Asiata v The Queen
[2019] NZHC 1045
•30 April 2019
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-441-9
[2019] NZHC 1045
LOGOVA FAFA ASIATA v
THE QUEEN
Hearing: 16 April 2019 via AVL Appearances:
R M Gould for Appellant
C R Walker for Respondent
Judgment:
30 April 2019
Reasons:
14 May 2019
REASONS JUDGMENT OF CLARK J
Introduction
[1] Mr Asiata, the appellant, appeals a sentence of three years eight months imprisonment imposed in the District Court at Napier on 1 March 2019 on one charge of sexual violation by rape.1
1 Crimes Act 1961, ss 128(1)(a) and 128B (maximum penalty: 20 years imprisonment).
ASIATA v R [2019] NZHC 1045 [14 May 2019]
[2] The offending occurred in Napier on 16 July 2005 when the appellant was almost 21. He was charged in 2016 following a DNA match after his arrest for theft and convicted following a two-day Judge alone trial in September 2018.
[3] The principal question on appeal is whether the District Court Judge erred in his application of R v AM, the guideline case for sexual offending.2
[4] The appeal was heard shortly before the Easter break. I indicated to counsel I would provide before the Easter break, at least the result with reasons to follow if necessary. In the event, the appeal was dismissed.3 In this judgment I provide my reasons for having dismissed the appeal.
Background to the offending
[5] The background facts are taken from Judge Rea’s reasons for verdict.4 In sentencing Mr Asiata Judge Rea read from [22]–[24] of his reasons for verdict so that his findings of fact, in relation to the sexual violation itself, would be clear.5
[6] On 16 July 2005 M, the complainant (then aged 15), went to a high school house party in Taradale, Napier. She later left the party with friends and went to a friend’s house in Nelson Crescent. M planned to stay the night at the Nelson Crescent house and had taken an overnight bag with her. There were no adults present and M and her friends (all girls between the ages of 15 and 16) decided to have a party and consume alcohol. The party was cut short when a neighbour noticed the noise and contacted the older sister of one of the girls. The older sister came to the house to shut down the party. Upon the sister’s arrival, the girls scattered in different directions to avoid being caught. M was concerned her parents would be contacted and that she would be punished. She hid in a walk-in-wardrobe. When she was sure no one would catch her she left the property leaving behind her change of clothes, her bag, cell phone and other personal items.
2 R v AM [2010] NZCA 114, [2010] NZLR 750.
3 Asiata v R [2019] NZHC 934.
4 R v Asiata [2018] NZDC 20179 [reasons for verdict].
5 R v Asiata [2019] NZDC 3776 at [4] [sentencing notes].
[7] M walked to Napier’s central business district with no particular plan in mind beyond wanting to bide time before returning to Nelson Crescent to retrieve her belongings. She had misled her parents as to her whereabouts that night. She said she was frightened, and a mix of what, in hindsight, she thought was adrenalin and alcohol made her fearful and panicky.6 She wanted to avoid being caught by adults and she wanted to stay out of trouble.
[8] M remembered people in groups and talking to her when she was in the downtown area. She tried to blend in and not look out of place.
[9] When she left one of the groups the appellant came with her. M did not ask him to join her. She wanted very much to be on her own. She started walking back to Nelson Crescent to collect her belongings. The appellant walked with her, his arm firmly around her shoulders, holding her to his side. M described herself as being frightened, in shock, and unsure of what to do. She wanted her phone and was worried she was in danger. She told him what school she went to, and said she had a boyfriend. This was not true, but she said it to signal to him she was not available. M tried to pull away from the appellant, but he continued to hold her. At that point she thought it would be safer to avoid struggle or conflict until she had her phone with her. The appellant accompanied M all the way back to Nelson Crescent.
[10] When they arrived at the house M told the appellant she was going into the house alone. Before she went into the property M could see the appellant outside the gate across the road. There were no lights on at the property and no one was home. M climbed in a window she knew to be unlocked. When she started walking towards where she thought her belongings were she triggered the house alarm. M ran from the property without her belongings. She crossed into an area she described as being like a maze. She knew the area well and thought if she was followed, she could get away. Before she could put her plan into effect she saw the appellant.
