R v Tuimata HC Christchuch CRI 2010-009-18492

[2010] NZHC 2212

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-009-018492

REGINA

v

ANTHONY WEKE TUIMATA

Hearing:         9 December 2010

Counsel:         T J Mackenzie for Crown

R A Peters for Prisoner

Sentence:       9 December 2010

SENTENCE OF PANCKHURST J

Mr Tuimata:

[1]      You are for sentence this morning following your conviction for doing an indecent act with a young person, contrary to s134(3) of the Crimes Act.  That crime carries a maximum penalty of seven years’ imprisonment.  In your case, for reasons to which I will refer shortly, the Crown seeks a sentence of preventive detention.

[2]      There was a trial in the District Court in July of this year.  At that time the complainant girl, then aged 15 but aged between 12 and 13 years at the time of the relevant events,  gave evidence.   At the conclusion of her evidence-in-chief and before she was cross-examined by Mr Peters, you changed your plea and you were

convicted on the present charge but discharged on another one.

R V ANTHONY WEKE TUIMATA HC CHCH CRI-2009-009-018492  9 December 2010

[3]      The evidence which emerged, both by virtue of her testimony at trial and as a result of the police investigation, was as follows:  on a number of occasions early on, while you were residing in the home where this girl also lived, you asked her to dance for you, at times when only the two of you were together.  She was involved in  hip  hop  dancing  and  you  obviously  derived  some  sexual  arousal  from  this because, on occasions, you commented that you found her dance routine to be sexy.

[4]      On two separation occasions the complainant’s mother, as she was referred to (although she was in fact a long-term caregiver), found items of underclothing belonging to the complainant in your bedding.  Obviously she saw that as sinister. She raised it with you and on the first occasion accepted your assurances that it must have been by accident that this had occurred.  On the second occasion, however, you were asked to leave the home.

[5]      Unbeknown  to  the  complainant’s  mother,  as  I  will  refer  to  her,  on  a considerable number of occasions there had been sexual activity which was far more sinister than what I have described to this point.  On occasions the complainant went into the lounge when you were the only adult in the house.   She found you masturbating, either while sitting on a couch or, on other occasions, when sitting in close proximity to a television.  The pattern was that you had a cushion in order to conceal yourself.   On some occasions a pornographic video was playing and on others there were pornographic magazines present.

[6]      Although,  on  the  first  occasion,  it  may  have  seemed  that  this  was  an inadvertent occasion of her happening upon you, it is evident from the evidence as a whole that you desired her presence and, indeed, when she was present and witnessing what you were doing, that you effectively required her to remain.  That was done by indicating that if she did not remain and witness your actions her pocket money would be denied her.

[7]      You,  I note,  were  a  boarder  at  this  house  for  a  period  of  months  from September 2007 until April of 2008 when you were asked to leave.   This sort of sexual  activity  occurred,  according  to  the  complainant,  on  10  or  perhaps  more

occasions, always, of course, when her mother was absent.   On one occasion you requested that she perform an oral act upon you but she declined.

[8]      The victim impact statement in relation to the complainant indicates that she had been in the care of her “mother” since she was three.  As a result of disclosure of what had occurred she was taken and placed elsewhere for a time and she is now living with a daughter of the woman who was her mother and caregiver for an extended period.

[9]      It   is   apparent   from   that   statement   that   there   have   been   significant consequences indeed for this teenage girl.  She has had issues with sleep, of trust of males  and  a  number  of  personal  difficulties  which  I  will  not  go  into.    The psychologist who wrote that report made the observation that impacts upon complainants can be as great, and even greater, even where the scale of offending might suggest otherwise.  In other words it is not unusual that even offending of this kind, which does not extend to physical touching, can nonetheless have a profound effect and it is apparent that has been so in this case.

[10]     You are 53 years of age.  You have an extensive criminal history, mainly for offences of dishonesty including numerous burglaries dating back to the early 1970s. In  1988  you  were  convicted  and  sentenced  for  murder.    Accordingly  you  are presently  subject  to  a  life  sentence.    You  stabbed  your  then  partner  to  death following the breakup of your relationship.  You were paroled from that life sentence in 1999.  Within several months of being paroled you committed the first of your sexual offences.  Your victim on that occasion was a 17 year old who was known to you and, indeed, in whose company you had been throughout the day prior to the commission of the offending itself.  She lived in a sleep-out on a property in the city and you, at night, forced entry into the sleep-out, attempted to rape her but were unable to do so, but did commit an unlawful sexual connection.

[11]     I have read the sentencing notices of William Young J from December of

1999 when he sentenced you to six years’ imprisonment in relation to this offending. He also gave you a warning that further sexual offending could well result in the ultimate sentence of preventive detention.  You served the full sentence of six years’

imprisonment and you were released in January of 2006.  It was September of the next  year that the present offending began and continued over the next several months.  I have been informed this morning that following the laying of the charges in this case, which was not until December of last year, you were recalled to prison, initially on an interim basis, but then a final recall order was made earlier this year.

