The Queen v Victor Louis Mokaraka

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 409/99

THE QUEEN

VICTOR LOUIS MOKARAKA

Hearing:	21 February 2000
Coram:	Gault J Williams J Goddard J
Appearances:	R A Harrison for appellant
A Kiernan for Crown
Judgment:	25 February 2000

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J.

On 2 September 1999 the appellant, Victor Louis Mokaraka, was sentenced to 3 years’ imprisonment on two charges of indecent assaults on each of his sister, C, and a daughter T2, and 2½ and 2 years’ imprisonment respectively on two charges of indecent assault on another daughter, T1. All terms were concurrent. He appeals to this Court on the ground that those sentences were excessive. It is to be noted that the Judge made an order at the conclusion of the sentencing that there be no further suppression of Mr Mokaraka’s name from publication.
Mr Mokaraka was charged with indecently assaulting his sister between January 1985-January 1987. Her version was that she went to sleep on a mattress in a sleep-out with her partner after a party, and awoke to find herself partially undressed with Mr Mokaraka digitally penetrating her vagina. She pushed him aside and told others what had occurred. On 10 May 1999, prior to the commencement of trial, Mr Mokaraka pleaded guilty to indecent assault on his sister but with the leave of the trial Judge she was called by the Crown at trial to give similar fact evidence against Mr Mokaraka.
At the conclusion of the sister’s evidence at trial Mr Mokaraka’s counsel read to the jury an admission made under the Crimes Act 1961 s 369 saying that on the occasion in question he had “put his hand on her vaginal area” accepting that as an indecent act.
Mr Mokaraka did not give evidence at trial but gave evidence at sentencing acknowledging that he indecently assaulted the sister but claiming that he did not digitally penetrate her. The Judge rejected Mr Mokaraka’s version of the matter and sentenced him on the basis that the sister’s account was correct.
The two counts of indecent assault on T1 were both said to have occurred between January 1986 and December 1987 when, first, he rubbed his hands over her body and, secondly, placed her hand on his penis. Prior to T1 giving evidence a further admission was read to the jury in which Mr Mokaraka accepted that between May 1986-May 1987 he was on a couch at the family home with T1 lying beside him and he developed an erection which touched her back and he subsequently ejaculated. Her version was that her father cuddled her, touched her breasts over the top of her clothing and her vagina underneath her trousers and then took hold of her hand, put it on his penis and forced her to masturbate him.
Mr Mokaraka was found guilty by the jury on both counts but the Judge expressly asked the jury to set out the factual basis on which they were finding him guilty if they proposed to follow that course. As a result of the jury’s answers the Judge sentenced Mr Mokaraka on the basis that the jury accepted T1’s version of the earlier part of the incident but had found him guilty only on his admission in relation to the latter aspect.
The indecent assault on T2 was said to have occurred between June-December 1994 when she was about 13. She said that when she was in bed with her father and her brother Mr Mokaraka touched the outside of her vagina with his fingers and she felt his penis on her bottom and the back of her leg following which she thought he masturbated.
Prior to her evidence an admission was read to the jury that between June–December 1994 when his wife was away attending a tangi and the accused was in bed with T1 and her younger brother, his penis twice touched her leg and became erect and he turned away and masturbated.
As a result of the directions given by the Judge the jury’s verdict was regarded as accepting T1’s version of events rather than that to which the appellant had admitted.
The principal grounds on which it was argued that the sentence was excessive were that the Judge gave insufficient weight, first, to the appellant’s efforts to restore the family relationship and rehabilitate himself to prevent his reoffending and, secondly, to the appellant’s pleas and admissions.
As far as the former are concerned, it appears that in 1995 the appellant’s son confronted his father with the revelation of the abuse of his sisters. An assault occurred. The Police were called. As a result of the confrontation the matters giving rise to the charges were disclosed. Towards the end of 1995 it was agreed that Mr Mokaraka would leave the home and undergo counselling. He saw a well-known psychologist on 26 occasions over the period from December 1995-January 1997. In mid-1996 his then wife died. No charges were laid until mid-1998.
The psychologist’s report provided to the Judge to assist in sentencing confirmed the period of counselling together with further consultations in October 1997, June 1998 and July and August 1999. The psychologist recorded the accused’s resignation from school-teaching and taking up employment with less contact with children, his remorse, contrition and guilt at his actions concerning his sister and his daughters, his assumption of responsibility for his offending and his many attempts at reconciliation with the family. The psychologist concluded that Mr Mokaraka was not at high-risk of re-offending.
As against that, the victim impact statements made clear the continuing and extensive emotional and psychological effect on the daughters of their father’s abuse and the deep rifts which the disclosure of that abuse produced in their wider family.
As far as the appellant’s pleas are concerned, counsel advised that offers were made to plead guilty to some of the charges even prior to the plea of guilty in relation to the sister but that those offers were declined on the basis that they were not thought adequately to reflect the culpability of the appellant’s actions and did not cover all the charges he was then facing. It is also to be noted that the pleas were offered on the basis of the appellant’s version of the facts, a version which the jury and the Judge disbelieved in significant ways after the complainants had to give evidence at the trial and after the appellant gave evidence at sentencing.