[11] Frightened and very scared, M thought the safest thing to do would be to head to her friend’s home on Milton Road. She hoped to get close enough to her friend’s house to make a run for it. The appellant followed M as she climbed steps onto
6 At [9].
Craven Terrace. At the top of the steps M realised she was nowhere near her friend’s house. She “started drifting” towards a street light on the corner and collapsed against a retaining wall just off the street.7 The appellant came so close to her she was between him and the wall. M was scared and pretended to be unconscious. She went limp and kept her eyes shut. The appellant picked her up and “half dragged and half carried” her to an area off the street and laid her down on a dirt path on her back.8
[12] The appellant undid his pants and took his penis out. He touched her all over her body and attempted to kiss her. He tried to put his fingers in her mouth. In response she pretended to stir as if asleep and bit his finger to get it out of her mouth. He rubbed his penis all over her body lifting her shirt and pushing up her singlet, exposing her breasts. He undid M’s pants, pulled them down and had intercourse with her inserting his fingers at the same time. M said she did not respond but “checked out”. She did not fight, or scream or resist because she thought to do so would be to put herself in danger of violence. When he was finished he sat down. After a period, she pulled her pants back on, got up and walked away.
[13] M walked back down the street, reoriented herself and managed to find her way to her friend’s house on Milton Road. She told her friend what had happened. The next day, with her parents, she reported the incident to the Police. The DNA samples taken from M in July 2005 and sent to ESR (Institute of Environmental Science and Research) were matched in 2016 to the DNA profile ESR had of the appellant.9
The sentencing decision under appeal
[14] After setting out the facts Judge Rea acknowledged Ms Gould’s submission that the sentencing exercise was not straightforward. The Crown accepted the appellant was intellectually impaired. A number of reports about his impairment had been made available. He had done well since being placed on bail conditions in 2016. The Judge noted he held down two jobs. He had his driver’s licence and was employed
7 Reasons for verdict, above n 4, at [22].
8 At [22].
9 At [34].
part time as a security guard which Judge Rea understood required some form of registration.10
[15] Judge Rea then explained the relevance to the sentencing exercise of the report provided to the Court pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003:11
The Court needs to examine whether any diminished intellectual capacity or understanding materially contributed to the offending. If there is no nexus between the mental impairment and the offending, then whatever the level of intellectual function that is not sufficient to compel a conclusion that there is lesser moral fault.
[16] The Judge saw nothing in the material before the Court to suggest, even inferentially, that because of his disabilities the appellant was unable to conclude that what he did was somehow acceptable or not wrong.12
[17] In terms of R v AM, which Judge Rea regarded as binding on him, a starting point of seven and a half years imprisonment was selected. The Judge considered a starting point at the higher end of band one was appropriate in light of the complainant’s extreme vulnerability at the time due to her age and intoxication but also because of the overall circumstances in which she found herself. The appellant’s conduct towards her was persistent. While at an earlier stage in the evening he may not have concluded he wished to rape her, he displayed an ongoing interest that culminated in the rape.13
[18] The appellant’s low intellectual functioning, his relative youth when he offended, his limited prior criminal history (one appearance since 2005), positive prospects of rehabilitation and prior length of time on bail warranted a discount of 40 percent. The Judge was tempted to allocate portions of the total discount to individual mitigating factors but concluded the factors overall warranted a 40 percent deduction.14
