R v Rehu [2015] NZHC 2178 (10 September 2015)

Last Updated: 13 November 2015

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-087-603 [2015] NZHC 2178

THE QUEEN

v

_{STEVEN MAIHANA REHU}

Hearing:	10 September 2015
Appearances:	SA Christensen for Crown MA Simpkins for Defendant
Sentence:	10 September 2015

_{SENTENCING NOTES OF TOOGOOD J}

R v REHU [2015] NZHC 2178 [10 September 2015]

Introduction

[1] Steven Maihana Rehu: you appear before me for sentencing having pleaded guilty to three counts of doing an indecent act on a child.¹ Each charge carries a maximum penalty of 10 years imprisonment. So this was serious offending, and the long term effects that what might have seemed only brief incidents several years ago underpin why this sort of offending is regarded as very serious.

Facts

[2] You were aged 15 to 16 years old at the time of your offending. While you were living at a rural property in Torere with relatives, you sometimes stayed in a caravan parked on the property and used this as an additional bedroom.

Offending against first victim (V1)

[3] The first charge relates to offending that occurred during the school holidays on a date between 17 July 2006 and 16 July 2007. The first victim (V1) was visiting the address where you lived. She was then aged seven to eight years. One day, when she was playing on a Game Boy, you approached V1, told her that you had something to give her, took hold of her wrist and led her into the caravan.

[4] When you arrived at the caravan, you lifted V1 onto the bed and told her to lie down. You removed her pants and underwear and proceeded to rub your exposed penis on and around her genital area. V1 continued to play on the Game Boy while this occurred to distract herself because she was terrified and did not know what was happening. You ejaculated over the victim’s stomach, leaving her feeling wet. You wiped your seminal fluid off her with a towel which you threw onto another bed in the caravan. You told V1 to put her pants back on and leave. She went outside and

_{began to cry.}

¹ Crimes Act 1961, s 132(3).

[5] The second charge relates to offending that occurred approximately one week later. Your second victim (V2), who lived with you in Torere was playing with your third victim (V3). V2 was aged seven at the time.

[6] You approached V2 and V3 and asked them to come into your caravan to play a game. The two girls followed you to the caravan. You sat on the bed beside V2 and put your arm around her; you started feeling her shoulders, down her back and on her bottom. You then got V2 to lie down and you lay on top of her; both of you remained fully clothed. You started simulating sexual intercourse by thrusting and rubbing your genital area against her genital area, thighs and stomach.

[7] V2 did not know what was happening and she was too scared to say anything. When you had finished what you were doing, V2 left the caravan and went back to the house.

Offending against third victim (V3)

[8] The third charge relates to offending against V3 when she was aged between five and six years old. She witnessed what you did to V2 but she did not know what was happening and thought it was a game, so continued to play on her Game Boy.

[9] After V2 had left the caravan, you grabbed V3 and lay her down on the bed. You lay on top of her, saying it was a game. You then started simulating sex by thrusting and rubbing your genital area against her genital area, thighs and stomach for approximately five to seven minutes. V3 continued to play on the Game Boy while this was happening.

[10] When you had finished, V3 went outside to play thinking that what had just happened was normal.

Victim impact statements

[11] I have had the benefit of reading two victim impact statements by V1 and V3.

[12] V1 is now 16 years old. She says that when you offended against her it felt like you were controlling her and she felt scared. She did not know what was happening. She felt terrified and that is why she kept playing on her Game Boy so that she would not have to look at you. She felt disgusting, she was scared and she cried after she left the caravan. She now feels bad for not doing anything or telling anybody about the offending. She describes you as a monster and she would like you to know that she hates you for what you did to her. She has flashbacks which she describes as being disturbing and gut wrenching; it causes her to get upset and cry. The offending has affected her confidence and trust in other people. She is scared that other people will do the same thing to her, and she feels ashamed. She describes having to go through the court process leading up to your guilty plea as being scary and it has put her under a lot of stress.

[13] V3 is now 15 years old. She says that she finds it too upsetting to talk about what you did to her. V3 did not understand what you were doing to her at the time. She does not want to know you anymore. She wants to look forward, but the memory of the offending drags her backward. She feels really angry and frustrated that the offending is always going to be hanging over her and she no longer feels safe around men.

