R v KARAURIA and MOEKE [2017] NZHC 2759

R v KARAURIA and MOEKE [2017] NZHC 2759 [10 November 2017]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS, OF ANY COMPLAINANTS/PERSONSUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [ORNAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-Ā-KAHU ROHECRI-2016-087-000346[2017] NZHC 2759THE QUEENvGENE ELLEN KARAURIAANDLENEITH CHARLES MOEKEHearing: 10 November 2017Appearances: A J Pollett for the CrownR O Gowing for the Defendant, KarauriaG R Tomlinson for the Defendant, MoekeSentence: 10 November 2017SENTENCE OF EDWARDS JSolicitors: Hollister-Jones Lellman, TaurangaGowing and Co Ltd, WhakataneIntroduction[1] Mr Moeke, Ms Karauria, you both appear for sentencing today having beenfound guilty of one charge of ill treatment of a vulnerable adult. That charge carries amaximum penalty of ten years' imprisonment.[2] Mr Moeke, you were also found guilty of one charge of assault with intent toinjure that same vulnerable adult. That offence carries a maximum penalty of threeyears' imprisonment. You pleaded guilty to one charge of assault on a child whichcarries a maximum penalty of two years' imprisonment. I am sentencing you todayfor those offences also.[3] Both of you were convicted of these offences following a jury trial in thisCourt. You were acquitted of a number of other violence related charges against thevulnerable adult.The offending[4] I turn now to the offending which gives rise to the charges.[5] The ill treatment of a vulnerable adult charge arose out of your care of a 32-year-old man. He has an intellectual disability which affects not only his IQ, but alsohis day to day living skills. Expert evidence at trial assessed his communication skills,personal self-care, domestic skills, and socialisation skills as being equivalent to thatof a child aged anywhere between two years 10 months for some skills and 11 and ahalf years for others. It was that intellectual disability that made him vulnerable.[6] You took the victim into your home. He was living down by the banks of ariver at the time. Initially things went well. However, for the last four or five monthsof his time with you, you treated him extremely poorly.[7] Your ill treatment of him took different forms which in combination amountedto a major departure from the standard of care expected of a reasonable person.[8] You restricted the food that he could eat, and at times he was only providedwith one meal a day. There was medical evidence at trial that his hair loss wasconsistent with poor nutritional status, including not having enough food or not eatingwell enough.[9] You also subjected him to verbal abuse by frequently yelling and swearing athim. That verbal abuse was witnessed by others.[10] Although you initially allowed him to use the washing machine and showerwhen he first moved in, that changed, and by the end of his time with you, he wasmade to use the hose outside to clean himself and his clothes.[11] You both took his money and took control of his eftpos card. He was payingyou board, but you took more than what was reasonable in the circumstances. Andwhile that may not have been ill treatment in and of itself, it added to the victim'ssuffering because it deprived him of his independence and control over his own affairs.I have no doubt that this was your central motivation in having him live with you.Intellectually disabled adults who receive an income whether from a benefit or othersources may be particularly vulnerable to this type of exploitation.[12] Finally, when he was uplifted from your care, his body was covered in scarsand he had wounds on his arms and feet. You were acquitted of charges in relation tothe assaults which caused those wounds. But they were injuries which requiredmedical attention. They would have been obvious to you, and yet you did not takehim to a doctor or to a hospital to ensure he received the requisite medical attention.[13] The most telling evidence of the impact of all of this on the victim was theevidence given at trial by his aunt. She saw him shortly before he was uplifted fromyour care. She described him as looking as if he had been burnt, his face ashen, hishands thin like he had lost a lot of weight, and as being frightened and shaking like aleaf. When she was asked to describe his face, she said it was a little bit like DarthVader – dark. She burst into tears at seeing him. I accept that much of this may havebeen due to the assaults on him of which you were acquitted. But I have no doubt thatyour callous treatment of him contributed in a significant way to his suffering.[14] The assault with intent to injure conviction against you, Mr Moeke, alsoconcerns the vulnerable adult. You punched him more than five times while he wasmowing the lawns. He fell down and got up again twice. The punches were to theback of the neck, the back of the head, and under the ribcage. You were seen doingthis by someone across the road. That witness conceded under cross-examination thatthese punches could have been pushes. But, for reasons which I will come to later, Iam sure that they were punches, and I intend to sentence you on that basis Mr Moeke.