10 Sentencing notes, above n 5, at [6]–[7].
11 At [9].
12 At [9].
13 At [10].
14 At [14].
[19] A further four months reduction in light of the appellant’s willingness to pay emotional harm reparation in the sum of $5,200, was calculated to bring the end sentence to a term of three years eight months imprisonment.15
Appeal submissions
[20] The main ground of appeal is that the Judge erred in his application of R v AM. Ms Gould submitted the sentence imposed was not the least restrictive, or most appropriate, in terms of the Sentencing Act 2002. Ms Gould approached the appeal as she had approached the sentencing. She argued the appellant’s intellectual disability alongside other factors meant the “particular circumstances” of the case brought him within s 128B(2) and (3) of the Crimes Act 1961. A sentence short of imprisonment was appropriate. Ms Gould submitted it was not the mental impairment alone that was unusual but its combination with other factors, namely:
Youth at the time of offence (20 but mentally closer to 16 or 17) Length of time since offence (13 years)
Significant rehabilitation since arrest (three years)
Low risk of recidivism (assessed at zero) Vulnerability if imprisoned
Strong family and community support, including from employer
[21] A further ground of appeal related to what Ms Gould characterised as “concerns about the sentencing process”. In that regard Ms Gould submitted the sentencing took place in “a busy morning list” rather than a reserved slot. In consequence, there was no opportunity for the communications assistant to explain to Mr Asiata what was going on. Counsel had accepted the shift to the morning list because the communications assistant was not available in the afternoon. Being unfamiliar with the Napier Court, counsel had not appreciated the implications of the change.
[22] The Crown’s essential position is that there was no error in the sentence imposed. The sentence was appropriate. The offending was too serious and the
15 At [15].
mitigating factors insufficient to warrant the outcome advocated on the appellant’s behalf.
Discussion
[23] The first point to note is that Judge Rea miscalculated the discounts he gave for mitigating factors. The following table sets out Judge Rea’s calculation as against the correct calculation.
Judge Rea’s calculation Correct calculation Starting point Seven years six months16 Seven years six months Applying a 40 percent deduction Four years17 Four years six months Further four months
reduction for emotional harm reparation
Three years eight months18 Four years two months
[24] Where an arithmetical error has occurred and would have been corrected had it been drawn at the time to the attention of the sentencing judge the appeal court is expected to impose the corrected sentence, giving effect to the sentencing judge’s intentions.19 However, an error favouring a defendant will not be corrected unless it has resulted in a sentence that is manifestly inadequate or inappropriate. The learned authors of Adams note that this approach is only taken on a prosecution appeal brought with the Solicitor-General’s consent under s 246 of the Criminal Procedure Act 2011.20
[25] In the circumstances of this appeal I have not considered it necessary, or appropriate, to correct the error. The appeal is not brought by the Crown. And the Crown’s position is that the sentence of three years eight months imprisonment is appropriate.
Starting point
[26]Ms Gould submits the Judge erred in considering himself bound by R v AM
and that a starting point of four to five years should have been adopted. I do not agree
16 At [10].
17 At [15].
18 At [15].
19 Tutakangahau v R [2014] NZCA 279, 27 CRNZ 291 at [36].
20 See also Ta’akimoeaka v Police [2018] NZHC 68 where a calculation error resulting in a sentence of one month less than intended was not corrected or appealed.
that Judge Rea erred in regarding R v AM to be binding on him. The new guideline judgment was to be applied to all sentencing taking place after 31 March 2010.21 Ms Gould had endeavoured to persuade Judge Rea that sentencing decisions allowed him to consider home detention. Judge Rea correctly viewed the invitation as requiring to be explored in the context of R v AM which was “fully binding [on him]
…”.22
[27] Judge Rea found M was a “vulnerable teenager caught in a very difficult situation”.23 He found her evidence to be compelling and persuasive. There were very few inconsistencies between her evidence and the statement made on 18 July 2005.24 There can be no argument that M’s vulnerability aggravated the offending. Not only was she young but she was appreciably younger than the appellant. I note that throughout, the appellant has been described as 20 years of age as at July 2005 when the offending occurred. That has been somewhat generous to the appellant whose date of birth was 30 August 1984, making him almost 21 when he sexually violated M.
