EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED. IN THE DISTRICT COURT AT ROTORUA CRI [2017] NZDC 3345

Transcription

1 EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED. IN THE DISTRICT COURT AT ROTORUA CRI [2017] NZDC 3345 NEW ZEALAND POLICE Prosecutor v MANU HENARE Defendant Hearing: 20 February 2017 Appearances: Sergeant R van Arendonk for the Prosecutor J Bioletti for the Defendant Judgment: 20 February 2017 NOTES OF JUDGE M A MacKENZIE ON SENTENCING [1] Manu Henare, you appear for sentence today in relation to four charges. They are indecent assault, indecent communication and two charges of failing to appear. The two failing to appear matters are completely insignificant in comparison to the first two charges I have referred to. [2] It is difficult to identify which of the two sexually related charges is the lead. I could say that the indecent assault is because it carries a maximum term of imprisonment of seven years, as compared with the indecent communication charge which has a maximum penalty of three years. However, it is virtually impossible to distinguish between the two charges in terms of which should be the lead offence because in their own way, each charge is serious. NEW ZEALAND POLICE v MANU HENARE [2017] NZDC 3345 [20 February 2017]

2 [3] Mr Bioletti has appeared on your behalf today to make submissions in relation to sentencing. When I asked if he wished to be heard in relation to a starting point for this offending, his submissions, it is fair to say, are focussed on the end point. It is his submission, on your behalf, that I should reach an end point of less than two years imprisonment to bring into play the prospect of the Court considering whether home detention is an appropriate sentence. It is his submission that a home detention sentence could and should be imposed on the basis that it is not vital that you be imprisoned, that you have a better prospect of completing programmes in the community. He highlights the fact that the pre-sentence report notes that your ability to comply with a community-based sentence is untested. [4] He makes the obvious point that the Sentencing Act 2002 has a hierarchy of sentences and that means that I must impose, my words not his, the least restrictive outcome in the circumstances. He says that at 26, you are an unsophisticated man, that you are not particularly mature and that given your age and those factors, that a prison sentence may have the opposite effect. In short, Mr Bioletti is submitting that it would be counterproductive to imprison you in all the circumstances. He has outlined that there might be better rehabilitative prospects in the community. [5] He takes issue with the comments made in the pre-sentence report about the suitability of the home detention address, the fact that there are no reasons given as to that comment set out in the pre-sentence report, and provide some context as to the perhaps, on the face of it, inconsistencies between you and your partner about who would be living at the address. I can say immediately I do not put any weight on those comments, which are set out on page 3 of the pre-sentence report in terms of electronic-monitoring considerations. [6] I start with the facts. The victim of your offending is your partner s younger sister. At the time, she was aged 13 years. In the year prior to the offending occurring, you gained her trust and she would share personal information with you. The two of you regularly communicated by text message and Facebook. [7] The indecent assault is a representative charge, because it comprises various phases of incidents on [date deleted] December You were at an address in

3 [location deleted], she was there, and at some point during the day, a number of people went to the front of the house to say farewell to family members who were leaving. The victim went to the rear of the house and walked up the stairs. She was wearing a pair of denim shorts at the time. She walked passed you, you bumped into her and reached around grabbing her buttocks and squeezed. You slid your fingers under the back of her shorts between her legs and attempted to insert your fingers into her vagina. She pushed you away and you then asked, Did that hurt? Later that night, the victim woke and went to the kitchen to get herself a drink. You followed her to the kitchen. As she was leaving, you again grabbed her backside from behind and placed your hand in between her legs. She went to her bedroom where her sister and other family members were sleeping. She got into her single bed. [8] The summary of facts goes on to say that you got into a double bed in that same room, where your partner and child were sleeping. You removed your shorts, masturbated whilst lying in bed, looking at the victim, and she could see you doing this. Whilst you were masturbating, you sent text messages to the victim asking her to provide sexual favours and have sexual intercourse. [9] As Mr Bioletti acknowledges, the situation is problematic, because you deny those indecent assaults and indicated that you entered a plea of guilty to get it over with because you did not want to go to trial. It makes submissions on the part of Mr Bioletti perhaps problematic, but I must deal with you on the basis that you did enter a guilty plea to that representative charge. [10] In terms of the indecent communication charge, following the indecent assault incident, the summary of facts says that you began sending text messages of a sexual nature. In these messages you made requests for sexual favours and for the victim to send intimate photographs of herself. On about [date deleted], you sent messages through the Facebook social networking websites stating that you wanted to have sex with her and what you would do to her. You sent her, a victim, by way of Facebook of you masturbating. She viewed the images and videos as described. You threatened to tell her family about her behaviour with you if she did not send

