R v Joe [2013] NZHC 1047 (10 May 2013)

Last Updated: 20 May 2013

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-11622 [2013] NZHC 1047

THE QUEEN

v

_{KITIONA TERE JOE}

Hearing: 10 May 2013

Counsel: L MacDonald for Crown

J D Munro for Prisoner

Sentence: 10 May 2013

_{SENTENCING NOTES OF DOBSON J}

Solicitors:

Crown Solicitor, Auckland ([e-mail])

Counsel:

_{J D Munro ([e-mail])}

R V JOE HC AK CRI-2012-092-11622 [10 May 2013]

Charges

[1] Mr Joe, on 13 February this year you have entered guilty pleas to four charges of sexual offending against two complainants. I will refer to the older complainant as the first complainant, and the younger complainant as the second complainant. There is one representative charge of sexual violation by unlawful sexual connection involving the first complainant (that is the older boy); one specific charge of doing an indecent act on the second complainant when he was under the age of 12; a representative charge of doing an indecent act on the second complainant when he was aged between 12 and 16; and one representative charge of sexually violating the second complainant by unlawful sexual connection. Convictions were not entered on 13 February, and I now formally convict you on each of those four charges, and so you are now to be sentenced.

[2] On the two charges of sexual violation, the maximum penalty is 20 years’ imprisonment. The maximum penalty for the charge of doing an indecent act on the second complainant when he was under 12 is imprisonment for 10 years, and the maximum penalty for the other charge of doing an indecent act on the second complainant is imprisonment for seven years.

Relevant Facts

[3] The two complainants are brothers, and they are related to you. They and their parents are entirely innocent in this matter, and I will not identify them in any way.

[4] The offending occurred between the beginning of 2004 up to early 2012. Your offending against the first complainant started in 2004 and continued for about four years. Your offending consisted of licking, sucking and kissing his penis and his testicles.

[5] Your offending against the second complainant began in 2005 and continued up until early 2012. On the first occasion, when he was nine or 10, you asked him if he would touch your penis. He said no, and continued to say no after you offered

him money, a watch and takeaway food. You grabbed him, held him down on a bed and stimulated his penis. When the second complainant was a little older, on several occasions you stimulated his penis, and on several occasions you also sucked his penis.

[6] During part of the time when the offending occurred, you were living with the complainants’ family. You were invited to live there because their house was easier for you to live in after your leg was amputated and you were confined to a wheelchair in February 2012.

Victim impact statements

[7] I have read victim impact statements from each of the two complainants and their parents. You have heard one of those statements read out in court today. It is clear that your offending has had a devastating effect on the complainants, their parents, and their relationship with the wider family. The parents welcomed you into their home, they trusted you and you totally abused that trust. Your offending has led to a breakdown in the relationship the family has had with their wider family and a final insult to the parents, they say, is that you have not apologised directly to them.

The process

[8] Now, the first step in sentencing you is to establish the starting point, that is the sentence that would be imposed on the most serious of these convictions, if you had been convicted after a trial in court. In your case, that is the two charges of sexual violation. The second step is to take that starting point and decide what the appropriate sentence is for you and for your offending. I do this by considering whether there is anything about your offending that makes it more (or indeed less) serious and requires the starting point to be adjusted up or down. I also consider matters that relate to you, personally, because these may lead me to adjust your final sentence.

[9] In sentencing you, I have to take into account the purposes and the principles of sentencing and they are set out in the Sentencing Act 2002. With respect to the

purposes of sentencing, I have to hold you accountable – to hold you responsible for your offending. I have to consider deterrence – that is, deterring you and deterring others – and I have to consider protection of the community. I also have to denounce your offending – this is to signal that your offending is unacceptable in New Zealand society. At the same time, the purpose of sentencing any offender is to help the offender to get back into the community and as a useful member of it.

[10] In your case, the relevant principles of sentencing are the gravity of your offending, including your culpability, and the seriousness of your offending in comparison with other types of offences. I must take into account the information I have about the effect of your offending on the complainants. I am directed to impose, in the end, the least restrictive outcome that is appropriate in the circumstances, and I must take into account any particular circumstances relating to you that mean that a particular sentence would be disproportionately severe for you in your physical condition.

