R v P [2017] NZHC 627

R v P [2017] NZHC 627 [4 April 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2015-090-005086[2017] NZHC 627THE QUEENvPHearing: 4 April 2017Counsel: J Murdoch for CrownSE Giles for DefendantJudgment: 4 April 2017SENTENCING REMARKS OF DOWNS JSolicitors/Counsel:Meredith Connell, Auckland.Public Defence Service, Manukau.Introduction[1] Mr P, you are to be sentenced for sexual offending against five young victims. You pleaded guilty in July last year to seven charges:(a) Five representative charges of sexual violation by unlawful sexual connection.1(b) One charge of indecency with a boy under 12 years of age.2(c) And one charge of sexual conduct with a child under 12 years.3More about the delay later.Factual background[2] Your offending occurred between 1993 and 2007; or more particularly, between 1993 and 1994, and then between 2002 and 2007. You were living at yourmother's home. So too a number of young relatives: they were being cared for byyour mother.Offending against M[3] You first offended against your female cousin, M. She recalls waking one morning in 1993 to find you performing oral sex on her. When she asked you tostop, you said, "no one will believe you". She was then thirteen. On anotheroccasion, also in 1993, M woke to find you performing oral sex on her. This time, however, she noticed your five-year-old son was sitting on the end of the bed watching.Offending against G[4] You next offended against your young male cousin, G. In 1999, G and his family moved in with you and your mother. In 2001 or thereabouts, and when G was1 Crimes Act 1961, s 128(1)(b). The maximum penalty is 20 years' imprisonment.2 Crimes Act 1961, s 140. The maximum penalty is 10 years' imprisonment (now repealed).3 Crimes Act 1961, s 132(3). The maximum penalty is 10 years' imprisonment.six, his parents moved away leaving him in your mother's care. On a number ofoccasions, you performed oral sex on G. And on at least five occasions, you forced G to perform oral sex on you. During one encounter, you grabbed G's penis withyour hands and rubbed it. You made him do the same to you. The offending ended in 2004 when G was placed with new caregivers.[5] These facts form the basis of two representative charges of sexual violation by unlawful sexual connection and one charge of indecency with a boy under 12.Offending against J[6] You also offended against your niece, J. She lived close by. The offendingoccurred between 1 January 2003 and 31 December 2006.[7] When J was 10 or 11, she awoke to find you lying next to her. You had beendrinking at her house. J's pyjamas had been removed. She felt your fingers insideher genitalia. After realising what was happening, J left the bed and ran to hermother's room.[8] When J was 12 or thereabouts, she spent a night at your mother's house andslept in the lounge. She awoke to find you lying next to her. Your fingers were inside her. She got up, jumped over you and returned home.[9] The third incident in relation to J was similar, both in terms of her age and your conduct. Again, she was approximately 12. And again, she woke to find you next to her, and with your fingers inside her genitalia.Offending against A[10] You also offended against J's sister, A—your niece. On 25 July 2003, when A was 12, you went to a birthday celebration. That night, you entered A'sbedroom while she was asleep. You started to touch her chest under clothing. And, you tried to get her to touch your penis. A pulled away. You slid your hands down her pants and rubbed her genital area. You then put your fingers inside her. A started crying. You stopped.Offending against ME[11] Your fifth victim is the sister of J and A—another niece. I will refer to her as ME. When ME was approximately eight, you were drinking with her parents. Early the next morning, you entered her bedroom and sat next to her on the bed. You then you got on top of ME. You rubbed your erect penis on her genital area. You then took hold of her and placed her on top of you while you lay on your back. This offending occurred in either 2006 or 2007.Procedural history[12] You pleaded guilty on the morning of trial—that was 25 July last year. You were due to be sentenced on 11 October 2016. Reports were ordered to consider whether a sentence of preventive detention was appropriate. On 18 August 2016, however, your pre-sentence report advised the Court you wished to change your plea back to one of not guilty.[13] On 20 September 2016, a psychiatrist engaged by the Court to write a report about the possibility of preventive detention advised you refused to be interviewed. You refused to engage with the other Court-appointed psychiatrist too. However,you did engage with a psychiatrist you had privately arranged for the purposes ofmaking an application to vacate your guilty pleas.