THE QUEEN. D M Wilson QC for Crown C M Clews for Prisoner SENTENCE OF RANDERSON J

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY T THE QUEEN V BOWEN PUTOA NEHA MANIHERA Date: 3 February 2003 Counsel: Sentence: D M Wilson QC for Crown C M Clews for Prisoner Four years imprisonment SENTENCE OF RANDERSON J Solicitors: Almao Kellaway, P 0 Box 19173, Hamilton for Crown C M Clews, P 0 Box 19133, Hamilton for Prisoner

2 2 Introduction [1] Mr Manihera, you appear for sentence having pleaded guilty on 9 September 2002 to five charges of sexual and physical abuse. The guilty pleas came at the commencement of your trial before Hammond J. [2] The offending occurred between December 1999 and July 2001 and involved a girl then aged between 9 and 10 years. She was the niece of your de facto wife. The most serious charge is one of unlawful sexual connection, for which the maximum penalty is a term of imprisonment for 20 years. There are also three counts of indecent assault involving a girl under the age of 12 years. One of these is brought as a representative charge and the others as specific charges. The maximum sentence for each of those charges is 10 years imprisonment. The final charge is one of assault on a child under 14 years, for which the maximum penalty is 2 years imprisonment. Background facts [3] The victim was a frequent visitor to the home which you and your de facto partner occupied. She was left in your care, along with other children, on a number of occasions. The representative count of indecent assault involved your lying on top of the complainant and simulating sexual intercourse. This occurred on approximately six occasions during the relevant period. The victim's clothing was not removed but there was contact between your genital area and hers. On one occasion you removed your clothing and attempted to get the victim to touch your penis. When she refused, you lay on top of her and pushed your penis between her legs on top of her clothing. On another occasion, after she had been having a shower, you followed her into the bathroom, lay her on the floor, and rubbed your penis up and down on her genital area until you ejaculated. On another occasion you removed her underwear and began licking her genital area. [4] The physical assault occurred near the end of the period of your offending when you stopped the victim telephoning her mother and punched her in the side of her face.

3 3 As a result of that incident, disclosure was made to the authorities at the victim's school and the police were informed. The history of events leading up to the guilty pleas [5] The disposal of your case has been much delayed. When you were first arraigned in February last year, you pleaded not guilty to all charges. Your then counsel was quite properly concerned with your mental state and began investigations in that respect. Although insanity was not raised as a possible defence, there were concerns about your fitness to plead. After obtaining expert reports, your previous counsel was satisfied that you were fit to plead and the guilty pleas were entered in September last year. [6] You were remanded for sentencing but, at that stage, you instructed your present counsel who applied to have the guilty pleas set aside. However, following receipt of affidavits from your previous counsel and Drs Chaplow, Tapsell and Majeed, as well as a report dated 24 December 2002 which your counsel obtained from Dr Galpin, you have now instructed your counsel to withdraw the application to set aside your plea. That application has been noted as being formally withdrawn today. [7] I have read all of the affidavits and reports filed and I am satisfied that you were fit to plead and properly entered pleas of guilty when you appeared before Hammond J at the commencement of your trial. Doctors Chaplow, Tapsell and Galpin have given their opinion that you suffer from a mental disorder in the form of chronic schizophrenia of a paranoid type. They consider also that you have some impairment of intellectual function. You have been admitted to psychiatric institutions in the past on a number of occasions during periods of instability and you have responded well to medication on those occasions. Nonetheless, the psychiatrists considered that you had a sufficient understanding of the Court process and I am satisfied, on the basis of their evidence and the affidavit of your previous counsel, that you were able to give him proper instructions in the period leading up to your trial and at the time of your guilty pleas.

