Nihoniho v The Queen

[2005] NZCA 221

IN THE COURT OF APPEAL OF NEW ZEALAND

CA151/05

THE QUEEN

v

BRUCE DAVID NIHONIHO

Hearing:24 August 2005

Court:O'Regan, Potter and Doogue JJ

Counsel:P F Johnson for Appellant

H D M Lawry for Crown

Judgment:29 August 2005 

JUDGMENT OF THE COURT

The appeal against sentence and the minimum non-parole period is dismissed.

REASONS

(Given by Doogue J)

Introduction

[1]       Mr Nihoniho pleaded guilty in the District Court at Christchurch to two offences of assault with intent to rape and one of burglary.  Judge Erber sentenced him to six years imprisonment for each offence and imposed a minimum period of imprisonment of three years in respect of each offence.

[2]       The appeal is brought on the basis that the sentences of imprisonment are manifestly excessive and that in the circumstancesas a result a the minimum non-parole period imposed was not necessaryexcessive.

[3]       The Crown position is that the sentences imposed are appropriate and within the range available to the sentencing judge and the minimum non-parole period justifiable.

Background

[4]       The appellant pleaded guilty upon the basis of a non-contested summary of facts.

[5]       The first offence occurred at approximately 1pm on Friday 3 December 2004.

[6]       The appellant knew that an elderly woman lived alone at a particular address in Christchurch.  He rode his bicycle to that address.  He knocked on the door and when the 79-year old woman answered the door he asked for directions to a nearby street and used the pretext of needing to use the toilet to obtain entry to the home.

[7]       Having entered the house, the appellant sought to lure the woman to the rear of the premises because the front door had been left open.  When this was unsuccessful the appellant grabbed the woman around her upper body pinning her arms down to her sides and attempted to move her towards the back of the house.

[8]       At this stage the woman yelled out to her neighbour and the appellant placed a hand across her mouth and told her he wasn’t going to hurt her.   In the struggle the woman fell on to the floor, after which the appellant helped her up.

[9]       The appellant then encouraged his victim to sit on her couch.  He dropped to his knees in front of her and begged her forgiveness.  Again, the victim attempted to yell for her neighbour and again the appellant covered her mouth and told her he wasn’t going to hurt her.  The appellant then left the address.

[10]     The second and third offences occurred after 2.30am on Thursday 16 December 2004.  Once again, they occurred at the address of an elderly woman this time one living in the appellant’s own neighbourhood.  Prior to this offending the appellant had on an earlier occasion viewed his targeted victim through her bedroom window at night changing into her nightclothes.

[11]     The appellant walked to the address occupied by the 83-year-old woman.  He was aware that she lived alone.  He entered her address through an insecure sliding door.  She was asleep in bed.

[12]     The appellant then sat on the couch in the living room for approximately two hours contemplating sexually assaulting the occupant.  He then undressed and wearing only his underwear walked around the inside of the address masturbating.  He then put his clothes back on and returned to his own home.

[13]     A short time later about 5am the appellant returned to the same address. He again undressed to his underwear and masturbated himself.  While masturbating he entered the woman’s bedroom where she was sleeping.  He carried a piece of cloth that he intended to put in the woman’s mouth.

[14]     The woman awoke when the appellant placed his hand under the blankets that covered her and touched her on her upper thigh and hip area.  She turned on to her back.  As she did so the appellant jumped onto the bed straddling the victim and placed a hand over her mouth.  He then pinned her face down and using both of his hands attempted to force the piece of cloth into her mouth.  The victim struggled and attempted to push the appellant off her.

[15]     The appellant then tried to unbutton the top of the nightdress worn by the victim.  He then reached for one of the pillows that she slept on and at that time the victim managed to engage the appellant in conversation.  She then feigned a heart condition at which time the appellant became apologetic.

[16]     The appellant then picked up the piece of cloth he had been attempting to force into the victim’s mouth and returned to the sitting room where he got dressed and left the address.

[17]     The appellant sent an anonymous letter of apology to the first of his victims and flowers to the second of his victims.

[18]     During the police investigation into the offending the appellant telephoned the officer in charge of the inquiry and stated that he wished to give himself up.  He later made a full video tape confession to the police during which he admitted the facts as outlined.  In explanation he stated that approximately two years earlier he had begun fantasising about elderly women.  He admitted that he had gone to both addresses with the intention of raping the elderly occupants.

[19]     The appellant entered a very early plea to the charges against him.  At sentencing he sought, and was granted, permission to give a personal, and what has been described as an impassioned, apology to his victims and to his family.

