R v Christy
[2016] NZHC 2520
•21 October 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 WHANGAREI REGISTRY
CRI-2016-088-1216 [2016] NZHC 2520
THE QUEEN
v
HAYDEN TEONEROA CHRISTY
Hearing: 21 October 2016 Counsel:
N J Dore for the Crown
A B Fairley for DefendantJudgment:
21 October 2016
SENTENCING NOTES OF WHATA J
Solicitors: Crown Solicitors, Whangarei
R v CHRISTY [2016] NZHC 2520 [21 October 2016]
[1] Hayden Christy, please stand. You appear for sentence having pleaded guilty to one charge of wounding with intent to cause grievous bodily harm,1 one charge of threatening to kill,2 one charge of abduction for the purposes of sexual connection3 and four charges of sexual violation by unlawful sexual connection.4 It now falls to me to sentence you on each of the charges.
[2] My sentence will be in five key parts:
(a) First, I must re-tell the facts of the offending;
(b) Second, I will describe your personal circumstances; (c) Third, I will refer to the victim impact statements;
(d) Fourth, I will set out the reasons for the sentence I impose on you; and
(e) Fifth, I will deliver my sentence. [3] You may now sit until I ask you to stand.
Facts
[4] On the morning of 29 April 2016, the victim left her home address in the Riverside area and ran anti-clockwise around the Hatea Loop track. As you were driving into the William Fraser Memorial Park, you noticed the victim. After driving past the victim, you executed a U-turn and drove back past the victim, stopping your vehicle approximately 100 metres ahead of her. You then got out of your vehicle and waited at the front of your vehicle for the victim to run past you.
Wounding with Intent to Cause GBH – Charge 1
[5] As the victim ran past you, you ran up behind her and “rugby tackled” her off
the running track and down on to rocks which line the river bank.
1 Crimes Act 1961, s 188(1), this carries a maximum penalty of 14 years’ imprisonment.
2 Section 306, this carries a maximum penalty of seven years’ imprisonment.
3 Section 208(b), this carries a maximum penalty of 14 years’ imprisonment.
4 Section 128(1)(b), this carries a maximum penalty of 20 years’ imprisonment.
[6] You ended up on top of the victim and proceeded to punch her in the head and face numerous times. You also picked up a number of rocks that were nearby and used the rocks to hit her over the head.
[7] The injuries that resulted caused the victim to lose a significant amount of blood.
Threatening to Kill – Charge 2
[8] The victim attempted to fight back and screamed out thinking that someone would hear her. This resulted in you telling her that if she did not shut up you would stab her in the head and kill her.
Abduction for Purpose of Sexual Connection – Charge 3
[9] You then picked up another rock and raised it above the victim’s head, the
victim looked up and saw the rock and told you that she would go with you.
[10] You picked up the victim, carried her to your vehicle and put her in the passenger seat. You then drove her to your home address.
[11] During the vehicle ride you held the victim’s head down onto the centre
console of the vehicle so that she could not see where she was being driven to.
[12] When you reached the address you parked your vehicle in the garage and
placed your hands over the victim’s eyes and walked her into the address.
[13] Once inside the address you took her to a room which had a queen size mattress on the floor and a large television that was situated in the corner of the room. The television was turned on and pornography was playing.
Sexual Violation by Unlawful Sexual Connection – Charge 4
[14] You removed the victim’s clothes and lay down on the mattress next to her. You then inserted your fingers into her vagina and moved your fingers in and out of her vagina several times.
Sexual Violation by Unlawful Sexual Connection – Charge 5
[15] You then changed position and placed your head between the victim’s thighs, you then licked the victim on the side of her vagina for several minutes with your tongue.
[16] While licking the victim’s vagina you fondled her breasts. You stopped licking the victim’s vagina and began kissing and sucking both of her breasts.
[17] You then forced the victim to stroke your penis with her hand for two or three minutes as you lay on your side.
Sexual Violation by Unlawful Sexual Connection – Count 6
[18] You then asked the victim to suck your penis, however, she refused to do it. As the victim lay on her back, you straddled the victim and forced your penis into her mouth.
[19] You forced the victim to suck your penis for approximately two minutes before stopping and manoeuvring her onto her hands and knees.
Sexual Violation by Unlawful Sexual Connection – Charge 7
[20] While the victim was in this position you placed several of your fingers into the victim’s vagina, you then forcefully moved them in and out causing the victim severe pain.
[21] The victim then felt you trying to put your finger into her anus. The victim protested and you stopped.
