R v MT [2016] NZHC 2374 (6 October 2016)

Last Updated: 8 November 2016

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSES/VICTIMS/CONNECTED PERSONS PURSUANT TO S 202

CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANTS PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-6715 [2016] NZHC 2374

THE QUEEN

v

_MT

Hearing:	6 October 2016
Appearances:	G Kayes L Belk for the Crown P LeʼAuʼAnae for the Defendant
Judgment:	6 October 2016

_{SENTENCING NOTES OF WOODHOUSE J}

Solicitors / Counsel:

Mr G Kayes and Ms L Belk, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau

Mr P Le’Au’Anae, Barrister, Auckland

R v MT [2016] NZHC 2374 [6 October 2016]

[1] Mr T, you may remain seated. As you know, because you were here at the sentencing of your brother and cousin, I do need to explain these things. It is to explain it to you but it is also to explain it to others.

Suppression orders

[2] There are orders that the names of your sisters and your name and that of your co-defendants cannot be published. But to make this clearer to you I will use their names. What I am saying will be put in writing and I will use initials to describe names.

Offences

[3] You were found guilty of three charges of sexual violation of your younger sister, J. There were two offences of rape, one of which was charged as a representative charge. There was a further conviction for sexual violation by digital penetration of her vagina, which was also charged as a representative charge, meaning that it may have happened on more than one occasion.

[4] There was a specific rape in the bedroom when J was aged between six and seven. You also raped her – based on the jury’s verdict – on at least one further occasion when she was aged eight or nine years. I will sentence you on the basis that rape occurred on a total of two occasions only. I am not satisfied the jury would have concluded there were more than two.

[5] The evidence was that the digital penetration occurred when J was aged six or seven years old. She said it occurred five times or less. Again, I am not satisfied from the evidence that the jury would have concluded that it happened on more than one occasion.

[6] When J was aged between six and nine years – the period of the offences that

I have just described – you were aged between 18 and 21 years.

Victim impact statement

[7] There is no victim impact statement from J. And I assume – and in substantial measure from evidence that I heard – that she declined to provide one.

Sentence – starting point

[8] I come to what is called the sentencing starting point.

[9] You were to have been sentenced with your brother S and your cousin D. They were charged with other sexual offences against J and also against your older sister – older than J – C. They were found guilty of some of the charges against them – and I emphasise they were charges different from the ones against you. You were not sentenced when your brother and cousin were sentenced because of the adjournment of your sentencing on the morning of the hearing. And that was to get the psychiatric report. I mention this for two reasons. One is that you are already aware of some of the things I am going to explain because you remained in court for the sentencing of the other two. It is nevertheless appropriate that I repeat these things because on the earlier occasion they were directed to your brother and to your cousin. The second reason I mention the sentencing of the other two is that I have taken into account relevant matters that I said in relation to their sentencing and including, in particular, the sentences imposed on them and the way in which I went about calculating the final sentences.

[10] In determining the sentences it is necessary to fix what is called a starting point. This is calculated by assessing the seriousness of your offending – how bad was it compared with other types of offences of that sort. Factors personal to you are then brought into account to increase or decrease the starting point. There is no reason to increase the starting point. It will be reduced and I will come to that.

[11] The starting point for sexual offences of rape and unlawful sexual connection are to be assessed having regard to a Court of Appeal case called R v AM.¹ I have taken into account that case, of course, as well as the submissions made on your

_{behalf by Mr Le’Au’Anae, and the submissions for the Crown, and the particular}

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

cases referred to at the earlier sentencing. I will not go through those cases; they will just be put into a footnote.²

[12] If there are aggravating features of the offences the starting point is likely to be increased. The Crown submitted that there are four aggravating factors.

[13] The first is the vulnerability of J because she was a young member of your family. This is an aggravating factor, but it is offset, to an extent, by your relative youth. The Crown acknowledges this. And I will come back to that point when dealing with your personal circumstances.

[14] The second aggravating factor referred to by the Crown is harm to J. There was no evidence of any significant physical harm other than what is inherent in offences of this nature. The extent of harm beyond what is inherent – and that means what automatically follows – is hard to judge because there is no victim impact statement. But what was clear from the evidence is that the offending has had a very bad effect on J in her family setting and on family relationships. And psychological harm is bound to have been caused. Although, again, there is no indication that there is more than what is inherent in the offence itself.

[15] The third aggravating factor referred to by the Crown is breach of trust. This is put on the basis that J was entitled to trust you as an older brother. There was breach of trust. A young girl is entitled to trust her older brother. But the extent to which this aggravates the offending should not be overstated. The Crown acknowledged this at the earlier sentencing. The breach of trust in these circumstances is not as bad as the breach of trust that occurs, for example, when there is sexual violation of children by a parent, or by another adult – whether a relative or not – who has direct responsibilities for the care and wellbeing of children. There will be other examples. And you were not in that situation.

