R v Eria DC Hamilton CRI-2010-019-1846 [2010] NZDC 1368 (27 August 2010)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT HAMILTON

_{CRI-2010-019-001846}

THE QUEEN

v

PATRICK GRANT ERIA

Prisoner

Hearing: 27 August 2010

Appearances: R Guthrie for the Crown

R Laybourn for the Prisoner

Judgment: 27 August 2010

_{NOTES OF JUDGE M L S F BURNETT ON SENTENCING}

[1] The prisioner, Mr Eria, is 46 years of age and appears today for sentence having earlier pleaded guilty at first callover following committal and being convicted. He appears for sentence on the following charges:

(1) In respect of the first victim, there is a representative count of rape which carries a maximum penalty of 20 years’ imprisonment. Also of sexual violation being anal penetration, also representative and carries a maximum penalty of 20 years’ imprisonment. This is offending that took place in 2004. The victim being his biological daughter at age

_six.

R V ERIA DC HAM CRI-2010-019-001846 27 August 2010

(2) Also for rape which carries again the maximum penalty of 20 years’ imprisonment, sexual violation by digital penetration, sexual violation by oral connection and two of indecent assault and they carry respectively 20 years’ imprisonment maximum and seven years. There is also doing an indecent act in public which is a maximum of two years’ imprisonment. The victim in the second lot of offending was in 2006 and was his wider whanau’s neice.

[2] For the Crown, the aggravating features are identified. The mitigating features are identified by Mr Laybourn for the prisoner and essentially it is accepted that the starting point is within band 4 of R & AM (CA27/2009) [2010] NZCA 114; [2010] 2 NZLR 750 there being more than one victim. Mr Laybourn accepts the distinguishing feature in relation to the authority he had provided to the Court, R v Gordon CA563/08

24 April 2009 it being distinguished by the degree of breach of trust. He seeks a discount for the guilty plea at a percentage greater than 20 percent although the guilty plea was entered following first callover after committal on 7 July 2010. He puts forward reasons why a greater percentage should be allowed for the guilty plea.

[3] In any event the aggravating features that are identified and accepted by me are premeditation and planning that must have been so to have got the victims alone in circumstances where he could violate them in the manner that he did. There is the vulnerability of the victims. There are their respective ages - his daughter was at the time six, his niece at the time 16 years of age. There is the relationship that he has to the two victims. There is the harm that he has inflicted on the victims. Such acts necessarily bring significant harm to any victims and have done so in this case. There will be long term consequences, I have no doubt, to the victims. Not only to the two individual victims but also to the wider family who have had to face the consequences of the prisoner’s offending and have to care for the two young victims in the family. Of course they have to deal with their own feelings, no doubt, of disgust and repulsion for the acts committed on the young family members by the prisoner. There is the breach of trust which has to be described as enormous in relation to his own daughter and the very young age and the fact that the second victim is a niece who is also entitled to rely on the prisoner as someone who cares and protects the young victim rather than to carry out the acts that he did. There is

the scale of the offending, these are representative charges, relatively prolonged offending. As for the personal aggravating features, there is the prisoner’s lengthy history although none for sexual offending.

[4] As for mitigating features there is the guilty plea and there is a difference of view as to the extent of the discount. It is accepted that this offending falls within band 4 of R & M [2000] NZCA 24; [2000] 2 NZLR 60 which means that a starting point is between

16 and 20 years’ imprisonment, being repeated rapes of one or more family members over a period of time. There is the degree of violation, there are the views of the victim, breach of trust, scale of the offending, harm to victims, the vulnerability of the victims and planning and premeditation.

[5] As for unlawful sexual connection, this falls within band 3 calling for a starting point of between nine and 18 years’ imprisonment. There was the vulnerability of the victims, the anal penetration, oral sex on the second victim.

[6] Looking at the authority of R v AM the fact these are representative charges in relation to the first victim, this is serious sexual offending against two family members, one being the biological daughter of the prisoner and the other a member of the extended whanau group, being the prisoner’s niece. The offending occurred at different times and over a period of months, in both cases. In the case of the first victim the charges are representative indicating sustained offending against the six year old victim. Because of the fact there are two victims, both of whom are vulnerable and because of their age and they were in a position of trust with the prisoner, this falls squarely within band 4. Due to the fact that there were multiple family members, as I say, two victims in the period of time over which the offending occurred, this would fall in the upper range of the band.

[7] I take a starting point of 18 years’ imprisonment. I have heard from Mr Laybourn for the prisoner and he reminds me that there was an intention to enter guilty pleas at an early occasion and that the prisoner was caught somewhat by the administrative changes and that R v Hessell [2009] NZCA 450 does leave some degree of discretion to the sentencing Judge. I am willing to allow some flexibility,

and allow a discount of more than 20 percent, in my view, a discount down to 13 and a half years would be appropriate.

[8] Then I look at whether or not the provisions in s 86(2) ought to apply, namely that a minimum period of imprisonment, that is longer than the period otherwise applicable is necessary or is called for because the minimum period would not be sufficient for all or any of the following purposes. Namely holding the offender accountable for the harm done to the victims and the community, denouncing the conduct, deterring the offender and others and protecting the community. In my view, a minimum non-parole period of more than the standard minimum period is warranted. I observe that this was repeat offending and recent offending by the prisoner when he was 39 and 41 years of age, a thoroughly mature age. The fact that he expresses remorse and accepts culpability is recognised by the guilty plea and the commensurate discount. His ability for successful rehabilitation is yet to be ascertained and demonstrated and is subject to successful programmes and the provisions of s 7(a), (b), (c), (e), (f) and (g) are still paramount as are the provisions of s 8(a), (b), (d), (e) and (f) and, in my view, a minimum non-parole period of six years is warranted as a lesser period would not be sufficient to met the factors referred to above.

[9] There is a concurrent term of imprisonment in respect of the indecent act which simply carries a six month term of imprisonment concurrent. A concurrent sentence of two years is imposed on Counts one and five.

M L S F Burnett

District Court Judge