R v Arioka
[2015] NZHC 1521
•2 July 2015
NOTE: ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSES/VICTIMS/CONNECTED PERSONS PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-055-2711 [2015] NZHC 1521
THE QUEEN
v
MARAMA ARIOKA
Charges:
Plea
Sentence:
Sexual violation by unlawful connection (5)
Indecent acts on children under 12 (6) Attempted sexual violation by rape (1)
Guilty
10 years 9 months
Counsel:
FJ Cuncannon and SL McKone for Crown
KA Stoikoff and HMS Cheeseman for defendantSentenced:
2 July 2015
SENTENCING NOTES OF FAIRE J
Solicitors: Meredith Connell, Auckland
Public Defence Service, Auckland
R v Arioka [2015] NZHC 1521 [2 July 2015]
Contents
Introduction ............................................................................................................[1] Background facts....................................................................................................[3]
Purposes and Principles of Sentencing (ss 7 and 8 of the Sentencing Act 2002) ..[9]
Sentencing Approach ........................................................................................... [11] Submissions for the Crown [12] Submissions for the defendant [13]
Starting point ..............................................................................................................
Relevant law [15]
Setting the starting point ............................................................................................
Aggravating factors relevant to the offending (s 9 of the Sentencing
Act 2002) [25] Analysis ................................................................................................................[29] Aggravating factors relevant to the offender........................................................[35]
Mitigating Factors (s 9(2) of the Sentencing Act 2002).............................................
Pre-Sentence Report [36] Remorse [41] Guilty plea [42]
Minimum period of imprisonment (s 86 of the Sentencing Act 2002) ................[45] Result....................................................................................................................[51]
Introduction
[1] Mr Arioka, you appear for sentencing today on five charges of sexual violation by unlawful sexual connection, six charges of doing indecent acts on children under 12, and one charge of attempted sexual violation by rape. Your trial on these charges was set to begin on 28 April 2015. You pleaded guilty to these charges on the morning of your trial and I entered the convictions accordingly on the
same day. You also received a warning under the “three-strike” provisions of the
Sentencing Act 2002.
[2] The offences for which you will be sentenced today carry the following maximum penalties:
(a) Each offence of sexual violation by unlawful sexual connection is in breach of s 128(1)(b) of the Crimes Act 1961 and carries a maximum penalty of 20 years’ imprisonment;
(b)Each offence for doing indecent acts on children under 12 is in breach of s 132(3) of the Crimes Act and carries a maximum penalty of 10 years’ imprisonment;
(c) The offence for attempted sexual violation by rape is in breach of s 129(1) of the Crimes Act and carries a maximum penalty of 10 years’ imprisonment.
Background facts
[3] The agreed summary of facts outlines the following. Mr Arioka, since 2011 you were in a relationship with a woman, with whom you lived in Papakura. Your partner has a daughter from a previous relationship, who was eight at the time of the offending. You often took your partner’s daughter to Central Park in Papakura. There she played with other children and made friends with two of the complainants in this case, Complainant A, who was 11 years old at the time, and Complainant B, who was nine years old at the time. Complainant A is autistic and has been diagnosed with attention deficit hyperactivity disorder (ADHD). You were 44 years of age at the time.
[4] At 7:15 am on 16 November 2013 Complainants A and B came over to your house. At about 10:30 am they left the address and went to Central Park. When they came to the park, they saw that you were there already. That weekend your partner’s daughter was away visiting her father. You supplied the girls with alcohol and they
consumed it. You then led them to a secluded bush area nearby. You told
Complainant B to keep a lookout and led Complainant A further into the bush.
[5] There you pulled down Complainant A’s pants and underwear, and proceeded to lick her genitalia with your tongue, kiss her on the mouth, lick and kiss her breasts and neck. You then told her to swap places with Complainant B. When Complainant B came over, you pulled down her pants and underwear, and licked her genitalia. You then inserted your finger into her vagina and licked her breasts.
