R v Makatea-Durie HC Wellington CRI-2008-085-7303 [2009] NZHC 2625 (13 November 2009)

Last Updated: 8 February 2011

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

₁₉₈₅

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-085-007303
_{CRI-2009-085-003624}

THE QUEEN

v

MASON MAKATEA-DURIE

Counsel: M A O'Donoghue and S McLean for Crown

N J Sainsbury for Prisoner

Sentence: 13 November 2009

_{NOTES ON SENTENCING OF GENDALL J}

[1] Mason Makatea-Durie, you appear for sentence having been found guilty by a jury in the High Court at Wellington of the crimes of

(a) doing an indecent act upon a girl under the age of 16;

(b) sexual violation by unlawful sexual connection of that same girl; and

(c) indecent assault on a girl under the age of 12.

[2] Those counts were described as “representative counts”. I presided at your trial so the evidence is fresh in my mind and I am able to make an assessment of that

_{to determine the facts upon which I sentence you. The facts are as follows.}

R V MASON MAKATEA-DURIE HC WN CRI-2008-085-007303 13 November 2009

[3] During the early 1990s you befriended a couple as they were establishing a family. Three daughters were born to them and two were the subject of the charges. They were A, born on 18 August 1994 and C, born on 10 January 1996. At that time you were aged between 58 and 60. You spent time with the family gaining their trust and affection. As the girls grew up you were generally regarded as something in the nature of an uncle, a grandfatherly figure and from your own age you could well have been regarded as that type of grandfather figure. You treated the girls well and won their confidence.

[4] But what they or their parents did not know was that during the 1990s, and indeed well before then, you were a recidivist fraudster. From 1994 onwards you accumulated multiple convictions for fraud, convictions for impersonating police officers and other crimes. Crown counsel referred to you as an accomplished liar, when making submissions on your later video interview in relation to these charges and Crown counsel was not far from the mark. In any event you won the confidence of the family and the girls as they grew up.

[5] In early 2000 however, the parents of the girls separated. By then, I am satisfied, you had developed an unhealthy interest in the two girls. You won their confidence and their respect through developing relationships of trust by the provision of money, gifts and treats. You began to take them to your home, with the knowledge of their parents because of the trust that had been reposed in you. You were also able to pick the children up outside their school or in the street. I have no doubt that you had developed an unhealthy prurient interest in them. Their mother went overseas to Rarotonga. The girls were living with their father in Berhampore.

[6] It was in November 2005 that events occurred where, through some subterfuge and lies told by you to the school teachers, you took the girls out of school for two days, and one of them for three days. That was without their father’s knowledge or permission and through you lying to the school authorities that you were their father on one occasion, and on the other occasion that you were their uncle. When this came to light, not surprisingly, the school principal and the father of the girls were alarmed. Their father confronted you and you were forbidden to have any further contact with the girls. But you were not to be deterred. I regard

your continued pursuit of these young girls, despite being forbidden to do so by their father and their older sister, who also confronted you in public about it, to be seriously aggravating.

[7] Thereafter, over a period up to July 2008 you sought to continue your contact with the girls, and were largely successful. They were picked up by you in your vehicle when in the street or at a bus stop or after school and taken to your home on occasions and individually elsewhere. They were bribed with the provision of money, sweets and, I have no doubt, were seduced by your plausible comments, explanations and approaches. As I have said, you were a confidence man. They knew that they should not be seeing you, but found it difficult to resist your persistence. Indecent acts were perpetrated on both girls by you, but in circumstances when they were alone, so that of course there was no opportunity for one to disclose to the other. The older girl A, between the age of 12 and up to her

14th birthday was picked up on the street and after school and taken by you in your

vehicle to a secluded car park behind Newtown Park grandstand, generally secluded from public thoroughfare by trees and the confines of the park. You were not taking the child home from school or providing her with any assistance or help, but you took her there so that you could touch her above and beneath her clothes and on the upper thigh on frequent occasions. Likewise, on frequent occasions over the same period, you took down her pants and digitally penetrated her genitalia. Those are the actions that led to the representative charges upon which you were found guilty in respect of A.

[8] The jury returned verdicts illustrating it was satisfied that the evidence of A was completely truthful and reliable and there were multiple acts over a period of just under two years. But the child whilst aged between 12 and 14 nevertheless had intellectual limitations and the evidence was she had a mental development age of about seven. You knew this. My assessment of her is that she presented in giving her evidence as a naive and ingenuous young girl, but gave her evidence in a compelling way and obviously was regarded as credible and believed by the jury as they were entitled to do.

[9] As to the child C who was subjected to indecent assaults through the rubbing of her genitalia and pubic area but on the outside of her clothing on frequent occasions. This occurred at your home and on other occasions when you were able to ensure that you were alone with her. She was aged between nine and eleven. As with A, I am satisfied that the indecent touching and rubbing of this child occurred on frequent occasions over the two and a half year period and the jury were fully entitled to accept her evidence. You were very ably defended by counsel, but as I have said, the jury were entitled to accept the truthfulness of the children and their compelling presentation.

