NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2012-087-857 [2013] NZHC 2087

THE QUEEN

v

DIAMOND KAINO LIAKI

Hearing:	16 August 2013	

Appearances:	
R W Jenson for the Crown
G Tomlinson for Mr Liaki	

Sentencing:	
16 August 2013	

SENTENCE OF WOODHOUSE J

Solicitors:
Mr R W Jenson, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga
Mr G Tomlinson, Gowing & Co. Ltd, Solicitors, Whakatane

R v LIAKI [2013] NZHC 2087 [16 August 2013]

[1]       Mr Liaki, you may remain seated while I explain the sentence and then I will come to impose the formal sentence and you will need to stand.

[2]       I do want to tell you at the outset that I am going to impose on you a sentence of imprisonment of 9 years but there will be no minimum period of imprisonment.

[3]       Having been found guilty by a jury you appear for sentence for 17 offences of sexual offending against three young girls.  I will refer to them as A, L and E.

[4]       The offences against A occurred between 9 and 10 years ago; the offences against L between 33 and 34 years ago; and the offences against E between 36 and
43 years ago.  A, L and E are related to you.  In effect, you offended against three generations of relatives of yours.

Victim A

[5]       The offences against A occurred between January 2003 and June 2004.   A was aged between 8 and 9 years.  You were aged between 50 and 51 years.  On two occasions you sexually violated A by penetrating her genitalia with your fingers. The maximum penalty is 20 years imprisonment.  On two occasions you induced A to do an indecent act by making her rub your genital area.  The maximum penalty is
10 years imprisonment.  There was a further offence of indecent assault by forcing your tongue into A’s mouth.   This also has a maximum penalty of 10 years imprisonment.

Victim L

[6]       There were offences against L between June 1979 and August 1980.  She was aged between 6 and 7 years.  You were aged between 26 and 28 years.  There were four representative charges of different types of sexual offending.   I am satisfied from the evidence, and the verdicts, that the jury will have concluded that there was repeated offending over the period.  There were offences of indecent assault by touching L’s genital area both under and over her clothing; indecent assault by touching her genital area while piggy-backing her; inducing her to do an indecent act by making her rub your genital area; and doing an indecent act on her by seating her

on your lap while you were clothed but with an erect penis.  These offences have a maximum penalty of 10 years imprisonment.

Victim E

[7]       There were eight representative charges of offending against E between 1970 and 1977.  When you take into account the offending against A there was therefore offending against these two victims over a 10 year period.  You were found guilty of all of the charges relating to E. These charges cover two periods – between 1970 and
1973 when E was aged between 9 and 11 years and you were aged between 18 and

21 years – and between 1973 and 1977 when E was aged between 12 and 16 years and you were aged between 21 and 25 years.  The charges are separated in this way because there are different offences of offending against a child aged under 12 years and offending against a child aged 12 to 16 years.  In each period there were four essentially identical representative charges.  All of these were defined by the Crimes Act as it applied at the time as indecent assaults, although some of these would now be sexual violation by unlawful sexual connection.

[8]       In  each period the  four  offences involved were as follows: putting your tongue on her vulva; inserting your fingers in her vagina; rubbing your penis on her exposed vulva – including occasions when you ejaculated; and putting your tongue in her mouth.   I am satisfied that each of these offences was committed by you against  E  on  many  occasions  over  the  two  periods.    E  confirmed  in  cross- examination that offences were committed weekly and sometimes twice weekly.  I am satisfied that the jury will have accepted this evidence.

[9]       The maximum penalty for the offences when E was aged under 12 is 10 years imprisonment. The maximum penalty for the offences when E was aged between 12 and 16 is 7 years imprisonment.   Mr Liaki, these maximums are for each of the offences, but they are maximums.

Victim impact statements

[10]     I come to victim impact statements. There are victim impact statements from

A and E.

[11]     A says, and I quote:

This incident had a huge effect on me.  He ruined my childhood.  He took
something away from me that I’ll never get back.  My innocence was stolen
…

I was ashamed and felt that it was all my fault, but I have now realised I did something good for not only myself, but other kids that this could of happened to.  No-one should have to go through this.

She referred to the fact that she had to have many counselling sessions.  She says she is glad that the two other victims came forward and this was, in her words, “a huge help”.

