R v Chetty
[2016] NZHC 1957
•22 August 2016
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-044-1222 [2016] NZHC 1957
THE QUEEN
v
SATYAM SIVAM CHETTY
Hearing: 4 - 8 July 2016 Appearances:
J Murdoch for the Crown
S Lance for the DefendantSentence:
22 August 2016
SENTENCING NOTES OF MUIR J
Counsel/Solicitors:
J Murdoch, Meredith Connell, Auckland
S Lance, Barrister, Auckland
R v CHETTY [2016] NZHC 1957 [22 August 2016]
Introduction
[1] Mr Chetty, you appear before me today to be sentenced in respect of one charge of sexual violation by rape for which you were found guilty by a jury on
8 July 2016. That same jury acquitted you on a charge of sexual violation by unlawful sexual connection. I am required to set out for the purposes of these sentencing notes something of the factual background, which I now do.
Factual background
[2] On 10 March 2014 the complainant, who I will refer to simply as MT throughout for the purposes of her anonymity, and her cousin had been drinking from approximately mid-afternoon. Late that evening they arranged to be driven to the inner city purchasing some additional alcohol on the way. They went to a bar at the Viaduct Harbour known as Danny Doolans where further alcohol was consumed. The video footage identifies MT dancing with Mr Chetty, at times closely. MT’s cousin was in due course asked to leave Danny Doolans on account of his intoxication and did so, eventually with MT. They met the defendant again at a local takeaway bar. There was some discussion about what other dance venues might still be open. They decided to go to the “White House” in Upper Queen Street which is styled as a “gentleman’s club”. Further alcohol was consumed by MT at that venue. At one stage she slipped as a result of intoxication and was assisted by the defendant. The defendant claimed in his police interview that MT also made overt sexual advances to him at the White House. MT has no recollection of that in the same way she has no recollection of large parts of the evening generally.
[3] At a time which is likely to have been somewhere between 2.30 am and 3.00 am MT, her cousin and the defendant left the White House. The defendant offered to drive MT to her home on the North Shore, it is said, as a result of a request to do so by MT. They stopped at Barry’s Point Road in Takapuna to get petrol which MT’s cousin was to pay for. He did not have funds to do so. He was seriously intoxicated and video footage indicates him at one stage remonstrating with the defendant in the forecourt.
[4] The defendant decided to drive off leaving the cousin at the service station. He then drove across the road to a supermarket car-park where he proceeded to have sexual intercourse with MT in the front passenger’s seat.
[5] MT said that she awoke from her alcohol induced slumber or unconsciousness to find the defendant having intercourse with her. She told him to get off which he did shortly afterwards. He then drove her home.
[6] It is implicit in the jury’s verdict that at the time the defendant penetrated MT she was either unconscious or asleep or so affected by alcohol that she did not have an understanding of her situation and the ability to make up her own mind.
[7] Although Mr Chetty initially maintained that the intercourse had been consensual and initiated by MT who had wanted “to do it”, in a subsequent part of his police interview, ultimately the subject of a successful Crown appeal to the Supreme Court of New Zealand, he acknowledged that when he started having sex with MT she was unconscious and that he had seen “the opportunity” to do so.
[8] He stated that he had not ejaculated because, while engaging in the sexual act, he had realised what time it was and that he had an early morning soccer practice to attend so he therefore elected to stop. In implicitly rejecting that account, the jury clearly regarded as far more likely MT’s evidence that the intercourse stopped when she became conscious and told the defendant to get off her. That appears to me to have been an entirely appropriate conclusion.
[9] It is accepted that beyond the violation itself, the offending was not characterised by any violence or other degradation of the defendant. She suffered no physical injuries. There was no damage to her clothing.
Victim impact statement
[10] MT has provided a detailed and, I found, moving victim impact statement. I do not intend to repeat the contents of that in full for the purpose of these sentencing notes. It is suffice to say that she says your actions have had a profound effect on her life. She describes what you did as haunting her to this day.
[11] Before the offending, she says that she was an outgoing young woman who enjoyed dancing and socialising. She felt confident, she says, about herself and her body.
[12] Although she acknowledges that she was a heavy drinker beforehand, she says that, after the rape, her addiction to alcohol and drugs “spiralled” out of control and she spent eight weeks in rehabilitation. She was diagnosed with a major depressive disorder and post-traumatic stress and continues to suffer ongoing anxiety and panic attacks. She says she has withdrawn from her family, friends and partner. Her partner is supportive, but she finds being intimate with him stressful in that it causes her to relive the experience she went through on the morning of 11 March
2014.
[13] She says her friends and family found it difficult to comfort her after the rape, and she felt shame and withdrawal. Her family watched her mental health decline, and she felt unloved, she says, and unworthy. She says also she felt judged by the community. She says that when walking down the street it was as if she had a sign on her saying “I was raped and now I am ashamed of who I am.”