[6] When this was over, you led the complainants back to your home and took them inside. You were alone in the house with them. There you took them to your bedroom, and undressed them while they were on your bed. You licked both of their genitalia repeatedly. You again kissed Complainant A on the mouth, and licked and kissed her on the neck and on her breasts. You then moved on to Complainant B and attempted to have sex with her but she pushed you away before you could penetrate. You then told her to stroke your penis, she did so, and you ejaculated onto the bed.
[7] The complainants went home and told their parents about the offending the next day. It was subsequently revealed that previous to these events, you sometimes supplied the complainants with alcohol and cigarettes. On one other occasion you showed Complainant B a pornographic magazine and told her not to tell anyone. You have not been charged in relation to that incident.
[8] In respect of the injuries suffered by the complainants, Complainant A was sore in her genital area after the incident. Complainant B had two minor abrasions on her arm and abdomen as a result of being in the bush area.
Purposes and Principles of Sentencing (ss 7 and 8 of the Sentencing Act 2002)
[9] In sentencing you, I have taken into account a number of the sentencing purposes and principles set out in the Sentencing Act 2002. The relevant purposes of sentences are to hold you accountable for the harm done to the victims, and the wider community; to promote responsibility and acknowledgement of that harm, to provide for the interests of the victims, to denounce and deter the offending conduct
and to protect the community; and to assist you with your rehabilitation and reintegration into the community.
[10] The relevant principles of sentencing are to consider the gravity of the offending and the level of your culpability; to consider the comparative seriousness of the offending; to impose a penalty near to the maximum if it is near the most serious of cases for which the penalty is prescribed unless your circumstances make this inappropriate, to take into account any information provided to the court about the effect of the offending on the victims; and to take into account your personal circumstances. I note that it is accepted by you that restorative justice is not appropriate in this case.
The victim impact statements
[11] Complainant A’s mother has provided a victim impact statement. She reports that while Complainant A has no long term physical injuries as a result of the offending, the event has caused her severe emotional harm. Her parents have noticed and increase in her levels of anxiety since the offending against her. She has nocturnal fear and a fear of being alone. She will not sleep in her own room and is anxious about going to parks. That has robbed of her of one of the things that she enjoyed doing. Her autism and increased anxiety make night fears very vivid. It leads to restlessness at night and broken sleep. The anxiety unfortunately, has been passed on to her younger brother, who is also experiencing sleeping difficulties.
[12] Complainant B’s father has provided a victim impact statement. He reports changes in her personality. Things that did not bother her before now do so. She has sleeping difficulties, is nervous, suffers from nightmares and is concerned to check that the door is locked. She and her family suffer anxiety over their welfare.
Sentencing Approach
[13] I now come to fixing the sentence. The approach I intend to follow in arriving at an appropriate sentence is that established by the Court of Appeal in
several well-known cases.1 In brief it involves considering the circumstances and seriousness of the offending you committed and setting what is known as the starting point, with the aid of any guideline decisions of comparable cases. I then need to consider whether there are mitigating features relevant to you which might reduce that starting point.
Submissions for the Crown
[14] The Crown submits that a concurrent sentencing approach is appropriate with the five charges of sexual violation by unlawful sexual connection as the lead offences and justifying a range of 12 to 13 years’ imprisonment, increased by two to three years for the charges of indecent acts on a child, making a total starting point of
14 to 16 years’ imprisonment. The Crown seeks a minimum period of imprisonment of 50 per cent.
Submissions from your counsel
[15] Mr Arioka, your counsel submits that the level of premeditation involved was low, and that the offending was in fact opportunistic and impulsive. Your counsel submits also that the evidential interviews with the victims did not reveal previous occasions when you supplied them with alcohol or cigarettes. That is a fact however that you accepted in the agreed summary of facts.