[20]     The appellant is a single male almost 30 years of age.  He has not had regular employment but has been in different employment from time to time.  Apart from three alcohol-related offences in 1996 of a totally different nature, he has not been before the courts.  He acknowledged previous drug and alcohol abuse but said he had stopped when he had become a Christian at the age of 21.  Since then his church had dominated his life and he had taken part in many church activities.  He described himself as exclusively heterosexual.  However, he said he had been celibate since his return to the Christian church.

[21]     The sentencing Judge had before him a pre sentence report and a report from a consultant forensic psychiatrist along with victim impact reports.

[22]     The pre-sentence report traversed the appellant’s background.  It understandably accepted that a sentence of imprisonment was inevitable.  The probation officer expressed the view that the appellant was truly repentant of his actions and accepted full responsibility for them.  The report contained the comment that the appellant possibly had a need to exercise control over his vulnerable and virtually defenceless victims and ultimately to exercise compassion and seek forgiveness from them.  The writer thought that the appellant might have a need to repent and seek forgiveness, that being an integral part of the entire event.

[23]     The consultant forensic psychiatrist expressed the view that the appellant had significant personality difficulties.  Despite those difficulties the psychiatrist said there was no evidence that the appellant currently suffered from any major psychiatric illness.  The psychiatrist also expressed the view the nature of the offending and the appellant’s vulnerable personality suggested that the appellant would benefit from supervision by psychiatric services in the prison setting, particularly in terms of monitoring his mental state for development of depressive symptoms or similar thoughts.  The view was also expressed that the appellant could benefit from further counselling with respect to his traumatic background experiences, relationship difficulties in general and, more specifically, sexual aspects of his personality.

[24]     The victim impact reports were summarised by the sentencing judge.  He noted that the 79 year old victim was pretty philosophical about what had happened but considered the appellant was truly remorseful and in need of help.  The 83-year-old victim suffered bruising and was terrified at the time.  She felt that her life was in danger and she was suffering from sleep problems.  She, at the time of the report, had almost decided to sell up her house and move to a retirement home but had thought better of it and had felt somewhat more positive.

Sentencing Decision

[25]     The judge traversed the background set out above noting all the features favourable to the appellant already traversed.  He also traversed the aggravating features including the premeditation and planning, the home invasions, with one of them in the middle of the night, the age of the victims and the actual violence, even if of a limited nature.  The judge commented that the second attack was made worse by the fact that from the appellant’s experience the first time around, he knew that it frightened the person concerned but did it again, although having asked the first victim to forgive him.

[26]     The judge put at the forefront of the mitigating features the early plea of guilty.  In addition, he accepted the appellant was remorseful, that his previous convictions were irrelevant and that the appellant went to the police when he knew they were looking for the person involved.

[27]     The judge summarised the position thus:

[17]     This is a case of bizarre and very frightening and dangerous behaviour.  From a citizens’ point of view this violent behaviour is what many women, not only elderly, fear, home invasion and sexual assault.

[28]     The judge went on, after touching upon sentencing levels prior to the Sentencing Act 2002, to comment that the aggravating features were not outweighed by the mitigating features.  He took the view that if the appellant had pleaded not guilty and if the case had gone to trial then if the appellant had been convicted a term of nine years imprisonment could well have been justified.  However, he felt it appropriate to give full weight to the mitigating features and imposed the sentence under appeal.

[29]     The judge went on to deal with an application for a minimum non-parole period.  He did not regard the two-year non-parole period that followed from the sentence of six years to be sufficient for holding the appellant accountable, denouncing his conduct, deterring him and others, and protecting the public.  He emphasised the latter aspect.  He considered that where there is a sexually unstable, dangerous man such as the appellant who has committed three serious crimes where repetition may occur unless treatment is undertaken, the parole entitlement after a third of the sentence is insufficient for the purpose of protecting the public.  He noted the maximum he could impose would be four years.  Bearing in mind the appellant’s remorse and that the appellant had given himself up and what the appellant had said beforehand, he considered that the appellant was genuinely motivated to take treatment.  He therefore drew back from the maximum period of four years that he could impose and imposed the non-parole period of three years imprisonment.

Argument

[30]     It was submitted for the appellant that the judge should have given weight to a number of further factors other than those articulated by the judge in mitigation of the appellant’s position.  They included his virtual surrender to the police and his co-operation when interviewed.  It was submitted that if he had not confessed to an intention to rape each victim there might have been insufficient evidence to support the charges, particularly the first offending.  While it is accepted there was some violence against each victim it could be considered to be at the lower end of the scale.  It was further submitted that the force used was not prolonged and ceased as soon as the appellant realised the distress his actions were causing to the victims.  It was then, on both occasions that he apologised and begged for forgiveness.