[28] There was also a degree of planning and premeditation. The appellant was persistent in following M as she left the central business district. He stayed close to her, waited for her as she made her unsuccessful attempt to retrieve her belongings, and followed her up the steps which emerged onto Craven Terrace. Judge Rea accepted Ms Gould’s submission on sentence that Mr Asiata may well have not concluded he wished to rape her at an earlier stage that evening but from his persistent interest culminating in the rape it could be inferred he had an idea of “some sort of sexual liaison with her”.25
[29] At this point it is relevant to refer to the transcript of sentencing which has been made available to the Court at Ms Gould’s request. Judge Rea issued a minute on 3 April 2019 recording Ms Gould’s request for a transcription of the sentencing notes to be made available for the appellate Judge/ Judges hearing the appeal. Following an exchange between Judge Rea and Ms Gould about whether M had been dragged, or
21 R v AM, above n 2, at [125].
22 Sentencing notes, above n 5, at [8].
23 Reasons for verdict, above n 4, at [48].
24 At [48].
25 Sentencing notes, above n 5, at [10].
pushed, or carried Ms Gould agreed M “wasn’t walking”. She accepted that at this point there was a degree of premeditation, although maintaining that the appellant did not understand that “pretending to be unconscious meant no consent”.26
[30] Although it was only mentioned in the final paragraph of Judge Rea’s sentencing notes when the offer of emotional harm reparation was discussed, the Judge did note the “dramatic effect” the offending has had on M:27
A harrowing victim impact statement has been provided to the Court which once again highlights the terrible effects that crimes such as this have on those who are the victims of them.
[31] Notwithstanding that observation, the harm to M was not a factor the Judge explicitly took into account when he identified a starting point. The ongoing trauma to M is a factor properly regarded as aggravating the offending and a further factor, therefore, justifying the starting point which the Judge identified. The rape itself involved unprotected sex with a risk of pregnancy. Most significantly, the victim impact statement indicates M has suffered serious trauma in the 12 years since the incident: depression, anxiety, panic attacks, nightmares and insomnia.28 She has turned to substance abuse to block out traumatic memories and negative emotions associated with the incident. M struggles to communicate with others and has found it hard to form healthy relationships. She reports difficulty in maintaining stable employment due to stress and anxiety and this has impacted her financially.
[32] Ms Gould relied on a sentencing decision of Mallon J in M v New Zealand Police to the effect that self-rehabilitation between offending and sentencing can be taken into account in determining whether imprisonment needs to be imposed.29 But there are crucial differences between the circumstances in M v New Zealand Police and this case. This is not a case of youth offending. In M v New Zealand Police the appellant was only 14 or 15 at the time of offending. He was sentenced as a young person. The second distinction is that the appellant in that case pleaded guilty at an early stage.
26 R v Asiata, Transcription of legal discussion before Judge Rea, at 12.
27 Sentencing notes, above n 5, at [15].
28 It has been 14 years since the offence but the victim impact statement was completed in 2017.
29 M v New Zealand Police HC CRI-2011-485-72 Wellington, 6 September 2011.
[33] Ms Gould next pointed out that in setting his starting point the Judge derived assistance from the Court of Appeal’s reference in R v AM to R v Stusky.30 R v Stusky was cited by the Court of Appeal as an example of a case with a starting point at the higher end of band one. Ms Gould’s point was that the comparison was inappropriate. The culpability of the offender in R v Stusky was much greater. He was 31 and the victim was 16. The two were part of a group and had spent the afternoon drinking alcohol. The rest of the group left while the victim waited for her sister. The defendant grabbed the victim and pushed her into bushes adjacent to a bus stop. He overcame her resistance and raped her. Ms Gould argues the appellant “tried to befriend the victim during the course of an evening” and was “immature in sexual matters and a lot younger developmentally than his chronological age”.
[34] I am not persuaded by the submission. Whether or not the appellant attempted to befriend M does not reduce his culpability. He was a stranger to M and Judge Rea found he planned a sexual liaison with her from the beginning. While he was immature in sexual matters and has diminished intelligence, Ms Waugh, the clinical psychologist reported he understood consent in basic terms. He knew it was wrong to have sex with someone aged 15 and when asked at what age someone could consent to sex, believed it was 18. He had a basic understanding of consent although was uncertain if it was possible to consent if intoxicated. Judge Rea did not consider any reasonable person could regard M as consenting when she presented as unconscious and unresponsive.31
Insufficient credit for mitigating factors
[35] The argument under this ground is that Judge Rea failed to give sufficient credit for remorse. The four months further discount for emotional harm reparation was insufficient and failed to fully acknowledge the importance of the offer.