Approach to sentencing

[14] In sentencing you today, I am required to follow the standard approach which requires, first, setting a starting point by looking at the nature and extent of your offending compared to similar cases. I then consider whether there is anything in your personal circumstances that justifies adjustments to that starting point – either mitigating factors that might reduce the sentence, or aggravating factors that might increase it.² I am also required you give you credit by way of a discount for having

_{pleaded guilty.}³

² _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA); R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23 (CA)}

³ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[15] I now consider what sentence should be imposed to best meet the sentencing purposes and principles set out in the Sentencing Act 2002.⁴ The purposes that are important in your case are:

(a) holding you accountable for the harm done to your victims and the community by your offending;

(b) promoting in you a sense of responsibility for, and an acknowledgment of, that harm;

(c) denouncing your conduct;

(d) deterring you and others from offending in this way; (e) protecting the community from you; and

(f) assisting in your rehabilitation and reintegration.

[16] Because your offending was part of a sequence occurring close in time, I will consider the charges together and impose concurrent sentences.

Starting point – sentence indication

[17] In looking at the starting point, I take into account that you sought a sentence indication on the basis that you would enter a plea of guilty to all charges if the indication were to be of a similar length as that advised by your lawyer, Mr Simpkins.

[18] Justice Faire delivered a sentence indication on 9 June 2015 in which he said that if you pleaded guilty to the three charges of indecent assault on a child on the

_{facts I have outlined he would adopt a starting point of three years.}⁵

⁴ _{Sentencing Act 2002, ss 7 and 8.}

⁵ R v Rehu [2015] NZHC 1301 at [33].

[19] You then pleaded guilty. Since no new information has come to light which affects the nature and extent of your offending, there is no reason for me not to adopt the starting point of three years’ imprisonment which Faire J assessed as being appropriate. I need to mention just briefly the factors which justify that assessment:

(a) Your actions have caused significant psychological harm to your victims.

(b) There were multiple complainants.

(c) The offending against V1 involved skin on skin contact, including touching her genital area and ejaculating on her.

(d) Being aged between five and eight years old at the time of the offending, the victims were particularly vulnerable.

(e) Your actions indicate a degree of premeditation. Although your offending against V1 might have been spontaneous, I accept that there was a level of premeditation evident from the fact that you committed further offences against the other girls a week later.

(f) The offending involved a breach of trust. While I acknowledge that you were not given responsibility for looking after the victims, you are eight to 11 years older, they viewed you as an adult and they had reason to trust you.

[20] I have considered similar cases provided to me by Ms Christensen for the Crown⁶ and your counsel, Mr Simpkins.⁷ I note that Faire J in his sentence indication identified two other cases that were relevant and I have referred to them as well.⁸ The offending against V1 alone is sufficient to warrant a starting point of two

_{years six months’ imprisonment. It is arguable that the offending against the other}

⁶ _{Paora v R [2011] NZCA 472.}

⁷ O (CA643/2009) v R [2010] NZCA 609; R v Lewis [2014] NZHC 2761; R v Paki [2012] NZHC

_3494.

⁸ R v M (CA347/09) [2009] NZCA 456; R v Vautier [2009] NZCA 435.

victims justifies an uplift of 12 months but, as I have said, I will not depart from the

starting point of three years’ imprisonment given in the sentence indication.

Personal circumstances

[21] Mr Rehu you are now aged 24 years old and you are currently single. The longest relationship you have had is for nine months. During the period of time in which the offending occurred, you have said that you were lonely and never had a girlfriend at high school.

[22] When the Police first spoke to you about the offending, you were co- operative and remorseful. You admitted the offences as I have outlined them and said in explanation that you were “young, horny and lonely”.

[23] You also said that you always got into trouble and were just sad and mad arising out of drug and alcohol abuse. You blame your substance abuse on your parents who, you say, brought you up in an environment fuelled by drugs, alcohol and sex; that your parents did not care for you and your brother; and that you often went hungry.

[24] In preparing for your sentencing today, I have read the report of a psychologist, Mr Lascelles. He describes your unfortunate upbringing. Your parents had significant alcohol problems and your mother was heavily intoxicated throughout her pregnancy with you. Mr Lascelles also reports episodes of domestic violence and physical abuse towards you. I understand that you were uplifted by CYFS and placed in foster homes between the ages of nine and ten, before moving to stay with other family members. You were returned to your mother’s care when you were 16.