[15] Finally, the charge which you, Mr Moeke, pleaded guilty to at the outset of thetrial involved an assault on a relative who was living with you. He would have beeneither 12 or 13 years of age at the time. You kicked him twice in the bottom fordrawing in his school books. He said in evidence that it was forceful enough to movehim forward, but it was not really painful.Victim impact statement[16] The vulnerable adult victim has provided a victim impact statement. Hedescribes having nightmares about you both, and about being afraid to go out in casehe will see you. He said that you both made him feel ugly and scared, and he wantedto run away. He never wants to see you again. It is clear that your conduct has had avery lasting effect on him.Sentencing approach[17] I turn now to the sentencing approach I will adopt in sentencing you today.[18] The sentence I fix must be in accordance with the purposes and principles ofthe Sentencing Act 2002. The purposes which are particularly relevant in your caseare:(a) To hold you both accountable for the harm done to the victim;(b) To provide for the interests of the victim of the offence;(c) To denounce your conduct and deter others from committing the sameor similar offences;(d) To protect the community from you; and(e) To assist in your rehabilitation and reintegration.[19] The principles which are particularly relevant include:(a) the gravity of your offending and the degree of your culpability;(b) The general desirability of consistency with appropriate sentencinglevels;(c) The effect of the offending on the victim;(d) Your personal, family, whanau, community, and cultural background;and(e) The requirement that I impose the least restrictive outcome that isappropriate in the circumstances.[20] The sentencing approach is well established. First, I must consider youroffending with regard to aggravating or mitigating factors. That leads to a startingpoint. I then make adjustments, as necessary, for aggravating and mitigating featureswhich are personal to you.[21] I am going to sentence you first Mr Moeke. I am going to undertake yoursentencing as follows(a) First, I am going to set a starting point for your offending against thevulnerable adult. I start with the ill treatment offence as the leadoffence, and consider an uplift for the assault offence. That offendingformed part of a course of conduct against the same victim and Iconsider concurrent sentences, that is, sentences to be served at thesame time, are appropriate for those two offences.(b) Second, I will consider any discounts for personal aggravating andmitigating features.(c) Third, I will consider separately the conviction for an assault on a childoffence to which you pleaded guilty. I consider that offence separatelybecause it involves a different victim, a different type of offending, andit is otherwise unconnected to the other offences. I consider acumulative sentence, that is a sentence which is served following theother sentences, is appropriate for this offence.(d) Fourth, and finally, I will consider whether home detention is anavailable sentence for you.[22] Once I have sentenced Mr Moeke, I will then sentence you, Ms Karauria, onthe ill treatment offence. As with Mr Moeke, I will consider the question of homedetention after I have determined what the likely length of the sentence ofimprisonment would be in all the circumstances.MR MOEKEStarting pointIll treatment of a vulnerable adult[23] So, to you, Mr Moeke. The first step is to set a starting point and, as I havealready said, I take the ill treatment of a vulnerable adult offence as the lead offence.[24] The Crown submits that the breach of trust and the impact on the victim aretwo aggravating features of your offending. Those are not contested by your counseland I agree.[25] The complainant, or the victim, was a vulnerable person living in your home.Although he was an adult, he required the care of others. You showed him kindnessto begin with, taking him in off the streets where he was living homeless, andproviding a roof over his head. That established a relationship of trust between you.But the callous way you treated him in the latter months of his time with you brokethat bond of trust.[26] In terms of the impact on the victim, I have already described his physicalcondition when he was uplifted from your care. The emotional harm is ongoing, aswas made clear by his victim impact statement.[27] The principle of consistency requires me to have regard to sentences imposedfor comparable offending. There is no tariff decision for ill treatment offendingpursuant to s 195(1) of the Crimes Act 1961.[28] The Crown has cited three cases concerning sentences for ill treatmentoffending:(a) In M v R, the Court of Appel upheld a starting point of two and a halfyears' imprisonment for a father, and two years for a mother, whoabused and neglected their 12 to14-year-old daughter over 18 months.The conduct involved assaults, forced baths in cold water, and tying thedaughter up on occasions.1(b) In Heppell v R, a starting point of four years' imprisonment was upheldon appeal to the High Court. That case involved extreme neglect overan extended period of a 91-year-old woman.2(c) Finally, Adams v Police,3 was an appeal from the sentence imposed inthe District Court. A starting point of two years, six months'imprisonment had been adopted in that case. That case involved force-feeding of a young child, hitting with a wooden spoon on the legs,1 M v R [2017] NZCA 274.2 Heppell v R [2017] NZHC 64.3 Adams v Police [2014] NZHC 42.restricting his water intake, and forcing him to sit on the toilet for longperiods of time when he got older. The appeal to the High Courtfocused on whether a sentence of home detention should have beenimposed instead of a sentence of imprisonment (the sentence ofimprisonment was upheld on appeal), but there was no adversecomment on the starting point adopted by the Judge.