[22] While you were sexually violating the victim, you told her that if she didn’t do as you said, you would “kill her” by stabbing her in the head.
[23] Sometime later you stopped sexually violating the victim and told her to put on her running top and tights. You then also got dressed.
[24] You then placed a pillow case over the victim’s head and began walking her through your house to your car, as you did you picked up a brick and struck the victim on the back of her head three times. This caused the victim to nearly lose consciousness and she fell to the ground. You then picked the victim up and put her back into the front passenger seat off your vehicle. You then drove a short distance to the intersection of Third Avenue and Kauika Road and left the victim there.
Personal circumstances
[25] Mr Christy, I turn now to examine your personal circumstances.
[26] You are a 40-year-old man of Kahungunu descent. Your partner of 17 years resides in Australia, along with your six children (three from a previous relationship). You were deported from Australia eight years ago and you last saw your children about two years ago. You have kept in contact with your partner, but you do not know what the effect of your offending will have on your relationship with her. You have the support of your New Zealand based family who consider that your use of violence is out of character and I note your mother has written a letter affirming her love and support for you
[27] In discussions with a probation officer you expressed shame and regret for your actions and you take responsibility for them. You also mentioned drug and alcohol consumption, including methamphetamine use, at the time of the offending. You indicated that you are willing to address your offending needs by any programme that is suitable.
[28] The probation officer identifies your substance abuse, separation from your family in Australia and sexual preoccupation as risk factors and assesses your risk of reoffending at medium.
[29] I have also had the benefit of two expert reports by Ms Huddleston, a clinical psychologist and Dr Staffan Heed, a consultant psychiatrist. I will come back to their reports later. For present purposes, I observe that Dr Heed identified your desire to be with your children, together with your age on release, as factors that will reduce the risk of reoffending. Your history of different crimes and longstanding
serious drug and alcohol abuse are seen as negative factors. Dr Heed recommends that you go through a drug rehabilitation course but does not recommend psychological treatment for sex offending due to the inconclusive science about the benefit of such treatment.
[30] Ms Huddleston observed that you have a close relationship with your whanau and you were deeply affected by the loss of your father in 2003. She says that you started drinking alcohol and smoking cannabis in your teenage years and that by 24 you were consuming methamphetamine. She observed that drugs and alcohol became a mechanism for dealing with leaving your family behind in Australia. She also describes your relationship with your partner, noting that it is not marked by violence.
[31] In terms of the present offending, you told Ms Huddleston that you accept culpability but that you cannot really remember what triggered it or what, in fact, happened but that you wished you could take it back and that you were remorseful. Ms Huddleston identifies triggers to the present offending, including binges on P and sexual preoccupation. Ms Huddleston observes that these influences fuelled the fire of a perfect storm of faulty thinking, hostility, anger and rage that you later directed towards an innocent victim.
[32] Ms Huddleston also provides a detailed risk assessment which I will address later. She observes that you need to undertake intensive specialist rehabilitative treatment designed to address your offence-related needs and to ultimately mitigate the potential risk of reoffending. She concludes that any changes to your risk and/or progress made towards addressing your offence-related needs will require reassessment following treatment and/or at different stages of your sentence.
Victim impact statements
[33] I now address the victim impact statements. I have victim impact statements from the victim, her mother, sister and father. I commence with the victim’s impact statement. I wish to say that this statement is the most eloquent, informative and balanced of its kind that I have read. It is devoid of exaggeration, which makes it all the more compelling as a narrative of the harm caused by you. It reveals an
intelligent young woman who is still struggling to come to terms with what occurred and who is trying as best she can to put her life on a normal footing. As to be expected, your offending has had a traumatic effect on her. She explained the physical, emotional and psychological harm caused by your offending.
[34] In addition to the violation of her personhood, what stands out is the radical effect that your offending has had, and continues to have, on her physically (including the form of brain trauma), emotionally (including fear of doing ordinary things like going for a walk) and financially (including the requirement to relocate and re-establish a life outside of Whangarei). The psychological distress has manifested itself in post-traumatic stress disorder and she lives with ongoing physical barriers such as headaches, dizziness, blurred vision, and neck muscle strains which have removed simple but important things from her life like physical exercise. Your offending has also had an effect on her professional life, because your attack on her has affected her ability to show empathy and to feel empathy.
[35] Overall, the victim’s impact statement has set out, in most compelling terms, that your offending has deeply and severely affected her and negatively transformed her life and that this impact is likely to be lifelong.
[36] The victim impact statements by the victim’s mother, father and sister express
deep hurt and anger they feel at the harm you have done.