[12]     E provided a reasonably detailed victim impact statement and I have taken account of everything she has said but also weighed that with the evidence about other difficulties in her childhood. I will read just a small part of what she said:

The defendant stole my childhood.  The defendant betrayed my trust.  The defendant should have been someone I could look up to, love and respect, instead he abused me.  As a result of the defendant’s abuse I experienced things that a child should never go through …

I have feelings of guilt about what the defendant did to me.  At times I feel that that somehow I deserved it, or I instigated it.   Through counselling I have been told to ‘forgive the inner child’ but I still haven’t been able to.  I have had lots of counselling but the effects of the abuse remain.  I have no feelings of self-worth.

[13]     E says that the abuse caused her to live on the streets as it was safer than at home.  And that is one of the things that I acknowledge is not totally attributable to your actions but I am, of course, looking at what you did.  She was a good student who enjoyed learning, but once the abuse started she rarely attended school.  She says that at age 18 she cut ties with her family to protect herself.  She still resents her mother for failing to protect her and says that as a result she is over-protective with her own children.   The abuse affects her relationships with men and made her question her sexuality.  Like many victims she felt guilt over what happened to her and suffered depression.  This culminated in suicide attempts, substance abuse and anger issues.  And as I say Mr Liaki, not everything is attributable to you and I take that into account.  But the impact of what you did will be with her for the rest of her life.

Your personal circumstances

[14]     You are now aged 61.  You have three adult children but apparently you have little contact with them.  You have a 15 year old son.  You advised the probation officer that you have a close relationship with him.  He is currently living with his mother, your former partner.

[15]     You have a number of previous convictions for offences between 1970 and

1998.  None of these is relevant except that you were on probation for 1 year for two of those offences between 1973 and 1974 and therefore when you were offending against E.

[16]     The  probation  officer  said  that  you  continue  to  deny  all  of  the  current offences – that in fact you express indignation on the basis that you have been wrongfully imprisoned.  The probation officer said that you gave no indication of any willingness to engage in therapy and that you regard it as unnecessary.  That, in the end, is a matter for you Mr Liaki but you might be well advised to review that attitude if the probation officer’s assessment is accurate.

Starting point

[17]    I need to fix a starting point for the lead offence or lead offences.  Mr Tomlinson, on your behalf, and the Crown agree that the lead offences should be the two offences of sexual violation of A, being the offences with a maximum penalty of
20 years imprisonment. I agree that these should be taken as the lead offences.

[18]     A starting point is an assessment of the appropriate sentence having regard to the seriousness of the offence itself without taking account of factors which are personal to you and which might justify an increase or a decrease in the sentence. The Crown submits that the starting point should be around 5 years imprisonment for the two offences of sexual violation. Mr Tomlinson submits that it should be 4 years. These submissions have been made by reference to relevant cases.  I will note these

cases, and two other cases I have considered, in the transcript of these sentencing notes.1

[19]     To indicate the gravity of these two offences some further facts need to be noted.  Because A is part of your extended family you were a trusted member of the family and a person trusted by her.  You were in fact staying at her home over the period.  The three offences of indecency occurred before the two sexual violations. Those offences might be described as fairly opportunistic.   The sexual violations were not.  One day after school A was playing with your son in your bedroom.  You went in and told your son to leave. You pulled A’s shorts and underwear down to her knees, positioned yourself over her and forced your finger or fingers into her vagina. You eventually stopped when other children ran past the bedroom.   The same behaviour was repeated a few days later in your bedroom.

[20]     These are two quite separate offences of a serious nature. With both there are aggravating features, to a greater or lesser extent, of a degree of planning or premeditation, vulnerability, harm and breach of trust.   This puts the offending at least, in my judgment, at the very top of the Court of Appeal guideline case, which is called R v AM2 or above the bottom of band 2 of that case.

[21]     I am satisfied that the combined starting point, which is for the two offences of sexual violation, should be 5 years imprisonment.   There is actually a slightly different way of approaching this, and I will mention that in a moment.