[29] I am satisfied that all three cases cited involved offending more serious thanyours. The duration of the offending was longer in all three cases. The nature of theill treatment was also more serious. The neglect was extreme in Heppell; there werephysical acts of violence in M v R; and the ill treatment in Adams v Police also involveddeliberate acts of cruelty towards a young child.[30] The Crown submits that a starting point of 18 to 24 months' imprisonment iswarranted. Your counsel submits a starting point of 18 months' imprisonment is moreappropriate. Taking into account the starting points in those other cases I consider astarting point of 20 months' imprisonment for your offending is appropriate.Assault with intent to injure[31] The next step is to consider any uplift for the assault with intent to injureoffence.[32] As I have already said, I have no doubt that the offending involved punchesand not pushing. The witness who gave evidence at trial about what he could see fromwhere he was standing, and what he did see on that occasion, was both credible andreliable. The force involved was significant enough to knock the victim, a grown man,off his feet. You punched him repeatedly, and inflicted blows to his head, neck, andrib cage.[33] Your counsel submits that that if this incident was sentenced on a stand-alonebasis it would not have attracted a sentence of imprisonment. I do not agree. I considerthe violence to be such that it could have attracted a starting point of between 10 to 12months' imprisonment if sentenced alone.[34] However, an uplift must be proportionate to the starting point, and I must bearin mind that it is the totality of your offending which is relevant for sentencingpurposes. The Crown suggests an uplift of six to nine months' imprisonment for boththis offending, and the assault on a child charge. Your counsel suggests an uplift offour months' imprisonment for this charge alone on the basis that it was punches. Iapply an uplift of five months' imprisonment for this offending.[35] That leads to a notional sentence of 25 months' imprisonment before discountsfor personal aggravating and mitigating features are taken into account. I considerthose features now.Personal aggravating and mitigating features[36] First, I consider aggravating features. You have 27 prior convictions.However, your prior offences are either not relevant or not recent. The Crown doesnot seek an uplift for that prior criminal history and I do not apply one. However, inthe face of those prior convictions, I cannot give you any discount for previous goodcharacter.[37] In terms of personal mitigating factors, you have not expressed any remorsefor your offending. To some extent, you still deny it. That is of concern to me.Rehabilitative prospects may be hampered by a failure to take responsibility for youractions.[38] However, you have offered to pay reparation in the sum of $1,500 to the victimat, which your counsel now suggests to me, $35 per week, with that sum to increase ifyou obtain work. Given that part of the ill treatment involved taking money from thecomplainant, I consider an order of reparation to be appropriate in this case, and Iintend to order reparation as part of the sentence. I accept that the offer of reparationreflects an acceptance of responsibility, in some respects, for what you have done, anda small effort to make amends. A small discount from your sentence is appropriate inthose circumstances. I apply a discount of two months for this factor.[39] Finally, I am required to take into account the time spent on EM bail. You havespent approximately 16 months on EM bail awaiting trial and now sentence. Thatincludes a restrictive 24-hour curfew at an address distant from your relatives. Youhave been fully compliant and that is credit to you Mr Moeke. I accept that a discountis appropriate in those circumstances. Your counsel has proposed four to five months.I apply a discount of five months for time spent on EM bail.[40] This brings your notional sentence for offending against the vulnerable adultto 18 months' imprisonment.Assault on a child[41] I turn now to consider the assault on a child offence, to which you have pleadedguilty.[42] An assault, any assault, on a child is serious. That is reflected in s 9A of theSentencing Act which requires me to have regard to a list of aggravating factors insentencing you for violent offending against a child under the age of 14 years. Youroffending did involve a breach of trust as the victim was a relative who was livingwith you at the time. However, in the scheme of things, I consider the nature of youroffending was at the minor end of the scale.[43] You would be entitled to a discount for the guilty plea to this charge. Althoughyou pleaded guilty on the first day of trial on 7 August 2017, the charge was not laidat the same time as the others. It had a first appearance date of 23 June 2017. I accepta significant discount for your guilty plea could be afforded in those circumstances.[44] If this offence was sentenced on a stand-alone basis, it could have resulted ina sentence of community work as your counsel submits. However, I must considerthis offending in light of your offending against the vulnerable adult. That adds adifferent colour to it in my view.