The legal frame, principles and purposes of sentencing
[37] I am now going to describe the legal frame, principles and purposes that must guide sentencing.
[38] I have to take into account the purposes and principles of sentencing outlined in ss 7 and 8 of the Sentencing Act 2002. There is a need to denounce your offending and to hold you accountable for the harm that you have caused. The sentence I will impose is intended to promote a sense of responsibility in you for that harm. There must be deterrence, both against future offending by you and against others who might act similarly. I also have to consider the protection of the public, together with your rehabilitation.
[39] Mr Christy, the Crown has sought preventive detention which, if imposed, will mean that in addition to a minimum finite sentence, your release would depend on subsequent assessment of the risk you present to society. Given this, in sentencing you today, I am first going to decide what the law would require, in terms of a finite sentence if I were to decide that a finite sentence is appropriate. Once I have decided the applicable finite sentence, I will consider whether preventive detention is necessary.
Finite sentence
[40] Turning then to your finite sentence. The Crown submits that the lead offence for sentencing is the charge of sexual violation by unlawful sexual connection, being the penile penetration of the victim’s mouth. Your defence counsel agrees. I will commence setting a start point for your sentence on that basis. But as will soon become evident, your offending must be viewed as a whole.
Aggravating features of the offending
[41] There are six aggravating features of your offending, as stated by the Crown and partially acknowledged by your counsel:
(a) First, the offending involved actual or threatened violence and the detention of the victim.5 Both counsel agree that your violent acts were life threatening.
(i)You tackled the victim, forced her off the running track and down onto the rocks on the riverbank.
(ii)You punched the victim in the head and face numerous times and bludgeoned her to the head with a brick and a rock.
(iii)You threatened the victim that if she did not shut up you would stab her in the head and kill her.
5 R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [38]–[40]. Sentencing Act 2002, s 9(1)(a).
(iv)The victim was beaten and abducted from a public place and then driven to your home where you sexually violated by you.
(v)While you were sexually violating the victim, you threatened to kill her by stabbing her again.
(vi)After the sexual assault, you put a pillow case over the victim’s head and struck her on the back of the head with a brick three times.
(b)Second, the extent of the harm resulting from the offence was significant.6 While all offending of this kind involves harm, as the victim’s eloquent impact statement explained, the combination of your actions was terrifying, and their impact lifelong, resulting in, among other things, ongoing emotional trauma, brain injury and related cognitive impairment due to the attack to her head.
(c) Third, your victim was a vulnerable young woman.7 She was out running in a public walking track in the early morning when she was attacked. You are a mature male. Her vulnerability to your attack would have been obvious to you.
(d)Fourth, the attack was premeditated.8 You had driven your van to the section of the running track which was out of direct sight of the main road. You waited for the victim to run past. You had been watching pornography before abducting the victim and this was playing on the TV in the room when you sexually assaulted the victim. However, I accept your counsel’s submissions that there is no evidence of long
term planning.
6 R v AM, above n 5, at [44]. Sentencing Act 2002, s 9(1)(d).
7 R v AM, above n 5, at [42]. Sentencing Act 2002, s 9(1)(g).
8 R v AM, above n 5, at [37]. Sentencing Act 2002, s 9(1)(i).
(e) Fifth, the severity and scale of the offending was high.9 The sexual violations occurred over approximately half-an-hour and involved four separate violations, abduction and various acts of serious violence.
(f) Sixth, the offending involved a high degree of violation.10 You forced your penis into the victim’s mouth. There were other serious acts of similar violation which also form the immediate context of this offending.
Mitigating features of the offending
[42] There are no mitigating features in terms of the offending.
Start point
[43] The Court of Appeal in R v AM11 sets out four sentencing bands for sexual violation offending, with Band 4 dealing with the worst offending of its kind.12 Both Counsel agree that your offending is Band 3 offending, which triggers a starting point between 12 and 18 years. They disagree about where your offending stands in
that Band.
[44] In my view, your offending occupies the third quartile of Band 3 of AM, given the aggravating features just mentioned. It involved a brazen, violent daylight abduction in a public place where persons of all ages might expect to be safe. You were prepared to attack the head with a weapon to subdue the victim, which, by itself, would attract a significant term of imprisonment.13 There were threats to kill and multiple incidents of physical and sexual violence. It caused great harm to the victim physically, psychologically and emotionally. It was and is shocking to the
conscience of this community.