[25] Mr Lascelles also identifies that, while you do not meet the criteria for the diagnosis of a person with an intellectual disability, you have an intellectual ability in the low-average range. He says that you are particularly vulnerable to agreeing with propositions put to you by someone in authority or to agree to propositions, despite knowing something to be untrue, in order to avoid conflict.

[26] I acknowledge that you have said you are sorry for what you have done and that you regret it, and that has been repeated in the letter your counsel handed up which I have read. You say that you feel pretty disgusted, upset, down, and lonely and that you were just a “stupid little boy at the time”. Now, you say, you want to “be honest for the girls” because they were not lying and you understand that it is devastating for the complainants to have to deal with your offending. I accept those sentiments as genuine and they indicate that there are good prospects of rehabilitation.

[27] You have 24 previous convictions. These charges include assaulting another with a cutting instrument, shoplifting, burglary and wilful damage of property. All of those convictions were entered after the indecent acts for which you are being sentenced today and none of them are for sexual offending. You have never been sentenced to a period of imprisonment.

[28] Following your guilty plea and while you were on bail awaiting sentence, you failed to attend a pre-sentence report interview. When further inquiries were made at the bail address it was learnt that you had not been at that address for some time. A warrant was sought and obtained and you were arrested on 18 July 2015. It is alleged that between 9 June and 18 July 2015 that you committed a further offence of assaulting a female. I note that, following your sentence today, you are due to be sentenced in the District Court in relation to this domestic violence.

Pre-sentence report

[29] The writer of the pre-sentence report I have received assesses you at a high risk of reoffending, basing that opinion on the seriousness of your offending, your age and the fact that you have accumulated 24 criminal convictions over a three-year period.

[30] The writer reports that you speak of the offending as being opportunistic rather than involving grooming, although I suspect those are her words and not yours. You have said that you are willing to engage in treatment. The writer notes that you also showed a level of insight into the effect of your offending on your

victims and that you demonstrated some remorse. But the writer assessed you as being more concerned about the impact that your offending will have on you and your future.

[31] The report acknowledges that while you have led a somewhat transient lifestyle over the past few years, you have made attempts to add stability to your life by enrolling in study and engaging in employment. Those steps are commendable.

[32] After having considered all of the appropriate sentencing options, the report writer recommends that you serve a sentence of imprisonment. I will come back to the report when I discuss the issue of home detention.

Discount for personal circumstances

[33] Both the Crown and Mr Simpkins agree that I should give you a discount for youth and your diminished intellectual capacity.

[34] I accept that you should receive a discount for youth, based on the factors set out in the leading Court of Appeal judgment on this point;⁹ you were between 15 and

16 years old when the offending occurred and, at 24, you still have adolescent qualities. I acknowledge that youth alone does not automatically justify leniency in cases of serious child abuse by a young offender, but I accept that, while you knew that what you were doing was wrong, you did not fully understand its gravity.¹⁰

I make allowance for the likelihood that your actions involved some element of experimentation and a reduced appreciation of the seriousness of your actions.¹¹

I have considered a number of cases where discounts were given for youth in cases

_{of sexual offending against young children.}¹² _{Justice Faire said he would be}

⁹ Churchward v R [2011] NZCA 531 at [77]. Glazebrook J held that youth is a relevant factor to sentencing because of: (i) the age-related neurological differences between young people and adults show that young people are more vulnerable and susceptible to negative influences and may be more impulsive than adults; (ii) the effect of imprisonment on young people; and (iii) the greater capacity for rehabilitation of young people, particularly given that the character of a young person is not as well formed as that of an adult.

¹⁰ _{R v Accused (CA265/88) [1988] NZCA 232; [1989] 1 NZLR 643 (CA).}

¹¹ _{R v Parata (2001) 19 CRNZ 352 (CA).}

¹² In V (CA400-2012) v R [2012] NZCA 465 the defendant had sexually offended against his sister over a period of three to five years while the sister was five years old and the defendant was 14. A 30 per cent discount was given for mitigating factors relating to the offender being aged 14 at the time of offending, the steps taken towards rehabilitation and his remorse. In R v Lennon

prepared to give you a 30 per cent discount for this mitigating factor and I adopt that figure.

[35] The findings in Mr Lascelles’s report indicate that you have significant limitations in your cognitive abilities, which relate directly to your ability to manage situations and understand the consequences of your actions. Mr Simpkins submits that this limits the significance of the sentencing purposes of general and specific deterrence¹³ and that I should also take into account that a sentence would be

significantly more difficult for you.¹⁴ Your counsel says that a further discount of

15 per cent is appropriate.