[16] Your counsel submits that the offending fits within band two of R v AM and that the appropriate starting point should be eight to nine years’ imprisonment, and an uplift of two to three years.2 Counsel recommends a discount of 10 per cent for your cooperation with the authorities and guilty plea. Counsel advises me that you have expressed genuine remorse and a desire to participate in a restorative justice
programme but the victims and their families do not wish to participate.
1 R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).
2 R v AM [2010] NZCA 114.
Starting point
Relevant law
[17] R v AM is the tariff judgment for sexual violation by unlawful sexual connection. A starting point is to be determined by reference to one of the guideline sentencing bands set
outby the Court of Appeal:
(a) Band one: two to five years’ imprisonment. A starting point in this
range is appropriate for offending at the lower end of the spectrum.
(b)Band two: four to 10 years’ imprisonment. A starting point in this range applies to cases of relatively moderate seriousness, where there are two or three aggravating factors.
(c) Band three: nine to 18 years’ imprisonment. A starting point in this range is appropriate for the most serious offending and encompasses cases with two or more aggravating factors. Alternatively, this range is appropriate for a case of a moderate degree of seriousness, but that contain three or more aggravating factors.
[18] The Court of Appeal emphasised the need for sentencing judges not to take a mechanical approach whereby the sentencing band is determined solely by the number of aggravating factors present.3 Their Honours urged that an evaluative
approach of all the circumstances is appropriate.4 The flexibility that is required to
recognise the great variety of factual circumstances is reflected in the way the bands overlap with one another.5
[19] In addition to setting sentencing bands, the Court of Appeal provided examples of cases that would fall into the lower and upper ends of each band to
assist sentencing judges in assessing culpability and placement in the bands. In a
3 At [36].
4 At [36].
5 At [81].
subsequent case, Baldwin v R, the Court of Appeal clarified that “[t]he task of
placement in a band should not become an exercise in comparing cases.”6
[20] The Court also made the following observations that are applicable in cases such as the present, where the charges of unlawful sexual connection are accompanied by other sexual offending that together make up the entire offending:
[28] That judgment [R v AM] describes the USC bands in terms of seriousness, and provides examples of cases at points in the bands to illustrate the type of culpability that is envisaged. The conduct illustrated is the total offending and not just the offending that constitutes unlawful sexual connection. An
evaluation of all the circumstances is required.7 This involves looking at all of the actions of the offender that are part of the train of events. Lesser offending which is often part of that train of events (such as indecencies) is part of that conduct.8
Once a place in a USC band has been fixed by this process, it does not allow for further uplifts in relation to specific aspects of that offending that do not involve unlawful sexual connection. The place in the USC bands will be already fixed
to reflect that totality of the offending conduct. Any other approach would make the band assessment process artificial by removing integral aspects of the offending conduct from the assessment of culpability and place in the bands. Further, unless there is a rigid exclusion of all the non unlawful sexual connection offending, there is a risk of a double counting of the indecency conduct when there is an uplift for that offending.
[21] It follows that in setting the starting point within one of the R v AM bands I must consider the offending in its totality as I cannot impose an uplift for the lesser charges.
[22] The Court of Appeal also discussed that the placement within a sentencing band will depend largely on the number and type of penetrative acts committed:
[22] The examples at the lower end of USC band one tend to not involve penetrative actions, while those at the lower end of USC band two do. Those in the third band involve severe penetrative offending over a long period and, generally, very young victims.
6 R v Baldwin [2010] NZCA 472 at [24].
7 R v AM, above n 2, at [36].
8 At [47] and [49].
[23] Any sexual act involving penetrative conduct will be more serious than a sexual act where the contact is on the outside of the body or genitals and not penetrative.9 Accordingly, penetrative actions will raise culpability, although in each case this is a matter of fact and degree.
[24] I now consider relevant cases referred to me by counsel.
