R v Milgate-Vassalini [2022] NZDC 22200 (10 November 2022)

Last Updated: 18 November 2022

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.html

IN THE DISTRICT COURT AT TAURANGA I TE KŌTI-Ā-ROHE KI TAURANGA MOANA

CRI-2022-070-000793

[2022] NZDC 22200

THE KING

v

ALESSANDRO MILGATE-VASSALINI

Hearing:	10 November 2022
Appearances:	R Jenson for the Crown W Nabney for the Defendant
Judgment:	10 November 2022

NOTES OF JUDGE T R INGRAM ON SENTENCING

[1] Mr Vassalini, as you know you are for sentence today having pleaded guilty to two charges of having sexual connection with a young person. There are two victims. In relation to one it was a single incident, and in relation to the other it is a

THE KING v ALESSANDRO MILGATE-VASSALINI [2022] NZDC 22200 [10 November 2022]

representative charge. There were not less than two and perhaps as many as four incidents. I gave an indication on request from counsel that I did not consider the other two incidents would make any significant difference to the sentencing outcome today and I need to explain why.

[2] The sentencing practice in New Zealand courts is that the most serious incident is dealt with by way of imposition of an appropriate sentence and if there is a repetition of the behaviour there is usually a small uplift in relation to the overall sentence. In your case I consider that no more than six months’ uplift could possibly have been imposed had I dealt with you on the basis of four incidents as opposed to two. For reasons which will become clear when I get to imposing a sentence at the end of my remarks today, I consider that the outcome of the sentencing process could not have been materially different had the matter been dealt with on the basis of four incidents as opposed to two.

[3] It needs to be pointed out for the benefit of those who may not know that consent is not a defence to a charge of this kind. The issue of absence of consent is one that is material to the assessment of culpability, but it is not a defence in circumstances where, as here, you knew the age of these complainants at the time these things occurred. We are not dealing with non-consensual offences in the sense of rape or unlawful sexual connection with absence of consent, that type of charge is not what I am dealing with today. I am dealing with cases where consent is not a defence.

[4] In terms of the events that occurred I do not see any need to go into some substantial detail as to what occurred. You have a role as a leader at a local church, and you are connected through family to that church. I accept that you had an influential status with the youth group at the material times.

[5] In relation to the first victim, you went into [location deleted] and an incident involving oral sex occurred. The exact extent of the coercion really is not something that I need to assess in detail, suffice it to say that you have one view of the extent of the coercion and the victim has another view. However it might be looked at, it seems to me that the reality of it all is you were doing something that you should not have done at all, let alone carry on in the way that you did in the particular circumstances

involving this victim, the time of night and the location. The victim was at the time under 15 years of age, you were about 17 and a half.

[6] In relation to the second charge, there were a number of incidents involving oral sex. The victim at the time was aged just over 14 years and you were over 17 and a half. This went on for a period of time through until a point where you were just a little bit short of 18 and a half years of age and the victim was a little short of 15 years.

[7] The disparity in ages is not particular great. This particular legislation is prophylactic, in that it is intended to protect young people from the depredations of older people who are able to manipulate them into doing things that they are likely to regret later on. Although there is some disparity in age here, in that you were a few years older, the reality is that most charges of this kind that I see involve much greater disparity in ages, something in the order of decades is routine in my experience at least. From a sentencing point of view the disparity in age here is relatively light.

[8] The victim impact statements clearly, are nothing short of harrowing. Without wishing to disparage any aspect of what I have been told today by all those who have given victim impact statements, the cold reality is that I deal with this kind of thing most working days, and what I have heard today is exactly what I hear on many other occasions.

[9] This type of offending has serious long-term effects on victims and the victims are not confined to the people necessarily involved in the sexual acts. Family members can and very often do have life-long effects on them, particularly parents who feel that they have let their child down by trusting somebody that they should not have trusted. There is no remedy available for those kinds of feelings. There is no remedy available for the young women involved in sexual offending who have been left feeling worthless and violated, and in many cases for many years they suffer, and suffer grievously in their daily life. There is simply nothing that the court can do to assuage that set of effects. The only thing that can be done is to point out that because I have heard so much of it over such a long period of time, I can honestly say I understand there is literally nothing more that I can do.

[10] In terms of the offending both counsel have carefully analysed the leading authorities in the field and both of them have recommended a sentence something in the order of three and a half to four years. The cases that I have carefully perused include Nesbitt v Police, Fairbrother v R, Berry v Police and R v R. All of those are very similar cases, all of them involved sentences in the round that are very, very similar to the starting point suggested by both counsel.1

[11] Clearly, as identified by the Court of Appeal in a case called Philpot v R, there are a number of aggravating features; the vulnerability of the victims, the predatory nature of the behaviour, and there is at least some aspect of planning and pre-preparation to take advantage of these young women.2 The breach of trust is very considerable, the family relationship needs to be emphasised, and the ongoing effects as a result of the breach of trust of the family relationship, the nature of the relationships within the church community, those are all matters that in my view can properly be considered as having an aggravating aspect. Certainly the nature and frequency of the offending needs to be considered.

[12] The cases that I have considered all involved similar types of behaviour without perhaps quite as much emphasis on the breach of trust and the position of power within the church hierarchy that, at least on the face of it, we have here. Typically the sentences imposed for one or two incidents had been in the range of two to three and a half years. Longer sentences have been imposed for longer periods of offending.

[13] The Crown submit three and a half to four years’ imprisonment is appropriate assessment. Mr Nabney suggests a slightly shorter starting point. Giving the matter the best consideration I can and taking particular account of the matrix within the church community, I consider that an appropriate starting point is three and a half years. That amounts to some 42 months.