[10] Both girls were left confused, one said “sad” and unable to comprehend properly what was happening to each of them by someone, who was then aged nearly 70, who they had previously come to trust. C in particular, although going in your car as she said lots of times, said she did not want to be alone because you would indecently touch her. They both knew their father did not wish there to be any contact, but were unable to resist the advances which in all cases I am satisfied arose through your pursuit of them and the seduction of them by the provision of quite significant amounts of money on frequent occasions.

[11] As I have said, neither child knew what was happening to the other. When these matters came to light and you were interviewed by the police you maintained a steadfast denial of any wrongdoing. As I have said, the Crown prosecutor described your answers and demeanour in the videotaped interview as being those of an accomplished liar, and I have to say, that there was some force in that submission. You appear to have the ability to shape, vary, change, your answers and explanations, in order to provide plausible but false reasons for your actions in continuing to pursue these children. You remain evasive in your interview with the probation officer over matters such as reparation, your financial assets and your motor vehicle in respect of the matters I sought a report.

[12] When I come to fix a starting point for the sentence for your crimes, I have to assess your overall culpability. But in doing so I look first at what happened and the aggravating features related to your offending. They include:

(1) the harm caused by your offending to both the complainants and their family. The children have suffered emotional anguish, embarrassment, and I have no doubt bewilderment, over what has occurred in what you did to them;

(2) there was a gross breach or abuse of your position of trust at least initially that the parents reposed in you in relation to the girls;

(3) there was repetitive offending in respect of these children over a period of up to two years;

(4) the girls were vulnerable due to their age and especially in relation to

A because of her diminished mental or psychological development; (5) there were two victims;

(6) your offending was premeditated. It did not just happen in circumstances of temptation. You pursued the girls strategically positioning yourself so that you could supposedly just accidentally happen to be around in the area where they were.

[13] Aggravating features personal to you are factored into the sentencing process after the starting point. I will come to that later, nevertheless you have a dreadful criminal history involving a total of 177 previous convictions between 1955 and

2008. Of course, very many of those convictions are fraud-related (namely 125) and many are of historical significance. The last term of imprisonment imposed upon you for fraud occurred as far back as December 1994. You have a previous conviction for sexual intercourse with a girl between the age of 12 and 16 for which you were sentenced to six months’ imprisonment. That too is historical having occurred in December 1983 when you were aged then aged 47.

[14] Your fraud convictions, however, illustrate that you have an ability or a propensity to set out to deceive and mislead – that is, you are a conman. That is apparent from the way you ingratiated yourself into this family and led to you

pursuing unhealthy criminal sexual instincts towards these young girls. The mitigating personal feature and the only mitigating personal feature to you that I can discern is the fact that you are aged 72. In fact, in two weeks’ time you will be aged

73. You maintain your innocence contending no offending occurred, so you cannot be given any discount for guilty pleas of expressions or remorse. Of course, it is not an aggravating feature that one maintains one’s innocence. It is just the absence of a mitigating factor. Age may be a mitigating factor, but as your counsel has said it is accepted that a term of imprisonment may weigh more heavily on those who are in the later stages of their life. But as Adams on Sentencing says at SA9.17(5):

“Old age alone is unlikely to be a significant mitigating factor. However, where the offender’s age means that the sentence will be appreciably harsher in its impact, it may be reduced to take account of that fact; R v Mikus

26/10/04 CA296/04. The reduction may be greater where ill-health is also a factor; R v Gallagher (1993) 9 CRNZ 421 (CA).”

I bear that in mind. But you have no health difficulties and you professed to be an active diver and tennis coach in your interviews with the officer. So your physical prowess might appear to be somewhat greater than many who are aged 70 plus. Nevertheless, I take into account your age, when it comes to assessing personal mitigating factors.

[15] The probation officer’s report describes you as not expressing any remorse and you are assessed as moderate to high risk of re-offending despite your age. I sought a reparation report with a view to making reparation orders in relation to some form of compensation for these girls, but you have claimed to the probation officer:

“my lawyer had told me that I was going inside [prison] so I gave away my assets.”

Given that I remanded you in custody upon you being convicted, that would tend to suggest, if you were telling the truth, that you did this before trial. As the probation report says you were evasive about this, but if it is correct that you gave away your assets before trial, then your prediction as to the likely outcome was obviously correct. But you are also evasive about your car in which the offending took place because you are aware that confiscation was likely. If I am to believe your claim to the probation officer that you gave away your assets, then it means that these

included (given your police interview in which you said you were a diver) an 18-foot boat which you sold in August 2008 and sold your caravan in which you lived, and you did your banking in Newtown. You have provided no information as to the disposal of funds that you inevitably would have had. It simply illustrates complete absence of insight and remorse.

[16] Mr Sainsbury submitted that a starting point of six to six and half years was accepted, that because of your age it needs to be factored into any prison sentence and that there be no minimum non-parole period imposed. So the sentencing exercise starts first by the Judge determining what is an appropriate starting point, viewing the overall culpability and criminality of the behaviour and the aggravating features relating to it.