4 4 [8] You were also examined by the forensic psychiatrist Dr Majeed on 8 May His opinion differed from that of the other three psychiatrists in that he did not consider you were suffering from a mental disorder at that time, although he agreed you had suffered from chronic paranoid schizophrenia in the past. [9] Dr Galpin's is the most recent report. He refers to a deterioration in your mental state since you have been in custody after your guilty pleas in September last year. However, along with the other psychiatrists, he agrees that you were fit to plead at the time of the entry of your guilty pleas. Pre-sentence report [10] The pre-sentence report shows that you are now 38 years of age. You have not previously been convicted on any sexual charges, although you have six previous convictions for assaulting a female between 1983 and I understand these charges related to assaults on your de facto partner with whom you had been living for some 12 to 13 years prior to this offending. This suggests an obvious problem in your relationships with women and an inability to control violence. That is supported by the reports from the psychiatrists who indicate that you are given to explosive outbursts. [11] The probation officer considers that your risk of re-offending is high, given your previous history and your denial of the offending when talking to the probation officer. Your level of motivation to change has been assessed as low. There is doubt as to your suitability for a sex offenders' programme while in prison. There is no prospect of your being able to pay any sum by way of reparation. Victim impact report [12] It is evident from the victim impact report that your offending has had a serious impact upon the complainant. She has been referred for counselling and that is continuing. She has experienced the symptoms so often found in cases of this kind, including loss of self esteem, an extreme sense of guilt, avoiding physical contact, and

5 5 she has been rejected by other family members, especially your partner of whom she was extremely fond. Understandably, this has contributed to her sense of loss and isolation in the wider family group. It is considered that this will continue to impact on her development. Crown submissions [13] For the Crown, Mr Wilson QC has made careful submissions. He submitted that imprisonment was the only alternative in your case, as did Mr Clews on your behalf Mr Wilson submitted that a sentence of six years imprisonment would be justified for the charge of unlawful sexual intercourse and another year for the other sexual and physical abuse, making eight years in all. That, he accepted, should be subject to a discount of one-third which was the amount which counsel agree was indicated by Hammond J prior to the time you entered your guilty pleas as being the appropriate discount should you decide to enter such a plea. [14] Mr Wilson also referred to the aggravating factors as being abusing a position of trust, the young age of the victim, and your attempts to place blame on the victim and another child. He did not press his submission made in writing previously that there had been a degree of pre-meditation and planning on your part. Defence submissions [15] Mr Clews has also presented the Court with responsible, helpful and careful submissions on your behalf He has gone to considerable trouble to investigate this matter, including obtaining the report from Dr Galpin which I have already mentioned, as well as a shorter report dated 30 January 2003 from Dr Peter Dean, a Hamilton psychiatrist. Dr Dean has referred to the deterioration in your mental state since the entry of your guilty pleas and he and another medical practitioner have signed a certificate under s 118 of the Criminal Justice Act 1985 indicating that you have a mental disorder and ought to be detained in an appropriate institution. However, Dr Dean has recognised in his report to counsel that any in-patient treatment under that provision would be of a

6 6 relatively short duration, perhaps only a few weeks, and expressed the view that the Court might be unwilling to accept such a proposal. He also points out that if you were to receive a custodial sentence, there are ample powers available for you to be referred for treatment if required. [16] Mr Clews has helpfully referred'me to the authorities with regard to the approach which should be taken by the Court when considering an application under s 118 of the Criminal Justice Act, including the three decisions of the Court of Appeal reported in 1987, R v Mason [1987] 2 NZLR 249; R v Batt [1987] 1 NZLR 760; and R v Redmile [1987] 1 NZLR 157. Those cases make it clear that the Court has a discretion as to whether or not to take the course of ordering your detention as a patient under s 118, even where there has been a medical certificate to that effect. Plainly, the seriousness of the offending in this case and the relatively short time which would be required for your treatment in a mental institution, mean that it would not be appropriate for you to be detained under that particular provision. [17] Mr Clews submitted, nevertheless, that your mental state should properly be considered as a mitigating factor in sentence and he suggested a six year starting point, less the one-third discount referred to by Hammond J. Assessment [18] The aggravating factors in this offending are your abuse of a position of trust in relation to the victim; the age of the victim which makes her particularly vulnerable; the length of time over which the offending occurred; and the number of occasions involved. As well, there was the use of violence on one occasion and your attempts in your statement made to the police to blame the victim for what happened, along with another child. [19] On the other hand, there are some considerable mitigating factors. The first is your pleas of guilty. Although they came very late in the proceedings, on the eve of your trial, they nevertheless meant that the victim has not been required to give evidence. The