4 intimate photographs of herself. She reluctantly responded to the threat and posted images of herself back to you via Facebook. [11] In explanation, you said you did send a video of yourself masturbating to the victim. You said you did touch the victim on her backside on [date deleted] December but said it was an accident. You deny touching her between the legs. You said you were text messaging the victim while in bed, however you were not masturbating while doing this, you were merely scratching your crotch. [12] You do have previous convictions, but of an unrelated nature and in the grand scheme of things, somewhat less serious. All your previous convictions have attracted community-based sentences. [13] I want to say something about the principles and purposes of sentencing. The principles and purposes of sentencing are to hold you accountable. There is the need for deterrence and denunciation. In particular, there is a strong need for deterrence, particularly to protect young people from this type of offending. Denunciation is important. There are clear rehabilitative needs, although that is perhaps somewhat difficult to assess, at least in the case of the indecent assault charge. I need to take into account the need to promote the interests of the victim. Consistency and totality are important sentencing principles in this case. I need to sentence you in a way which is consistent with how others in your circumstances have been sentenced. I need to bear in mind also totality to ensure that there is a proportionate sentence. I need to sentence you in accordance with the hierarchy of the Sentencing Act 2002 and in a way which is the least restrictive outcome in the circumstances. [14] There is no tariff case for either indecent assault or indecent communications. I start with the indecent assault. As has been noted in various appellate authorities, there is no tariff case. In R v Paki 1 in the context of an indecent assault of a child, Justice Wylie summarised previous findings of the Court of Appeal in relation to factors relevant to the assessment of culpability. A number of factors were highlighted, including the age of the victim, vulnerability, the degree of abuse of trust, the intrusiveness and intensity of the act, the duration of the offending, 1 R v Paki [2012] NZHC 3494

5 repeated incidents of offending against the victim, premeditation, harm occasioned to the victim and attempts at concealment. [15] In terms of the indecent assault, it is my view that there are a number of aggravating factors which include a breach of trust. That is because the victim, as I have said, is your partner s younger sister. So there is a familial relationship and connection. The second aggravating factor is the vulnerability of the victim, because of her age. She was aged 13 at the time. I consider that there was an element of intrusiveness in relation to the first part of the indecent assault. This was not simply touching on the outside of her clothes. It involves skin on skin touching by virtue of the fact that you slid your fingers under the back of her shorts between her legs and attempted to insert your fingers into her vagina. It involved, given that it is a representative charge, although on the same day, three separate incidents, as I have described, as per the summary of facts, and it does seem that there was some degree of premeditation, certainly in relation to the situation where you followed her into the kitchen. [16] There are two other aggravating factors. Firstly, there does seem to be an element of grooming, having regard to the summary of facts, where you gained her trust and she would share personal information with you. The last aggravating factor is a factor which I consider to be serious, which is the significant degree of emotional harm to the victim, as set out in the victim impact statement. [17] The victim impact statement makes for difficult reading. It is harrowing and she has clearly suffered significantly as a result of this. She trusted you like a brother and she felt that she could tell you most things and she has clearly been significantly affected in an emotional sense as a result of this offending. [18] In terms of setting the starting point I have looked at some cases and the two cases that I consider to be relevant in terms of comparators are two cases, Tai v R 2 and R v MRH 3. In one sense they are slightly at the different ends of the spectrum, but they do give some guidance in terms of consistency, in terms of where your 2 Tai v R [2011] NZCA R v MRH [2014] NZHC 2308