9 R v AM, above n 5, at [47]
10 At [52].
11 Above n 5.
12 At [90].
13 Placing it in the high end of Band 2 of R v Taueki [2005] 3 NZLR 372 (CA) at [31].
[45] Two decisions have been referred to by Counsel to assist me with fixing a starting point for your sentence, R v Goundar14 and R v Davis.15 I will not traverse the detail of them today except to say that Goundar involved abduction and multiple rapes by two men of a young girl aged 15 and Davis involved, among other things, rape and other sexual offending over a four hour period. A knife was used in Davis to cause an injury to the chin of the victim, but the level of physical violence in that
case was less than that present with your offending. Starting points of 16 years and
15 years were adopted in Gounder and a starting point of 15 years was adopted in
Davis.
[46] A further case is worth noting. In R v Smyth,16 a 17 year old girl was abducted and raped. She was subject to violent vaginal and anal penetration over several hours. Mr Smyth was sentenced to 13 years imprisonment, based on a starting point of 17 years. While the sexual violence was more serious, the non-sexual physical violence in your case was more severe.
[47] In my view, your offending broadly sits within the frame of the offending in Gounder, Davis and Smyth in terms of its severity and gravity overall, when all aggravating features are considered. I therefore consider that a starting point of 15 years and six months should be adopted. For that purpose, I have included the totality of your offending, as the lead offending was all part of a series of related violent acts.
Aggravating features of the offender
[48] I turn to your personal aggravating features. You have a number of previous convictions both in New Zealand and Australia for violence related offending, revealing a propensity for violence. That propensity must be denounced. A further
uplift of six months is warranted.
14 R v Goundar [2013] NZHC 1097, upheld on appeal in Goundar v R [2014] NZCA 303.
15 R v Davis HC Christchurch CRI-2010-009-10257, 4 May 2011.
16 R v Smyth [2013] NZHC 2043.
Mitigating factors
[49] Mr Christy you pleaded guilty at the first available opportunity. While it appears the case against you was very strong, you did not put the victim through the added trauma of trial. I also accept that you are genuinely remorseful for your actions. This offsets the Crown submission that conviction was inevitable. You are entitled to a 25 per cent discount on the start point.
[50] Accordingly, were I to impose a finite sentence, it would comprise a starting point of 16 years, less a 25 per cent discount for guilty plea, resulting in a sentence of 12 years’ imprisonment.
[51] I must now consider whether a minimum period of imprisonment should be imposed.
Minimum period of imprisonment
[52] In terms of a minimum term, s 86 of the Sentencing Act provides that I may impose a minimum period if I am satisfied that it is necessary to achieve any of the following purposes:
(a) Holding you accountable for the harm done; (b) Denouncing your conduct;
(c) Deterring you from committing the same or a similar offence; and
(d) Protecting the community from you.
[53] I am in no doubt that all of these purposes demand a minimum sentence of eight years for the present offending (as was the case in Smyth). It was predatory, a gross violation of the sanctity of the victim and repugnant to the community. It must be strongly denounced and others must be strongly deterred from repeating it. A lengthy period of incarceration is also necessary to hold you accountable and to protect the community.
Preventive detention
[54] I must now consider whether I should impose a sentence of preventive detention. You qualify for a sentence of preventive detention because of your sexual violation, wounding with intent to cause grievous bodily harm and the abduction offending.17
[55] You may be sentenced to preventive detention if I am satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at the sentence expiry date of the finite sentence I would impose.18 To assist me with this assessment I have the two reports from Dr Heed and Ms Huddleston19 and I
must take into account a number of factors.20
[56] The first factor is whether there is a pattern of serious offending by you. You have the following violence related convictions:
(a) 1998 – Intentionally cause injury; (b) 1998 - Armed robbery;
(c) 2006 - Assault with intent;
(d) 2008 – Common law assault; and
(e) 2016 – the present offending.
[57] You also have a number of convictions for minor, non-violent offending.
[58] Ms Huddleston referred to a “pattern of previous violent offending in Australia” and Dr Heed noted that you committed a number of serious offences, including in Australia, spanning a number of years. There is some suggestion and
evidence that drug and alcohol abuse may be a common element to your violence.
17 Sentencing Act 2002, s 87(5).
18 Section 87(2)(c).
19 Section 88.
20 Section 87(4). See also Kumar v R [2015] NZCA 460.
Nevertheless, while you have a propensity for serious physical violence, the most recent violent sexual offending is markedly more severe and different from that previous offending. It is difficult to discern whether the present offending forms part of a pattern or is, in fact, an aberration. I consider, therefore, that your conviction history does not reveal a clear pattern of serious offending, in terms of timing, common features, frequency and the severity.