[25] Counsel for the Crown relies on the cases referred to by the Court of Appeal in R v AM to demonstrate the kind of cases that fit within band three. The most applicable of these are:
(a) R v K (CA558/08):10 the offender faced two representative charges each of unlawful sexual connection and indecent assault on a child under 12. The offender touched and digitally penetrated and licked his eight year old stepdaughter’s genitalia on about 50 occasions over two years, until she was 10. The Court of Appeal imposed a starting point of seven and a half years’ imprisonment.
(b)R v H (CA101/06):11 The offending occurred over 15 years against eight victims, one of whom was six months old when the offending began. In respect of that particular victim, the offender touched, kissed and licked her genitalia on numerous occasions, attempted digital penetration, and placed his penis onto her genitalia. The offending in respect of other victims, who were aged between four and 15, involved genital fondling, touching breasts and digital penetration. The Court of Appeal upheld a global starting point of nine years’ imprisonment, but noted that a greater starting point was open to the Judge; the only reason for not overturning it was the
reluctance to tinker with the final sentence.
9 R v Baldwin, above n 6, at [20].
10 R v K (CA558/08) [2009] NZCA 107.
11 R v H (CA101/06) CA101/06, 18 September 2006.
(c) R v Te Tauri:12 the offending was against three victims aged three to nine. The most serious offending was against the youngest. The offender touched, kissed and licked the victim’s genitalia, made her hold his penis and simulated intercourse with her. The offending occurred on at least 20 occasions over two years. The offender was sentenced to preventive detention, and all other information is suppressed from publication.
[26] Mr Arioka, your counsel submits that the offending falls within band two and cites the following cases in support:
(a) R v H:13 the offender faced two representative charges of unlawful sexual connection and six charges for indecent assault on a child, one of which was a representative charge. The offender was 54 and the victim, his niece, 13. The victim viewed the offender as a father figure. The offending occurred over four months. It included stroking the victim’s breasts, touching and stroking her vagina, and digital penetration. The Court set a starting point of four and a half years’ imprisonment.
(b)Rua v R:14 The offender was charged with two charges of unlawful sexual connection and six charges of indecent acts on a child, and one attempted unlawful sexual connection against an 11 year old victim. The offending involved kissing the victim on the mouth, simulating intercourse, licking her genitalia and digital penetration. The Court took a starting point of five and a half years, noting that although the offending lasted over a prolonged period, each incident was brief and that there was a low level of planning before the offending occurred
for the first time.
12 R v Te Tauri CA188/02, 15 July 2003.
13 R v H [2015] NZHC 657.
14 Rua v R [2014] NZCA 599.
(c) R v Takamore:15 the offender faced one charge of unlawful sexual connection and one representative charge of performing indecent acts on an 11 year old victim. The offending occurred some 20 years before the case was heard. The offender touched the victim’s breasts, kissed and rubbed her breasts and vagina. On a second occasion, he penetrated her digitally, and although the act was not violent, it still caused the victim to bleed. The Court placed the offending into the bottom of band two and took a starting point of four years, uplifted by two months to reflect the representative charge.
Setting the starting point
Aggravating factors relevant to the offending (s 9 of the Sentencing Act 2002)
[27] When setting the starting point, I will consider the aggravating factors of the offending itself. The first point of reference is s 9 of the Sentencing Act, which sets out aggravating and mitigating factors that must be taken into account. The second point of reference are the culpability assessment factors set out by the Court of Appeal in R v AM that are specific to sexual violation offending. One must ensure that the same factor is not counted twice.
[28] The relevant s 9 aggravating factors are the vulnerability of the victims, the premeditation involved, and the extent of harm caused by the offending, for the following reasons:
(a) There is no question that the victims in this case were vulnerable, not only because of their young age, but also because of the significant thirty five year age gap between them and you. The greater the age gap, the more serious the offending.16 Complainant A was particularly vulnerable because of her autism and ADHD.