[16] The fourth aggravating factor was one that does not in fact apply to you but had been referred to in respect of your brother and cousin.

² Aleki v R [2014] NZCA [2014] NZCA 473; Lennon v R [2012] NZCA 551; V v R [2012] NZCA

465; Hood v R [2012] NZCA 212; R v Bradnock [2014] NZHC 2575; and BB v R [2013] NZCA

139.

[17] The Crown, in its original written submissions for the sentencing that was to have taken place in August, had submitted that the starting for you should be 12 to

14 years imprisonment. The Crown also had originally submitted that the starting points for your brother and cousin should be 15 to 16 years imprisonment. But the Crown’s final submission, in August, was that the starting point for your brother and cousin should be 10 to 11 years imprisonment, before reductions for personal circumstances. I said at the time, that was a responsible acknowledgement. It applies also to the original submission about the starting point for you. Mr Kayes, today, has acknowledged this. And, again, I record – as did Mr Le’Au’Anae on your behalf –this is a responsible acknowledgement by the Crown in respect of matters that I entirely agree with.

[18] The Crown’s submission is that the starting point for you should be 8 to 8 ½

years imprisonment. Mr Le’Au’Anae did not challenge that submission.

[19] In my judgment, Mr T, the starting point should be 8 years imprisonment. This is based on the guidelines in the Court of Appeal case applied to the offending by you, the other cases that I mentioned, and on a comparison between the relative gravity of your offending and that of your brother and cousin. In particular, there is a material difference between your offending against one victim and their offending against two.

[20] Your sentencing was adjourned, as I have already mentioned, to obtain a psychiatric report. The psychiatrist, Dr Skipworth, who spoke to you. He did not refer to any matters which indicate that you have intellectual problems which might mean that the gravity of your offence is less than it would be for a person without intellectual problems. The starting point, assessed by reference to the seriousness of what you did, therefore remains at 8 years imprisonment. But there are matters referred to by the psychiatrist which are relevant to what are called personal mitigating factors, and I will now discuss those.

Personal circumstances

[21] You are now aged 26 years. You have no previous convictions of any sort. You were in full time employment from the time you left school until you were

remanded in custody after being found guilty – that is, a total of 9 years in employment – and that is commendable. You are entitled to credit for these factors.

[22] You are entitled to a reduction also for your age at the time of the offences. I earlier said that you were aged between 18 and 21 years. This is based on the evidence, as opposed to the longer period covered by the charges. The starting points for your brother and cousin were reduced because of various personal factors, including their ages at the time of their offences. They were at a younger age when they committed offences against your older sister, compared with your age when you offended against J. But, in broad terms, they were of a similar age when they committed offences against J. If I assessed the reduction for you it might arguably be a little less than the reduction for the other two based simply on actual age. But these things are not to be calculated arithmetically.

[23] And there is a further important consideration in your case. This is that Dr Skipworth has said that at the time of the offending you would have been developmentally younger than your actual age. This is consistent with advice Dr Skipworth got from your parents who confirmed intellectual limitations and delayed development from birth. And I am making no criticisms of you, Mr T, when I refer to these matters. This expert opinion also tends to confirm an impression I had about your relative maturity having regard to some of the evidence. And that includes the videoed interviews by police officers of you.

[24] The starting points for your brother and cousin were reduced by 35%. Mr

Kayes has acknowledged today that the reduction for you should certainly be at least

35%. In your brother’s case this related to most of the things that I have just referred to in your case, but without evidence of developmental immaturity. There were some factors favouring the reduction for your brother, and more particularly your cousin, which do not apply in your case. But there is a further factor which was not relevant to your brother or your cousin. This is Dr Skipworth’s further opinion that your vulnerability, in terms of intellectual development, may mean that you will find serving a sentence of imprisonment more challenging – and perhaps markedly more challenging – than many other prisoners would. That is a further important consideration which may properly be taken into account in fixing the end sentence. I

am also satisfied from what Dr Skipworth said that you are willing to engage in treatment and rehabilitation programmes in prison and that a risk assessment of you is that the risk is low.

[25] Overall, Mr T, I consider that the starting point should be reduced by 40% which is a substantial reduction. That results in an end sentence of 4 years 9 months imprisonment.

Formal sentence

[26] You should now stand.

[27] For the two offences of rape you are sentenced to imprisonment for 4 years and 9 months.

[28] For the offence of unlawful sexual connection you are sentenced to imprisonment for 18 months.

[29] These are to be served together – that is to say, concurrently – which means the same thing. So the total is 4 years and 9 months imprisonment.

_{[30] You should now stand down. Thank you.}

Woodhouse J