Uplift for other offending

[22]     There needs to be an increase for the offences against E and L and for the three other offences against A.  Because the offences against E and L are what are called historic offences it is necessary to have regard to the level of sentencing for similar offences at the time, so far as that is reasonably possible.   I have taken
account of the principles outlined in the cases and I will note those in the transcript.3

1	R v AM [2010] NZCA 114, [2010] 2 NZLR 750; De Reeper v R [2012] NZCA 617; R v Farrell
[2013] NZHC 1877; and R v M HC Auckland CRI-2009-044-10111, 12 October 2010.
2	R v AM, above n 1.
3	See R v KJB [2007] NZCA 292 and the earlier Court of Appeal cases there referred to.  See also
R v M HC Wellington CRI-2004-032-3626, 22 April 2005 and in particular at [9] and [12].

And, of course, the maximum penalties that applied at the time are the maximum penalties that apply today.

[23]     The Crown submits that the increase for the other offences should be between

4 and 4 ½ years imprisonment.  Mr Tomlinson submitted that an additional 3 to 4 years could not, and to use his words, “be resisted”.   The Crown referred to two cases involving sentences for historical sexual offending and I have taken account of those cases, and I will note them again in the transcript.4   I have also taken account of two other cases.5

[24]     Having regard, in particular, to the nature of the offending against E – and in referring to the offending against E I am not intending to diminish the gravity of the offending against L – but having regard in particular to the nature of the offending against E, and the length of time over which it occurred, and then taking account of the offences against L and the remaining offences against A, I am satisfied that an increase of at least 4 years is well justified.  That takes the sentence to 9 years imprisonment.

[25]     I am also satisfied that an end sentence of 9 years, before considering any personal factors that might reduce the sentence, is justified in terms of totality.  And this could be arrived at even if there was some reduction in the starting point for the lead offences to around 4 years as submitted by Mr Tomlinson.  This is because the increase for the other offences – and I again emphasise the long offending against E
– could be around 5 years or more.  I refer in particular to a Court of Appeal decision in Davies6 and in that regard I do note Mr Tomlinson’s emphasis on another Court of Appeal decision called AGR.7

Adjustment for personal circumstances

[26]     Mr Liaki, there are no personal circumstances requiring an increase in the sentence.

4	Davies v R [2011] NZCA 546; R v R HC Auckland CRI-2006-092-11084, 13 December 2007 –
upheld on appeal R v R [2008] NZCA 318 at [99]-[103].
5	R v M, above n 3; and R v Lyttle HC Rotorua CRI-2002-077-836541, 8 April 2005.
6	Davies v R, above n 4.
7	R v R, above n 4.

[27]     Mr  Tomlinson submitted that  a  reduction  of  1  year  is  required  for  two reasons.  The first – and the one he emphasised – is that you are now aged 61.  Older age  can,  in  principle,  justify  a  reduction.    This  could  arise,  for  example,  if  a defendant is at an age which would mean that each year of a sentence served may be a significant proportion of the remainder of the defendant’s life.8    I do not consider that a reduction is justified having regard to the indicated sentence and when related to your age of 61.  And weighing against the submission about your age is the fact that these particular offences of sexual offending – and I compare them with some
other types of serious offending –  these particular offences of sexual offending against young girls have blighted their entire lives.  This is with them for the remainder of their lives.  Also, there are no additional factors related to your age, such as health, which might make a sentence imposed on you disproportionate when compared with a sentence imposed on another person.

[28]     Mr Tomlinson also submitted – and this was the second, although secondary, reason – that some discount is justified for, as he put it, “a life otherwise well lived”. I do not agree that that, so far as it can be accepted as a reasonable submission, justifies any reduction.

[29]    The Crown has not submitted that there should be a minimum period of imprisonment.  And it could only apply to the more recent offences.  I am satisfied that it is not necessary, or appropriate, to impose a minimum period of imprisonment. I do note, however, that this is an added consideration which persuades me that there is no justification for reducing the length of the sentence earlier indicated of 9 years because of your age.

Formal sentence

[30]     I will now impose the formal sentence and you should stand.

[31]     On counts 4 and 5, being sexual violation by unlawful sexual connection, you are sentenced to imprisonment for 9 years.

8	R v Mikus CA296/04, 26 October 2004.

[32]	On counts 11, 12 and 13 you are sentenced to imprisonment for 6 years. And those are offences against E.

[33]	On counts 15, 16 and 17 you are sentenced to imprisonment for 4 years. And those are offences against E.

[34]	On the remaining counts, being counts 1, 2, 3, 6, 7, 8, 9, 10 and 14, you are sentenced to imprisonment for 3 years.

[35]	You should now stand down.

Woodhouse J