R v Robert [2016] NZDC 26830 (9 December 2016)

Last Updated: 2 May 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED

IN THE DISTRICT COURT AT AUCKLAND

CRI-2013-090-006913 [2016] NZDC 26830

THE QUEEN

v

_{WOODY ROBERT}

Hearing:	9 December 2016
Appearances:	N Webby for the Crown P Kaye for the Defendant
Judgment:	9 December 2016

_{NOTES OF JUDGE R G RONAYNE ON SENTENCING}

[1] Mr Robert, you can remain seated until I pass sentence on you at the concluding stages of my sentencing remarks.

[2] At what could only be described as the last possible stage of the criminal process Mr Robert, you pleaded guilty to one representative charge of sexual violation by unlawful sexual connection, which carries a maximum term of 20 years in prison. One representative charge of attempting to commit sexual violation, which carries a maximum term of 10 years’ imprisonment. Two representative charges of indecency with a girl under the age of 12 years, carrying a maximum term of 10 years’ imprisonment. One representative charge of sexual conduct with a young person under 16 years of age, with a maximum term of seven years’ imprisonment and one representative charge of indecency with a girl between the age

_{of 12 and 16 years, carrying a maximum term of seven years.}

R v WOODY ROBERT [2017] NZDC 26830 [9 December 2016]

[3] You are 74 years of age. At the relevant periods of time, you were [relationship details deleted] of the three complainants, Mereki sisters. They are now currently approximately 29, 25 and 24 years of age. You lived at a [address deleted] address.

[4] The victims were all friends of your daughter; one of them was a close friend. You were well known to their family. Mr and Mrs Mereki trusted you and socialised with you, [details deleted]. You were known to everyone as Woody. There was an open door policy with your daughter’s friends and you encouraged them to visit any time they needed time-out. It was during those visits to your address that much of the sexual offending against the victims would occur.

[5] The offending against Grace started when she was nine years of age in 1996 and it continued regularly for approximately six years to when she was 15 years of age.

[6] The offending against Kiara started when she was 11 years of age in 2003, which was about the time that you stopped offending against Grace. And that continued for a period of about four years to when she was 15 years of age.

[7] The offending against Ana started when she was five years of age in 1996 and it continued for two years.

[8] When the girls were interviewed, or the young women were interviewed, Grace disclosed that the sexual abuse began when she was nine. She described the offending against her from nine to 11 in this way. You began giving her, what were referred to as “cuddles” when she went to your address. Those cuddles would get longer and you would move your hands lower on her body. You would squeeze her and you would rub your penis between her legs. On each occasion your penis was erect and she could feel it through the clothing.

[9] You progressed to kissing her on the mouth and putting your hand down her top and touching her breasts. You would also rub a large lion soft toy over her

genitalia when she went to your house. And I note you are shaking your head. This offending was repetitive and ongoing.

[10] Grace also disclosed offending when she was aged 12 to 15. This included touching her genitalia with your hand, both at your address and [details deleted] in your car, making her masturbate in front of you with her underwear off. Making her touch your penis and kissing her on the bottom. That offending was also ongoing and repetitive.

[11] She disclosed also that between the ages of nine and 15 you sexually violated her in these ways; penetrating her genitalia with your fingers, making her put your penis in her mouth. She described that as happening on five or six occasions, and performing oral sex on her. That offending was repetitive and ongoing. She also disclosed that during that same period of time, you attempted to put your penis into her genitalia more than 10 times.

[12] Kiara disclosed that when she was aged between 11 and 13 years, so from the end of August 2005 to the end of August 2007, she would often visit your house to see your daughter. She disclosed that during this time you would regularly hug her. Those hugs escalated into lingering cuddles and involved you pulling her in closer, pressing her up against your body while you rubbed her bottom with your hands. Sometimes you would sway from side to side.

[13] You would always offer her things, such as icecream and presents and ask for a cuddle in return. This offending happened approximately four to six times a week, over the relevant period. On one occasion, when she was approximately 14 years old, she went to your house to visit your daughter. Not long after she got there, your daughter had to go next door to pick up her daughter. She waited in the lounge area of the flat, sitting on the edge of an armchair, you walked in and polite greetings were exchanged. You walked behind her as she was sitting on the armchair and when you reached her, you stopped and you slid your left hand down the front of her top and you started rubbing her breast. She immediately said, “Don’t touch me.”

