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High Court of New Zealand Decisions |
Last Updated: 7 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CRI-2017-090-003683 [2018] NZHC 3183
THE QUEEN
v
MONIKA RACHAEL KELLY
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Hearing:
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7 December 2018
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Counsel:
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BM Finn for Crown
RM Mansfield and B Kirkpatrick for Defendant
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Judgment:
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7 December 2018
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SENTENCING REMARKS OF DOWNS
J
Solicitors/Counsel:
Crown Solicitor, Auckland. RM Mansfield, Auckland.
B Kirkpatrick, Auckland.
R v KELLY [2018] NZHC 3183 [7 December 2018]
Introduction
[1] Ms Kelly, you are for sentence on a representative charge of
dealing in a person aged under 18 years for sexual exploitation.1
You were to be tried by me, without a jury, on Monday, 24 September this
year. On Thursday 20 September, you pleaded guilty.
Facts
[2] Your victim was only 14 years old throughout the
offending.
[3] You met her through a mutual friend, who was 19. You too were that
age. The victim initially told you she was 15. You quickly
asked her if she
wanted to be a prostitute for you. The victim’s life was then messy: she
was “running away from home
[and] having a rough patch”.2
She came to live with you for approximately six weeks.
[4] After the victim moved in, you again raised with her the topic of
prostitution. You spoke to her about a digital application,
or
“App”, called Seeking Arrangements. Either then or a little later,
you created a profile of the victim for this App.
You gave her an alias. You
recorded her age as 18 or 19 years; you gave her an amended date of birth. The
victim played no part
in your creation or composition of her
profile.
[5] You then communicated with potential customers through the App.
Your offending concerns a male I call “male A”.
[6] On four occasions between 19 March 2017 and 25 April 2017, you
arranged for male A to use the victim sexually. My choice
of the word
“use” is deliberate. On each occasion:
(a) You arranged to deliver the victim to male A, either at an office
building or hotel. Normally, you would then wait for
her.
1 Crimes Act 1961, s 98AA(1)(a)(i).
2 Victim impact statement.
(b) You negotiated price with male A. For example, his second occasion
with the victim was to last 90 minutes. You agreed on
the price of $350. The
third occasion was to be a “quickie” only. You agreed to a lesser
price of $200.
(c) You were paid (by internet banking), and gave some of the money to
the victim.
(d) Male A had full sexual intercourse with the victim.
[7] One two occasions, you agreed another man or additional
men could accompany male A, and have sexual intercourse
with the victim too.
But, this never happened. On one occasion, you also agreed male A could film
the victim. It is unknown
if he did.
[8] After the first occasion, your mutual friend and the victim told
you her real age.
[9] In July 2017, you learned of the Police investigation. You arranged
a meeting with those who knew of your offending. You
told at least two
witnesses to lie to the Police, and you prompted them as to what they should
say. You provided like encouragement
by posting a digital message on a social
media website or application.
[10] Police interviewed you on 21 July 2017. I watched that interview as
part of your disputed-fact hearing last week, about
which more shortly.3
You repeatedly lied during that interview.
Victim impact
[11] I have read the victim impact statement. She is now 16.
[12] The victim says you took her in during a challenging time in her
life—and exploited her. The victim says she felt
trapped, and constantly
put in situations of
3 R v Kelly [2018] NZHC 3161.
extreme discomfort and places she did not want to be. The victim also says
those at her school know what happened, treat her differently,
and cannot look
at her.
[13] She struggles to trust people. She cannot now be alone in a room
with a male.
Starting point
[14] The parties disagree about what is called the “starting
point”: the length of the appropriate prison term before
things that make
your offending less serious are considered. The Crown submits the starting
point should be three or three and a
half years’ imprisonment. Mr
Mansfield, your lawyer, argues two years. In deciding this, I note your
offending has aggravating
features: things that make it more serious or
worse.