[45] Taking into account the personal mitigating features referred to already and thediscount for the guilty plea, I consider a sentence of one months' imprisonment forthis offence would be appropriate. As I have already said, this sentence will be servedafter the other sentences have been served.Totality[46] In effect, that leads to an end sentence of 19 months' imprisonment for thetotality of your offending. Standing back and considering your offending as a whole,I am satisfied that 19 months' imprisonment reflects your culpability. As the sentenceis one of short duration, the only remaining question is whether I should impose asentence of home detention instead of imprisonment.Home detention[47] I have considered that question with reference to the purposes and principlesof sentencing that I mentioned at the beginning of this sentencing.[48] As you will have heard in my exchange with your counsel, I say at the outsetthat I can only sentence you to home detention if I am satisfied that the proposedaddress is suitable. I am not so satisfied. There is a lack of clarity around who hasbeen living at that house and who will be living at that house if home detention was tobe granted. The suitability of any occupants is an important part of the assessment tobe made of the proposed address for home detention. The question then is whether Ishould grant you leave to apply for home detention in the event that a suitable addresscould be identified.[49] In terms of your rehabilitation and your reintegration back into the community,I note that the pre-sentence report writer has recorded that you are responsive to Maoricultural interventions and have responded well in the past to Tikanga MotivationalProgrammes. Home detention would allow you to participate in those programmes,although they may also be available to you in prison. However, I do note that youhave not made any effort to engage in any rehabilitative programmes whilst on EMbail, or in fact any effort at reform at all.[50] As to the protection of the community, I note that the pre-sentence reportrecords your risk of re-offending as moderate. I put little weight on that report as itappears to have, perhaps not expressly, referred to charges on which you wereacquitted. You have been fully compliant with EM bail, and you have completedsentences of community work and supervision in the past, and it has been several yearssince you last offended. Those factors point towards home detention rather thanimprisonment.[51] However, there are several factors which point the other way. They are:holding you accountable for the harm done, denouncing your conduct, and deterringyou and others from committing similar offences.[52] The ill treatment offence carries a penalty of ten years' imprisonment. That isdouble the maximum penalty which applied for the previous offence of cruelty tochildren. The maximum penalty provides some indication of the seriousness withwhich Parliament regards the ill treatment offence.[53] In addition to the ill treatment offence, you were convicted of a serious assaultagainst the vulnerable adult. I do not agree with your counsel in respect of that offence.I consider that offence elevates the gravity of your offending. It needs to be stronglydenounced and you need to be held accountable for it.[54] The deterrence of others from engaging in the type of ill treatment and violentoffending you engaged in is extremely important in cases involving vulnerable adults.Detection and enforcement of this type of offending can be difficult. The intellectualdisability which makes an adult vulnerable in the first place, may also make it difficultto hold offenders to account for what they have done. For that reason, a very strongmessage needs to be sent to deter others from engaging in this type of conduct.[55] Home detention is not a soft option. But, I do not consider that it is asufficiently stern response to hold you accountable, and to meet the purposes ofaccountability, denouncement and deterrence when the totality of your offending isconsidered. A sentence of imprisonment is the least restrictive sentence in thecircumstances, and that is the sentence I intend to impose.Sentence[56] Mr Moeke, please stand.[57] For the offence of ill treatment of a vulnerable adult, I sentence you to:(a) 18 months' imprisonment.(b) I also order you to pay reparation to the complainant in the sum of$1,500 to be paid by instalments of at least $35 per week to thevulnerable adult victim. Reparation payments will commence as soonas you are in receipt of either a benefit or paid income.[58] For the offence of assault with intent to injure, I sentence you to five months'imprisonment. That sentence is to be served concurrently with the sentence for the illtreatment charge.[59] On the charge of assault on a child, I sentence you to one months'imprisonment. That sentence is to be served cumulatively with the sentences ofimprisonment for the ill treatment and assault with intent offences. That results in atotal end sentence for all three charges of 19 months' imprisonment.[60] Mr Moeke, please stand down.MS KARAURIA[61] Ms Karauria, I now turn to sentence you.[62] You are for sentence on the ill treatment of a vulnerable adult offence only.Starting point[63] You and Mr Moeke were charged as joint principals with the ill treatment of avulnerable adult. You were jointly responsible for his care, and you are bothresponsible for his poor treatment during the time he resided with you. There is nobasis to distinguish your culpability from that of Mr Moeke for this charge, and yourcounsel does not seek to do so. I therefore adopt the same starting point of 20 months'imprisonment.Personal mitigating and aggravating features[64] In terms of your personal mitigating and aggravating features, you do have afew minor convictions, but nothing warranting an uplift, and the Crown does not seekone. As with Mr Moeke, however, I am unable to give you any discount for previousgood character in light of those convictions.