7 7 second factor in mitigation is your mental state and diminished intellectual capacity. I am prepared to make some allowance for that but, at the same time, it must be recognised that those same factors tend to increase the risk of your re-offending. I accept counsel's submission that I must balance the public interest with your own personal circumstances and needs, including your mental state. The third mitigating factor is that you have not previously been convicted of any sexual crimes. [20] In terms of s 128B(2) of the Crimes Act, I am obliged to impose a sentence of imprisonment upon you unless I consider there are particular circumstances relating to you or your offending which would justify an alternative sentence. The presumption against imprisonment under s 16 of the Sentencing Act 2002 is overridden by the provision to the opposite effect in the Crimes Act. [21] I must also take into account under ss 7 and 8 of the Sentencing Act, the purpose and principles of sentencing. In your case, these include holding you accountable for the harm done to the victim, promoting in you a sense of responsibility for that harm, denouncing your conduct, deterring you and others from committing similar offences and protecting the community. I also have regard to the gravity of the offending, the effect on the victim, and your particular circumstances. As I have already noted, reparation is not an issue in your case. [22] I propose to approach your case by imposing a sentence on the charge of sexual violation by unlawful sexual connection which will reflect the totality of the offending. Lesser concurrent penalties will be imposed for the other charges. The totality of the offending suggests a sentence in the range of six to eight years. In your case I adopt the lower end of that range as a starting point, bearing in mind particularly all the evidence regarding your mental state. From that figure I will adopt the discount of one-third indicated by Hammond J at the time of your guilty plea. That would reduce the sentence to one of four years imprisonment. I regard the one-third discount as extremely generous to you in the circumstances, given that it came at such a late stage. Given the generosity of that discount and having adopted a starting point at the lower end of the range, I do not consider any reduction below that figure could be justified. Your mental state and

8 8 intellectual impairment reduces your moral responsibility as mentioned in the recent Court of Appeal decision of R v Tuia (CA.312/02, 27 November 2002). However, the risk of re-offending is also a factor to be considered, along with the protection of the public. [23] I have considered whether yours is an appropriate case to impose a minimum term of imprisonment under s 86 of the Sentencing Act as sought by the Crown. However, I have concluded that your case is not sufficiently serious to warrant the imposition of a minimum term. I bear in mind the guidance provided by the Court of Appeal in R v Brown [2002] 3 NZLR 670 and the later case of R v T (CA.251/02, 31 October 2002) which dealt specifically with minimum periods of imprisonment for sexual offending. While serious, I am not persuaded that yours is a case containing aspects which sufficiently set it apart from others of a similar kind. [24] I am satisfied that the Parole Board will have available to it a wealth of material when considering whether it is appropriate to release you on parole and that the protection of the public will be satisfactorily met by those means. Conclusion [25] You will be sentenced to four years imprisonment on the charge of unlawful sexual connection. On the three charges of indecent assault you will be sentenced to two years imprisonment in each case, and on the charge of assault on a child under 14 you will be sentenced to twelve months imprisonment. All those terms are to be served concurrently so that your total sentence is one of four years. There will be no minimum period of imprisonment. [26] It is important that the prison authorities and the Parole Board are fully aware of your psychiatric history and background. I direct that counsel for the Crown sends to the prison authorities a copy of these sentencing notes, along with all relevant psychiatric reports obtained during these proceedings. It will be essential that proper steps are taken to ensure that you have appropriate medication, treatment, and counselling during the

9 9 term of your imprisonment. I am satisfied that there are appropriate statutory means to enable that to occur. A P Randerson J