[12]     The imposition of a sentence of preventive detention is governed by sections in the Sentencing Act.  The purpose of the sentence is to protect the community from those who pose a significant and ongoing risk to the safety of its members.   As Mr Peters had to acknowledge, you are eligible for this form of sentence, given this further conviction.  I am required to consider a number of matters relevant to your criminal offending.  These include the pattern of sexual offending in which you have been  involved;  the  extent  of  the  harm  that  has been  caused  as  a  result  of  that offending; any information indicating a tendency to commit further sexual offences in the future; whether you have actively participated in treatment to address the causes of your offending and, finally, a sentencing principle, that a lengthy finite or determinate sentence is to be imposed or preferred if it provides adequate protection for society.

[13]     In order to assess those various aspects I have the assistance of two health assessors’ reports.  These were prepared by psychologists.  Both reports are detailed, comprehensive and well-reasoned.   And, in my view, they are also generally consistent in relation to the opinions which the writers reach about you.

[14]    The most anxious aspect of a sentencing for preventive detention is the assessment of future risk.  The psychologists have employed a number of measures in order to assess risk in relation to you.   One of the tests is a static test which assesses historical information and, in your case, suggests a conclusion that you are at medium to high risk of further offending if back in the community.  Dynamic tests have also been employed which look not at your past, but rather at the present and your personality traits and whether, on account of these, you are at high risk of further sexual offending in the future.

[15]     Those tests result in a score suggesting that you are indeed at high risk of further offending.   The writers note that you have undertaken treatment and participated in numerous programmes during your time in prison.   These include treatment for violent prevention, a straight thinking course, alcohol and drug education but also, I note, extensive one-on-one treatment where, what were termed traumatic issues in your childhood and past were explored, and also your sexual offending to that time.  You have not, however, as Mr Peters noted, participated in a Kia Marama course which is specifically targeted at sex offending.  Generally, it is noted that you have been a good participant in these programmes, presented well and appeared to actively engage, but unfortunately the report writers’ comment, and accurately in my view, that there is nothing to suggest that your actual behaviour has changed as a result of these courses.

[16]     Overall the assessment of both psychologists is that you are at high risk of further serious offending.  I think the best indication of why that is so is contained in a passage in one of the reports which reads as follows – it states that you have:

limited social support, unstable relationships, emotion identification with children, hostility towards women, difficulty with general social rejection, self focus and lack of concern for others, inability to consider the consequences of [your] actions, poor problem solving skills, negative emotionality, preoccupation with sex, using sex as a coping [device], deviant sexual preferences and a history of breaching [your supervision obligations].

It is those so-called dynamic factors which result in the risk assessment to which I

have just referred.

[17]     In considering preventive detention I must look not just at the risk assessment alone, but also at some broader considerations.   Based on that risk assessment, preventive detention could well be indicated or, put another way, you are indeed on the cusp of that sentence.

[18]     I must weigh as well, however, the nature of the offending and assess its seriousness and, in this regard, as I have mentioned in discussion with Mr Mackenzie for the Crown, I have been influenced by the observations of the Court of Appeal in

R v Parahi.[1]   That case concerned an offender who had committed indecent assault upon  a  child,  what  was  described  as  lower  level  sexual  offending  despite, nonetheless, its obvious seriousness in terms of consequences.  In this case the Court stressed the importance and the need to have regard to the underlying principles of sentencing in the Sentencing Act.   The inherent culpability, or seriousness, of the offending must be measured.   The sentence imposed must be proportionate to the criminal conduct which brings the offender before the court.   Typically this will mean that offending which is at the lower end of the sexual scale will not result in a sentence of preventive detention unless there are other factors at play.   The Court identified exceptional cases where there exists a cluster of features; ordinarily determined or persistent behaviour, resulting in cumulative and serious harm to a number of victims, and although lower level offending, still offending which may still result in a sentence of preventive detention.

[1] R v Parahi [2005] 3 NZLR (CA).

[19]     Mr Tuimata, your case has troubled me.  On the one hand the risk assessment is concerning indeed.   On the other, the level  of offending and  your particular background does not impress me as placing your case quite in the exceptional category mentioned in Parahi where, despite the nature of the particular criminal act, preventive detention must be imposed.

[20]     For these reasons, and not by a great margin, I have reached the view that preventive detention would, given the particular offending, be disproportionate.

[21]     I therefore must turn my attention to the appropriate finite sentence.   The maximum sentence, as I mentioned earlier, is seven years’ imprisonment.  I consider that a starting-point of four years’ imprisonment is appropriate for this long-term offending which occurred on a number of occasions.  I uplift that sentence by one and a half years on account of your past record, including your record for violence and your record for sexual offending.  That indicates a sentence of five and a half years.   You entered  a  plea of  guilty, but only after the complainant  had  given evidence before a judge and jury.  That was simply too late.  She was not spared that ordeal and it would be wrong to discount your sentence at all on account of the plea.

[22]     Accordingly you are sentenced to imprisonment for a term of five and a half years in relation to this offence.   You are also subject to a minimum period of imprisonment of three years and eight months.

You may stand down.