R v Faatafa HC Auckland CRI 2009-004-8563

[2010] NZHC 1073

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-004-008563

THE QUEEN

v

AUKUSITINO FAATAFA

Hearing:         25 June 2010

Appearances: JCL Dixon and Y Clarisse for the Crown

M F Tuilotolava for Mr Faatafa

Judgment:      25 June 2010

SENTENCE OF WOODHOUSE J

Solicitors:

Mr JCL Dixon, Meredith Connell, Office of the Crown Solicitor, Auckland

Mrs M F Tuilotolava, Ferguson Tuilotolava, Solicitors, Manukau City

R V FAATAFA HC AK CRI 2009-004-008563  25 June 2010

[1]      Mr Faatafa, you may remain seated while I explain the sentence I am going to impose.   I need to state things that you already know.   This is because I need to explain the sentence I am going to impose not only to you but to other people who do not know what you did.

[2]      On 1 June 2010 you were found guilty by a jury on four charges.  The crimes you committed, all against a 13 year old girl, are rape, unlawful sexual connection, detaining her without her consent with intent to have sexual connection, and administering cannabis to her.

[3]      The maximum penalty for rape and for unlawful sexual connection is 20 years imprisonment.  The Crimes Act states that I must imprison you unless, having regard to specified matters, the sentence should not be imprisonment.  There are no circumstances of that nature and you are now well aware that there will be a sentence of imprisonment.

[4]      The maximum penalty for the unlawful detention is 14 years imprisonment. And that in itself, Mr Faatafa, is a lengthy period of imprisonment indicating the seriousness of that offence.   The maximum penalty for the cannabis offence is 8 years imprisonment.

Facts

[5]      I will describe the facts in barest outline.

[6]      These  offences,  which  are  part  of  one  sequence  of  events,  occurred  on Sunday, 12 April 2009.  Your victim was, as I have said, a young girl.  Around 9:30 a.m. she was walking home from the Pt Chevalier shops in Auckland.  You went up to her, uninvited, engaged her in conversation and then refused to leave her alone in spite of her reluctance.   And I should say that what I am now describing are the conclusions that I drew from the evidence that I, of course, heard together with the jury.  In saying these things I take account, of course, of the submissions that have been made on your behalf about the facts.

[7]      I just repeat.  You went up to her, uninvited, engaged her in conversation and then refused to leave her alone in spite of her reluctance.  Even at that point your behaviour was unacceptable.  You were then aged 35 and, in spite of what you said in evidence, you must have known that she was a young girl, whatever her precise age was.  Other witnesses who did not know her and saw her only briefly were able to estimate her age at around her actual age.   In saying that I acknowledge the submission Mrs Tuilotolava made that there is a risk that those witnesses might have used hindsight.   I have taken that into account.  My conclusion is that you should have been aware that she was a young girl.

[8]      Having accosted her, you then followed her for almost a kilometre, I think it was, down a walkway and onto Great North Road.  You intimidated her to prevent her from going home, which is what she was trying to do.   The fact of your intimidation was made quite clear by the independent witnesses.   It went to the extent of making her feel she had no option but to wait for you when you went into a petrol station to buy a pie and some drink.   While she was waiting she asked a stranger for help.  She should have got it but she didn’t get it.

[9]      You came out of the petrol station and walked her along Great North Road, away from her home, and then down a bank into some bushes at a reserve.  You got her to sit down.  When she attempted to leave you prevented her.  You then took her further into the bushes.   You lit a cannabis cigarette and forced her to smoke approximately half of it, holding her head to do this.  The jury plainly accepted that you forced her to take cannabis.  You then demanded that she lie down and remove her underpants.  She began to cry and said no.  You then removed her underpants, and then licked her breasts and then her genital area.  You then removed your pants and underwear and you raped her.  During the rape she made attempts to get up and continually cried.  This ended in her screaming out.  Your response was to put your hand over her mouth to silence her.  When she managed to push your hand away you put your elbow across her throat and applied pressure.

[10]     After you had finished raping her you allowed her to get dressed and then you walked with her towards her home, telling her not to tell anyone what had happened.

Victim impact statements

[11]     I have received and read a statement from your victim and from her father. You caused serious harm to this young girl, not only by your physical violation of her but also because of the emotional and mental effects on her.   Emotional and mental effects can last for a long time.   It is fortunate that this young girl is now receiving therapy.

[12]     In your evidence you talked about your family.  Think about the reaction of a father whose daughter has been raped.

Your personal circumstances

[13]     I come to your personal circumstances.

[14]     You were born in Samoa and lived there until you were 27 years old.  You are the second youngest of eight children.  It appears, and I accept, that you are a member of a close family.  You came to New Zealand in 2001.  You met your wife shortly after your arrival and married in 2002.   Your wife says she struggles to understand how this offending occurred.  She describes you as, and I quote, “a good man with a caring nature who loves his parents and family”.   She said that while acknowledging there have been ups and downs in the marriage, and some of those were mentioned in the trial.

