation report and that conveyed to me by Mr Matenga today, indicates that you are in receipt of an income tested benefit and have no savings or assets of significance. I conclude there is no point in making an order for reparation.  I accept that it could not be paid. However, your inability to make reparation means that I must find a sentence which responds adequately to the factors I have  mentioned without reparation occurring.

[33]               Mr Tuaupiki, I regard an appropriate starting point for sentence on the sexual violation charges, before bringing to account aggravating and mitigating factors, as 2½ years imprisonment. That starting point takes account only of those facts that are relevant to the elements of the offence charge. Beyond that it is a question of  whether the sentence should be increased because of aggravating factors and reduced through mitigating factors.

[34]               In my view, the aggravating factors identified by Mr Douch justify the addition of a further period of 2 years to that starting point. However, the mitigating factors I have outlined justify reduction of a period of one year. The overall effect of that is that the sentence you will have imposed upon you in respect of the sexual violation charges is one of 3½ years imprisonment.

[35]               I have considered also the sentence to impose on the indecent assault charges. I impose a sentence of one years imprisonment on each of those charges.

[36]               I accept that an adequate response to the totality of your offending is a sentence of 3½ years imprisonment. Thus, all sentences will be served concurrently.

[37]Stand down.

P R Heath J