[15] First, your offending required time, effort, and planning. You
created a profile with false information, you negotiated price,
and you then
delivered the victim to the meeting place. Lawyers sometimes refer to this mix
as premeditation. A better term is calculation;
meaning your offending was
calculated. Relatedly, you placed some pressure on the victim to sell herself
for you. She expressed
reluctance about what you were doing. You asked her to
carry on. You referred to the need for money.
[16] Second, you facilitated the victim’s repeated
exploitation: we are not concerned with a single instance of
offending.
[17] Third, your victim was vulnerable. You knew that. You knew also that she was young. To be specific, you knew she was only 14 during most of your offending. I mentioned earlier a disputed-fact hearing. You told the Police you believed the victim was 15, 16 or perhaps older. But you also told them you believed she was 18. You told a clinical psychologist you did not think about the victim’s age, but you might have guessed she was over 16 but under 18. After conducting a disputed-fact hearing at which the victim testified and you did not, I am sure you knew her real age after the first incident, because this is what the victim said she and the mutual friend told you. I am sure you believed the victim was 15 when you created her profile; again, you falsely recorded her age as 18 or 19.
[18] Fourth, you arranged for the victim to engage in full penetrative
sex. You also intended to expose her to even more degrading
acts—group
sex, and being filmed.
[19] Fifth, you took steps to obstruct the Police investigation. Your
actions founded a separate charge of attempting to pervert
the course of
justice. This charge was abandoned as part of the plea arrangement, but on the
basis it remained within the summary
of facts. Similarly, you lied to the
Police. Among other things, you said the victim made all relevant arrangements
herself, and
you had tried to dissuade her from what you characterised as her
actions. You were the architect of this offending; the victim a young,
vulnerable and reluctant participant.
[20] The cases cited by the lawyers are not directly on point—at
least most of them are not. This is not criticism; the
offence was created only
in 2005. Three of the cases involve different charges with a lower maximum
sentence.4 A case called Lata involved the charge you face
and another too, but it was much more serious.5 Indeed, it is
difficult to readily imagine a worse case than Lata. A nine-year starting
point was adopted there. The Crown has appealed to the Court of Appeal. The
Judge dealing with Ms Lata’s
co-offender adopted a starting point of five
years and nine months’ imprisonment.6
[21] Absent helpful case law, the maximum penalty is instructive. A
single act of dealing in a person for sexual exploitation
is punishable by up to
14 years’ imprisonment. The same maximum penalty is reserved for serious
offences; for example, aggravated
robbery,7 kidnapping,8
the deliberate infliction of grievous bodily harm,9 and
attempted murder.10 This offence, like those, involves violation of
both autonomy and dignity. It risks physical and psychological harm. Demeans.
And,
involves conduct no civilised society can
tolerate.
4 R v Gillanders DC Christchurch T0313661, 3 May 2005; Hastie v R [2011] NZCA 498; and
R v Seil [2018] NZDC 19126.
5 R v Lata [2018] NZHC 707.
6 R v Sehgal [2018] NZHC 1145.
7 Crimes Act, s 235.
8 Crimes Act, s 209.
9 Crimes Act, s 188.
10 Crimes Act, s 173.
[22] It follows the offence is serious, and your offending a
relatively serious example of its kind. You diligently prostituted
the victim on
four separate occasions, and then sought to conceal what you had done. You
knew she was young and vulnerable, because
she was living with you. For these
reasons, I consider the range identified by both parties inadequate. A
four-year starting point
is necessary, but conservative. I would have chosen a
higher one but for the fact appellate guidance in this area remains
outstanding.
Personal circumstances
[23] You are 21. As I mentioned, you were only 19 when you committed
these offences. Your home life was difficult. You told the
writers of reports I
have read your parents used drugs, and your mother abused you physically and
emotionally. You were also sexually
assaulted by a stranger when you were 14
years old. You report suffering anxiety and depression.
[24] In your last year of high school, you became pregnant. Your
child’s father did not support you. Nor, apparently, did
your own. You
left home. You then tried sex work, but not for long. You then engaged in this
offending.