[14] At her lowest point MT was at times homeless and was subsequently admitted to a psychiatric hospital, after attempting to kill herself with a deliberate overdose.
[15] She attempted to do a diploma in yoga but was unable to complete it due to her poor concentration and anxiety. She was required to go on a sickness benefit.
[16] She now resides in Australia. She continues to see a therapist and is on medication for anxiety and depression. She has a part time job for eight hours a week. She says her self-esteem continues to be very low and she struggles to hold down that job. She says she felt for so long that she was to blame for the rape but she has slowly learnt that she was not, and that no woman deserves to be raped.
[17] This was, she says, among the most traumatic experiences in her life. She states that “[you] took everything from me, and I hope to god that [you] never take that from anyone ever again.”
Personal circumstances
[18] I make some brief observations about your personal circumstances. You are a
41 year old male of Fijian Indian ethnicity. You have been married for 24 years and you have two children, aged 19 and 9 years. You have been unemployed since 2012. You do not have a criminal history of any note. You are a very keen and, it appears, able soccer player, who from the numerous references before the Court is valued not only for your ability, but also for your team spirit, your politeness, sociability and good humour.
Principles and purposes of sentencing
[19] I consider the principal purposes of sentencing which are engaged today are to promote in you a sense of responsibility for your offending against MT, and for you to acknowledge the harm you caused her. It is also important to denounce your conduct, deter you and others and to protect the community from you.1
[20] The act of having sex with a woman who is so intoxicated that she is unable consciously to consent to it, is behaviour that needs to be denounced Women have a right to consume alcohol. They have a right to do so without feeling afraid. They equally have a right to choose to engage in, or to refuse, sexual activity. When a woman is so intoxicated that she cannot make up her mind, or is asleep or unconscious, the law quite rightly criminalises sexual activity with her. However ill- advised it may be for young women to become intoxicated to that extent when there are, regrettably, people such as yourself prepared to take advantage of them, it does not minimise your offending. Indeed, as the Court of Appeal has recognised, it is an
aggravating factor of your offending.2
[21] It is also an important principle of sentencing that your sentence is consistent with other comparable cases and that I impose the least restrictive outcome possible in the circumstances.3
[22] I am guided by all those principles and purposes in sentencing you today.
Methodology of sentencing
[23] When deciding on an appropriate sentence I must consider first your offending in isolation, removed from any features personal to you. That will lead to a starting point for your sentence. I am assisted in setting that starting point by the case of R v AM, in which the Court of Appeal set out guidance for Judges by way of
sentencing ranges for sexual offending.4 Secondly, I must make any necessary
adjustments for features that are personal to you such as your essentially clean criminal record to date.
Setting a starting point
Crown Submissions
[24] The Crown submits that your offending had the following aggravating features:
(a) Planning and premeditation; it says you were with MT earlier in the night and observed her becoming increasingly drunk, that you offered her a ride home and when her cousin left the car planned to take advantage of her when she was unconscious and unable to consent to sexual intercourse.
(b)That MT was particularly vulnerable, being unconscious at the time of the rape.
(c) The harm caused to MT is an aggravating feature. It says that harm is inherent in this type of offending but it has been particularly acute for MT, as illustrated in her victim impact statement.
(d) A degree of breach of trust in that you implicitly promised to get MT
and her cousin home safely when they got into the car with you.
(e) And it refers in its written submissions although not emphasised in oral submissions today to the degree of penetration which was full.
[25] The Crown submits that on the basis of these features your offending falls towards the bottom of Band 2 as referred to in R v AM. It says that a starting point of nine years’ imprisonment is warranted to reflect the aggravating factors identified and, in particular, the vulnerability of the victim.5
[26] The Crown also seeks a minimum period of imprisonment (MPI) of at least
50 percent of the sentence imposed to hold you accountable and to denounce your offending.6
Defence submissions
[27] Your counsel responsibly accepts that an aggravating feature of your offending was that MT was significantly intoxicated. However, he submits that there was no breach of trust as this was not a case of familial, or a professional relationship which was abused. Further he says that there was little or no premeditation as there was no evidence of an intention to separate MT from her cousin until the latter became aggressive at the Barry’s Point Road petrol station.