At sentencing, after reviewing the facts and victim impact reports, the Judge noted the Probation Officer’s recommendation that sentencing be deferred to enable Mr Mokaraka to be assessed for the S.A.F.E. programme and counsel’s submissions in support of a sentence of imprisonment for 2 years or less with that sentence being suspended. That was based on Mr Mokaraka’s lack of previous convictions, the numerous impressive supporting testimonials before the Court, the lack of premeditation or violence, the appellant’s remorse and his seeking rehabilitation well before charges were laid together with his co-operation with the Police. The Judge then dealt with the aggravating features including the numbers of complainants and counts, the breach of trust which was a feature in each offence, the complainants’ suffering and the facts of the matter. The Judge then observed in relation to the pleas (pp 8-9) :
On the matter of the plea of guilty and offers of plea of guilty, Mrs Kiernan submitted that these were not a significant factor in this case and I find that that is indeed so. Clearly you offered to plead guilty on the limited basis of your versions of what had happened. Your plea of guilty in the case of [C] was upon that limited basis but, as it was contested by the Crown, I considered it and found that in fact the offending was far more serious than what you were prepared to admit. Similarly in the case of both [T1] and [T2], the jury found offending of a more serious nature than you were prepared to admit. So your sister and your daughters were not, by your willingness to accept some responsibility, spared the ordeal of giving evidence and indeed your conduct in making the limited admissions when the matter first came to light seems, if anything, to be an aggravating factor which has greatly upset them and has caused them to feel alienated from their family. … So your conduct really in my view aggravated the seriousness of the impact of what you did rather than being a mitigating factor.
That passage was criticised on the basis that it was open to the construction that Mr Mokaraka could not be said to be aggravating the seriousness of the matter by exercising his right to put the prosecution to proof. However, in the view this Court takes of the matter, the passage in question, on analysis, amounts to no more than the Judge adhering to his earlier intention to sentence the appellant on the basis of the factual findings by himself and the jury by contrast with the version of events advanced by the appellant. He was declining to recognise the partial admissions as warranting reduction.
In this Court’s view, the offer by the appellant to enter pleas of guilty is of less assistance to him than is usual. Acceptance of the pleas would have avoided the necessity for his sister to give evidence had the Crown not obtained leave to call her and could have obviated the need for the daughters to give evidence. But, beyond that, the offer of the pleas was not made at the earliest opportunity and, when made, was conditional on the prosecution and the complainants accepting the appellant’s version of events. As matter transpired, more was proved than was offered and the complainants were still required to give evidence.
As is well recognised, admissions or pleas are matters which ought to be taken into account in reduction of sentence. Here, the Crown accepted that a sentence of 3 years’ imprisonment for an appellant in the circumstances of this case was towards the top end of the range. The Judge allowed no express reduction for the plea in relation to the sister or the admissions which were partly accepted by the jury in relation to the daughters. The overall sentence does not appear to have been reduced for that factor.
The other factor relates to the efforts to achieve personal rehabilitation undertaken by Mr Mokaraka and he has undertaken to try to limit the likelihood of his reoffending. Here, the appellant voluntarily undertook a lengthy period of counselling at his own initiative and cost at a time when, although the family was aware of his offending, prosecution was by no means a certainty. He also appears to have made significant attempts to close the rifts which his offending produced within the family. The psychologist took the view that Mr Mokaraka had gained significant insight into the causes of his offending. Those matters and the efforts which he had taken to avoid recurrence led her to the conclusion that he was not at high risk of reoffending.
Genuine and early efforts at rehabilitation, reconciliation and reformation in cases such as these are to be encouraged. Those undertaken by the appellant went well beyond those usually found. In light of that, whilst the circumstances of Mr Mokaraka’s offending are certainly not to be minimised, in our view the Judge failed, with respect, to give sufficient recognition to the remorse and contrition which Mr Mokaraka had shown for his offending or to the substantial efforts which he had undertaken to overcome the problem which he and the family faced, or to the fact that he was well regarded in the community and had no previous convictions.
When all those circumstances are taken into account, in the view which this Court takes, the sentence of 3 years’ imprisonment was beyond what was warranted to meet Mr Mokaraka’s culpability and the appropriate course is to reduce each of the sentences exceeding 2 years’ imprisonment to imprisonment for that term.
Counsel for the appellant submitted that, in the event of the Court determining to reduce the term of imprisonment to 2 years or less, it should consider suspending that term. However, in our view, Mr Mokaraka’s offending is too serious to consider suspending the term of imprisonment. Such would be wholly inappropriate in the circumstances of this case and would deviate from principle (R v Morris CA459/99, 23/2/00).
In the result, the appeal is allowed and each of the three sentences exceeding 2 years’ imprisonment is reduced to a term of 2 years.

Solicitors:

Meredith Connell, Auckland, for Crown

[2000] NZCA 28

25 February 2000