[17] I take the sexual violation by digital penetration of A as the lead sentence. No tariff exists for sexual violation by unlawful sexual connection because the circumstances of this crime will vary considerably. In R v M [2000] 2 NZLR 60 (CA) the Court of Appeal seems to suggest that the starting point of 2-5 years was appropriate for digital penetration of the genitalia or vagina. But subsequent Court of Appeal decisions have consistently said that that case should not be regarded as a tariff case, the range identified being conservative as it was a Solicitor-General’s appeal and that at best the range was applicable to “one-off” instances of digital penetration. Yours does not fall into that category.

[18] I am satisfied that where there is digital penetration of the genitalia of a young girl, by a person in a position of trust involving a representative charge so there was multiple offending over a period of two years, a starting point at the very least in the range of six to six and a half years’ imprisonment for an adult offender is appropriate. Your counsel has not resisted or argued against that. Given the aggravating features that I have identified applicable to you, including two victims, multiple offending, serious breach of trust, I am satisfied in your case the proper starting point is six and a half years’ imprisonment. A similar starting point was adopted in R v H CA609/2008 21 April 2009 and for broadly similar offending in R v Hall CA412/05 17 May 2006, where starting points as high as seven years’ imprisonment were adopted for multiple sexual offending against several young

female victims and the Court of Appeal said that even a higher starting point could not have been criticised.

[19] I do not think that you fall into the range of seven years because the indecent assaults through the clothing were generally at the lower level of the range of seriousness. But that does not apply to the sexual violation by digital penetration of the complainant A. The offending was prolonged serious sexual offending against two vulnerable girls, one suffering from intellectual impairment.

[20] I was initially inclined to add something to that because of the aggravating feature of your refusal to heed the direction of the children’s father that you stay away from them. But that is an aggravating feature which related to the circumstances of the offending and I do not add anything on top of that as it merges within the starting point of six and a half years’ imprisonment.

[21] I then turn to aggravating features involving your personal circumstances. These include your dreadful criminal history. An uplift of at least nine months is required, but measured against that I allow you a small discount of six months in respect of your age. So it follows that the lead sentence to be imposed is six years nine months’ imprisonment. I am mindful also of the additional penalty that I intend to impose upon you, namely confiscation of your motor vehicle. The doing of an indecent act and indecent assault offences will attract concurrent sentences of two years’ imprisonment.

[22] As I have said, I was minded to make an order for reparation and sought a reparation report. But you have been evasive and claimed to have disposed of your assets, which if that is correct then it indicates a cynical approach on your part, somewhat consistent with the deceitful behaviour which led to your convictions.

[23] There is no doubt both girls suffered emotional harm and that that continues. You have made no offer of amends but any reparation depends upon the financial situation. Let me tell you that in R v W HC TAU T000672 11 May 2001 Chambers J made an order for reparation in similar circumstances in the sum of $20,000. Heath J made an order in R v Pitceathly HC TAU CRI-2008-470-004225for $50,000

and so through your cynical approach you have avoided any order for reparation simply because it would be pointless for me to make such an order. If in the course it had been made it would represent a penalty and could be a factor that might have reduced your sentence. Given that I am not able to make a reparation order there is to be no adjustment downwards of the sentence.

[24] Lastly, I turn to the question of confiscation of your motor vehicle. In terms of s 128 the Court may order a motor vehicle to be confiscated if satisfied that it was used to commit or facilitate the commission of the offence for which you have been convicted. In deciding whether or not to make the order the Court must have regard to any undue hardship that such an order would cause an offender in his trade, business, profession, occupation or employment, or to any other person who might have had the use or benefit of the motor vehicle. None of those factors are relevant in your case. There is no doubt at all you used this vehicle to commit or facilitate the commission of the offences and in particular, in relation to the serious repetitive penetration of the genitalia of the intellectually compromised girl A. Yours is precisely the sort of case where the legislature envisaged confiscation of a vehicle misused by a sexual offender to prey upon young girls.

[25] There is some suggestion from the Crown in the material submitted that a lending institution may claim to have an interest in the vehicle by reason of some loan made to you. The order I make will enable that eventuality to be properly considered. There will be an order for confiscation of the Isuzu Bighorn motor vehicle registered in your name, registration number DKD479. Any person or institution claiming to have an interest in that vehicle may submit to the Crown details of such claim and in the absence of any agreement being reached as to the value of any such claimed interest the matter can be referred back to this Court for final determination.

[26] So on the charge of sexual violation by unlawful sexual connection you are sentenced to six years 9 months’ imprisonment. On the count of performing an indecent act upon a girl under the age of 16 and indecent assault on a girl under the age of 12, you are sentenced to two years’ imprisonment on each count to be served concurrently with each other and also with the lead sentence.

[27] I repeat there is an order for confiscation of the motor vehicle in the terms that I have described. Although the Crown sought a minimum non-parole period I do not intend to impose it. In the end your release before the release date, which is six years nine months, would only occur if the Parole Board is satisfied that you have sufficient insight as to not oppose any further risk to young girls in the community and that is a matter for the Parole Board to consider as when and if the time arises. So there will be no formal order of this Court fixing a minimum non-

_{parole period.}

_{J W Gendall J}

Solicitors:

Crown Solicitor, Wellington

N J Sainsbury, Wellington for Prisoner