[14] You said your lawyer advised you to plead guilty. You said you followed that advice but later considered you should not have done so. You said you made your decision to plead guilty while labouring under the effects of depression. On 3 March this year, Whata J declined your application to vacate your guilty pleas. The Judge accepted you had suffered one or more episodes of depression. However, the Judge was not satisfied you were suffering depression when you pleaded guilty—or if you were; that any episode had affected your pleas.Starting point[15] I must consider the seriousness of your offending and determine what is called a starting point. It is the period of imprisonment appropriate for youroffending before taking into account mitigating features. A case called R v AMprovides guidelines to help me assess the seriousness of your offending.4 That casedraws a distinction between offending involving penile penetration of the mouth andother forms of offending involving unlawful sexual connection. As a result, youroffending against G requires a different analysis, at least initially, than the rest ofyour offending. For that reason, the Crown has correctly identified your offendingagainst G as the lead offending. I turn first to it.Offending against G[16] I agree with the factors identified by the Crown as aggravating:(a) Planning and premeditation – although your offending appears to have been largely opportunistic, there was some planning and premeditation because you took steps to make sure you were alone with the victim. The repeated nature of the offending perhaps also implies some degree of premeditation. However, this factor is present only in small degree.(b) Vulnerability of the victim – G was highly vulnerable. He was a young relative. And, G had been placed in the care of your mother. You knew that. This aggravating factor is significant.(c) Harm – harm is inherent to offending of this nature. I have read avictim impact report in relation to G, and victim impact reports inrelation to A and ME. All have suffered serious consequences.G seems to have suffered the most. I will not elaborate other than tosay he reports twice attempting to commit suicide because of the harmyou perpetrated.(d) Scale of offending – your offending took place over a period of three years. There were at least five occasions. In my view, this feature is present to moderate extent.4 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.(e) Breach of trust – there was a clear breach of trust because you wereG's adult cousin. Plainly, the familial context carried with it a degree of trust, particularly because G was living with you and being cared for by your mother. This feature also presents to moderate extent.[17] I agree with the Crown this offending falls within rape band two of R v AM. This band is appropriate for cases involving a vulnerable victim and two or three of the factors I have identified above to moderate degree.[18] In my view, your offending in relation to G lies in the middle of this band. Itwould call for a starting point of nine years' imprisonment if charged alone.However, I do not need to be precise for this offending needs to be considered alongwith the offending against the other victims and an adjustment then made for totality.Remainder of the offending[19] I turn now to the other offending. In my view, it falls within band three of thebands established in R v AM. It involved young victims, was committed over asignificant period of time and exhibits the same aggravating factors in relation to theoffending against G. The victims were arguably more vulnerable than G because, onoccasions, they were asleep.[20] I have considered three other cases cited to me by the Crown.5 The mostsimilar is one called R v Robinson in which the Judge adopted a starting point of12 years' imprisonment for five charges of sexual offending in relation to two youngvictims.6 Your offending is more serious: there were more victims, the offendingwas greater, and it persisted for a longer period.[21] Consequently, I consider the appropriate starting point for the remainingoffending to be 13–14 years' imprisonment.5 R v P (CA86/95), 10 August 1995; and R v H (CA101/06), 18 September 2006.6 R v Robinson [2014] NZHC 2827.Overall starting point[22] The Crown contends for an overall starting point of between 13 and 15 years'imprisonment. Responsibly your lawyer agrees. I conclude the overall starting pointis at the very top of that range given the seriousness of your offending.