(b)The offending occurred partly because of the premeditation used to groom the victims. Mr Arioka, you saw the victims at the park often
and at times supplied them with alcohol and cigarettes. In doing so
15 R v Takamore [2013] NZHC 719.
16 R v AM, above n 2, at [42].
you established a connection with the children, thereby lowering their inhibitions for sexual abuse. On the day in question you supplied them with alcohol and had them drink it before beginning your offending. Even if you did not have the premeditation to sexually abuse them when you supplied them with alcohol and cigarettes on previous occasions, I consider that you had exercised a high level of premeditation on the day of the offending. This is also evident in the fact that after the incidents in the park, you then brought the victims to your house where you continued to offend against them.
(c) The extent of physical harm suffered by the victims was minor.
However, one must take into account the psychological harm caused by the offending. Sexual abuse at a young age has long-lasting psychological effects that could affect the victims detrimentally for the remainder of their lives. This harm suffered by Complainant A may also be more sharply felt due to her intellectual disabilities.
[29] I now turn to consider the aggravating factors specific to this type of offending as set out in R v AM. These are the scale of offending and the degree of violation:
(a) The physical violation involved was licking the victims’ vaginas and digital penetration. This is a relatively high degree of violation within the offence of unlawful sexual connection.
(b)The presence of multiple victims increases the culpability of the offender.17
[30] There are no s 9 mitigating factors present in this case.
Analysis
[31] Overall, there are five aggravating factors in this case. On the face of it, this should place the offending within band three of R v AM. However, a mechanical
17 At [47].
approach is not appropriate and instead I undertake an evaluative exercise, assessing your culpability with reference to all the relevant facts and to the lesser charges that you face.
[32] I consider that your culpability is high. The number of charges for which you are being sentenced alone indicates the seriousness of your offending. This was an attack against two vulnerable victims who were known to you through your partner’s daughter. It was a sustained attack that was not brief in duration and took place in two separate locations, which again goes to high premeditation and high culpability. The train of events that formed the actual offending, besides the unlawful sexual connections with both victims, involved multiple incidents of you performing indecent acts on the young female victims and an attempted rape of Complainant B. I consider that the attempt to rape in the context of what was happening speaks volumes of what you intended and what you were prepared to do had Complainant B not openly resisted.
[33] I intend to impose a global starting point that takes into account all the offending that has occurred in the train of events, which I see as a single, continuous incident of offending against two victims simultaneously.
[34] I acknowledge that band three offending typically involves multiple instances of offending over a prolonged period, gross breaches of trust, and grooming. Not all of these factors are present in this case. Given your high culpability for the reasons outlined above, I consider that this case is sufficiently serious to be placed within the lower end of band three. I consider this is the correct approach due to the fact that the offending did not merely stop at unlawful sexual connection and indecent acts, but became attempted rape against one of the victims. The victim was faced with the possibility of a very serious penetrative act. This is the distinguishing feature that separates this case from those in band two.
[35] Furthermore, although the offending only occurred once, it was a prolonged attack in the sense of the amount of time the victims were subject to your abuse.
[36] I consider that a starting point of 12 years’ imprisonment is appropriate to
reflect the totality of your offending.
Aggravating factors relevant to you
[37] Mr Arioka, before this offending occurred you had only two previous convictions, both from 1990. One was for burglary and the other for unlawful taking. Both resulted in fines. As your criminal history is not relevant to the present offending, I will not take it into consideration.
Mitigating Factors (s 9(2) of the Sentencing Act 2002)
Pre-Sentence Report
[38] Mr Arioka, a pre-sentence report has been prepared by the Department of Corrections to assist me in sentencing you. You are currently 46 years old and are of Cook Island descent, but you have lived in New Zealand since your teenage years. You have been unemployed since 2010, and consume alcohol and cannabis in large quantities and on a regular basis.
[39] In the interview you contested what you said were discrepancies in the summary of facts. You denied giving Complainant B a pornographic magazine and that you tried to rape her, and you denied telling her to hold your penis. You admitted that you were drunk at the time and that, as you put it, “your mind was gone”. You were however unable to explain why you offended in a public park. The report writer could not gain insight into your reasons for sexual connection with these pre- pubescent girls.