[31]     It was further submitted that the judge did not give sufficient consideration to the appellant’s background and present circumstances. It was submitted that it was clear the appellant suffered a traumatic and dysfunctional upbringing leading to significant psychological difficulties and this should have alerted the sentencing judge to consider more fully the rehabilitative component at the sentencing process.

[32]     The submissions for the appellant traversed decisions put before the sentencing judge and in particular the decision of the court in R v Nicholson CA346/01 20 March 2002.  This decision concerned an appeal against the sentence of five years imprisonment after the appellant was found guilty on the count of attempted sexual violation after trial.  In that case this Court considered that when the starting point for rape was then eight years imprisonment, the starting point for the particular offence was four years.  The appeal was upheld with the sentence reduced to three years.

[33]     It is accepted for the appellant that there is always conflict between keeping the sentence as short as possible and promoting the safety of the community.  It is submitted however that in the light of the early guilty pleas, the obvious remorse, the surrender and subsequent co-operation with the police, the lack of previous convictions and personal circumstances that a more appropriate starting point would have been four to five years imprisonment.  If the aggravating and mitigating circumstances were looked at together it is submitted an appropriate final sentence would have been one of, three or four years imprisonment.

[34]     The appellant submitted that in the event of the term of imprisonment being reduced then the non-parole period should be reduced correspondingly.

[35]     The Crown submits that a starting point of eight to nine years’ imprisonment is justified and in line with other sentences imposed for this offence.  The Crown relies in particular upon decisions of this Court in R v TH CA485/95 12 June 1996 and R v Andrews CA224/97 29 October 1997.  In the latter case the court voiced a concern about the inadequacy of sentences imposed for the present type of offending.  It noted that sentences for assault with the intent to commit sexual violation must bear a reasonable relativity to the level of sentences imposed in cases of sexual violation, notwithstanding that the maximum sentence had not been increased in the same way.

[36]     The Crown went on to note that in Nicholson the Court was concerned with the particular offending in that case and was not endeavouring to identify the starting point for all cases involving attempted sexual violation.  In any event that case involved but one offence and not two as here.

[37]     The Crown further submitted that none of the above cases addressed directly the question of the victims ages: s 9(1)(g) Sentencing Act 2002.  Even before the 2002 Act such a feature was recognised to be aggravating: R v Pillar & Ors [1984] 1 NZLR 248, R v Te Pou & Ors [1985] 2 NZLR 508 and R v Potatau (1989) 4 CRNZ 2.

[38]     It was also submitted for the Crown that the escalating nature of the appellant’s offending entitled the Judge to take a starting point close to the maximum sentence for the second more serious offence: s 8(d) Sentencing Act 2002

[39]     The Crown accordingly submitted that the ultimate sentence of six years was within the range available to the sentencing judge for the sentencing and the resultant minimum non-parole period appropriate.

Comment

[40]     We are satisfied the sentences imposed were within the Judge’s sentencing discretion even if at the upper end of the available range. 

[41]     The appellant’s offending made it inevitable a stern sentence would be imposed.  It showed a dangerous and increasingly sinister trend.  Within a short period “peeping Tom” activity had turned into a daytime intrusion and assault of one elderly victim followed by a very serious night time intrusion and assault upon a similar victim. 

[42]     The second offending was particularly disturbing.  The appellant knew of the consequences of his offending for his first victim.  Presumably because she had shouted out he armed himself with a gag when he attacked his second victim.  That was in his own neighbourhood in the middle of the night when the consequences for his victim had to be even worse than on the first occasion.  The level of preparation for his offending and the level of violence were worse.

[43]     When the offending showed such increased seriousness within a short period of time it was inevitable that the resultant sentence had to be severe.  The protection of the public from a man shown to have extremely dangerous proclivities required both a substantial term of imprisonment and an appropriate minimum non-parole period.

[44]     It seems apparent, however, that the appellant is conscious of his need for help if he is not to re-offend in the same way again.  We recommend to the prison authorities that he be considered for one of the rehabilitative programmes available for sexual offenders.  We particularly draw attention to the report of the consultant forensic psychiatrist.

Decision

[45]     The appeal against sentence and the minimum non-parole period is dismissed.

Solicitors:
Crown Law Office, Wellington