[36] In sentencing, the Court must take into account any offer of amends, financial or otherwise.32 While the Court is directed by the Sentencing Act to take into account
30 R v Stusky [2009] NZCA 197.
31 Reasons for verdict, above n 4, at [52].
32 Sentencing Act 2002, s 10(1)(a).
an offer, such as the reparation offer which Mr Asiata has made, the weight to be given to such a mitigating factor will generally be limited:33
The payment is not necessarily indicative of remorse; it may simply reflect a strong desire not to go to prison and a willingness to pay any money that will help to achieve that goal. On the other hand, payments should not be discouraged as they can often mean a lot to a victim, providing some compensation for suffering. They can be seen as a restorative and remedial measure.
[37] I see no error in this aspect of the Judge’s approach. Having made an order for immediate payment into court of the $5,200 offered by way of reparation, Judge Rea recognised the need for a further reduction in the overall sentence. By that stage the sentence had been calculated (erroneously) as four years imprisonment. The four months credit which the Judge gave constituted an eight per cent reduction in the end sentence. Another Judge may have recognised the appellant’s offer to make amends with a greater or lesser discount in sentence. The relevant legal point is that Judge Rea considered four months to be appropriate and I am unable to identify any deficiency in his assessment.
[38] Nor have I been persuaded by the argument that the Judge failed to consider the support of Mr Asiata’s employer and the “zero score for sexual recidivism following Ms Waugh’s testing”. In her s 38 report Ms Waugh did not find the appellant to be at zero risk of reoffending. He scored zero on one of the tests but overall was assessed at “low risk”, not zero risk.
[39] More particularly, it is plain Judge Rea did in fact take into account the appellant’s low risk of reoffending:34
[Ms Gould] says he is not going to appear before the Courts again and therefore that should be the determinative factor. Undoubtedly, it is one of the factors that has [to be] taken into account … .
Sentencing hearing
[40] With regard to Ms Gould’s concerns about the sentencing hearing itself Mr Walker, who also appeared for the Crown at sentencing, observed the Judge had
33 R v Johnson [2010] NZCA 168 at [28].
34 Sentencing notes, above n 5, at [13].
been fully accommodating of breaks when requested during the trial. No breaks were requested during the sentencing process either by the communications assistant or by Mr Asiata’s counsel. It can be disconcerting when aspects of the court’s processes take counsel, or their clients, by surprise but Ms Gould has identified no part of the sentencing procedure giving rise to error in the sentence imposed.
Decision
[41] Ms Gould is correct to submit that the Sentencing Act governs the starting point not the cases. But it is not correct to characterise as being “straightjacketed” a sentencing judge who applies the guideline principles of a tariff decision such as R v AM. While the Sentencing Act is the “first point of reference” for a sentencing judge, appellate court guidelines provide direction in the manner of the application of the requirements of the Sentencing Act.35 Judge Rea engaged in the evaluative exercise which the Court of Appeal emphasises as the important aspect of the sentencing process.36
Listing relevant factors and setting out bands in the way we have done does not remove the need for judgment. A mechanistic approach is not appropriate.
[42] Judge Rea’s approach was anything but mechanistic. A crucial question in determining the starting point was whether the appellant’s diminished intellectual capacity “materially contributed to the offending”.37 In Shailer v R the Court of Appeal noted mental health disorders may reduce offender culpability:38
But a mental disorder without more cannot logically justify a reduction in the starting point of a sentence, based on diminished culpability, unless there is evidence of its causative impact on that culpability.
