R v Brady

[2013] NZHC 199

PUBLICATION OF NAME(S) OF IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-003962 [2013] NZHC 199

THE QUEEN

v

TIMOTI MARTIN BRADY

Appearances: M R Harborow for Crown

J J Corby for Accused

Judgment:      14 February 2013

SENTENCING NOTES OF COURTNEY J

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – M Harborow

Counsel:             J J Corby, P O Box 105495, Auckland 1143

Fax: [phone] – Email: [email protected]

R V BRADY HC AK CRI-2012-004-003962 [14 February 2013]

[1]      Timoti Martin Brady, you appear for sentence today on two charges of sexual violation by unlawful sexual connection and one of sexual violation by rape.  Each of these offences carries a maximum penalty of 20 years imprisonment.

[2]      These  offences  occurred  over  a  number  of  hours  on  the  evening  of  31

October 2011.  You had set out in your vehicle alone in the hope of picking up a young woman and having sex.  You saw the complainant, R, sitting outside the Glen Eden shops and you invited her into your vehicle.  At the time R was 15 and you were 24.  It is likely that you did not know exactly how old R was but it would have been clear to you that she was much younger than you, somewhere in her mid-teens. You purchased liquor and you drove to Eric Armishaw Park in Point Chevalier.  The two of you drank some liquor and there was sexual activity between you.  I note here that you were originally charged with seven counts of unlawful sexual activity but convicted on three.  I am unable to conclude from the mere fact of the acquittals on the other charges, however, that the rest of the sexual activity was consensual.

[3]      At some point, it is, however, clear that R was not consenting.  The first of the offences occurred at Eric Armishaw Park when R was, as she described it, lying on her stomach crying.  You pulled down her pants and inserted your penis into her anus.   R described this as the sorest thing she had ever experienced.   Subsequent examination disclosed tears in the anal canal and wider area.   Full examination of that area was impossible because of the reported pain.  Later the next day her sister noticed that she had difficulty walking.  The contemporaneous pain and the trouble she had walking the following day is the reason I associate her injury with the violation rather than some other reason as suggested by your counsel.

[4]      A little later, still in the same park, you engaged in oral sex with R.  The jury rejected your claim that this activity was consensual.   R’s account was that you forced her mouth open and put your penis into it, and she was choking and crying. You told her to put her tongue out and when she refused you ejaculated on her face. Because she tried to move her head at that time your semen ended up on her face and neck and sweat shirt.  She said you laughed.  Subsequent forensic examination of R’s hair and clothing confirmed the presence of your semen on these areas.

[5]      At some point during the evening you drove to Walker Park and had sexual intercourse with her.  The jury rejected your account of consensual sex.  R described herself as being blurry at that time, having had more alcohol by then, and said she was probably just crying during the rape, unable to do anything else.

[6]      At about 1 o’clock the following morning you dropped R at a bus stop with the promise that you would come back with a blanket, which you did not do.  She was left to walk approximately 2km to a house where she knew the occupants.

[7]      The  objective  in  sentencing  in  a  case  like  this  is  to  hold  the  offender accountable for the harm done and promote a sense of responsibility for that harm, denounce that conduct, deter the offender and deter others from committing like offences.[1]    I am required to take account of the principles identified by s 8 of the Sentencing Act 2002.   Of particular relevance in this case are the gravity of the offending, the seriousness of the type of offence, the  desirability of consistency in sentencing with other cases and the effect of the offending on the victim.

[1] Section 7(1)(a), (b), (e) and (f) Sentencing Act 2002.

[8]      I am also guided in sentencing by the Court of Appeal’s decision in R v AM.[2]

That case identifies factors that are relevant in determining an appropriate sentence. These include whether there was a degree of planning or premeditation, the extent of harm to the victim, the scale of the offending and the degree of violation.  The case also provides a range of appropriate starting points that depend on the nature and seriousness of the offending.  For offending at the lower end of the spectrum where aggravating features are either not present or present only to a limited extent, the offending will be regarded as falling within what is described as band 1, which attracts a starting point of six to eight years.  Where the scale of the offending, levels of violence or premeditation are, in relative terms, moderate, the offending is to be viewed as falling within band 2.  It attracts starting points of between seven and 13 years.

[2] R v AM [2010] NZCA 114; [2010] 2 NZLR 750.

[9]      Mr Corby, on your behalf, has submitted that your offending should attract a sentence of five years imprisonment.  This would place it at the bottom of band 1

and I do not accept that that would fairly characterise your offending.  R was only

15.  It must have been apparent to you that she was much younger.  You deliberately gave her alcohol knowing that it was more likely to result in her agreeing to sex and certainly by the time of the rape in Walker Park it would have been obvious to you that she was not only extremely tired but also badly affected by the alcohol.   The offending occurred over many hours even excluding the period at the beginning of the evening where there was sexual activity that has not resulted in a conviction.  By the time you got to Walker Park it would have been obvious to you that there had already been two serious incidents of non-consensual sex before you embarked on the rape.  I have already noted the physical injuries that R sustained as a result of the anal sex.   That offending and the forced oral sex brought with them a level of indignity to a 15-year-old that I view seriously.

[10]     R’s  victim  impact  statement  speaks  of  her  feeling  some  guilt,  anger, confusion, embarrassment that she still has and will no doubt have for a very long time.  I am satisfied that your offending falls within band 2.  I take Count 3 as the lead  offence  because  of  the  injuries  that  were  sustained.    I  consider  that  an appropriate starting point for that offence is eight-and-a-half years and I uplift that by a year to reflect the totality of the offending, namely the extra two offences that you were convicted of.   This would result in an end sentence of nine-and-a-half years.

[11]     There are no factors that I could take into account in mitigation that would justify reducing that term.  Your counsel has identified your relative youth.  At 24, I do not accept you should be entitled to a discount to reflect youth.

[12]     Your  counsel  has  also  put  before  me  a  witness  statement  relating  to  an incident a week or so after these offences when R got into your vehicle along with some friends.  There is no basis on which I could take that statement into account. But even if I were to do so it would not alter any of the facts that are significant to this sentencing and it would not alter my outcome.

[13]     I note that you have previous convictions though not of a kind that would require recognition by way of uplift.  Because of those though, you are assessed as being of medium risk of re-offending.  On the other hand, it is encouraging that you have not been convicted of other sexual offences before now.  It seems to me that a

significant  contributing factor to  your offending is  your obvious sense that  you should  be  entitled  to  get  what  you  want  sexually  and  a  contemptuous  attitude towards women as mere providers of whatever sexual gratification you happen to want.  I note from the pre-sentence report that you are coming to realise that your attitudes are damaging and unacceptable.  It would be worthwhile for you to engage in  rehabilitative  counselling  either  during  your  term  of  imprisonment  or  upon release.

[14]     The end result is that on the charge of unlawful sexual connection by anal penetration I impose a term of imprisonment of nine-and-a-half years; on the charge of sexual violation by unlawful sexual connection through oral sex and on the charge of sexual violation by rape I impose charges of eight years each, these sentences all

to be served concurrently.

P Courtney J