[23] You have four other convictions for violence. I say other because sexual offending is a form of violence. However, I will not increase the starting point because three of the four offences did not attract a sentence of imprisonment. These cannot have been particularly serious. The fourth offence was serious, but you committed it (wounding with intent to injure) after you committed the sexual offences. To increase your sentence by reference to this offence would be contrary to principle.Mitigating features[24] There are no mitigating features beyond one that I will come to. Responsibly,Ms Giles acknowledged you do not accept you committed any of these offences. Itfollows the only relevant mitigating feature is your guilty pleas.Guilty plea discount[25] By pleading guilty you spared the victims from having to endure the trauma of testifying. Ms Giles invites me not to treat your subsequent conduct as affectingthe level of discount. I do not accept that submission. Your lack of cooperation withCourt-appointed experts, absence of insight and refusal to accept any wrongdoingnecessarily affects the discount I can afford for entering guilty pleas. But for thesefactors a discount of 15 percent would have been appropriate. In your case, adiscount of not more than 10 percent is appropriate. Coincidentally, this is the samelevel of discount given in the Robinson case. There too guilty pleas were entered onthe morning of trial.Minimum period of imprisonment[26] I have decided to impose a minimum term of imprisonment because paroleeligibility after one-third of your sentence would not be sufficient to meet thepurposes of punishment, deterrence, denunciation and community protection. Again,your lawyer adopts a responsible approach. She accepts this is appropriate.However, Ms Giles submits the minimum period should not exceed 50 percent of thefinite term. The Crown seeks at least that.[27] I consider a minimum period of 60 percent is necessary. Indeed, mandated:(a) You committed serious sexual offences against five young victimsover a number of years. You breached their trust. And, you causedthem harm.(b) You pose some danger to the community. Your lack of cooperationwith the experts precludes definitive risk assessment. But Dr Duggalconsidered you present a moderate to high risk of sexual re-offending,particularly against pubescent and pre-pubescent children of bothsexes. Dr Sakdalan reached no firm conclusion on this issue. Thepre-sentence report reaches a similar conclusion to that of Dr Duggal.It says your risk of harm to others is high. And, there is a "medium"likelihood of re-offending. The same report records a lack of insightto your offending, and apparent animosity towards your victims. Thatis troubling.Disposition[28] Mr P, please stand. I sentence you to 13 and a half-years' imprisonment. Iimpose a minimum period of 60 percent of that term. That means you must serve atleast eight years and one month in prison.[29] Before you leave, I make three things clear to you. First, you did not avoidpreventive detention because you declined to cooperate with the Court-appointedexperts. That sentence was never likely in any event, serious though your offendingis. Second, if you commit further sexual offending, that sentence is highly likely tothe point of being almost certain. Third, release after eight years and one month isfar from guaranteed. That decision is for the Parole Board—not me. One of thethings it will consider is whether you have demonstrated reform. You may wish to reflect on that.[30] Please stand down.Addendum[31] Mr P, thank you for returning. I have been speaking to the lawyers about oneother matter I now wish to explain to you. Because I have just imposed a sentenceof imprisonment on you for qualifying offences under the Child Protection (ChildSex Offender Government Agency Registration) Act 2016, you are a registrableoffender under that legislation. That means your name and information relevant toyou and your offending will be placed on the Child Sex Offender Register. It meansalso you have initial and ongoing reporting obligations under the Act. It is anoffence to fail to comply with your reporting obligations under the Act. It is also anoffence to apply to register a change of your name without first having obtained thewritten approval of the Commissioner of Police.[32] In your case your reporting obligations begin when you leave custody inrelation to these offences—in other words when you are released. You must complywith these reporting obligations for the remainder of your life. You will remain onthe register for the duration of your reporting period, meaning the rest of your naturallife, including any period during which your reporting obligations are suspended.[33] This is a lot to take in, I appreciate, but a Registrar of this Court will give you a written notice of your obligations and the penalties for failing to comply with theAct.[34] You may stand down...Downs J