[40] The report writer was of the opinion that alcohol abuse and a generally unhealthy lifestyle were contributing factors to the offending. Since being in custody you have expressed some motivation to address your alcohol and drug dependencies.
[41] The report writer notes that you have expressed feelings of guilt towards the girls and their parents, hoping one day to earn their forgiveness.
[42] The report writer assessed your risk of re-offending, based on your overall history of offending, being medium. The risk of harm you pose to the community is assessed as high. A sentence of imprisonment was recommended.
Remorse
[43] Your counsel says that you feel guilty for what has occurred and a discount for remorse was warranted. The Crown made no comment on this point. However, I am not persuaded that you feel true remorse. This is due to the fact that you denied your offending, or parts of your offending, even after you had pleaded guilty; for example during your meeting with the pre-sentence report writer when you denied attempting to rape Complainant B, despite having pleaded guilty to that charge. For these reasons, a discount for remorse is not appropriate.
Guilty plea
[44] Mr Arioka, you pleaded guilty on the morning of your trial. That cannot be reasonably considered as early. However, I acknowledge that your plea has saved the complainants and their families from having to give evidence and being subjected to the cross-examination. This is particularly so in respect of Complainant A, for whom the experience of the trial may have been particularly difficult to bear, due to her autism and ADHD.
[45] The Crown proposed, and the defence supported, a discount of up to10 per cent for the guilty plea. I consider this to be appropriate.
[46] That brings the sentence down to 10 years and nine months’ imprisonment for
each charge to be served concurrently.
Minimum period of imprisonment (s 86 of the Sentencing Act 2002)
[47] If an offender receives a determinate sentence of imprisonment of more than two years, the court may order that the offender serve a minimum period of
imprisonment (MPI) that is longer than one-third of the length of the sentence.18
18 Parole Act 2002, s 84(1) (the default period).
[48] The court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum is insufficient to either hold the offender accountable for the harm done, denounce the conduct, deter the offender or others, or to protect the community.19 An MPI must not exceed two-thirds of the full term of the sentence.20
[49] The purpose of the imposition of minimum period of imprisonment has been stated as follows:21
[Section] 86 provides the mechanism to constrain that outcome where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no on-going safety risk. It enables the courts to give a degree of reality to the sentence and the outcome.
[50] The central consideration is the offender’s level of culpability, which is increased by unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences.22 The sentencing considerations set out in ss 7, 8, and 9, including the circumstances of the offender, are relevant in fixing an MPI.23
[51] Mr Arioka, you have been assessed as being at medium risk of reoffending and posing a high risk to the community. You committed serious offending against two young and vulnerable victims, one of whom has autism. The facts of the case do not support the idea that the offending was opportunistic. There is a significant number of aggravating factors present. While you have demonstrated some understanding of the offending, you nevertheless pleaded guilty at the eleventh hour and after the conviction denied some of the charges against you. I consider that the sentence you actually serve should reflect the harm you have caused to the victims by your offending and should promote in you a sense of responsibility for that harm.
Given your assessment as posing a high risk to the community and a medium risk of
19 Sentencing Act 2002, s 86(2).
20 Section 86(4)(a).
21 R v Brown [2002] 3 NZLR 670 (CA) at [28].
22 At [32].
23 At [27].
reoffending, I consider that there is a significant interest in protecting the community from your further offending.
[52] For these reasons, I consider that an MPI of 50 per cent should be imposed.
Result
[53] Mr Arioka, please stand.
[54] You are sentenced to 10 years and nine months’ imprisonment on the sexual violation charges. You are sentenced to five years and four months on the attempted rape charge and three years on the balance of the charges. The sentences are to be served concurrently. A minimum period of imprisonment of 50 per cent is imposed.
[55] Mr Arioka, you may now stand down.
JA Faire J
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