R v Bashir

[2012] NZHC 3135

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-020026 [2012] NZHC 3135

THE QUEEN

v

MOHAMED ALI BASHIR

Hearing:         22 November 2012

Counsel:         S N B Wimsett and M R Walker for the Crown

N S Leader and K M P Noordhof for the Prisoner

Judgment:      22 November 2012

SENTENCE OF DUFFY J

Solicitors:    Meredith   Connell   P   O    Box   2213   Shortland   Street   Auckland   1140 (DX CP24063) for the Crown

Public Defence Service P O Box 90243 Victoria Street West Auckland 1142 (DX CP10025) for the Prisoner

R v BASHIR HC AK CRI-2011-004-020026 [22 November 2012]

[1]      First, Mr Bashir, I must give you a first strike warning.  The consequences of the first warning are these.

[2]      If  you  are  convicted  of  any  serious  violent  offence,  except  a  murder, committed after you receive the first warning, you will receive a final warning.  In addition, if the judge imposes a sentence of imprisonment for that offence, other than life imprisonment for manslaughter, or preventive detention, then you will serve that sentence without parole or early release.

[3]      If  you  are  convicted  of  a  murder  committed  after  you  receive  the  first warning, you will be sentenced to imprisonment for life.  You must serve the life sentence without parole, unless it would be manifestly unjust to do so.  If you receive a life sentence without parole, you will not be released from prison.  If serving the sentence without parole would be manifestly unjust, the judge must specify the minimum term of imprisonment you will serve.

[4]      I now turn to deal with the sentencing.

[5]      You were to be sentenced this morning with your co-offender, Abdinor Abdi. However, your counsel was concerned about your mental state, and so the sentencing was stood down for you to be assessed by a forensic mental health nurse.   The outcome  of  that  assessment  is  set  out  in  a  Minute  in  which  I  found  that  the sentencing should proceed today.

Offences

[6]      Mr Bashir, you were found guilty of the following charges by a jury: (i)       One charge of rape on 4 June 2011; and

(ii)      Three charges of being a party to rape, also on 4 June 2011. [7]           Convictions on these charges have been entered against you.

Facts

[9]      I am satisfied from the evidence heard at the trial and the verdicts of the jury that the background to the offending is as follows.

[10]     At  approximately  10:30  pm  on  4  June  2011,  the  victim  was  at  the Twenty Four Seven Bar in Auckland.  In the bar she met a group of African men, one of whom was the co-offender, Mr Abdi.   It is not clear from the jury’s verdicts whether you were with the group at the time or not; but, in any event, that does not matter.  The verdicts show you were present and a participant at the location where the rapes of the victim occurred. As part of the background to the offending, it needs to be noted that the men at the bar talked to the victim and played pool with her.  She became parted from her friends, one of whom was called Betty.  The men invited her to look outside for her friend.  She left the bar.  She crossed Karangahape Road and was followed by the African men from the bar.

[11]     The men walked the victim towards a vehicle that was parked close to the bar and forced her into the vehicle.  One of them was Mr Abdi.  She did not want to get into the vehicle, but she had no choice.  Her protests were ignored.  She was driven to a park outside of the central city area.  In this unknown park, she was allowed to get out of the vehicle.  She tried to run away from the men; she screamed, but no one came to assist her.

[12]     She was forced back into the vehicle and was taken to an unknown address, which she described as a garage.   In the garage, she was taken to a curtained-off area.  There was a bed there.  Her clothes were removed by the driver of the vehicle. She was held down by another male who had been in the bar with her.   She was forced to perform oral sex and was raped by the driver of the vehicle.  Then another man, whom she described the men present referring to as “skinny mate”, raped her. The jury’s verdict shows that this man was you, Mr Bashir.  This rape also took place on the bed behind the curtained-off area.  Following that, you left the area and went into the other part of the garage, where the victim describes seeing you sitting there,

drinking.   She gave this evidence when she described how, having been raped by Mr Abdi, she was then forced to then leave the area where the bed was and go into the part of the garage where all the men were sitting, drinking and laughing, and she had to dance naked in front of them.  She was then led back to the bed by Mr Abdi and another unknown male, who then raped her.  Throughout these sexual assaults, she tried to fight off the offenders, and she made it clear that she was not a willing participant.  However, she became exhausted; she gave up; she allowed the acts of rape to take place.