[14] Ana disclosed that the offending against her occurred when she was aged between five and six years of age, that was from middle of May 1996 to 18 May

1998. She disclosed that when she was five years of age, you asked her to come over to your house for icecream. You would not give her icecream without first getting a hug. As you hugged her you turned her around and you rubbed your penis on the lower part of her body around her bottom area, with clothes on. When she was approximately six years old, you once again asked for a hug in return for icecream. While she was standing in the kitchen, you once again turned her around and rubbed your penis on the lower part of her body, around her bottom area, before giving her icecream. She could feel that you were sexually aroused.

[15] You have a six page list of previous convictions. The last conviction was for drink-driving in 2006 and then there is a long list going back to 1961. None of that is directly relevant to the sentencing today, bearing in mind the age, or rather the period of time which has passed since those convictions were entered against you. But it is nevertheless a concerning list, especially when I consider what is in the pre-sentence report.

[16] That report, amongst other things has this to say, and I quote:

Although he pleaded guilty to the offences of attempted rape, raping a female, indecently assaulting a female 12 to 16, indecently assault female under 12, unlawful sexual connection female under 12 and indecent act female 12 to 16, he denied the offending occurred at interview. When discussing the victims and circumstances of his offending, he said, and you are quoted, “She (the victims) was friends with my daughter, she’s stupid, it’s nonsense, she’s out of her tree on dope. She spends most of her time stoned.” And that’s the end of the internal quote.

[17] But the quote continues from the report:

He did not express remorse. He denied responsibility for the totality of his offending and proceeded to direct blame onto his victims.

[18] The writer of this report identifies offence related factors, as including sexual arousal and an inflated sense of entitlement. You are assessed Mr Robert, as having a high likelihood of re-offending and of committing harm to others.

[19] The report goes onto say:

That although a custodial sex offenders’ treatment programme is available, you did not express motivation to attend such treatment. You would not meet admission criteria based on your attitude towards these current matters.

[20] So you will see Mr Robert that I am justified in having concern about you and your previous list of convictions, which clearly reveal an unhealthy relationship with at least alcohol, when you continue now to deny the offending which you pleaded guilty to.

[21] There is also a report prepared under s 38 of the relevant legislation. You repeat your denial to the writer of that report. You claimed to the writer of that report that you only pleaded guilty because it was part of a deal with the prosecution whereby many of the other charges were dropped.

[22] You did not report any thoughts of harming yourself or others, you identified your family as a protective factor and you say you remain in contact with your daughter. You did not display any active symptoms of major mental illness when assessed. Although the report says that you have a history of depression after a stroke and there is a risk that your mental state could deteriorate after sentencing.

[23] The report says that your depression is currently in remission. It also says that your use of alcohol is currently in remission. That of course is because you have been in custody. You are said to have mild cognitive impairment. I then quote four paragraphs from the recommendations of the report, paragraphs 65, 66, 67 and 68.

65: Irrespective of placement, Mr Robert would also benefit from engagement with a drug and alcohol treatment programme, specifically focused on alcohol to reduce his ongoing risks related to his previously heavy alcohol use.

66: Mr Robert would also benefit from referral to a sex offenders’ treatment

programme.

67: Mr Robert would also benefit from empathy based work around his offences and victims. Noting his current denial of the offences, which would make engagement in a sex offenders’ treatment programme difficult.

68: The Court may also wish to consider whether a copy of this report can become a part of Mr Robert’s clinical file to be available to other health agencies involved in his care, as provided for by s 46(1) Criminal Procedure (Mentally Impaired Person) Act 2003.

[24] I entirely agree that this report should be made part of your clinical file.

[25] Finally, I have the effect of your offending on the victims to take into account. You have heard the victims read their statements to the Court. It would be presumptuous of me to try to add anything to what has been said. But I can tell you Mr Robert, that before coming into Court I had got out my highlighter pen and I had put some highlighting on these documents. Such as, the words, “Long and painful journey,” and such as the words, “When the abuse started I died inside.” And the words, “Walked the darkest roads no child should ever walk alone,” and so on. And I mean no disrespect to Ana in quoting only words from Grace’s statement.