[43] Judge Rea correctly determined there was no evidence of any such causal link. Nor did the s 38 report provided by Ms Elizabeth Waugh suggest otherwise. Ms Waugh provided context for the offending. The context included the appellant’s long history of learning difficulties which made it hard for him to achieve at school and his family’s apparent lack of understanding at the time of his intellectual
35 R v AM, above n 2, at [35].
36 At [36].
37 R v M [2008] NZCA 148 at [33], citing R v Whiu CA195/07, 20 December 2007.
38 Shailer v R [2017] NZCA 38 at [50].
limitations. It seems that rather than teaching the appellant life skills, family members did things for him instead so that by mid-adolescence he was demonstrating deficits in independent living skills. The appellant developed an increasingly negative view of himself, becoming alienated from his prosocial school peers and began using substances. Ms Waugh writes that the offending occurred in this context when the appellant was drinking excessively and using other substances which likely decreased his reasoning skills:39
Mr Asiata appears to have to have met and subsequently taken advantage of his victim’s vulnerability, to meet his own needs. Given his long-standing wish for a relationship, it is also possible that he was meeting his needs for intimacy through his contact through the victim.
[44] Accordingly, the Judge had a sound basis for concluding there was no nexus between the mental impairment and the offending and that the appellant did not, therefore, have lesser moral fault.40 The Judge added:41
Unfortunately, this is an altogether too familiar situation of a young man (he was only 20 at the time) who had been consuming alcohol and who did not have as great [an] intellectual capacity as some who [have] committed offending of this very serious type.
[45] Consistently with the mandatory requirements of the Sentencing Act the Judge took into account in setting the starting point the applicable aggravating factors which were:
·the harm to the victim — describing the victim impact statement as “harrowing”.
·her vulnerability
·the existence of an element of premeditation — demonstrated by physically manhandling (whether by dragging, pushing or carrying) M some metres into a secluded place where she was raped in an unresponsive state
·the appellant’s “low intellectual functioning” — while recognising this factor may mean greater difficulty for the appellant, than for others, in serving the sentence.
39 Section 38 report, [32]–[33].
40 Sentencing notes, above n 5, at [9].
41 At [9].
[46] I suggest two further factors might be added: the age discrepancy between M and the appellant, and the degree of violation.
[47] Although at the high end of band one, the starting point set by Judge Rea was unobjectionable in principle.
[48] In his 48 percent reduction overall, the Judge properly recognised the appellant’s intellectual impairment, his offer of amends, his prospects for ongoing rehabilitation, the support offered by family, and the length of time he had spent on bail.
[49] As I have observed Judge Rea considered allocating percentage discounts to the various mitigating factors but ultimately took a cumulative approach to discount. The approach may have been objectionable if it was necessary to include a discount for a guilty plea but there was no guilty plea and therefore no discount to be given in that regard.42
[50] In the end “sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The route by which a judge reaches that outcome will be relevant to the analysis, but seldom in itself pivotal”.43 Not only did Judge Rea properly assess the appellant’s level of culpability, and the relevant factors in aggregation and mitigation of the offending, but the appellant received the additional benefit of the miscalculation in the sentence. Before the Judge gave the final four-month reduction in sentence the appellant had already received an effective 47 percent reduction due to the arithmetical error. The end result was that the appellant was sentenced to a term of imprisonment six month shorter than the Judge intended.
[51] Finally, the appellant has not demonstrated “particular circumstances, either personal or related to the offence, justifying a departure from the statutory direction that a person convicted of sexual violation must be sentenced to imprisonment”.44 The exceptions to imprisonment for sexual violation are carefully circumscribed. The
42 R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [58]; and Bryant v R [2014] NZCA 591 at [10].
43 Ripia v R [2011] NZCA 101 at [15].
44 Crimes Act 1961, s 128(B).
particular circumstances of the offender and the particular circumstances of the offence that are relevant are not general circumstances such as the consequences of offending which may be regarded as generally inevitable.45 Of real relevance to this case is the impact of the offending on the victim. That is not to be overlooked in the sentencing process.
Result
[52]The appeal is dismissed.
Karen Clark J
Solicitors:
Crown Solicitor, Napier for Respondent
45 Allen v R [2018] NZHC 543 at [41].
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