[36] I do not accept that submission. While I acknowledge that your limited intellectual ability is a mitigating factor which can be taken into account, I have already factored in that the effect of imprisonment could be difficult for you and your lessened ability to understand the consequences of your actions in giving you a

30 per cent discount for youth.

[37] Finally, Mr Simpkins submitted that an additional discount should be given because you had no prior convictions before this offending, you have not committed any offences of a sexual nature since this offending, and you have expressed remorse. I agree that you had no convictions prior to this offending but you were only 15 – 16 years old so that is no real surprise and, to a degree, consideration of your prior good behaviour is taken into account in the discount for your youth. You may not have committed sexual offences after these but you have a history of other offending. I consider also, bearing in mind the Probation officer’s observations about your remorse, that a further discount for remorse beyond that which is inherent

_{in your guilty pleas is not called for.}

[2012] NZCA 551 a 33 per cent discount was given for the youth of the defendant for se xual offending against a seven to eight year old and a ten to twelve year old when he was between fourteen and fifteen years old. In B v R [2013] NZCA 139 a 40 per cent discount was given for youth and absence of previous convictions for sexual offending against the defendant’s step sisters when the defendant was between 14 and 17 years old. The victims were four to five years old at the time of the offending.

¹³ _{E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [70].}

¹⁴ Above.

[38] Taking into account the mitigating factors I have discussed above, I discount the starting point by 30 per cent which results in an adjusted sentence of just over two years and one month’s imprisonment.

Guilty plea

[39] The Crown accepts that you are entitled to credit for your guilty pleas.

[40] You were initially charged on 3 April 2014. Notwithstanding the late request for a sentence indication hearing, the Crown concedes that you made an offer on a similar plea basis on 22 October 2014, which the Crown would not accept at the time. It is on this basis that Mr Simpkins says that the full 25 per cent discount should be given for a guilty plea. Justice Faire agreed with that approach and I adopt it.

[41] A further discount of 25 per cent brings the sentence down to one year and

seven months’ imprisonment.

Home detention

[42] Because I have decided that a period of imprisonment of less than 24 months is justified, I am entitled to consider whether it is appropriate to sentence you to home detention.¹⁵ Mr Simpkins acknowledges, however, that no appropriate address is available so that rules out home detention as a possible sentence.

[43] It is fair to tell you that I would not have sentenced you to home detention anyway. You have eight previous convictions for failing to comply with community- based sentences; instead of reporting to the probation officer for preparation of the pre-sentence report, you absconded for about five weeks until you were arrested in Auckland. So despite having been given an indication that the Judge was thinking about home detention, you breached your bail conditions. Finally, you acknowledged to the report writer that when you were previously sentenced to home

_{detention you had difficulties with such a restrictive sentence.}

¹⁵ Sentencing Act 2002, s 15A(1)(b).

[44] To be effective, a sentence of home detention requires a degree of acceptance and co-operation from the offender which is absent in your case. Moreover, I would not have been prepared to overlook your apparent disdain for court orders.¹⁶ The deterrent purposes of sentencing would not have been met by a sentence of home detention in this case.

Sentence

[45] Please stand, Mr Rehu.

[46] On each charge I sentence you to imprisonment for one year and seven months, to be served concurrently; that is, together.

[47] I also impose the following special conditions to apply upon your release:

(a) You are not to associate or otherwise have contact with any person under 16 years of age except in the presence and under the supervision of an “Approved Informed Adult”. An “Approved Informed Adult” means a person who has been given approval in writing by a Probation officer as being suitable for the purpose of this condition.

(b) You are to attend a psychological assessment with a departmental psychologist as directed by a Probation officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation officer.

(c) You are to undertake and complete any other appropriate assessment, treatment and/or counselling as directed by and to the satisfaction of a

_{Probation officer.}

¹⁶ O’Donnell v R [2011] NZCA 50 at [33].

(d) You are not to associate with or have any form of direct or indirect contact with the victims of your offending without the prior written approval of a Probation officer.

[48] The sentence, Mr Rehu, and the conditions imposed are designed primarily to give you an opportunity to completely rehabilitate yourself. You will be in prison for a relatively short time but during that time the Probation Service, the Corrections Department and others will assist you to understand how you should live your life in the future. I hope you take that opportunity.

[49] Stand down please.

......................................

Toogood J