Victim impact statement

[13]     The offences have seriously affected the victim.   She expresses her fear of going out and her inability to sleep at night; she says that, instead, she sleeps during the day.   She has attempted to reduce her attractiveness to men, in order to make herself safe from any unwanted advances.  She can no longer enjoy activities that she used to.  Now, when she goes past certain buildings that remind her of the events, she starts crying, gets really tense, and her hands start shaking.   She says she no longer trusts anyone and has become snappy and grumpy with her friends because she always feels unsafe and scared.  The stress of the trial has set her back in her studies.

[14]     She feels angry and upset towards you, Mr Abdi and the other offenders, and states that you need to get help so that no one else is at risk of going through what she went through.

[15]     Her fear of going out at night has affected her ability to think about getting employment.  She used to work night shifts at a supermarket.  She requires ongoing counselling and that is presenting something of a financial burden for her, as she must  contribute  a  surcharge  towards  the  costs  of  the  counselling,  which  are otherwise met by the Accident Compensation Corporation.

Prior Convictions

[16]   Mr Bashir, you have 18 previous convictions: two assault with a blunt instrument charges that post-date the present offending.

Pre-Sentence Report

[17]     The pre-sentence report shows that you have no insight into your offending, nor do you have any understanding of the enormity of the offending as viewed by the community in which you now live.  That lack of understanding has been confirmed today, in terms of your discussions with the forensic health nurse, who you saw earlier this morning.

[18]     You are 25 years old and are of Somalian descent.  Your mother resides in Perth, Australia, and you have no contact with your father.  You describe yourself as a devout Muslim.

[19]     The pre-sentence report writer says that you have the attitude that it is a man’s entitlement to “have a woman” to meet your sexual and personal needs.  I also note that you have expressed no remorse for the offending and, indeed, you have said that the victim was “going along with the fun”.  There is nothing to indicate that you are prepared to change your pattern of thinking.

[20]     You maintain that you did not rape the victim.   You claim that you had consensual sex. You have sought to minimise your offending.

[21]     The pre-sentence report writer has assessed you as being at a medium risk of re-offending.

Relevant purposes of sentencing (s 7, Sentencing Act 2002)

[22]     In terms of the purposes and principles of sentencing, the relevant purposes of sentencing are:

(i)To hold you accountable for the harm done to the victim and the community (s 7(1)(a));

(ii)To     make     you     recognise     responsibility     for,     and acknowledgement of, that harm (s 7(1)(b));

(iii)     To provide for victims’ interests (s 7(1)(c));

(iv)To denounce your conduct (s 7(1)(e)) and to deter others and yourself from future such conduct (s 7(1)(f));

(v)      To protect the community (s 7(1)(g)); and

(vi)There is the question of your rehabilitation and reintegration into the community (s 7(1)(h)).

Relevant principles of sentencing (s 8, Sentencing Act)

[23]     In  terms  of the relevant  principles  of sentencing,  here it  is  important to recognise:

(i)The   gravity   of   the   offending,   including   the   degree   of culpability (s 8(a));

(ii)      The seriousness of the type of offence (s 8(b));

(iii)     Consistency with appropriate sentencing levels (s 8(e));

(iv)     The effect of offending on the victim (s 8(f)); and

(v)I must impose the least restrictive outcome appropriate in the circumstances (s 8(g)); and

(vi)I should consider your personal, family, whanau, community, and  cultural  background  where  rehabilitation  is  a  purpose (s 8(i)).

Aggravating and mitigating factors (s 9, Sentencing Act)

Aggravating factors of the offending

[24]     In  terms  of  the  aggravating  and  mitigating  factors  in  relation  to  your offending, I see no further aggravating factors, other than factors that are inherent in the type of offending.

[25]     Nor do I see any mitigating factors.

[26]     In terms of aggravating factors relating to you, there are the prior convictions, but I do not propose to take them into account.

[27]     There are no mitigating factors relating to you.

Submissions

Crown submissions

[28]     The  Crown  has  submitted  that  a  starting  point  of  16  to  17  years’ imprisonment is appropriate for you.  The Crown submits there should be a slight uplift for subsequent violent offending.  The Crown requests a minimum period of imprisonment of 50 per cent.

Mr Bashir’s submissions

[29]     Your counsel  has submitted  that  an  appropriate starting point  for  you  is between 14 to 15 years’ imprisonment, which is on the high end of band three of the tariff decision in R v AM [2010] NZCA 114, [2010] 2 NZLR 750. Your counsel submits that there are no aggravating or mitigating features personal to you, and submits that no minimum non parole period should be imposed.