The offending was therefore, he says, opportunistic.7
[28] Nor does Mr Lance accept that MT’s subsequent problems are solely attributable to the rape citing her prior issues with substance abuse. Today he has
provided me with a copy of an article from the New Zealand Herald where MT
5 Citing R v AM at [98]; Simpson v R [2016] NZCA 95.
recounts her battle with anorexia which in her teens resulted in her reaching a weight, at one stage, of as little as 26 kilograms. She made a brave recovery from anorexia but clearly has had some history of psychological problems. Mr Lance further points out that you maintain you had a mistaken belief in consent, which was genuine and which should also reduce your culpability.8
[29] He therefore submits that your offending falls within Band 1 of R v AM, and that overall a starting point of between six and seven years is appropriate.9
[30] As to mitigating features Mr Lance highlights that you have no prior relevant convictions. He also highlights that you have significant support from your family, wife and children. He submits these factors warrant a modest discount. He further submits that a MPI is not warranted, as this will be your first sentence of
imprisonment and there will be a relatively lengthy finite sentence in any event.10
Analysis
[31] Any sentence for serious sexual offending must necessarily recognise the framework established in R v AM. However, as the Court of Appeal itself said:11
[I]t is trite but important to emphasise that what is required is an evaluation of all the circumstances. Listing relevant factors and setting out bands in the way we have done does not remove the need for judgement. A mechanistic approach is not appropriate.
[32] The bands identified where the lead offence is rape relevantly include:12
(a) Band 1: 6-8 years; Band 1 is appropriate for offending at the lower end of the spectrum where the aggravating features identified by the
Court in R v AM are either not present, or present to a limited extent.
8 R v AM above n 4, at [55].
9 Citing:, Hutchins v R [2012] NZCA 173 where a seven year starting point was upheld. The victim was getting a ride home with the offender after the party and he digitally penetrated her and then raped her; and Taylor v R [2012] NZCA 348 where a seven year start point was given by the Court. The victim and offender where dancing and kissing consensually at a night club. They left together and ended up in an ally way where he raped her on the ground, he bit her after she tried to push him away.
10 Taylor v R [2012] NZCA 348 at [23].
11 R v AM above n 4, at [36].
It is not appropriate, said the Court of Appeal, where there is, for example, serious violence or a vulnerable victim.13
(b)Band 2: 7-13 years; Band 2 is appropriate in comparison where the level of offending is "moderate". It covers, for example, offending involving a vulnerable victim. There may be two or three of the aggravating factors present to a moderate degree.14
[33] In my assessment this case falls at the lower end of Band 2. I make that finding on the basis of the aggravating features which are present to varying degrees.
[34] First, and most significantly to my mind, is the vulnerability of MT who at the time of the offending was so intoxicated that she was unable to consent. She had at the time of the assault been drinking for almost 12 hours continuously with little or no food. She was, on her own account, drifting in and out of unconsciousness during the ride home from the White House. On the jury’s finding she was sufficiently intoxicated, to be unable to consent and/or unconscious, and I am satisfied that she qualifies as vulnerable. That is a seriously aggravating factor.
[35] In R v AM the Court held that Band 2 is appropriate for “offending involving a vulnerable victim, or an offender acting in concert with others or some additional violence.” It further said that Band 1 is not appropriate in circumstances where “a victim who by reason of factors such as age (children or elderly persons) or mental or physical impairment is vulnerable”.15
[36] In a more recent Court of Appeal case, Tahiri v R¸ the Court elaborated on the meaning of vulnerability in this context.16 There the victim had been drinking for many hours. She had also taken prescribed medication which, in combination with the alcohol had put her in a heavily sedated state.17 The defendant raped her in her own home where she had offered him a spare bed after he had been locked out of his
girlfriend’s house. The Court expressly rejected the submission that “self-induced”
13 R v AM at [93].
14 R v AM at [98].
15 At [93].
16 Tahiri v R [2013] NZCA 73.
vulnerability should be excluded as an aggravating factor,18 stating: “A person in an unconscious state as a result of alcohol or drugs is “helpless and defenceless” to the offending to which they are subjected.”19
[37] It also accepted the Crown’s submission that “it says something about the culpability of a person who abuses such situations”.20
[38] Nevertheless, the Court recognised that because the vulnerability was of a different kind than when the victim is very young, very old, mentally impaired or disabled, the eight year starting point in the decision under appeal was towards, said the Court, the “top of the available range”.21
[39] In Tahiri there was also a degree of breach of trust in that the offender had been invited into the victim’s home. It was submitted to the Court, as it has been to me, that a “breach of trust” only really occurs within familial relationships or where there has been an assumption of particular responsibility (as, for example, a teacher). However the Court in Tahiri held that the sentencing Judge was entitled to consider that, in inviting the offender into her house, the victim had extended an element of
trust which was subsequently abused.22 The Court was also satisfied that there was
no double counting in considering the vulnerability arising from the intoxication and
the breach of trust arising from the invitation to use the victim’s spare bed.23
[40] In this case, I agree with the Crown that there is a separately identifiable breach of trust. In her intoxicated condition MT trusted you to take her home safely. Instead, having ultimately separated MT from her cousin, you saw it as an opportunity to offend. However, I consider it to be a low level breach of trust when compared with the more typical fact situations referred to by Mr Lance. I am also conscious of the fact that a mechanistic approach to aggravating factors is
inappropriate.