6 offending sits. In Tai, it is difficult exactly to determine the starting point, but the end sentence for one charge of indecent assault was 16 months imprisonment. It involved a 14 year old niece. It was one charge and the appellant knelt down beside the victim, touched her breasts, genital and stomach area over her clothing. The main issue in that case, apart from the conviction appeal, related to whether the defendant was a good candidate for home detention. [19] As the Court of Appeal noted, in general the requirements of deterrence and denunciation of this behaviour and the general requirement to protect young people from this sort of behaviour, it will generally require that a prison sentence be imposed and that was the ultimate outcome in that case. [20] The R v MRH involves more serious offending. The starting point was two and a half years imprisonment. Again it involved offending where there was a breach of trust, but in that case, there was more than one occasion, in fact the defendant was convicted of five charges of indecent assault. There was skin on skin contact on one occasion with the victim s breast, on another occasion with breast and genital area and the defendant made the victim touch his genitals and told her not to tell anyone. That I regard, as I have said, as more serious to this situation, considering the aggravating factors I have referred to in terms of R v Paki and the two cases I have referred to, I have determined the starting point for the indecent assault should be 18 months imprisonment. [21] I am going to give you a credit of 10 percent for your guilty plea. That is possibly generous because it was entered on the morning of the trial. It did save the victim from having to give evidence, but that is the most that I can give in terms of a credit. So that is an end sentence of 16 months imprisonment in relation to that charge. [22] I then turn to the starting point in relation to the indecent communication charge. That is a relatively new provision and there is not a lot of case law to crosscheck my proposed starting point in relation to that. Before I refer to two particular cases, I want to set out what I consider the aggravating factors of that particular charge, which is, firstly, the extent of communication. Secondly, and most

7 importantly, harm to the victim. She has been significantly affected by that particular set of circumstances, as I have already referred to and as set out fulsomely in the victim impact statement. She suffered shame and humiliation. She has been bullied significantly because of Facebook posts and it is clear that she found that whole incident to be particularly degrading. Harm to the victim in relation to that charge is a significant aggravating factor. [23] There was clearly an element of planning and premeditation. The threats and/or coercion is a serious aggravating factor. You got her to send intimate photographs of her to you by coercing her to do so by way of the threats to tell her family, and again it involves a breach of trust and vulnerability for the reasons I have already set out. [24] As I have said, there are a few relevant decisions in terms of assisting with the starting point. Two particular cases are relevant, Walsh v R 4 and R v Stevens 5. In Walsh v R, the 12 months starting point was considered to be the minimum and that involved indecent communications with an investigating officer under the guise of a 13 year old girl via a social network in There were text messages, sexually explicit and describing the acts the defendant wanted to perpetrate. [25] The second case, Stevens, involved a starting point of two years imprisonment for the indecent communication offences. There was a particularly vulnerable victim who was nine and was isolated by the defendant. There was a high degree of premeditation. The offending occurred over a number of nine weeks in an escalating and persistent manner. The offending caused the victim serious shame and confusion in that case. [26] Your offending falls somewhere between those two cases, in my view. It is more serious than Walsh but less serious than Stevens, because of the older age of the victim here. I have determined that the appropriate starting point therefore for the indecent communication charge is also 18 months imprisonment. You are, however, 4 Walsh v R [2016] NZHC R v Stevens [2016] NZHC 1574

8 entitled to 25 percent credit for your guilty plea, which is four and a half months. So that is an end sentence in relation to that matter of 13½ months imprisonment. [27] A cumulative sentencing approach is clearly warranted for the following reasons: (a) The two types of offending are different in nature, notwithstanding it is the same victim; (b) There are differing credits that are required for your guilty pleas and the timing of those pleas; (c) There needs to be a sentence which adequately reflects the overall level of culpability, criminality and seriousness of the offending for the reasons I have already set out in some detail. [28] Therefore, on a cumulative sentencing approach, that is 29½ months imprisonment or two years and five months and two weeks imprisonment. [29] I now need to stand back and consider totality. I could say on a totality basis that that adequately reflects the overall level of culpability and seriousness. I will reduce that slightly on a totality basis, but not as much as Mr Bioletti would hope. There is going to be an end sentence of two years and two months imprisonment, but I am going to deal with that on a cumulative basis. That of course means that you are not eligible for home detention because it is over the two year mark. [30] Even if you were eligible for home detention and it was under the two year mark, I would not have been willing to sentence you to home detention, notwithstanding the helpful submissions made on your part by Mr Bioletti, because I have taken into account the need to impose the least restrictive outcome, coupled with the fact that you have never previously been sentenced to either an electronic sentence or a term of imprisonment. However, this was serious offending in relation to a vulnerable family member and the need for accountability, deterrence and denunciation carries the day in terms of this offending. Put bluntly, the sentencing

9 needs would not have been met by an electronic sentence, in my view, notwithstanding that home detention the Court of Appeal tell us repeatedly is a serious sentence in and of itself. [31] In relation therefore to the indecent assault charge, which is CRN 2290, you are sentenced to 16 months imprisonment and in relation to CRN 2283, which is the indecent communication charge, you are sentenced to 10 months imprisonment which is cumulative on CRN ending 2290 and in relation to the two failing to appear matters, CRNs 2761 and 5566, you are convicted and discharged. M A MacKenzie District Court Judge