[65] In terms of mitigating features, you have also offered $1,500 in reparation tobe paid at least $50 per week. Currently, you are on a benefit but you are hoping toreturn to work. You have offered to increase the weekly payments when you are inpaid employment. In addition, you have written a letter to the victim apologising forthe way you treated him, for not taking better care of him, and for verbally abusinghim. You state that you take full responsibility for what you did, and you reassure himthat he has nothing to fear in the future. You seek forgiveness.[66] I accept that letter of apology is sincere, and a genuine expression of remorse.That bodes well for your rehabilitative prospects. In that respect, I have put aside thepre-sentence report which appears to have been based on the charges on which youwere acquitted. In my view, you are entitled to a greater discount for remorse than MrMoeke. I apply a discount of four months for reparation, remorse, rehabilitation, andother personal mitigating factors.[67] Finally, I consider whether to grant you a discount for time spent on bail.Unlike Mr Moeke, you were granted simple bail up until, and for the duration of trial.The conditions of bail were not restrictive, but nevertheless you complied with thosebail terms without incident. I granted you bail pending sentence on those terms. Inthe ordinary course there is no discount offered for that type of bail.[68] However, as a result of an administrative error by the Court in recording thoseterms of bail, it appears that you were made subject to electronic monitoring for aperiod just over six weeks. I don't know how that error occurred Ms Karauria but Iam going to offer an apology from this Court for that, in terms of that administrativeerror. This was an unauthorised restriction on your liberty. You had an electronicbracelet fitted during this time, and were presumably monitored as a result. You weregranted absences on four separate occasions. You did not appear to have a curfew orany other restrictions imposed as a condition of that bail but nevertheless I do acceptthat you were subjected to restrictions that you otherwise would not have been subjectto had the order been abided.[69] Your counsel submits that a three month discount to reflect the illegal natureof the detention should be applied in your case. That would be in the case of a sentenceof imprisonment. He submits that effectively your time spent on electronic monitoringshould be treated as if it was time served towards a home detention sentence.[70] I do not consider a discount in the order of three months can be justified and Ido not consider that a discount by way of compensation for an illegal restraint can bejustified. The sentencing process is in respect of the offence for which you have beenfound guilty. It is not a means to effectively compensate you for an illegal restraint. Iconsider that the comparison is not to a home detention sentence, but to time spent onEM bail. The Sentencing Act specifically provides for time spent on EM bail to betaken into account in the sentencing process. You were subjected to EM bail whenthere was no authorisation for that to occur, and that did place greater restrictions onyou than would otherwise have been the case. In the peculiar circumstances of yourcase I consider a discount of six weeks' imprisonment is appropriate for that time spentsubject to electronic monitoring.[71] Applying these discounts results in a notional end sentence of approximately15 months' imprisonment.Home detention[72] Finally, I consider whether a sentence of home detention is the least restrictivesentence in the circumstances.[73] There is an available address for home detention which has been assessed assuitable for electronic monitoring. You have also been compliant with a previoushome detention sentence at the address.[74] Unlike Mr Moeke, you are not for sentencing on violent offending in additionto the ill treatment offence. You have accepted responsibility for your conduct, andhave expressed genuine remorse. Holding you accountable for what you did is not assignificant in the overall balancing exercise in those circumstances. Those featuresalso mean that the denouncement and deterrence purposes of sentencing can be metwith a sentence of home detention in my view. I consider that sentence for you to bethe least restrictive sentence in the circumstances.[75] A home detention sentence must be served in full. There is no parole periodas there is for a sentence of imprisonment. Accordingly, a term less than the sentenceof imprisonment is usually applied. In your case, I consider a sentence of sevenmonths' home detention is appropriate.Ms Karauria – Sentence[76] Ms Karauria, please stand.[77] On the ill treatment of a vulnerable adult charge, I sentence you:(a) To seven months' home detention subject to the standard statutoryconditions. Upon release from the Court you are to travel directly tothe address mentioned in the pre-sentence report, and await theattendance of a probation officer and security officer.(b) I also order you to pay reparation in the sum of $1,500 by instalmentsof at least $50 per week to the vulnerable adult victim. Payments areto commence immediately.[78] Ms Karauria, you may stand down.Edwards J