[25] After being charged, you moved back in with your parents. For the
last six months or so, you have been living at your grandmother’s
house on
electronically monitored bail. She is supportive of you. So too your mother. I
have read their letters.
[26] Your son is nearly three. His care is shared by you and your
mother. Oranga Tamariki had “major” concern for
his welfare while
he was in your sole care, but I am told by your lawyers that concern has
passed.
[27] I mentioned reports earlier. I have carefully read—indeed re-read—three: (a) A comprehensive pre-sentence report by Mr Eden Jarrett.
(b) A psychological report by Dr Loshni Rogers, whom you retained. (c) And, a cultural report from Ms Khylee Quince.
[28] The cultural report adds little to the first two, and exhibits some
advocacy. But, I have not overlooked Ms Quince considers
you present—in
her opinion—as gullible, unworldly and easily led.
[29] Mr Jarrett, the pre-sentence report writer, says you told him you
thought the victim was 16. And, you did not receive any
money for the
victim’s services. You said the money went into your bank account only
because she did not have one, and you
deducted money for board. This
explanation is inconsistent with the agreed summary of facts, which refers to
your operation of
“an illegitimate prostitution service”, to your
part-payment, and to your pressure on the victim by reference to money.
In any
event, it is not credible you had no interest in making money from the victim,
even if you used it to buy food and other
essentials. To be clear, I accept you
were under financial pressure at the time of your offending, but the obvious
should be pointed
out: very few people in situations like that resort to what
you did.
[30] Mr Jarrett considers you pose a “moderate” risk of
re-offending, and you risk “moderate” harm. He
considers you would
comply with a community-based sentence, in part because of “good
compliance” with electronically
monitored bail conditions. He also
considers you suitable for home detention. However, given the seriousness of
your offending, Mr
Jarrett recommends imprisonment.
[31] Dr Rogers discusses your background, as I have done. He considers
you intelligent, but naive and susceptible to others’
influence. Dr
Rogers considers your brief sex work might have normalised your view of it. He
considers your offending “indicative
of poor decision making”, and
affected by depression and “cognitive distortions regarding the
victim”. Like Mr
Jarrett, Dr Rogers considers you pose
“moderate” risk of re-offending. But, he considers further
offending is likely
to be confined to “petty dishonesty”. The basis
for this qualification is unclear.
[32] Dr Rogers believes you are genuinely motivated to reform, and can do so. He considers a community-based sentence would be better for you. And, prison potentially detrimental.
[33] You had no convictions when you committed this offending. But while
on bail, you stole four times from shops. You also
drove once while suspended.
These offences have little relevance today, save in relation to discount for
electronically monitored
bail. I will talk about that soon. Which brings me to
discount for mitigating features.
Discount for mitigating features
[34] Mr Mansfield argues I should discount your sentence heavily
so home detention is available, and imposed. The
prosecution accepts some
discounts are appropriate, albeit more modest ones, and argues imprisonment is
required.
[35] I begin with your age. Youth does not automatically justify
leniency. Rather, discounts in this context are available because
the offending
was immature or impulsive; there is prospect of the offender’s reform; or
both.11 Your offending was neither impulsive nor immature. As I
said earlier, it was calculated. And sustained. However, you are young.
There
is prospect of reform. In this respect, I place weight on the pre-sentence
report, which was written by someone wholly independent
of you. Significant
reduction is appropriate: 20 percent. This reduction also recognises the recent
possibility of employment, and
your employability more generally. It is clear
you are intelligent.
[36] Mr Mansfield argues, at least in his written submission, I should
also make a reduction because you were a first offender.
I decline to do so.
This type of discount is normally given to a much older defendant who has
otherwise led a blame-free life. The
relevant discount remains that for youth
and the prospect of reform, which I have given.