Tariff Case: R v AM

[30]     R v AM is the guideline judgment which applies to all rape sentencing taking place after 31 March 2010 (at [125]). The Court of Appeal recognised that the new guidelines would alter previous sentencing levels (at [33]):

We anticipate that under the reformulated guidelines, some offenders (particularly those whose offending was not characterised by aggravating features) may receive lesser sentences than would be imposed under the current practice, while others will receive longer sentences. That is an intended effect because the objective is to ensure properly graduated sentencing and avoid the current clustering of sentences around the eight- year mark. Overall sentencing levels should not change appreciably.

[31]     Accordingly, it is not useful to compare the present offending with cases that pre-date R v AM.  To do so defeats the purpose of the guideline judgment, and could result in a sentence that is out of step with that guideline judgment.   Pre-R v AM cases are only to be used by reference to the guidelines set out by the Court of Appeal, rather than as a purely comparative basis.

[32]     In R v AM, the Court of Appeal sets out four bands of offending for rape and analogous sexual offending, and three bands for other types of unlawful sexual connection.  For each band, the Court describes the features of the offending which might be present at the lower and higher end of the band. These bands are:

(i)Band one, which carries a sentence of six to eight years’ imprisonment,  where  aggravating  features  are  either  not present or present to a limited extent only.

(ii)Band two for rape, which carries a sentence of imprisonment of seven to 13 years, where two or three aggravating features are present: a moderate scale of offending, levels of violence, and premeditation, covers offending involving a vulnerable victim, or an offender acting in concert with others or some additional violence.

(iii)     Band three, which carries a sentence of imprisonment of 12 to

18  years,  aggravating  features  at  a  serious  level.     The offending involves two or more of the factors increasing culpability to a high degree, particularly vulnerable victim and serious additional violence, or more than three factors to a moderate degree.  This includes particularly cruel, callous, or violent single episodes of offending involving rape.

(iv)Band four is the final band, which carries a sentence of imprisonment  of  16  to  20  years.     Here,  the  aggravating features are of a similar type to the higher levels of band three, but involving multiple offending over a considerable period of time, rather than a single instance of rape.  Repeated rapes of one or more family members over a period of years, especially when involving children and teenagers, will attract a starting point at the higher end of band four.  Gang or pack rape will also likely fall within band four.

[33]     According  to  the  Court  of  Appeal,  aggravating  features  that  may  be considered include:

(i)       Planning and premeditation:

This is relevant here to some extent in that it would have been clear to you from the outset when you were in the garage what was likely to happen.

(ii)Violence, detention and home invasion are also seen as aggravating features.

This is relevant here as regards the detention of the victim, because she was  detained  in  the garage from  the Saturday night until the Sunday morning.

(iii)     Another aggravating feature is the vulnerability of the victim.

I consider that there is some minimal vulnerability here over and above that which would be associated with a woman finding herself in a situation where she was being raped.  Here, at the time of the offending, the victim was living in a night shelter, which suggests to me that she was at a particularly vulnerable time of her life.

(iv)Harm to the victim is another aggravating feature, but here, I do not consider that there was any harm over and above that which is inherent in this type of offending.

(v)      Multiple offenders are also an aggravating feature.

The Court of Appeal has said that gang or pack rape may fall within the highest rape band, despite the absence of other aggravating factors.   The role and extent of participation by each offender will be relevant in assessing individual culpability.

(vi)The scale of the offending is also an aggravating feature and here, I consider this relevant in the sense that the victim was detained  from  Saturday  evening  until  Sunday  morning  and over this time subjected to multiple rapes.

(vii)The only other factor that I consider to have some feature here is  the fact  of whether there has  been  a  mistaken  belief  in consent.

In this case, you have said to the pre-sentence report writer that you considered that the victim was simply “going along with the fun”.  I consider that any belief you had regarding her consenting to what occurred that night was grossly unreasonable.

Relevant cases

[34]     Although R v AM stated that tariffs set in previous cases are less relevant now, the Court did cite R v Koroheke CA189/01, 28 November 2001 as an example of a case that should be at the lower end of band four.  This case involved a group of offenders, who were gang members, who went to a house where the victim and an older woman lived.  They tricked the older woman to leave so that the victim would be alone.  They then forced the victim into a car and drove to the home of one of the offenders.

[35]     At the home, the victim was forced into a double garage.   She was then forced to do a number of degrading things.   These included being forced to masturbate herself.  There were multiple sexual violations lasting some two and a half hours.   She was forced to perform oral sex on four of the offenders, and her vagina was penetrated by a hammer handle.  There were also two attempts at penile penetration.  At some point during the attack, the offenders stood around the victim chanting “seig heil”, barked like dogs while they watched and spat on her body, and abused her verbally.