Starting point

[11] So I come now to the starting point. As I said earlier, I set the starting point by reference to the two charges of sexual violation because they are the most serious.

[12] Both counsel have referred in their submissions to a Court of Appeal judgment in R v AM, which is a guideline judgment for sentencing for sexual offending.1 The Court set out in that case starting points for three bands of offending, based on the presence of certain aggravating features – that is, the things which make the offending more serious.

[13] In your offending, a significant feature is the breach of trust. You were welcomed into the complainants’ home. You were trusted with the complainants. As a relative, they ought to have been able to trust you; the complainants ought to have been safe with you. You abused the trust, and the complainants were obviously not

_{safe with you.}

1 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

[14] Another significant feature is the harm done to the two complainants. I hope you have read and considered their victim impact statements and if you have not, I will ask Mr Munro to make sure you get them and read them. The harm to them may not be physical, but it is clear from their impact statements that both complainants have suffered long-term mental and social harm. They have been made, quite wrongly, to feel guilty for what you did to them. They feel shame for what you did to them and they have suffered at school. They are now distanced from other members of their family.

[15] There is also the scale of your offending and the fact that you have offended against two complainants, which makes it worse than if there was a single complainant, and that it extended over a period of eight years.

Counsels’ submissions re starting point

[16] Now, Ms MacDonald, for the Crown, has submitted that the presence of these factors meant that your offending should be placed at the upper end of band two of those sentencing bands in R v AM, and that the starting point should be between eight and 10 years’ imprisonment. Mr Munro agreed that your offending fits within band two, but he submitted that the starting point should be about the midpoint of that band and his submissions refer to a range between seven and a half and eight years.

[17] Having considered all the circumstances of your offending, including the specific matters that I have just referred to, I have concluded that the starting point should be eight years’ imprisonment.

Personal factors

[18] I now have to consider matters that relate to you personally. The first of these is that you have previous convictions for similar offending. These were in 1991, when you were convicted on a charge of indecent assault on a boy under 12, and two charges of indecent assault on a boy aged between 12 and 16. You were sentenced on that offending to two years and three months’ imprisonment. Although that offending was quite some time ago, the fact that you have now been convicted of the

same sort of offending again shows that the earlier sentence did not deter you. It is of concern that it appears from the victim impact reports that the complainants’ family was not made aware of those earlier convictions. Mr Munro has accepted that an uplift of six months to the starting point was justified and I do think that that is sufficient. This takes the starting point to eight years and six months’ imprisonment.

Pre-sentence report

[19] Next, I consider the Probation Officer’s pre-sentence report. You are

45 years old. You reported having had a good childhood, but dropped out of school at the fourth form. You have had various jobs since you were 16. You suffer from diabetes, and now have had to have a leg amputated as a result of it becoming infected, I discern as a result of your diabetic condition.

[20] You did express remorse to the Probation Officer, saying that you are very sorry for what happened and that you wanted to get help. You explained to the Probation Officer that you were meant to be looking after the two complainants, and do not know what happened to you, but you did not have a job, and you had a lot of time on your hands.

[21] You were assessed in that report as being at a high risk of re-offending, and that there is a risk that you will harm other vulnerable children if you do not receive appropriate specialised intervention and treatment.

[22] I have also seen the medical reports that were submitted by your counsel, Mr Munro. It is clear from those that you suffer from a number of ailments, which appear in the main to be related to your diabetes. Mr Munro has submitted that a discount should be applied to your sentence to reflect the fact that imprisonment would be a greater burden on you, not only because of your general ill health, but also because you are confined to a wheelchair. I accept that a small discount should be allowed, although there is force in Ms MacDonald’s submission that neither your illness, nor your being in a wheelchair, has prevented you continuing with your offending.

[23] The Crown has also filed an affidavit from Ms Lightbown, who supervises medical services available in prison. She describes the extent of medical services that will be available to you in prison. It can certainly not be said that you would receive any less treatment when medical attention is justified than would be available to you in the community.

