R v Chetty

[2018] NZHC 827

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-092-012741

[2018] NZHC 827

THE QUEEN

v

SATYAM CHETTY

Hearing:	27 April 2018
Appearances:	K E Hogan for Crown S Lance for Defendant
Judgment:	27 April 2018

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Manukau Counsel:  S Lance, Auckland

R v CHETTY [2018] NZHC 827 [27 April 2018]

[1]    Satyam Chetty you are for sentence in this Court having pleaded guilty to one charge of sexual violation by rape. The maximum penalty for such offending is 20 years’ imprisonment. You are currently a serving prisoner. You are serving a sentence of six years, two months on an earlier charge of sexual violation.

[2]    Your offending raises the issue of whether the Court is required to impose a sentence of preventive detention on you. But first the background to the current offending. On the evening of 1 April 2016 the complainant, a young 13 year old girl, was on a roadside near a mall in Manukau. You offered her a lift. She got into the rear of the car. You drove her to a park. Once at the park you climbed into the rear seat with her. She was unable to get out of the car. You then forcibly raped her despite her trying to push you away and telling you to leave her alone. Afterwards you drove her back towards the mall where she contacted the Police.

[3]    You are 43 years old. At the time of the offending you were 41. You are 28 years older than the young victim.

[4]    The sentence the Court imposes on you should promote in you a sense of responsibility for your offending against the victim. It should promote in you an acknowledgement of the harm you caused to her. It is also important to denounce such predatory conduct and to deter you and others and to protect the community from you, a matter to which I shall return.

[5]    Your offending falls within band 2 of the case of R v AM, a Court of Appeal decision.1 I accept Mr Lance’s written submission that the offending was not planned and was to a degree opportunistic. But given the vulnerability of the victim and the difference in your ages, a starting point in the region of nine years would be required with an uplift of one year to reflect the fact that at the time of the offending you were on bail for similar offending.

[6]    The circumstances of the earlier offending have some similar features of the opportunistic rape in this case. It occurred in early 2014. You met the victim, a young woman in a bar at a hotel in central Auckland. She was with her cousin. They were

1      R v AM [2010] NZCA 114.

asked to leave the bar. They then saw you again outside a local takeaway bar. All three of you decided to go to another bar on Queen Street. In the early hours of the morning you offered to drive them home. You stopped at a petrol station in Takapuna for petrol. You left the cousin at the petrol station. You then drove the victim across the road to a supermarket carpark. On her evidence she was unconscious due to her intoxicated state. She awoke to find you having sexual intercourse with her. She told you to get off which you did shortly afterwards. She said you then pushed her head down to make her perform oral sex on you but she resisted. You then drove her home. You were sentenced ultimately to imprisonment for six years, two months on that charge. In imposing the sentence the Judge gave a reduction for restrictive bail conditions.

[7]    Taking account of that previous offending the starting point for the present offending would be a determinate sentence of 10 years. However, allowing a 25 per cent discount for your guilty plea which avoids the need for trial, and importantly, avoids the need for the victim to have to relive your offending and to give evidence, a finite sentence of seven and a half years would be applicable for this offending in this case.

[8]    However the Court is directed by the Sentencing Act 2002 to take account of the issue of totality. The issue of totality arises given that you are currently serving a sentence. The total nominal sentence of the seven and a half years with the current sentence would be in excess of 13 and a half years. To reflect the totality of the offending I consider that after taking account of your guilty plea in this case, as the Crown submits, an end sentence equating to 10 years for both offences is appropriate. That can be achieved by imposing a cumulative sentence of three years, 10 months to commence on the expiry of the sentence you are currently serving.

[9]    However, before finalising your sentence the Court is required to consider whether to impose a preventive detention sentence given your offending. When considering whether to impose a sentence of preventive detention the Court is directed to take into account:

(a)the pattern of serious offending disclosed by your history;

(b)the seriousness of the harm to the community caused by your offending;

(c)any information indicating a tendency to commit serious offences in the future;

(d)the absence or failure of efforts by you to address the cause or causes of your offending; and

(e)the Court is directed to bear in mind the principle that a lengthy determinative sentence is preferable if this provides adequate protection for society.

[10]   As noted Mr Chetty you do have a history in that you previously offended in a similar way in 2014. However, prior to that your only other offending was a common assault in 2002 for which you were sentenced to supervision.

[11]   The seriousness of the harm to the community and the victim caused by offending of this nature, serious sexual violation by rape, cannot be overstated. It impacts on the victims and in this case a young victim, for a considerable period of time, if not for their entire life. The effect on the victim in this case is clear to see from her victim impact statement.

[12]   The Court called for reports under s 88(2) of the Act to assist its consideration of whether you have a tendency to commit serious offences in the future. Dr Allan, a registered clinical psychologist, considers that based on a multi-method assessment, involving an evaluation of both static and dynamic risk predictors, your risk of future violent and/or sexual offending is moderate to low. She notes that your offending is late onset, uncharacteristic of your general persona and opportunistic in nature. In her opinion the risk of future offending could be mitigated provided you can be made to appreciate the gravity, the seriousness of your actions by treatment. The risk of future offending could therefore be managed and reduced through effective treatment, which should be available to you. Importantly the doctor notes your overall lifestyle does not appear to have been characterised by sexual deviancy.

[13]   Dr Ian Goodwin, a consultant psychiatrist, assesses your risk of offending to be at least moderate in the future, although he notes you have not yet undertaken any treatment for adult sexual offending, and have stated a willingness to do so. It is relevant, again he notes you have not had any previous treatment and your rehabilitative needs are yet to be addressed.

[14]   In the pre-sentence report the probation officer notes the concerns regarding your attitudes of entitlement, and considers you attempted to minimise the offending, saying you suggested it wasn’t in your nature and your mind went blank when it happened. The message that emerges is that your acceptance of and remorse for your offending appears superficial, but you have stated a motivation to change and engage in rehabilitative programmes. Your life experiences are unremarkable. While you were married for a time you have not seen your partner for some time and you have two children yourself. You have been unemployed for some time.

[15]   If a determinative sentence is imposed, it is relevant that it will be an effective sentence of 10 years which will not expire until July 2026.

[16]   Mr Lance has argued strongly in his written submissions preventive detention is not required. In light of the information in the specialist medical reports in particular, the Crown does not pursue a sentence of preventive detention. But ultimately it is a matter for the Court.

[17]   On balance I am satisfied, just, that it is not necessary at this point in time to impose a sentence of preventive detention on you, and that the lengthy determinative sentence of imprisonment as a result of the totality of this and the previous sentence will address the purposes and principles of the Sentencing Act at this time.

[18]   In my judgment it is particularly relevant that you have not yet had the opportunity to engage in any programme to enable you to address your offending. The length of time you will spend in prison will enable you to attend such programmes and I note your willingness to do so. That will be of fundamental importance to your rehabilitation.

[19]   There is also the possibility of an Extended Supervision Order on your ultimate release if that is still considered necessary.

[20]Mr Chetty please stand.

[21]   On the count of sexual violation by rape you are sentenced to imprisonment for a period of three years, 10 months, that is to be cumulative on your existing sentence of imprisonment for sexual violation by rape that you are currently serving.

[22]   I also impose a minimum period of imprisonment of 50 per cent on the present charge to address the need to denounce and deter such conduct and to protect the community, particularly young women.

[23]   The Crown offer no evidence in relation to the charge of unlawful detention. You are discharged under s 147 in relation to that charge.

[24]Stand down.

Venning J