[36]     The Court considered that an end sentence of 16 years’ imprisonment was appropriate.  R v AM has confirmed this case as representing a classic case for band four offending, stating at [111] that:

In Koroheke, the planned abduction, high degree of degradation, youth of the complainant, and the active involvement of multiple offenders makes the offending both brutal and particularly humiliating and degrading.

[37]     An older case that related to a pack rape was R v Misitea [1987] 2 NZLR 257 (CA). Although the sentencing levels are not comparable, the Court’s attitude towards pack rape can be discerned from some of its comments.

[38]    None of the men who were convicted were proven to have had sexual connection with the woman.   They merely aided and encouraged.   In imposing a sentence of 10 years’ imprisonment, the Court of Appeal observed that:

Each man who joins in the gang activity by any form of encouragement or help contributes to the ongoing wave of crimes. Each must know this very well. It is a process of group stimulation. There is mutual encouragement to reject civilised standards of human decency. The victim and community are treated with arrogant contempt.

Analysis

[39]     Mr Bashir, you did not participate in the threat to kill, or in forcing the victim to dance naked.  You were not found guilty of abduction.  Thus, your culpability is lower than that of Mr Abdi.  However, there are the aggravating features of:

(i)       Being a participant in a pack rape;

(ii)At the least, being a party to the continued detention of the victim; and

(iii)Being a party to the humiliation of the victim, as you were present and watched when she was forced to dance naked in the garage.

[40]     This leads me to conclude that I should place your offending towards the top end of band three.  I propose to adopt a starting point of 15 years’ imprisonment.  I note that in R v AM, the Court of Appeal said that gang or pack rape may fall within band four, despite the absence of other factors, and the Crown has urged me to see matters in this way.  However, I do not think that the features of violence, brutality

and callousness that can lead to participation in a pack rape being sufficient in itself to warrant placement in band four are present with this particular pack rape.  When the aggravating features are taken into account, I consider the gravity of your offending is such that you should be placed in the top end of band three.

[41]     I disagree with the Crown that the assault convictions deserve a small uplift, as  they were not  related  to  sexual  offending.    However,  there  can  be  no  good character discount.   As there are no personal features that warrant an uplift or a discount, this leaves a final sentence of 15 years’ imprisonment.

Minimum period of imprisonment: Sentencing Act, s 86

[42]   I now turn to consider whether there should be a minimum period of imprisonment.

[43]     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, which is a minimum period that is longer than one-third of the length of the sentence.

[44]     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 protect the community.

[45]     A minimum period of imprisonment must not exceed two-thirds of the full term of the sentence.

[46]     The purpose of the imposition of minimum periods of imprisonment has been stated in R v Brown [2002] 3 NZLR 670 at [28]:

[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.

[47]    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: see R v Brown at [32]. The sentencing considerations in ss 7, 8, and 9, including the circumstances of the offender, are relevant in fixing a minimum period of imprisonment: see R v Brown at [27]; R v Nguyen [2009] NZCA 239; R v Gordon [2009] NZCA 145; and R v Walsh (2005) 21

CRNZ 946 (CA).

Analysis

[48]     There is no doubt that offending that can be placed in the upper end of band three of R v AM is inherently brutal and callous to some extent.   The question is whether the one-third default minimum is insufficient to hold the offender accountable for the harm done, denounce the conduct, deter the offender or protect the community.

[49]     Mr Bashir, on the basis of what you revealed of yourself, both to the pre- sentence report writer and to the forensic health nurse, I consider that the one-third minimum is not enough.  You have no insight whatsoever into your offending.  You have attempted to blame the victim for what occurred.  Your attitude that you are entitled to use a woman to satisfy your sexual needs is an attitude that is dangerous for society.  It indicates that you are not likely to accept responsibility for what you have done and to not re-offend in the future if released after only serving one-third of their sentence.

[50]     I consider that the gravity of the offending in this case, coupled with the attitude that you have displayed, warrants the imposition of a 50 per cent minimum period of imprisonment.  This amounts to a minimum period of seven years and six months’ imprisonment.

Result

[51]     Mr Bashir, please stand.

[52]     On the lead offence of rape, you are sentenced to 15 years’ imprisonment, with a minimum period of imprisonment of seven years and six months.   On the three offences of being a party to rape, you are sentenced to 12 years’ imprisonment for each such offence.  All sentences are to be served concurrently.  That means the total sentence you will receive is one of 15 years’ imprisonment, with a minimum period of seven years and six months’ imprisonment.

[53]     Please stand down.

Duffy J