R v Hitanaya

Case [2010] NTCCA 3

R v Hitanaya [2010] NTCCA 03

PARTIES:THE QUEEN

v

HITANAYA, Fansi

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 11 of 2010 (20939664)

DELIVERED:  17 JUNE 2010

HEARING DATES:  3, 4 JUNE 2010

JUDGMENT OF:  MARTIN (BR) CJ, RILEY & SOUTHWOOD JJ

APPEAL FROM:  MILDREN J

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE

Maintaining a sexual relationship with a child under the age of 16 years in circumstances of aggravation – Crown appeal - whether sentencing Judge erred in finding applicant not a “sexual predator” – whether sentencing Judge erred in assessing weight to be given to aggravating and mitigating factors - whether sentence manifestly inadequate – appeal allowed.

Criminal Code s 127(1) & (2).

D v Western Australia [2009] WASCA 155; Poulton v State of Western Australia [2008] WASCA 97; R v Bara (2006) 17 NTLR 220; R v Baxter, unreported, New South Wales Court of Criminal Appeal 7 May 1991; R v D (1997) 69 SASR 413; R v Fitzgerald (2004) 59 NSWLR 493; R v Hermann (1988) 37 A Crim R 440; R v Holder and Johnston [1983] 3 NSWLR 245; R v JO (2009) 24 NTLR 129; R v Johnston (1985) 38 SASR 582; R v Osenkowski (1982) 30 SASR 212; R v PDW (2009) 25 NTLR 72; R v Riley (2006) 161 A Crim R 414; R v Salameh, unreported, New South Wales Court of Criminal Appeal 9 June 1994; R v Williams (1990) 53 SASR 253; Ryan v The Queen (2001) 206 CLR 267, cited.
JAF v State of Western Australia (2008) 190 A Crim R 124 considered.

REPRESENTATION:

Counsel:

Appellant:W J Karczewski QC

Respondent:  J Tippett QC

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  Maleys Barristers and Solicitors

Judgment category classification:      A

Judgment ID Number:  Mar1008

Number of pages:  49

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Hitanaya [2010] NTCCA 03

No. CA 11 of 2010 (20939664)

BETWEEN:

THE QUEEN

Appellant

AND:

FANSI HITANAYA

Respondent

CORAM:    MARTIN (BR) CJ, RILEY AND SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 17 June 2010)

The Court:

Introduction

  1. This is a Crown appeal against a sentence of four years imprisonment, suspended after service of two years, imposed for the crime of Maintaining a Sexual Relationship with a Child Under The Age of 16 Years.  The crime was accompanied by the circumstance of aggravation that the respondent had sexual intercourse with the child.  The maximum penalty for the crime is 20 years imprisonment.

  2. The grounds of appeal complain that the learned sentencing Judge erred in finding that the applicant could not be described as a “sexual predator” and that his Honour erred in assessing the weight to be given to various aggravating and mitigating factors.  In addition, ground 4 complains that the sentence was manifestly inadequate.

  3. For…

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Details
AGLC
R v Hitanaya [2010] NTCCA 3
Case
[2010] NTCCA 3
Decision Date

CaseChat Overview and Summary

This case concerns a Crown appeal against sentence in the Supreme Court of the Northern Territory, heard by Martin (BR) CJ, Riley and Southwood JJ. The appeal arose from the sentencing of the respondent for maintaining a sexual relationship with a child under the age of 16 years, with circumstances of aggravation. The respondent, a 37-year-old teacher, engaged in a sexual relationship with a 13-year-old female student between July and November 2009. The relationship progressed from discussions about personal issues and the victim's past abuse, to the respondent gaining the trust of the victim and her family, and ultimately to repeated sexual intercourse at the respondent's residence.

The legal issues before the Court were whether the sentencing judge erred in finding the applicant not to be a "sexual predator," whether the sentencing judge incorrectly assessed the weight to be given to aggravating and mitigating factors, and consequently, whether the imposed sentence was manifestly inadequate. The Crown argued that the sentence was too lenient given the gravity of the offending.

The Court found that the sentence imposed was manifestly inadequate and that this was a rare and exceptional case warranting the allowance of the Crown appeal and re-sentencing of the respondent. The Court reasoned that the respondent, in his position of trust as a teacher and pastoral care leader, systematically groomed the victim, exploiting her vulnerability and past trauma. The progression of the relationship, from gaining trust and befriending the family to engaging in increasingly intimate encounters culminating in sexual intercourse, demonstrated a calculated and deliberate course of conduct. The Court considered the age of the victim, the respondent's position of authority, and the breach of trust as significant aggravating factors. The Court concluded that the sentencing judge had placed undue emphasis on certain mitigating factors and had failed to adequately reflect the seriousness of the offending in the sentence imposed.