[59] The second factor is the seriousness of the harm to the community caused by the offending. There is no dispute that the harm caused to the victim and to the community by your most recent offending is very serious. I am unable to discern from the available information the level of harm caused by your offending in Australia. But aggravated robbery and assault with intent to injure suggest that the offending, at the very least, had the potential to cause significant harm.
[60] The next factor is information indicating a tendency to commit serious offences in future. Ms Huddleston observed that actuarial measures indicate that you present a moderate to high risk of sexual re-offending and that you will need significant and lengthy treatment to address these risk factors. She also said that when assessed to take into account your overall picture of future sexual and violence risk, it is apparent that there is a significant risk of future offending. Dr Heed expressed doubt about whether an assessment of future risk can be undertaken in a scientifically robust way. He identified positive factors, including your determination to be a better father for your children, reduced risk associated with your age on release, a reasonable employment history and a lack of mental disorder. Long history of different crimes and your longstanding serious drug (inclusive alcohol) abuse were noted as negative factors.
[61] Given the nature of your offending, the evidence of your propensity for violent behaviour, the actuarial assessment and the positive and negative factors identified by the experts, I am satisfied that the available information suggests a moderate to high tendency to commit serious offending in the future.
[62] The fourth factor is the absence of or failure of efforts by you to address the cause of your offending. There is no evidence that you have taken steps to address
your violent offending, but you have indicated willingness to undertake treatment for violence and drug and alcohol addiction. As you have not previously been convicted of sexual offending, you have not attended treatment for it.
[63] The final mandatory is factor is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[64] I have come to the view, in light of the above considerations, that the present offending represents a significant escalation of your violent tendencies, but overall a strong pattern or propensity for extreme sexual violent offending is not revealed. Furthermore, while Dr Staffan expressed doubt about the effectiveness of treatment programmes for sexual offending, Ms Huddleston expressed some confidence in rehabilitative treatment. Furthermore, the positive factors identified by Dr Heed, together with your genuine expressions of remorse and familial support, support a conclusion that we have not reached a point where the principle favouring a determinate sentence is displaced. While offending of this kind quite rightly is described as terrifying and demands a cautious approach, a very lengthy minimum sentence, together with post release controls, should be sufficient to mitigate the risk presented by you.
Other sentences
[65] For completeness I will also fix sentences on the other charges, all of which are to be served concurrently with the lead sentence. I have been assisted in setting the sentences by comparable authority, which I will include in a footnote.21
Sentence
[66] Mr Christy, please stand.
21 R v Goundar, above n 14; R v Davis, above n 15; R v Ecclestone [2015] NZHC 2054; R v Goodwin HC Hamilton CRI-2004-019-9442, 17 February 2006; R v Muncaster HC Wellington CRI-2010-024-1057, 20 May 2011 and R v Smyth, above n 16, for the other sexual offending, threatening to kill and abduction for sex charges. For the wounding charge I have been assisted by Taueki v R, above n 13 and Campbell v R [2015] NZCA 452.
[67] On the lead charge of sexual violation by unlawful sexual connection, being the penile penetration of the victim’s mouth (charge six), you are sentenced to 12 years’ imprisonment with a minimum non-parole period of eight years.
[68] On each of the remaining three charges of sexual violation by unlawful sexual connection, you are sentenced concurrently to ten years’ imprisonment.
[69] On the charge of wounding with intent to cause grievous bodily harm, you
are sentenced concurrently to eight years’ imprisonment.
[70] On the charge of threatening to kill, you are sentenced concurrently to four
years’ imprisonment.
[71] On the charge of abduction for the purposes of sexual connection, you are
sentenced concurrently to four years’ imprisonment.
Three strikes warning
[72] Mr Christy, I am now also required to give you a first strike warning. A copy of what I am about to say will be made available to you later. Your conviction today constitutes a Stage 1 Offence for the purposes of s 86B of the Sentencing Act 2002. From this point if you commit another serious violence offence except murder, you will receive a final warning. Furthermore, if you receive a sentence of imprisonment for that offence other than a sentence of life imprisonment for manslaughter or preventive detention generally, you will serve that sentence without parole. If you are convicted of murder you will be sentenced to life imprisonment, which you will have to serve without parole unless that would be manifestly unjust. If serving that sentence would be manifestly unjust, the Judge must specify what minimum period of imprisonment you would serve. I reiterate that this warning will be provided to you later in writing. If you have any questions, you should approach your counsel.
[73] Mr Christy, please stand down.
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