R v Rutene [2012] NZHC 3408 (14 December 2012)

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ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

Offence	Section / Act	Maximum penalty
Doing an indecent act to a young person	s 134(3) Crimes Act 1961	7 years imprisonment
Assault (representative)1	s 196 Crimes Act 1961	1 years imprisonment
Assault2	s 196 Crimes Act 1961	1 years imprisonment
Assault3	s 196 Crimes Act 1961	1 years imprisonment

[2] I presided over your trial and have a good appreciation of the facts behind each charge. The offending concerned two different victims, TD and LR. Both of them were placed with you and your wife by family or CYFS and you acted as their caregivers for periods of time.

[3] TD was 12 when he first came to live with you. You offended against him both violently and sexually. In respect of the sexual offending, he alleges you would regularly come into his room at night and fondle his genitals under his clothing for a period of time. This apparently occurred on numerous occasions over the roughly three years that TD was in your custody. What was quite humiliating for him was to find that you had in fact taken photographs of that offending. There was also concerted physical violence towards TD involving sustained slapping and punching about the body and head on numerous occasions. The effects of these

[4] The second victim, LR, was the subject of similar forms of assault during his time with you. It has obviously had an effect on him as well.

[5] TD is now 17 years old. You inflicted both physical and sexual abuse on him. In regard to the physical injuries, he recalls having had bruising to his face and black eyes, being left with a bleeding nose and having swollen and bleeding lips following the assaults.

[6] The sexual offending you committed has greatly affected his moods and lead to some suicidal thoughts. He felt powerless and frozen during your offending against him and hates the fact that he could do nothing to control his situation. TD suffered the effects of your offending for some time after it occurred and, even after he was well away from you, would sometimes wake up with the sensation that you were offending against him once more. He has had the disruption of moving and, for a time, was using cannabis to block out the memories and feelings from the abuse. He has been to counselling however and feels that is having a positive effect and allowing him to get on with his life although he still expresses anger at your betrayal of his trust and expectations.

[7] LR is now 16 years old and was assaulted by you after he was placed in your home by CYFS. He recalls bruising and soreness throughout his body as a result of you repeatedly punching and slapping him. LR remembers having high expectations for moving into your home but coming to hate it and dreading going home from school. He says you made him feel worthless and like a slave. LR feels let down and hurt by both you and CYFS. He also found the experience of giving evidence in court harrowing and shameful.

[8] As to your personal circumstances Mr Rutene, at trial, you led evidence from a Police Officer that you had no previous convictions. However, a subsequent search by the Crown has revealed that you have previous convictions under another name and were convicted of two dishonesty offences in 1995.

[9] The pre-sentence report tells me a little about your background. You are now

37 years old and have strong connections to your Maori heritage. You had an irregular childhood and were raised by family members other than your parents, whom you knew little of. You were successful academically and hold a masters degree and other qualifications. You are now separated from your wife and have no children of your own.

[10] You now appear to accept responsibility for the physical abuse that was inflicted on the victims and link it to the fact that corporal punishment was seen as the norm in your childhood. You accept that you may have a tendency to act violently when under pressure. The report is however silent as to the sexual offending. You have expressed an interest in whatever programmes are available to help you address your offending.

[11] I have also been provided with a report outlining a suitable residence at which you could serve a sentence of home detention should that become a possibility.

[12] I have received a letter from a whangai brother of yours who speaks highly of you. There is a letter from a senior teaching professional who has known you for many years and to whom you have been a close family friend. He also speaks highly

of you and supports you despite the outcome of your trial. In that regard, I acknowledge your community of support in the back of court today. You are obviously are well regarded by a section of the community and that is to your advantage. However, I must say that, in a sense, I have formed the view of you that you have been living a lie in the time that you have been assisting the community with this offending being hidden.

[13] Your counsel has also provided health reports suggesting that you may be suffering from diabetes.

[14] There are a number of things which I have to keep in mind when it comes to sentencing you. Among those are:

(a) Providing accountability for the harm you have done to the victims and to the community;

(d) Providing for your rehabilitation and reintegration into the community following any sentence imposed.

(b) The seriousness of the particular facts and your sole responsibility for all of its consequences;

(e) Any particular matters in your background which either make a sentence particularly severe or aid in your rehabilitation.

[16] The Crown takes the indecent act charge as the lead offence. The Crown referred to the tariff case for sexual offending and a number of other cases dealing with this type of offending. The Crown’s suggested starting point is between three years, six months and four years imprisonment.

[17] Concerning the assaults, the Crown submits that the three charges should be recognised together by imposing a cumulative sentence of one year for each of the charges and sentencing the others concurrently. The Crown suggests there are no mitigating factors entitling you to a discount and so its end sentence is one of four years, six months to five years imprisonment.

[18] Your counsel, Mr Sharp, has spoken eloquently on your behalf. He has also adopted the indecent act charge as the lead offence. He submits that the appropriate starting point for the sexual offending is between 15 and 18 months imprisonment and for the assault convictions, between three and six months imprisonment. Your counsel suggests that cumulative sentences would be out of proportion to the gravity of the offending as a whole. He also submits that there are mitigating aspects of your background, such as your lack of relevant previous convictions and general good character. Ultimately, he suggests that a sentence of home detention should be imposed.