The appeal was allowed, and the respondent was to be re-sentenced.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, in our opinion the sentence was manifestly inadequate and this is one of those rare and exceptional cases in which the Crown appeal should be allowed and the respondent re-sentenced.Facts The offending occurred between 1 July 2009 and 22 November 2009 when the respondent was aged 37 years and the female victim was aged 13. The respondent was a teacher and met the victim at school at the beginning of the 2008 school year. As well as being the victim’s dance teacher, the respondent was the victim’s pastoral care group leader. Over a period the victim approached the respondent in his capacity as her pastoral care group leader to discuss personal issues. The respondent gained the trust of the victim by telling her that she could talk to him without fear and that he would not disclose her concerns to any other person. The victim then disclosed to the respondent that she had been the victim of sexual abuse when she was a young child. Over the following months the respondent and the victim had a number of personal discussions about the abuse and other matters. As to the development of the relationship, and the facts of the offending, the following facts were agreed before the sentencing Judge:“The defendant became aware of the complainant’s and her family’s religious beliefs and sought to find out more about their faith. The defendant befriended the complainant’s family and undertook Bible studies with them. The defendant was invited to the complainant’s home for lunches and dinners over the course of the following months. He eventually gained this family’s trust to such a degree that he earned the title of uncle. The defendant was thereafter referred to as Uncle Fansi.The defendant was informed by the complainant’s mother and he also had become aware that the complainant had a crush on him. The parents of the complainant became concerned about the attitude changes in their daughter and had removed her from his pastoral care group. The defendant was aware that she was taken out of his class due to her infatuation with him.The defendant continued seeing the complainant at school. And stated during his record of interview with police that he had given her some comfort cuddles on occasions when she was upset.Shortly before the mid-year school break in or about June 2009, the defendant and complainant were alone in the dance room. The defendant kissed the complainant on the mouth before stepping back, stating, ‘I’m sorry, I didn’t mean that, I shouldn’t have done that. I think you’d better go now’.The relationship developed with the complainant regularly contacting the defendant on his personal mobile telephone late at night wanting to talk to him. The defendant would drive his red Honda Civic, Northern Territory registration 564 793 to a street near the complainant’s residence. The complainant would then sneak out of the family home and meet the defendant at his vehicle parked in the street some distance down from the home.During these meetings which often went for hours, the defendant and the complainant would begin by talking, but would soon engage in kissing. In August after about the third intimate meeting in his car, the defendant suggested to the complainant that they would be more comfortable at his house. To which the complainant agreed and he drove them to his flat.From this point on their encounters would involve the defendant receiving a phone call from the complainant in the middle of the night. The defendant would then pick the complainant up from near her home residence and drive her to his house. The defendant would then return the complainant before morning. These meetings occurred once or twice a week until the defendant’s apprehension on the night of 21 November 2009.For the first one or two occasions the defendant and complainant just talked and kissed in the defendant’s bedroom. However, on the next occasion the defendant undressed himself and removed the complainant’s top and bra before fondling her breasts whilst kissing.Shortly after the above incident, the defendant on the very next occasion completely undressed the complainant, rolled her on top of him rubbing his penis against her vagina, that is the outside of the vagina.This progressed on the following meeting to actual sexual intercourse, which then occurred once or twice a week for the remaining offending period, unless the defendant was away.On Saturday 21 November 2009, at a time before 3 am, the defendant picked up the complainant from her address and drove to his residence. The defendant led the complainant to his bedroom where they lay on his bed cuddling and talking for a period of time. The defendant then commenced to fondle her naked breast, however, did not continue through to sexual intercourse due to the complainant menstruating.At about 6.10 am, later that morning, the defendant drove his car to the complainant’s street and parked it out the front of a neighbouring property. The complainant exited the defendant’s vehicle, walked into the neighbouring property before jumping over the fence and returning into her own home.This was witnessed by the complainant’s parents who had become suspicious of their daughter’s behaviour. Police were contacted, but without further information there was nothing that could be done.On Sunday 22 November 2009 at about 2.30 am, the defendant again drove his vehicle to the complainant’s street and parked out the front of the neighbouring property. The complainant entered the vehicle and the defendant drove them back to his flat.Again, the defendant led the complainant into his bedroom where they lay on the bed cuddling and talking. The encounter then developed into the defendant kissing and fondling the complainant with both eventually becoming naked. The defendant then inserted his erect penis into the complainant’s vagina and commenced penile vaginal intercourse.The sexual intercourse continued for a short period of time before the defendant was interrupted by knocking at the door. The defendant and the complainant remained silent and motionless in the bedroom, fearing that it was the complainant’s father at the door. The defendant and complainant were unaware that it was in fact the police knocking on the door.The complainant’s parents had effectively staked out their own property and when they witnessed their daughter being picked up by the defendant, they contacted police and the father accompanied them to the defendant’s address.The police then conducted covert surveillance of the property. And at about 5.15 am later that morning, the defendant was intercepted attempting to drive out of his driveway.The defendant consented to police searching his premises; however the complainant could not initially be located. The defendant was asked when it was that he last saw the complainant and replied, ‘Not since Friday at school.’About an hour after the initial search, a secondary search was conducted by investigating members and at this time the complainant was located hiding in the boot of the defendant’s vehicle. The defendant was then arrested and conveyed to the Darwin Police Station.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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