[24] Mr Munro submitted on your behalf that a further discount should be applied for your remorse for your offending. Now, as I have said, the Probation Officer recorded you said to him you were very sorry for your offending, but it does not appear that you have expressed remorse or an apology to the complainants or their family. And fronting up to your offending is graphically demonstrated by looking those who have suffered in the eye and saying you are sorry.

[25] In the circumstances, I cannot accept that any discount should be given, over and above that which I will apply for your guilty pleas. Accordingly, before I come to consider your guilty pleas, I will apply a reduction of six months on account of your physical state, and the relative severity for you of imprisonment. From the adjusted starting point, that brings it back to eight years’ imprisonment.

[26] I turn now to your guilty pleas. You were charged in August last year. You had two appearances in the District Court, and you first appeared in this Court on

13 December 2012. At that stage, you faced an indictment containing, by my reckoning, some 13 charges. You appeared again on 13 February this year, at which time you entered guilty pleas to the four charges in the amended indictment. Your pleas were entered at an early, but perhaps not the earliest possible, stage. I accept that you had earlier indicated you would plead guilty. I am not prepared to apply a discount above 20 per cent. Mr Munro has argued you are entitled under the

Supreme Court decision in Hessell v R to 25 per cent,2 but in all the circumstances in

which I assess this, I consider 20 per cent the appropriate level, and that is an amount of about 19 months, which takes your end sentence to six years and five months’

_{imprisonment.}

2 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[27] I agree with what has been said by counsel and in the pre-sentence report that your case cries out for the useful programmes that are now available to help offenders of your type to avoid the impulses that cause the offending. You will qualify for consideration for admission to those programmes. I cannot direct it, but I certainly commend that they be made available to you and that you embrace them positively.

Minimum term

[28] Now, Ms MacDonald submitted I should impose a minimum term of imprisonment. Under the Sentencing Act, a minimum period may be imposed if I consider it necessary to hold you accountable for the harm done to the complainants and the community, to denounce your conduct, to deter you or others from committing this sort of offence, or to protect the community from you. Ms MacDonald submitted that the normal time at which you would be eligible for release on parole – that is, after a third of your sentence of six years and five months

– would not be sufficient for the purposes of denunciation and deterrence, or to protect the community, and to ensure that you get treatment you need while you are in prison.

[29] On the other hand, Mr Munro has submitted that a minimum period of imprisonment should not be imposed, because of your poor health, and the fact that without a minimum period, you would be able to enter the programmes we have talked about at an earlier stage. He also submitted that your rehabilitation could, in any event, be continued after your release through attending programmes under the supervision of your Probation Officer, and that if those programmes commence whilst you are in prison, then when you are eligible for parole you may be assessed as being at a lower risk of offending because you have done well in those courses.

[30] I have taken all that into account, but I have concluded that the seriousness of the offending, and the other factors that are relevant to the consideration, do make a minimum term of imprisonment appropriate, essentially for the purposes of deterrence and to protect the community. It also means that the prison authorities will know a certain date on which the minimum time served will elapse.

[31] Accordingly, I order that you are to serve a minimum term of imprisonment of three years and two months.

Three strikes warning

[32] The last aspect I have to cover is a three strikes warning. Your offending against the second complainant occurred at a time after the “three strikes” law came into effect. Both of the offences against the second complainant are classified as serious violent offences under that legislation. As a result of your conviction on the two charges concerning the second complainant, I am now required by law to give you the following warning under the three strikes legislation. So, given those convictions, you are now subject to the three strikes law and I will give you the warning of the consequences of another conviction for a serious violent offence. You will also be given this as a written warning after the sentencing is over.

[33] So, Mr Joe, if you are convicted of any one or more serious violent offences other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment, you will serve that sentence without parole or early release.

[34] If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole, unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment.

Sentence

[35] Accordingly, on each of the charges of sexual violation by unlawful sexual connection you are sentenced to six years and five months’ imprisonment.

[36] On the charge of doing an indecent act on a boy under 12 you are sentenced

to three years’ imprisonment.

[37] On the charge of doing an indecent act on a boy aged between 12 and 16 you

are sentenced to two years’ imprisonment.

[38] All those sentences are to be served concurrently. Your effective term of imprisonment is six years and five months, of which I have ordered you are to serve a minimum of three years and two months.

[39] You may stand down.

Dobson J