[26] The courage shown by your victims coming here today to speak openly in front of you to the Court about what you’ve done to them, contrasts vastly with your gutlessness in continuing to deny this offending. Was there something you wanted to say? [I haven’t denied it, I don’t deny it at all.] Do you want to stand up now and admit the offending? [inaudible 09:41:20] Do you admit all of this offending? (inaudible 09:41:22) Thank you for that, you may be seated. [I wish to apologise to my family, and –] To your family did you say? [To Grace] To Grace’s family. [inaudible 09:41:47 suffering and pain over the years]. Well it’s very, very late in coming Mr Robert but it’s acknowledged, thank you, you may be seated.

[27] The Crown submits that the appropriate starting point for the lead charge, which of course is the representative charge of sexual violation by unlawful sexual connection, should be a sentence of 10 years’ imprisonment. And that there should be a two year uplift on that to reflect the totality of your offending. The Crown in my view, generously submits that in all the circumstances a 15 percent discount should be applied to reflect your guilty pleas. By operation of law, you will be registered on the child sex offender registry.

[28] Mr Kaye, very responsibly submits that a 10 year starting point is appropriate for the lead offence but that a two year uplift is too much and that it should be one year. Again, very responsibly, Mr Kaye makes the submission on your behalf that the Crown has correctly identified the aggravating features of your offending. But asks me to take into account your age, your guilty pleas and your state of health.

[29] As far as purposes and principles of sentencing are concerned, there is a requirement in your case for denunciation and deterrence. There is a need to hold you accountable and to encourage in you a sense of responsibility for your offending, but it is also my view that community protection is a matter that I need to bear in mind as well.

[30] The aggravating features of your offending are that it was plainly planned and premeditated. You offended against vulnerable victims, their age alone speaks for itself. You have caused great harm to the victims as well. This offending robs children of their childhood and afflicts their lives for immeasurable periods into the future. The scale of your offending is also an aggravating factor. And finally, you committing this offending involved a gross breach of the trust placed in you as a friend and neighbour.

[31] A case called R v AM 1 and what are called “exemplar” cases are before the Court. The starting point should be fixed by reference to the lead charge, which is charge number 3. I have already been through the particulars of that offending. But in essence, this was offending against a girl aged between nine and 15 years of age. It involved digital penetration of her genitalia, oral penile penetration, five or six times and you performing oral sex on her. I adopt a 10 year starting point for that.

[32] Dealing with the issue of how much I should uplift that for the totality of your offending. Here I make these comments; there was significant other offending against Joy. There were two other victims, the offending against them was significant but less serious and that is not to downplay it at all. From their perspective it still had a terrible affect.

[33] All of the other offending included representative attempts to commit sexual violation, representative indecencies on girls under the age of 12, representative sexual conduct with a girl under 16 and representative indecencies on a girl 12 to 16.

[34] Taking careful note of the totality principle and taking care that the total overall sentence reflects your overall culpability, I take the view that a two year

1 (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750

uplift is appropriate. Your possibly indifferent health is not in my view, such as to reduce that sentence. No other personal mitigation is apparent. You have apologised and expressed remorse today; that is as late as it possibly can be. I do not give you any discount for that. It contrasts with what you said to the probation officer. Not only did you deny your offending but you made nasty remarks about your victims. So your expression of remorse today, partway through my sentencing remarks, frankly falls on deaf ears, it is hollow.

[35] In my view, for your guilty plea at trial, a normal discount would be something in the range of five to 10 percent, in all the circumstances. I acknowledge that you saved the victims the trauma of actually giving evidence against you and being challenged as to their truthfulness. But you did not save them the emotional trauma of preparing for and having to come along to give evidence at trial. The only thing you saved them was actually giving evidence. And I repeat; that since then you have denied the offending and made nasty remarks about them.

[36] The Crown submitted that I should apply a discount for your guilty plea of approximately 15 percent, you have already heard me comment earlier that is in my view generous in the circumstances. I will give you 15 percent discount but I will not give you any discount to recognise your age, because in my view, a 15 percent discount for your guilty plea is generous and balances against any small discount that your age might have justified. A 15 percent discount from a 12 year starting point is rounded up 22 months. That then results in the sentences being imposed. Would you mind standing please Mr Robert.

[37] On charge 3 you are sentenced to 10 years and two months. I digress to comment, that is the total sentence. You do not need to stand there and try and add these up, the total sentence is 10 years and two months. So to repeat:

(a) On charge 3 you are sentenced to 10 years and two months. (b) On charge 1, seven years in prison.

(c) On charge 2, six years in prison.

(d) On charge 4, five years in prison. (e) On charge 5, two years in prison. (f) On charge 6, six years in prison.

R G Ronanye

District Court Judge