18 At [11] – [12].
19 At [12] citing R v Donaldson (1997) 14 CRNZ 537 (CA) at 544.
20 At [12].
21 At [15].
22 At [10].
[41] The other aggravating feature suggested by the Crown is premeditation. Again I place little to no weight on this factor. In offering a lift to MT’s cousin as well as MT I conclude that, at least at that stage, you had no intention of engaging in sexual activity with her in the car. Subsequently, you left the cousin at the petrol station but there was evidence of his becoming antisocial which I accept could have been the immediate reason for you doing so. I consider only at that stage did you decide to drive to the nearby car-park and take what you described in your second part of your police interview as the “opportunity” which MT’s unconsciousness
presented. Overall, I find your offending opportunistic rather than premeditated.24
[42] I accept, however, that the degree of harm suffered by MT is a relevant aggravating factor. To some extent the harm is, as I have said, implicit in the nature of the crime involving as it does a violation of the sanctity of a person’s body. In this case, however, the consequences appear to have been more than usually severe, probably on account of MT’s quite fragile psychiatric history. I certainly accept Mr Lance’s submission that not all of the issues which MT faces can be said to be your exclusive responsibility, in particular her battle with addiction, but probably also her battles with anxiety and depression.
[43] Looking at the case at a more generalised level the Crown places significant weight on the decision in Simpson v R to justify the significantly higher starting point it contends for.25 That was a decision in which the victim was also extremely intoxicated, to the point of unconsciousness, when the intercourse occurred. However, unlike the present case, it involved a significant level of premeditation as well as a home invasion. I am satisfied that the starting point in that case of nine
years six months imprisonment, which was upheld by the Court of Appeal, is significantly longer than would be appropriate on the facts of your offending.
[44] As recognised in Tahiri v R,26 the R v AM bands to some extent overlap. A sentence of between seven and eight years may be appropriately applied in each of Band 1 and Band 2 cases. In my view this is a Band 2 case, principally on account
of the vulnerability of MT but taking into account also the significant harm and
24 See Taylor v R [2012] NZCA 348 at [12] for a broadly equivalent case.
25 Simpson v R [2016] NZCA 95.
26 Tahiri v R above n 16.
modest breach of trust. However, as indicated, I consider it at the lower end of that band and most closely analogous to Tahiri itself where eight years was said to be at the top of the available range.
[45] I therefore adopt a starting point of seven years and six months imprisonment.
Factors personal to defendant
[46] The pre-sentence report does not encourage me to believe that you demonstrate any real insight into your offending. Indeed, you continue to maintain a high level of self-entitlement and/or belief that MT, and I use your phrase, “provoked you”. Remarkably, you do not even consider yourself to have been unfaithful to your wife. However, you have indicated a willingness to attend a treatment programme for adult sexual offenders which may assist you in coming to a more responsible assessment of your offending. I encourage you to take that opportunity.
[47] In the absence of any genuine remorse, I am limited, however, in terms of any discount which might be available, to your prior (essentially) clean record and good character. In this respect I have read the many references which your counsel has provided, including that received this morning from your sister Ms Kishor. You are clearly very well supported by your family and very well liked in your community. Clearly you have much to offer when you address the issues that underlie your offending.
[48] I allow a discount of four months or approximately 4.5 per cent to reflect your previous good character. As Mr Lance acknowledges, discounts for such factors are typically modest and I have probably erred on the side of generosity in allowing a discount at that level.
[49] You are also entitled to a discount in respect of restrictive terms of bail which have been imposed over the extended period before this matter ultimately came on for trial. For a period of 13 months you were subject to electronically monitored 24 hour bail. From July 2015 to the date of your conviction you were subject to a
curfew which was initially for 12 hours but which was subsequently modestly relaxed to accommodate your sporting commitments.
[50] In terms of ss 9(2)(h) and 3A(a) of the Sentencing Act 2002 such restrictive terms of bail are relevant considerations in terms of the final sentence I impose today.
[51] During the course of submissions and having considered the multiple cases Mr Lance referred me to, I suggested that in my assessment a 12 month deduction from Mr Chetty’s intended prison terms was appropriate to take into account these considerations. Both Mr Lance and Ms Murdoch agree that that is the appropriate discount in the circumstances. I therefore I allow it.
End sentence
[52] Mr Chetty would you now please stand.
[53] On the charge of unlawful sexual violation by rape I sentence you to six years and two months’ imprisonment.
[54] I am not persuaded that a minimum period of imprisonment is necessary properly to reflect the level of denunciation and deterrence required. Clearly you will be serving a relatively lengthy time in prison and your parole prospects will at least in some measure reflect the level of responsibility and accountability you assume for this offending.
[55] Thank you Mr Chetty you may now stand down.
Muir J
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