NZ predator’s charge of abusing Fiji child dropped
The case of a predator accused of abusing a child in Fiji highlights the problems of attempts to bring Kiwi ‘sex tourists’ to justice, writes Benn Bathgate.
A predator accused of sex offending against a child in Fiji was arrested and charged back home in New Zealand – but authorities have now dropped the case.
Sean Smale faces sentencing this month on five counts of sexual offending against boys as young as 13, which occurred at alcohol and drug-fuelled gatherings at his Rotorua home.
But because he was likely to be convicted over those New Zealand offences, prosecutors decided it wasn’t worth proceeding with the Fiji charge, laid under an unusual law amendment.
Smale, 48, is not the first to escape conviction under the law empowering the courts to punish so-called ‘‘sex tourists’’ who abuse children overseas. It’s a name that belies the true horror of the crime, where men travel overseas, often to poor developing countries, to sexually abuse children.
A Sunday Star-Times investigation shows that in 23 years, just three men have been convicted under the 1995 amendment to the Crimes Act; another 15 have been acquitted or had their charges dropped. Sean Smale is the 16th.
Now, there are calls to ban paedophiles from overseas travel.
Ian McInnes, chief executive of aid organisation Tearfund, said authorities had no idea on how many New Zealand citizens travelled overseas to commit sex abuse crimes. New Zealand should follow Australia’s lead by stopping those on the Child Sex Offender Register at the border, he argued.
The 2002 Fiji charge against Smale was withdrawn before reaching trial as prosecutors focused on the local charges they were sure they could prove.
The difficulty, say legal experts, is that this is a law created to provide justice for children who have no protection in their own countries – but New Zealand police must rely on those same ineffectual overseas police forces to help them investigate the crimes.
The details of Smale’s alleged offending in Fiji were spelt out in his initial charge documents: ‘‘Being a citizen of New Zealand, did outside New Zealand, in Fiji, an act to or in relation to a child under the age of 16 which would, if done in New Zealand, constitute an offence against Section 128 of the Crimes Act 1961.’’
In the end that charge was dropped as the Crown – correctly – deemed they had a strong enough case to convict him on just the New Zealand charges.
Auckland University of Technology law professor Kris Gledhill said the amended law came into force specifically to tackle sex tourists. ‘‘In light of the fact that some countries were not properly enforcing their laws relating to child sex offences, the countries from where the tourists were coming to commit the offences were encouraged to introduce offences,’’ he said.
Gledhill wasn’t surprised at the low conviction rate.
He said getting witnesses and evidence from overseas was difficult and, as happened with Smale, ‘‘the suspect may have other offences that are easier to charge and prosecute because they occurred in New Zealand’’.
A further complicating factor was the requirement for that charge to be signed off by the Attorney-General, Gledhill said.
He backed the process of focusing on charges with the highest probability of securing a conviction, rather than pursuing the overseas charges. ‘‘Very little is gained from it in light of the fact that judges will often impose sentences that are served concurrently. One more conviction will add nothing to the punishment imposed.’’
There was another pragmatic reason too, he said. ‘‘It may seem
like someone ‘getting away with it’, but in fact it means that resources can be put into some other investigation.’’
McInnes said he too was not
‘‘Eighteen attempts to prosecute – it does look like the Crown is looking to send a signal.’’ Andrew Little, Minister of Justice
surprised at the low conviction rate, citing ‘‘less robust’’ justice systems in many developing nations. But dropping charges for a lack of evidence could sometimes be ‘‘a missed opportunity to send a message to those considering the sexual exploitation of children that they risk being caught and prosecuted if they plan to commit this abhorrent crime’’.
Minister of Justice Andrew Little told the Star-Times that travelling overseas to abuse children was a matter the Crown took extremely seriously. ‘‘Eighteen attempts to prosecute – it does look like the Crown is looking to send a signal,’’ he said.
Little acknowledged the Government had no idea how many New Zealanders might be travelling overseas to abuse children. ‘‘It’s not going to be a declared intention,’’ he said.
It was an extremely complicated area of the law and ‘‘considerable caution’’ had to be given to issues such as the quality of evidence provided from overseas agencies.
He also hit on one of the flaws in a system that relies on overseas enforcement agencies – corruption.
The devastating effects of ‘‘sex tourism’’ were spelt out in a 2008 report by ECPAT International (End Child Prostitution, Child Pornography and Trafficking). ‘‘Regardless of the background of child victims of sex tourism, they all experience severe emotional, psychological and physical consequences,’’ the report said.