Colin Bramley McLeish
Manukau District Court sentencing notes of Judge Epati as follow:
 Colin McLeish, you appear for sentencing today on two charges. You have pleaded not guilty to a total of 11 charges and after a full trial you were acquitted of 11 and found guilty of two representative charges which is now before the Court.
 The first one is sexual violation by oral and digital penetration. That is a maximum penalty of 20 years imprisonment and the second one is a representative charge of doing an indecent act on a child, for which the penalty maximum is 10 years imprisonment. I intend to deal with sentencing by way of addressing first of all the sexual violation by oral and digital penetration, being the maximum of 20 years imprisonment and then align the sentence of the representative charge of indecent act likewise, as they had occurred in time at the same time.
 The facts in brief are that around about early 2007 you manoeuvred yourself to gain confidence with the family of the victim. Consequently the mother and father allowed you to have the victim sleep at your unit. I am satisfied from the factual situation that you had curried favour in order to get to this point.
 Over the six months after the victim started sleeping over at your house you had then committed the acts in question. You had performed oral sex on her on at least one occasion and you have performed digital penetration on about four or five occasions. There were other accompanying indecencies, such as rubbing of the breasts and vagina over her clothing and that according to the complainant’s evidence, which I accept, occurred almost every time she stayed over.
 I accept that both counsel has agreed and correctly so with regard to the approach to sentencing. The case of R v Taueki  3 NCLR 372, 30 June 2005 indicates the modern sentencing that the Court as I will, will need to approach the matter by considering the aggravating and mitigating circumstances of the offendingfor which you were found guilty, and thereby then approach a final sentencing by various adjustments allowable by the law from the starting point, taking into account aggravating and mitigating circumstances and personal features of yourself as far as I can see and accept.
 Of course I take into account the purposes and principles of sentencing as provided in the Sentencing Act and I take the aggravating features as clearly enunciated by the Crown and accepted by your counsel. Listing them in order. Firstly, you had offended against the victim every time she slept over. The parentsof the victim gave evidence during the trial and according to their evidence she stayed over at your place approximately 10 times. I also accept most importantly, that your actions were nothing but premeditated. There was no suggestion, neither was there support of any evidence that anything happened accidentally. At 10 yearsof age and 11 years of age at the time I accept that the Crown has indicated that the victim was in a vulnerable age, but most importantly, I accept that in the circumstances there was a serious breach of trust.
 The parents had entrusted their child to you. The child has trusted your good conduct but which you have seriously breached. You knew the victim and the victim and her family considered you as a grandfather figure. She should be entitled to your protection and the parents are entitled to your care when the victim was in yourhouse. Instead you sexually exploited her to a most serious degree over time and even after the offending you continued to deny your conduct and you have pleaded not guilty and putting the victim, the family and all the witnesses to a full trial. The effect on the offending on the victim cannot be lessened.
 There are victim impact statements as indicated and read out by her mother. It is not so much the effect that it has on this family, but the Court and I would indicate to you, the victim has been traumatised and will continue to be traumatised for some time yet to come. It is not possible to assess that at the present time, but the Court is entitled, numerous statements published as to the effects of such actions, that they usually occur at a later time. I will take all that into account.
 As far as mitigating circumstances there are none. Your counsel however and I accept that that was the case, that half way through the trial you did not appear and instead you had admitted yourself to the hospital alleging a heart problem. The Court stood down to provide a proper medical basis upon which that was done. Thereport at that time was meagre and lacked detail, but when you were found guilty at the end of the trial I had taken some time in fairness to you, to allow your counsel and the medical staff to assess if there is a problem and if so to what extent does it affect any sentence or the nature or length of the sentence.
 Fortunately, now I have the report. It appears that you have problems with your lungs, but that you also have moderate to severe coronary artery disease. Without going into too much of the detail I am satisfied that this report does not rule out an imprisonment sentence.
 Given the tariff and given the case law I am satisfied that the only appropriate sentence is that of imprisonment.
 Turning now to consider in terms of R v Taueki and other cases, most specifically the following cases. R v Haywood (CA 633/07, 18 June 2008) and the case of R v Hall (CA 412/05, 17 May 2006) those cases were cited to me and fully analysed by the submissions of Ms Moala for the Crown. Your counsel has attached himself to those cases and correctly so.
 Therefore, the starting point as counsel for the Crown has indicated, taking into account those cases and those decisions, the Crown has urged upon me that the proper starting point should be between six to eight years imprisonment.
 Your counsel has with carefully drafted submissions, has also analysed the law, but has indicated that the proper starting point should be less than that. He has indicated that the starting point should be that of five years imprisonment. He has relied on several cases, some of which were dated in time.
 Whilst I agree with his analysis of those decisions I prefer the analysis and the starting point as indicated by the Crown purely because of the status of the Court of Appeal, but also because those cases are closer in time to this offending rather than those relied upon by your counsel. Although as I have indicated his analysis is correct except that they were dated cases.
 Therefore, from a starting point of six to eight years I will consider any aggravating or mitigating features in regard to you personally.
 I accept, as the Crown does, that you have no relevant previous convictions as I have seen in your criminal history, but taking into account the mitigating factor that your counsel has pressed on me and that is your health, I will now turn to consider this report.
 The attitude that I take with regard to what I wanted was specifically spelt out in my instructions to counsel as to the nature of the report. Early in the peace I was determined that you get given all of the allowances with regard to your health and my specific announcements in ordering and requesting that report is with regard to, “Anything that would prevent me from sentencing you to imprisonment.” On that wide perspective I can tell you now. According to this report you have a lung disease with chronic obstructive pulmonary disease. I do not feel that that would directly bar an imprisonment sentence.
The second is that you become breathless in doing more than ordinary activity, again with regard to your lung disease or condition. Again I do not feel that that would bar an imprisonment sentence. Your coronary angiogram carried out in late 2008 had shown a blockage in one of your three major coronary arteries and also some lesions in the second, and minor lesion in a third. The nature of what is being reported in this report in my opinion does not bar me from sentencing you to imprisonment.
 I am satisfied and I do hereby note that this report be given to the prison authorities and that they will place you on record with regard to those conditions and would accordingly deal with you by way on incarcerations in the correct procedure and correct monitoring of your conditions, and I am also indicating that any medical problems that you may suffer while you are in jail should also be monitored and attended to accordingly.
 On that basis I do not feel that there is any mitigation circumstances that would prevent me from sentencing you to imprisonment on the basis of what I have indicated and taken to all accounts of what I have stated before, I will convict and sentence you to imprisonment for a period of seven years.
 I just want to turn to the mother and likewise to the family. I note that you have included in the victim’s impact report some monetary aspects of your sufferings. Unfortunately, given the nature of the sentence it is not conducive to me, nor realistic in any sense given the conditions and health of the prisoner to award any monetary indications with regard to your suffering.
 However, I can assure you I have taken that into account and I am absolutely sure that it will be for some time before you can physically and mentally forget about this instance. May I ask for a personal plea from me? You may consider you and your husband are suffering what you have suffered both mentally and physically.However, may I suggest that the priority for you as parents is to attend and monitor the suffering that your daughter is and might be going through as she grows into adulthood. Other than that thank you for attending and I wish you all the best of luck.
Date of Birth
23 September 1949
Was sentenced to 7 years in April 2009
Unsucessfully appealed the conviction in March 2010
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OFFENCES / CONVICTIONS
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