[19] I will briefly outline the way in which I am going to reach the final sentence I impose.4 In this case, the lead offence is the indecent act charge given its high maximum sentence. I am going to look at the facts of that offending and compare it with other cases in order to set a starting point for sentencing you. I am then going to consider the effect of the other offending on that starting point.5 Then I will consider matters personal to you and what effect they might have. That will give me the end sentence I impose on you.

[20] There is no tariff case for committing an indecent act on a young person. The Crown referred to R v AM6 as providing a useful cross-check but I do not consider that case is of much assistance given the different nature of the offence and the much more severe penalties.

[21] I have previously noted the matters that might be considered as aggravating factors in indecency offending against children and young people. I list them now:7

(d) The intrusiveness and intensity of the act (touching through clothing, skin to skin contact, quality of the act, etc.);

4 _{R v Taueki [2005] 3 NZLR 372 (CA); and
R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23.}

[22] Some of the cases relied upon by counsel involved historic sexual offending and may proceed on the basis that the offender should be sentenced according to sentencing levels as they stood at the time.8 They are not, therefore, necessarily good indicators of sentencing levels today. There was also mention of a number of cases of offending against victims under the age of 12; that type of offending attracts a higher starting point of 10 years imprisonment.9

[23] Your counsel mentioned S v Police, R v McCabe and R v M.10 The Crown referred me to Finnerty v Police, R v Parker, Walker v R, O v R and R v McCardle.11

I have also considered other cases including relevant ones such as Chambers v R, Tai v R, and Paora v R.12

[24] There is also a general emphasis in the decisions of the Court of Appeal that sexual and violent offending against children and young people will most often lead

10 S v Police HC Auckland CRI-2008-404-41, 23 May 2008; R v McCabe HC Christchurch

_{AP02/2218, 12 December 2002; and R v M HC Hamilton
CRI-2004-072-406, 13 December 2005.}

11 Finnerty v Police HC Christchurch CRI-2006-409-211, 29 Novemebr 2006; R v Parker [2007] NZCA 534; Walker v R [2010] NZCA 288; O v R [2010] NZCA 609; and HC Auckland CRI-2008-

12 Chambers v R [2012] NZCA 56; Tai v R [2011] NZCA 270; and Paora v R [2011] NZCA 472.

to a sentence of imprisonment for reasons of denunciation, vulnerability and abuse of trust.13

[25] In setting a starting point there are a number of aggravating features of the offending. In this case the sheer breach of trust and abuse of authority given your relationship as a carer and foster parent for the victim who had already had an interrupted lifestyle is of central importance. There has also been considerable impact on the victim from your offending.

[26] There is also the repeated nature of the offending against TD over a long period of time. That means that a degree of premeditation was also present in relation to the later incidents of abuse. The quality of the act is also of a higher level of seriousness in that it involves skin to skin contact and more than fleeting contact with the victim’s genitals.

[27] Of the cases mentioned Chambers v R is most similar in terms of the quality of acts and there is also a high level of breach of trust and abuse of authority. That it involves abuse against multiple victims in more isolated incidents makes it different from the sustained pattern of offending against this victim.

[28] Tai v R and Paora v R involve single incidents and perhaps not quite so great breaches of trust but are otherwise quite similar.

[29] The other cases mentioned by counsel, though some involve offences carrying the higher penalty, also confirm my impression that starting points of less than two years will only be appropriate in cases of the least serious indecency

13 R v Meredith Blyde CA45/95, 19 July 1995; though see Parker v R at [47]; and ZZ v R [2011] NZCA 662.

[30] Considering all of the aggravating factors of the offending and all of the cases mentioned, I consider that an appropriate starting point on the charge of doing an indecent act is one of three years imprisonment.

[31] The charges of assault equally have no guidelines for sentencing. The facts disclose, however, that the assaults against both young vulnerable victims were repeated, a breach of trust, and caused moderately serious injuries. The level of harm caused might well have been captured by a more serious charge In those circumstances, given the seriousness of the offending and the fact that it is of a different type and also relates to a different victim from the sexual offending, a

[32] Considering the overall gravity of your course of conduct, I am not satisfied that a total cumulative sentence of three and a half years imprisonment would be seriously out of proportion to the gravity of the offending as a whole.

[33] I consider that your previous convictions are irrelevant to the current sentencing. Your counsel has gone further than that however and suggested that the way you have lived your life between the time of those convictions and these is such that you should be regarded as of good character and entitled to a discount for that. I accept that may occur in some cases. However, particularly strong evidence of good character would be necessary.

[34] The effect of the evidence as to good character is also diminished where an offender who presents with good character has used that good character to place themselves in a position which facilitates the offending15 or where the offending has

[35] Your health is not a matter that carries much weight in sentencing as a potential diagnosis of diabetes is a matter that may be accommodated within the prison environment and is unlikely to make a sentence disproportionately severe.17

[36] Mr Rutene, please stand. On the charge of doing an indecent act on a young person, you are sentenced to three years imprisonment. On each of the charges of assault you are sentenced to six months imprisonment, those terms to run concurrently on each other but cumulatively on the sexual offending charge. The total effective of sentence you will, therefore, serve is one of three and a half years imprisonment.

[37] The sexual offending against the victim TD is offending which attracts further serious consequences should you offend again.18 I gave you a warning as to the consequences of that offending when I entered the conviction and I remind of those consequences.

High Court of New Zealand Decisions

R v Rutene [2012] NZHC 3408 (14 December 2012)