[37] Your upbringing and background warrant modest recognition. I
emphasise the word “modest”. I do not accept Dr
Rogers’
assessment your offending is “indicative of poor decision-making”,
or “likely arising from naivety
and cognitive distortions regarding the
victim”. You told Dr Rogers you did not think about the victim’s
age,
and you might have guessed she was over
16 but under 18. Those statements were untrue. Moreover, Dr Rogers considers
you “likely
did not question the victim on her age nor consider
this”. That is wrong as a matter of fact, again, because of what you told
Dr Rogers. Expert opinion is only as good as the information on which it is
based.
[38] In any event, no unequivocal linkage emerges between anything in
your background and your offending. I consider your
background more explanatory
than mitigatory. For these reasons, I deduct only five percent.
[39] The mere fact you have a child does not entitle you to a discount;
there are no special rules for offenders who are parents.
And nor should there
be. However, it is open to a sentencing Judge to consider the impact of a
sentence on an offender’s
family, and make some adjustment.12
I reduce your sentence by five percent in recognition of the likely impact
on your son of your sentence.
[40] Next is discount for restrictive bail conditions. You have been on
electronically monitored bail since 25 May this year,
a period of almost six and
a half months. No formula applies here; discount is context-dependent. You were
placed on that type of
bail because you breached ordinary bail on several
occasions, and shoplifted. You were very nearly remanded in custody. These
aspects
influence my decision to limit the discount to two months.
[41] This leaves your guilty plea and alleged remorse.
[42] Your guilty plea was late. You entered it on the second to last working day before trial, having foreshadowed the possibility of a guilty plea only a little earlier.13
After pleading guilty, you disputed knowledge of the victim’s age, with
the result she testified at the disputed-fact hearing.
She was cross-examined at
that hearing on your behalf, including in relation to photographs that might
have caused her embarrassment.
I found the victim’s evidence truthful and
accurate. You also said
12 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163; and R v Harlen [2001] NZCA 130; (2001) 18 CRNZ 582 (CA).
you did not place the victim under
pressure to sell herself for you, but you abandoned this claim by the time of,
or at, the disputed-fact
hearing.14
[43] This mix largely vitiates the credit otherwise available for a
guilty plea. You saved the taxpayer the expense of a trial,
but that is all.
Consequently, I confine guilty- plea discount to five percent, notwithstanding
the Crown’s concession a larger
discount might be available.
[44] Mr Mansfield seeks additional discount at this level for remorse. I
accept you have said you are sorry, for example, in your letter to the
Court, and that you offered to participate in restorative justice. However, I
am
not persuaded you are genuinely remorseful, as distinct from actively seeking
to present yourself in the best possible light. I consider
the guilty plea and
disputed-fact hearing sequence instructive. So too your untruths about the
victim’s age to the pre-sentence
report writer and to Dr Rogers. Nor
should it be overlooked you sought to interfere with the Police inquiry, by
telling potential
witnesses to lie, which is exactly what you did when
interviewed by them.
[45] For completeness, I doubt you are unworldly, easily led and naive,
as the reports suggest. Your offending does not exhibit
this mix; if anything,
it implies the contrary. You did not present this way when interviewed by the
Police. Nor has it been my
impression of you over several hearings, including a
bail breach.
[46] I return to discounts, and summarise them:
(a) 20 percent for youth, and the allied prospect of reform. (b) Five percent for your background.
(c) Five percent because of the impact of the sentence on your
son.
(d) Two months because of your time on electronically monitored bail.
(e) Five percent across the balance for your late guilty plea.
14 R v Kelly, above n 3, at [3].
[47] This produces a sentence of just under 31 months’ imprisonment,
which I round down to 30 months, meaning two and a half
years.
Home detention?
[48] Mr Mansfield pursues home detention. And strongly. Given the
sentence I have arrived at, this is not available. But, I
would not have imposed
it even if it were. Your offending is too serious. Denunciation is
required.
Sentence
[49] Ms Kelly, please stand.
[50] On the charge of repeatedly dealing with a person under 18
for sexual exploitation, I sentence you to two and a half
years’
imprisonment.
[51] You may stand
down.
...................................
Downs J
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