1 Nesbitt v Police HC Christchurch CRI-2010-409-90, 30 November 2011; Fairbrother v R [2013] NZCA 340; Berry v Police [2014] NZHC 2852; and R v R [2020] NZSC 51.

2 Philpot v R [2015] NZCA 212.

[14] You have no prior convictions, you have entered a guilty plea at an early stage, and everyone is agreed that as the Supreme Court have pointed out, a prompt guilty plea can justify a 25 per cent discount for plea.

[15] In terms of your youth and otherwise good character, I accept that you are entitled to a discount in the order of 25 to 30 per cent. In this case I have come to the view that no more than 25 per cent would be appropriate.

[16] I have taken into account in making that assessment the material provided to me by your counsel, which includes a number of character references, a letter from a psychologist and of course your letter of remorse.

[17] As to the nature of remorse, there are many gradations within the broad spectrum of the word “remorse”. The critical thing from my point of view is that you accept that you have done wrong. You have accepted that unequivocally by your guilty plea, and I must give you credit for that guilty plea. And I include within that 25 per cent an acknowledgement that indeed you are remorseful. You knew you should not have been engaged in this behaviour, you did it anyway and you have accepted responsibility in the court. I accept, Mr Milage-Vassalini, that that is not necessarily the easiest thing in the world for a man of your age to do. You have done it and you are entitled to credit for it.

[18] I have received a detailed probation report on you which indicates that a sentence of home detention with post-detention conditions is appropriate. There has been a great deal of public furore recently about another well-known case in this district involving the imposition of a sentence of home detention on a sex offender.

[19] For the benefit of those who do not frequent the courts, I simply point this out. The courts try, as far as we can, to keep people out of jail, because we know those who go to jail have their prospects in life much reduced. The prospects of rehabilitation are much reduced for people who are sentenced to prison. And if we send young offenders to prison, there is the stone-cold certainty that they will be stood over in prison by people who are well capable of making their life a misery. And making their life a misery not only in prison, but when they get out of prison. To put someone 20

years of age in prison would have to be very much the last resort and would be reserved pretty much for defendants in respect of whom the prospects of rehabilitation being successful are limited or non-existent.

[20] In your case it is clear from the pre-sentence report that the prospects of rehabilitation in your case are very good indeed. You have an appropriate sense of responsibility for what you have done, and whilst you might not understand in detail yet, at your age, the harm that you have done, that in my judgement is highly likely to occur to you in the years to come, particularly after you have been through the courses that you will have to go on a sentence of home detention. I am satisfied that in your case the prospects of rehabilitation coupled with your age mean that a sentence of home detention is the preferable option.

[21] Is that available? We start with a sentence of three and a half years, that is 42 months, with 25 per cent for plea and remorse and a further 25 per cent for youth and prospects of rehabilitation and your good record, that would produce a sentence of 21 months’ imprisonment. That is within the statutory criteria for consideration of a sentence of home detention.

[22] The law requires me to impose the least restrictive sentence that I can, and where home detention is available for a 20-year-old offender, the least restrictive sentence must be a sentence of home detention, if the prospects for rehabilitation are good, and if you are a suitable candidate, and the premises are suitable. Here the premises are suitable, you are a suitable candidate and the recommendation is a sentence of home detention with post-detention conditions.

[23] Another aspect of the sentence is that I can impose post-detention conditions for a period of up to 12 months. The available research in New Zealand establishes unequivocally that people who are sentenced to home detention with conditions that they carry out rehabilitation activities produce a much better strike rate in terms of success of the rehabilitative efforts than any sentence involving imprisonment and subsequent conditions.

[24] Therefore, I have reached the point that starting at three and a half years with credit for plea, youth and the other matters I have mentioned, a sentence of 21 months’ imprisonment would in my judgement be appropriate were it not for the availability of home detention. I am satisfied that in your case home detention is by far the best option and I will accordingly sentence you to home detention.

[25] The normal approach to that would be simply to halve the period of 21 months and impose that. But in your case I am satisfied that that would not be adequate. I consider that a full 12 months’ home detention is necessary, and I consider, having regard to the conditions outlined in the pre-sentence report, and there are many, that a full 12 months’ post-detention conditions is appropriate. So, I deal with you in this way.

[26] On these charges you are convicted and sentenced to home detention for a period of 12 months. The residence is as set out in the report. The conditions are as set out in the report.

[27] There will be standard and special post-detention conditions for a period of 12 months after your detention end date as set out in the report. For the benefit of those present here who wish to be appraised of the nature of those conditions, they include assessments for counselling, treatment for drugs and alcohol, assessment for the SAFE Network programme and a departmental psychologist if required, and further assessments as may be deemed necessary on investigation by a probation officer. Not to possess, consume or use any alcohol or drugs not prescribed, not to associate with identified individuals, not to associate or contact the victims without the prior written approval of the protection order.

[28] The post-detention conditions will include any further assessments, treatment and counselling as directed and non-association provisions as set out in the report.

[29] The net result of all that for you, Mr Milgate-Vassalini, is that you are stuck at home now for 12 months and you are not to touch alcohol or drugs. You need to understand that I take that particular provision extremely seriously. Just to have possession of it is sufficient to breach that condition and if you do I give you a

straightforward undertaking that I will send you to prison. You are not to touch alcohol, you are not to touch any drugs not prescribed to you. Merely to have it in your hand will be enough for you to [details deleted]. The seriousness of that really cannot be over-emphasised, Mr Milgate-Vassalini.

[30] For the reasons that I have outlined you will be convicted and sentenced to home detention for a period of 12 months on the conditions that I have explained.

[31] I am satisfied this is not an appropriate case for an order for registration on the sex offenders register because of the age of the defendant at the time that these matters occurred.

Judge TR Ingram

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 15/11/2022