[15]     Your biggest problem in the past appears clearly to have been alcohol, on the basis of all of the information available to me.  Your wife mentions your drinking.  It is reasonably clear that the night before you committed these crimes, and in the early hours of Sunday morning, you drank quite a lot of alcohol.  This, and a consensual sexual encounter earlier that morning, may have contributed in some way to what you did, but it does not remotely excuse what you did.  There is reference in the pre- sentence report to the possibility that you may also have been affected by anger arising from a family dispute the day before.  This again does not excuse what you did and might very well be a reason for added concern.

[16]     You have two previous convictions for driving a car with excess alcohol and another driving offence.  These support the suggestions of an alcohol problem, but otherwise I leave the convictions completely to one side.

Starting point

[17]     I need to fix a starting point for your sentence.  This will be fixed in relation to the most serious crime, which is the rape.   It is an assessment based on the seriousness of the offence itself, before taking account of the other offences and then taking  account  of  any  personal  factors  which  might  increase  or  decrease  the sentence.  The starting point is to be fixed having regard to the relevant provisions of the Sentencing Act and a Court of Appeal case called R v AM.[1]    This recent case provides guidelines for sentencing for sexual violation.

[1] [2010] NZCA 114.

[18]     Mr Dixon, for the Crown, has submitted that your rape offence comes within what is called band 2 of that case.  The Court of Appeal says that the starting point in band 2 is between 7 years and 13 years imprisonment.  Mr Dixon submitted that in your case, within that band, the starting point should be in the range of 8 to 11 years imprisonment.  That includes taking account of all of the offending.

[19]     Mrs Tuilotolava on your behalf submitted that your offending comes within band 1 with a range of 6 to 8 years imprisonment and that the final sentence should be 6 to 7 years imprisonment.

[20]     As I have already indicated in discussions with counsel I consider that your offending comes within the lower end of band 2 and that is 7 to 10 years imprisonment.  I emphasise that I am talking about the starting point.  The factors that lead me to that conclusion, in addition to the relevant provisions of the Sentencing Act, and the factors that are inherent in any rape, are the following:

a)        Firstly, the Court of Appeal makes clear that band 1, with a range of 6 to 8 years imprisonment, is not appropriate in this case because of the

young age of your victim and the disparity in your ages – the marked difference between her age and your age.

b)Related to this – and a lot of these things cannot be put into pigeon holes – is that your victim was vulnerable.   You took advantage of somebody who, because of her age and her personality, was easily taken advantage of.  I am here referring only to things which would have been or should have been obvious to you at the time.

c)       Further, your behaviour can be described as predatory.   Associated with this was a degree of intimidation over a reasonable distance and for a reasonable period of time sufficient for you to keep her under your effective control.

d)There was the use of some force but nothing really beyond what is inherent in any rape.   And I note that to set it to one side as an additional aggravating feature.  The rape did cause her some pain.  I accept her evidence on that.   I have heard submissions about the extent and the nature of penetration.  I accept that there was no violent penetration of her, but what you did caused her pain.

e)       You forced her to smoke cannabis.  I consider this is an aggravating feature of the rape, quite apart from the fact that it is a separate offence, because it was done to facilitate the rape.  The effects of the cannabis are not clear.  But I do not consider that that is a particularly relevant consideration.  To the extent that it is, you get the benefit of the doubt.

[21]     Taking account of all of those matters I consider that the starting point for the rape offence should be 7 years imprisonment.  That effectively takes account also of the other sexual offence.

[22]     I further consider that that period of imprisonment should be increased to 8 years to take account of the other offences of abduction and administering cannabis

and notwithstanding the fact that I have had regard to the cannabis in relation to the rape.  I will impose separate sentences for the other offences, but I do not intend to impose cumulative sentences.

[23]     I do not consider that there are any features of the offences themselves which would warrant a reduction of that starting point increased to 8 years.

Personal circumstances

[24]     I come to your personal circumstances.

[25]     Apart from your problems with alcohol, which include the driving offences, it does appear that you have led a reasonably good life up to the time of these offences. There are obviously strong family bonds which you have contributed to in a positive way, both in and to your original family – and that includes continuing support to them in Samoan – and in your married family.   There is a limit to the amount of credit I can give you in relation to these matters, and similar matters dealt with in the Sentencing Act which are in your favour, but I do consider that you are entitled to some credit.  The Court of Appeal in the case of R v AM emphasises the need to take these things into account.

[26]     The other thing and an important consideration is that what you did at the age of 35 does appear in my judgment to be totally out of character, and even allowing for the alcohol offences.

[27]     Taking those matters into account Mr Faatafa, the sentence I will impose is 6 years 9 months imprisonment for the rape.

[28]     There is a question as to whether I should impose a minimum period of imprisonment.  The Crown has not submitted that I should.  And I do not intend to do so.  I do not consider in your case that it is required.

Formal sentence

[29]     You should now stand.

[30]     For the offence of rape you are sentenced to imprisonment for 6 years and 9 months.

[31]     For the offence of sexual violation by unlawful sexual connection you are sentenced to 3 years imprisonment.

[32]     For the offence of abduction under s 208 of the Crimes Act you are sentenced to 3 years imprisonment.

[33]     For the Misuse of Drugs Act offence you are sentenced to imprisonment for 1 year.

[34]     These sentences are concurrent.  That means they are to be served together so that the total effective sentence is 6 years and 9 months imprisonment.

[35]     Stand down.

Peter Woodhouse J